8-K
Cantor Equity Partners II, Inc. (CEPT)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 30, 2025 (October 27, 2025)
CANTOR
EQUITY PARTNERS II, INC.
(Exact name of registrant as specified in its charter)
| Cayman Islands | 001-42630 | 98-1576521 |
|---|---|---|
| (State or other jurisdiction<br><br> of incorporation) | (Commission File Number) | (IRS Employer<br><br> Identification No.) |
110East 59th Street
NewYork, NY 10022
(Address of principal executive offices, including zip code)
Registrant’s
telephone number, including area code: (212) 938-5000
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:
| ☒ | Written communications pursuant to Rule 425 under the<br> Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant to Rule 14a-12 under the<br> Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b)<br> under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c)<br> 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 |
|---|---|---|
| Class A ordinary shares,<br> par value $0.0001 per share | CEPT | The<br> Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item1.01. Entry into a Material Definitive Agreement.
Business Combination Agreement
On October 27, 2025, Cantor Equity Partners II, Inc., a Cayman Islands exempted company (“CEPT”), Securitize, Inc., a Delaware corporation (“Securitize”), Securitize Holdings, Inc., a Delaware corporation (“Pubco”), Pinecrest Merger Sub, a Cayman Islands exempted company and wholly owned subsidiary of Pubco (“CEPT Merger Sub”), and Senna Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of CEPT (“Securitize Merger Sub”), entered into a Business Combination Agreement (the “Business Combination Agreement”). Capitalized terms used in this Current Report on Form 8-K (this “Report”) but not otherwise defined herein have the meanings given to them in the Business Combination Agreement.
Pursuant to the Business Combination Agreement, and subject to the terms and conditions set forth therein, upon the consummation of the transactions contemplated thereby (the “Closing” and the date of the Closing, the “Closing Date”), the CEPT Merger and the Securitize Merger (as each such term is defined below) will be effectuated. The CEPT Merger and the Securitize Merger are collectively referred to as the “Mergers” and the Mergers, together with the other transactions contemplated by the Business Combination Agreement, the Subscription Agreements (as defined below) and the other ancillary documents thereto are collectively referred to as the “Transactions”.
On the Closing Date, CEPT will merge with and into CEPT Merger Sub (the “CEPT Merger”), with CEPT Merger Sub continuing as the surviving entity, in connection with which (i) immediately prior to the effective time, each issued and outstanding Class B ordinary share, par value $0.0001 per share, of CEPT (“CEPT Class B Ordinary Shares”), other than the Surrendered CEPT Shares (as defined below), will automatically convert into one Class A ordinary share, par value $0.0001 per share, of CEPT (the “CEPT Class A Ordinary Shares” and, together with the CEPT Class B Ordinary Shares, the “CEPT Ordinary Shares”), and (ii) at the effective time, the holders of CEPT Class A Ordinary Shares (other than the holders who validly redeemed their CEPT Class A Ordinary (the “Redeemed CEPT Shares”) in accordance with CEPT’s amended and restated memorandum and articles of association (the “CEPT Memorandum and Articles”) and CEPT’s final prospectus for its initial public offering dated as of May 1, 2025 and filed by CEPT with the SEC on May 2, 2025 (the “IPO Prospectus”) will receive one share of Pubco common stock, par value $0.0001 per share (“Pubco Common Stock”), for each CEPT Class A Ordinary Share held by such CEPT shareholder. The Redeemed CEPT Shares will be cancelled and after such cancellation will cease to have any rights except for the right to be paid a pro rata share of the trust account balance in accordance with the CEPT Memorandum and Articles and IPO Prospectus.
At least two (2) hours after the CEPT Merger, Securitize Merger Sub will merge with and into Securitize, with Securitize continuing as the surviving entity (the “Securitize Merger”), in connection with which (i) immediately prior to the effective time, each issued and outstanding share of Securitize preferred stock, par value $0.0001 per share (the “Securitize Preferred Stock”) will be automatically converted into one share of common stock of Securitize, par value $0.0001 per share (“Securitize Common Stock”), and (ii) at the effective time, the holders of Securitize Common Stock (the “Securitize Stockholders”) will receive a number of shares of Pubco Common Stock equal to the Per Share Company Merger Consideration.
The “Per Share Company Merger Consideration” is, for each share of Securitize Common Stock being converted into shares of Pubco Common Stock in the Securitize Merger, such number of shares of Pubco Common Stock equal to (a) (i) the Equity Value of Securitize (which is $1.25 billion, subject to adjustments calculated in accordance with the Business Combination Agreement), divided by (b) the Fully-Diluted Company Shares (calculated in accordance with the Business Combination Agreement), divided by (iii) $10.00, and (b) the right to receive the relevant portion of 6,250,000 shares of Pubco Common Stock (the “Securitize Earn-Out Shares”), if any, attributable to such shares.
The Securitize Earn-Out Shares will be issued to Securitize Stockholders if, at any time during the five (5) year period following the Closing Date (the “Earn-Out Period”), the volume-weighted average price (the “VWAP”) of Pubco Common Stock exceeds certain price thresholds as described below: (i) one-third of the Securitize Earn-Out Shares will be issued if the VWAP of Pubco Common Stock exceeds $15.00 for 20 out of any 30 trading days beginning 90 days after Closing, (ii) one-third of the Securitize Earn-Out Shares will be issued if the VWAP of Pubco Common Stock exceeds $20.00 for 20 out of any 30 trading days beginning 90 days after Closing, and (iii) one-third of the Securitize Earn-Out Shares will be issued if the VWAP of Pubco Common Stock exceeds $25.00 for 20 out of any 30 trading days beginning 90 days after Closing.
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As a result of the Mergers and the other transactions contemplated by the Business Combination Agreement (the “Business Combination”), CEPT Merger Sub and Securitize will become wholly-owned subsidiaries of Pubco and Pubco will become a publicly traded company, all upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with applicable law.
Representationsand Warranties
The Business Combination Agreement contains customary representations and warranties of the parties, which shall not survive the Closing. Many of the representations and warranties are qualified by materiality or Material Adverse Effect. “Material Adverse Effect” as used in the Business Combination Agreement means with respect to any specified person, any fact, development, change, circumstance, occurrence or effect that has had, or would be reasonably be expected to have, individually or in the aggregate, a material adverse effect on (i) the business, assets, liabilities, results of operations or financial condition of such person and its subsidiaries, taken as a whole, or (ii) the ability of such person or any of its subsidiaries to consummate the Transactions or to perform its obligations under the Business Combination Agreement or any ancillary agreements to which it is a party, in each case subject to certain customary exceptions. Certain of the representations are subject to specified exceptions and qualifications contained in the Business Combination Agreement or in information provided pursuant to certain disclosure schedules to the Business Combination Agreement.
Covenants
The Business Combination Agreement also contains pre-closing covenants of the parties, including obligations of the parties to operate their respective businesses in the ordinary course consistent with past practice, and to refrain from taking certain specified actions without the prior written consent of certain other parties, in each case, subject to certain exceptions and qualifications. Additionally, the parties have agreed not to solicit, negotiate or enter into competing transactions, as further provided in the Business Combination Agreement. The covenants do not survive the Closing (other than those that are to be performed after the Closing).
The Business Combination Agreement also contains obligations of certain of the parties to use their commercially reasonable efforts to consummate the Transactions, including the PIPE Investment (as defined below). In addition, CEPT, Pubco and Securitize agreed, as promptly as practicable after the execution of the Business Combination Agreement, to prepare, and Pubco agreed to file with the U.S. Securities and Exchange Commission (the “SEC”), a registration statement on Form S-4 (as amended or supplemented from time to time, the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”) of the issuance of Pubco Common Stock to certain CEPT shareholders, and containing a proxy statement/prospectus for the purpose of CEPT soliciting proxies from the CEPT shareholders to approve (the “CEPT Shareholder Approval”), at an extraordinary general meeting of CEPT shareholders (the “CEPT Shareholder Meeting”), the Business Combination Agreement, the Transactions and related matters (the “CEPT Shareholder Approval Matters”) and providing CEPT shareholders holding CEPT Class A Ordinary Shares an opportunity, in accordance with the CEPT Memorandum and Articles and IPO Prospectus, to have such shares redeemed.
The parties agreed to take all necessary action so that effective as of the Closing, the board of directors of Pubco will consist of such members to be designated by Securitize.
Conditionsto the Parties’ Obligations to Consummate the Merger
Under the Business Combination Agreement, the obligations of the parties to consummate (or cause to be consummated) the Transactions are subject to a number of customary conditions for special purpose acquisition companies, including, among others, the following: (i) the receipt of the CEPT Shareholder Approval; (ii) the consummation of the Transactions not being prohibited by applicable law; (iii) effectiveness of the Registration Statement; and (iv) the shares of Pubco Common Stock having been approved for listing on Nasdaq, the New York Stock Exchange or another national stock exchange.
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The obligations of CEPT to consummate (or cause to be consummated) the Transactions are also subject to, among other things (i) the representations and warranties of Pubco and Securitize being true and correct, subject to the applicable materiality standards contained in the Business Combination Agreement, (ii) material compliance by Pubco, Securitize and CEPT Merger Sub with their respective pre-closing covenants, (iii) the receipt of duly executed Lock-Up Agreements (as defined below) from the number of Securitize Stockholders required to approve the Transactions and (iv) no occurrence of a Material Adverse Effect with respect to Securitize and its subsidiaries, taken as a whole.
The obligations of Pubco and Securitize to consummate (and cause to be consummated) the Transactions are also subject to, among other things: (i) the representations and warranties of CEPT being true and correct, subject to the applicable materiality standards contained in the Business Combination Agreement, (ii) material compliance by CEPT with its applicable pre-closing covenants, (iii) the gross proceeds from the PIPE Investment (including shares deemed to have been purchased in accordance with the terms of the PIPE Subscription Agreements) being no less than $100.0 million and (iv) no occurrence of a Material Adverse Effect with respect to CEPT.
TerminationRights
The Business Combination Agreement contains certain termination rights, including, among others, the following: (i) upon the mutual written consent of CEPT and Securitize, (ii) by CEPT or Securitize if a Governmental Authority shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transactions, (iii) by Securitize if there has been a Modification in Recommendation, (iv) by either CEPT or Securitize if the CEPT Shareholder Meeting is held and CEPT Shareholder Approval is not received, (v) by CEPT if the consent of Securitize Stockholders to the Transactions is terminated, rendered invalid or is no longer in effect, (vi) by CEPT in connection with a material breach of a representation, warranty, covenant or other agreement by Pubco or Securitize, if the breach would result in the failure of the related condition to Closing, (vii) by Securitize in connection with a material breach of a representation, warranty, covenant or other agreement by CEPT, if the breach would result in the failure of the related condition to Closing, or (viii) by either CEPT or Securitize if the Closing has not occurred on or before the nine month anniversary of the date of the Business Combination Agreement (as such date may be extended in accordance with the Business Combination Agreement).
None of the parties to the Business Combination Agreement is required to pay a termination fee or reimburse any other party for its expenses as a result of a termination of the Business Combination Agreement. However, each party will remain liable for willful breaches of the Business Combination Agreement or for Fraud Claims prior to termination.
TrustAccount Waiver
Each of Securitize, Pubco and CEPT Merger Sub agreed that it and its respective affiliates will not have any right, title, interest or claim of any kind in or to any monies in CEPT’s trust account held for its public shareholders, and agreed not to, and waived any right to, make any claim against the trust account (including any distributions therefrom).
TheBusiness Combination Agreement is filed as Exhibit 2.1 to this Current Report on Form 8-K and the foregoing description thereof is qualifiedin its entirety by reference to the full text of the Business Combination Agreement and the terms of which are incorporated by referenceherein. The filing of the Business Combination Agreement herewith provides investors with information regarding its terms and is notintended to provide any other factual information about the parties. In particular, the assertions embodied in the representations andwarranties contained in the Business Combination Agreement were made as of the execution date of the Business Combination Agreement onlyand are qualified by information in confidential disclosure schedules provided by the parties to each other in connection with the signingof the Business Combination Agreement. These disclosure schedules contain information that modifies, qualifies, and creates exceptionsto the representations and warranties set forth in the Business Combination Agreement. Moreover, certain representations, warrantiesand covenants in the Business Combination Agreement may have been used for the purpose of allocating risk between the parties ratherthan establishing matters of fact. Accordingly, you should not rely on the representations, warranties and covenants in the BusinessCombination Agreement as characterizations of the actual statements of fact about the parties.
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ShareholderSupport Agreement
Contemporaneously with the execution of the Merger Agreement, CEPT, PubCo, Securitize and certain Securitize Stockholders entered into a Shareholder Support Agreement (the “Shareholder Support Agreement”), pursuant to which, among other things, the Securitize Stockholders party to the Shareholder Support Agreement agreed (i) not to transfer their Securitize shares, and to vote their Securitize shares in favor of the Business Combination Agreement and the Transactions (including by execution of a written consent), (ii) not to facilitate any Company Acquisition Proposal, (iii) to terminate certain shareholders agreements with Securitize (with certain exceptions), effective immediately prior to Closing, and (iv) to release the Sponsor, CEPT, Securitize, and their subsidiaries from pre-Closing claims, subject to customary exceptions.
The Shareholder Support Agreement will terminate and (except as contemplated therein), be of no further force or effect upon the earlier of the Closing and termination of the Business Combination Agreement pursuant to its terms. Upon such termination of the Shareholder Support Agreement, except as contemplated therein, the obligations of the parties under the Shareholder Support Agreement will terminate; provided, however, that such termination will not relieve any party thereto from liability arising in respect of any breach of the Shareholder Support Agreement prior to such termination.
TheShareholder Support Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K, and the foregoing description thereof is qualifiedin its entirety by reference to the full text of the Shareholder Support Agreement.
SponsorSupport Agreement
Contemporaneously with the execution of the Business Combination Agreement, CEPT, Cantor EP Holdings II, LLC, a Delaware limited liability company (the “Sponsor”), Pubco and Securitize entered into a Sponsor Support Agreement (the “Sponsor Support Agreement”), pursuant to which, among other things, the Sponsor agreed (i) to vote its CEPT Ordinary Shares in favor of the Business Combination Agreement and the Transactions and each of the CEPT Shareholder Approval Matters, (ii) vote its CEPT Ordinary Shares against (a) any Acquisition Proposal, (b) any merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by CEPT (other than the Transactions), (c) any change in the business of CEPT, and (d) any proposal, action or agreement involving CEPT that would or would reasonably be expected to jeopardize the Transactions, (iii) to comply with the restrictions imposed by the letter agreement, dated as of May 2, 2025, by and among CEPT, the Sponsor and the other parties thereto (the “Insider Letter”), including the restrictions on transferring and redeeming CEPT Ordinary Shares in connection with the Transactions, (iv) to waive the anti-dilution rights of the issued and outstanding CEPT Class B Ordinary Shares set forth in the CEPT Memorandum and Articles, (v) to surrender, for no consideration, up to 30% of its CEPT Class B Ordinary Shares immediately prior to, and conditioned upon, the consummation of the CEPT Merger (the “Surrendered CEPT Shares”) (such number of Surrendered CEPT Shares to be determined pursuant to a formula taking into account the number of CEPT Redeemed Shares and the gross proceeds from the PIPE Investments exceeding $100.0 million), and (vi) subject to and conditioned upon the Closing, agree that any loans outstanding from the Sponsor to CEPT shall be repaid either in cash or in CEPT Class A Ordinary Shares at $10.00 per share as determined by the Sponsor.
In addition, Sponsor agreed to subject 30% of the shares of Pubco Common Stock that it will receive in the CEPT Merger in exchange for the CEPT Class A Ordinary Shares it receives upon conversion of its CEPT Class B Ordinary Shares after accounting for the Surrendered CEPT Shares (the “Sponsor Earn-Out Shares”) to vesting and potential forfeiture (and related transfer restrictions) after the Closing based on an earn-out during the Earn-Out Period, with (i) one-third of the Sponsor Earn-Out Shares being released if the VWAP of Pubco Common Stock exceeds $12.50 for 20 out of any 30 trading days beginning 90 days after Closing (the “$12.50 VWAP Condition”), (ii) one-third of the Sponsor Earn-Out Shares being released if the VWAP of Pubco Common Stock exceeds $15.00 for 20 out of any 30 trading days beginning 90 days after Closing (the “$15.00 VWAP Condition”), and (iii) one-third of the Sponsor Earn-Out Shares being released if the VWAP of Pubco Common Stock exceeds $17.50 for 20 out of any 30 trading days beginning 90 days after Closing ((the “$17.50 VWAP Condition”), in each case, subject to early release for release events including a Pubco sale, change of control, going private transaction or delisting after the Closing.
The parties also agreed to modify the lock-up applicable to the CEPT Class B Ordinary Shares set forth in the Insider Letter so that all of the shares of Pubco Common Stock that the Sponsor will receive in the CEPT Merger in exchange for the CEPT Class A Ordinary Shares it receives upon conversion of its CEPT Class B Ordinary Shares are subject to a 180 days lock-up, subject to certain exceptions and with early release for release events including a Pubco sale, change of control, going private transaction or delisting after the Closing. In addition, one-third of such shares are subject to early release based on satisfaction of the $12.50 VWAP Condition, two-thirds of such shares are subject to release based on satisfaction of the $15.00 VWAP Condition, and all of such shares are subject to release based on satisfaction of the $17.50 VWAP Condition.
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The Sponsor Support Agreement will terminate and (except as contemplated therein), be of no further force or effect upon the earlier of the Closing and termination of the Business Combination Agreement pursuant to its terms. Upon such termination of the Sponsor Support Agreement, except as contemplated therein, the obligations of the parties under the Sponsor Support Agreement will terminate; provided, however, that such termination will not relieve any party thereto from liability arising in respect of any breach of the Sponsor Support Agreement prior to such termination.
TheSponsor Support Agreement is filed as Exhibit 10.2 to this Current Report on Form 8-K, and the foregoing description thereof is qualifiedin its entirety by reference to the full text of the Sponsor Support Agreement and the terms of which are incorporated by reference herein.
Lock-UpAgreement
Concurrently with the Closing, as a condition to receiving their shares of Pubco Common Stock in the Securitize Merger, each Securitize Stockholder will enter into a Lock-Up Agreement with Pubco (each, a “Lock-Up Agreement”), pursuant to which each such Securitize Stockholder will agree that the shares of Pubco Common Stock received in the Securitize Merger will be locked-up and subject to transfer restrictions, as described below, subject to certain exceptions. The shares of Pubco Common Stock held by each Securitize Stockholder will be locked up until 180 days following the Closing, with (i) one-third of such shares being released if the VWAP of Pubco Common Stock exceeds $15.00 for 20 out of any 30 trading days beginning 90 days after Closing, (ii) one-third of such shares being released if the VWAP of Pubco Common Stock exceeds $17.50 for 20 out of any 30 trading days, and (iii) one-third of such shares being released if the VWAP of Pubco Common Stock exceeds $20.00 for 20 out of any 30 trading days, in each case, subject to early release for release events including a Pubco sale, change of control, going private transaction or delisting after the Closing.
Theform of Lock-Up Agreement is filed as Exhibit 10.3 to this Current Report on Form 8-K, and the foregoing description thereof is qualifiedin its entirety by reference to the full text of the form of Lock-Up Agreement and the terms of which are incorporated by reference herein.
Amendedand Restated Registration Rights Agreement
Concurrently with the Closing, the Sponsor, CEPT, Pubco and certain Securitize Stockholders will enter into a registration rights agreement that will amend and restate the registration rights agreement entered into at the time of CEPT’s initial public offering between CEPT and the Sponsor (the “Amended and Restated Registration Rights Agreement”), pursuant to which Pubco will (i) assume the registration obligations of CEPT under such registration rights agreement, with such rights applying to the shares of Pubco Common Stock and (ii) provide registration rights with respect to the resale of shares of Pubco Common Stock held by the Sponsor and the Securitize Stockholders party thereto.
Theform of Amended and Restated Registration Rights Agreement is filed as Exhibit 10.4 to this Current Report on Form 8-K, and the foregoingdescription thereof is qualified in its entirety by reference to the full text of the form of the Amended and Restated Registration RightsAgreement and the terms of which are incorporated by reference herein.
PIPESubscription Agreements
Contemporaneously with the execution of the Business Combination Agreement, CEPT, Pubco and Securitize entered into subscription agreements (the “PIPE Subscription Agreements”) with certain investors (the “PIPE Investors”), pursuant to which the PIPE Investors agreed to purchase, in a private placement immediately prior to the CEPT Merger, 22.5 million CEPT Class A Ordinary Shares (the “PIPE Shares”), at a purchase price of $10.00 per share payable in cash, for an aggregate purchase price of $225 million (the “PIPE Investment”). PIPE Investors are permitted under the PIPE Subscription Agreements to satisfy their commitments thereunder through the purchase of CEPT Class A Ordinary Shares on the public market, subject to certain restrictions set forth therein.
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The closing of the PIPE Investment is contingent upon the satisfaction of all closing conditions to consummate the Transactions and the PIPE Investors’ consent to any amendments, modifications or waivers to the terms of the Business Combination Agreement that would reasonably be expected to materially and adversely affect the economic benefits of the PIPE Investors, among other customary closing conditions.
Pursuant to the PIPE Subscription Agreements, Pubco has agreed to certain obligations to register and maintain the registration of the shares of Pubco Common Stock into which the PIPE Shares are converted, including that, within 30 calendar days after the Closing, Pubco will file with the SEC (at Pubco’s sole cost and expense) a registration statement registering the resale of the shares of Pubco Common Stock into which the PIPE Shares are converted, and Pubco shall use its commercially reasonable efforts to have such registration statement declared effective as soon as practicable after the filing thereof, but in any event no later than 90 calendar days after the Closing, which may be extended by a maximum of 90 calendar days depending on the level of SEC review involved.
Each PIPE Subscription Agreement shall terminate and be void and of no further force and effect upon the earliest to occur of (i) such date and time as the Business Combination Agreement is terminated in accordance with its terms; (ii) the mutual written agreement of the respective parties to terminate such agreement; or (iii) October 27, 2026.
Theform of PIPE Subscription Agreement is filed as Exhibit 10.5 to this Current Report on Form 8-K, and the foregoing description thereofis qualified in its entirety by reference to the full text of the form of the PIPE Subscription Agreement and the terms of which areincorporated by reference herein.
Item3.02. Unregistered Sale of Equity Securities.
The disclosure set forth above in Item 1.01 of this Report is incorporated by reference herein, to the extent applicable. The CEPT Class A Ordinary Shares that may be issued in connection with the PIPE Investment will not be registered under the Securities Act in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
Item8.01 Other Events.
Additional Information and Where to Find It
Pubco and Securitize intend to file with the Securities and Exchange Commission (the “SEC”) the Registration Statement, which will include a preliminary proxy statement of CEPT and a prospectus (the “Proxy Statement/Prospectus”) in connection with the Transactions. The definitive proxy statement and other relevant documents will be mailed to shareholders of CEPT as of a record date to be established for the CEPT Shareholders Meeting for voting on the Business Combination and other matters as described in the Proxy Statement/Prospectus. CEPT and/or Pubco will also file other documents regarding the Transactions with the SEC. This Report does not contain all of the information that should be considered concerning the 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, SHAREHOLDERS OF CEPT AND OTHER INTERESTED PARTIES ARE URGED TO READ, WHEN AVAILABLE, THE PRELIMINARY PROXY STATEMENT/PROSPECTUS, AND AMENDMENTS THERETO, AND THE DEFINITIVE PROXY STATEMENT/PROSPECTUS AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC IN CONNECTION WITH CEPT’S SOLICITATION OF PROXIES FOR THE EXTRAORDINARY GENERAL MEETING OF ITS SHAREHOLDERS TO BE HELD TO APPROVE THE TRANSACTIONS AND OTHER MATTERS AS DESCRIBED IN THE PROXY STATEMENT/PROSPECTUS BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT CEPT, PUBCO, SECURITIZE AND THE TRANSACTIONS. Investors and security holders will also be able to obtain copies of the Registration Statement and the Proxy Statement/Prospectus and all other documents filed or that will be filed with the SEC by CEPT and Pubco, without charge, once available, on the SEC’s website at www.sec.gov or by directing a request to: Cantor Equity Partners II, Inc., 110 East 59th Street, New York, NY 10022; e-mail: CantorEquityPartners@cantor.com, or upon written request to Securitize, Inc., via email at tom.murphy@securitize.io, respectively.
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NEITHER
THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR ANY RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS REPORT. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
The CEPT Class A Ordinary Shares to be issued in the PIPE Investment have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act.
Participants in the Solicitation
CEPT, Pubco, Securitize and their respective directors, executive officers, and certain of their shareholders and other members of management and employees may be deemed under SEC rules to be participants in the solicitation of proxies from CEPT’s shareholders in connection with the Transactions. A list of the names of such persons, and information regarding their interests in the Transactions and their ownership of CEPT’s securities are, or will be, contained in CEPT’s filings with the SEC, including the IPO Prospectus. Additional information regarding the interests of the persons who may, under SEC rules, be deemed participants in the solicitation of proxies from CEPT’s shareholders in connection with the Transactions, including the names and interests of CEPT’s, Pubco’s and Securitize’s directors and executive officers, will be set forth in the Proxy Statement/Prospectus, which is expected to be filed by Pubco, Securitize and CEPT, as applicable, with the SEC. Investors and security holders may obtain free copies of these documents as described above.
No Offer or Solicitation
This Report and the information contained herein are for informational purposes only and are not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Transactions and shall not constitute an offer to sell or exchange, or a solicitation of an offer to buy or exchange the securities of CEPT or Pubco, or any commodity or instrument or related derivative, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, sale or exchange would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act or an exemption therefrom. Investors should consult with their counsel as to the applicable requirements for a purchaser to avail itself of any exemption under the Securities Act.
Forward-Looking Statements
This Report contains certain forward-looking statements within the meaning of the U.S. federal securities laws with respect to the Transactions involving Pubco, Securitize and CEPT, including expectations, hopes, beliefs, intentions, plans, prospects, financial results or strategies regarding Pubco, Securitize, CEPT and the Transactions and statements regarding the anticipated benefits and timing of the completion of the Transactions, the assets held by Pubco and Securitize, Pubco’s listing on any securities exchange, the macro and political conditions surrounding digital assets, the planned business strategy, plans and use of proceeds, objectives of management for future operations of Pubco, pro forma ownership of Pubco, the upside potential and opportunity for investors, Pubco’s plan for value creation and strategic advantages, market size and growth opportunities, investor benefits, regulatory conditions, competitive position, technological and market trends, future financial condition and performance and expected financial impacts of the Transactions, the satisfaction of closing conditions to the Transactions and the level of redemptions of CEPT’s public shareholders, and Pubco’s and Securitize’s expectations, intentions, strategies, assumptions or beliefs about future events, results of operations or performance or that do not solely relate to historical or current facts. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “potential,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are predictions, projections and other statements about future events or conditions that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this Report, including, but not limited to: the risk that the Transactions may not be completed in a timely manner or at all, which may adversely affect the price of CEPT’s securities; the risk that the Transactions may not be completed by CEPT’s business combination deadline; the failure by the parties to the Business Combination Agreement to satisfy the conditions to the consummation of the Business Combination, including the approval of CEPT’s shareholders, or the consummation of the PIPE Investment; failure to realize the anticipated benefits of the Transactions; the level of redemptions of CEPT’s public shareholders which may reduce the public float of, reduce the liquidity of the trading market of, and/or maintain the quotation, listing, or trading of the CEPT Class A Ordinary Shares or the shares of Pubco Common Stock; the lack of a third-party fairness opinion in determining whether or not to pursue the Business Combination; the failure of Pubco to obtain or maintain the listing of its securities on any securities exchange after closing of the Transactions; costs related to the Transactions and as a result of becoming a public company; changes in business, market, financial, political and regulatory conditions; risks relating to Pubco’s anticipated operations and business, including the highly volatile nature of the price of digital assets; risks related to increased competition in the industries in which Pubco will operate; risks relating to significant legal, commercial, regulatory and technical uncertainty regarding digital assets and tokenization; risks relating to the treatment of digital assets for U.S. and foreign tax purposes; risks that after consummation of the Transactions, Pubco experiences difficulties managing its growth and expanding operations; challenges in implementing Pubco’s business plan (including expanding and/or growing its advisory services business) due to operational challenges, significant competition and regulation; being considered to be a “shell company” by any stock exchange on which Pubco Common Stock will be listed or by the SEC, which may impact Pubco’s ability to list Pubco Common Stock and restrict reliance on certain rules or forms in connection with the offering, sale or resale of securities; the outcome of any potential legal proceedings that may be instituted against Pubco, Securitize, CEPT or others following announcement of the Transactions, and those risk factors discussed in documents that Pubco and/or CEPT filed, or that will be filed, with the SEC.
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The foregoing list of risk factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the IPO Prospectus, CEPT’s Quarterly Reports on Form 10-Q, CEPT’s Annual Report on Form 10-K and the Registration Statement that will be filed by Pubco and Securitize and the Proxy Statement/Prospectus contained therein, and other documents filed by CEPT and Pubco from time to time with the SEC. These filings do or will identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. There may be additional risks that CEPT, Securitize and Pubco do not presently know, or that CEPT, Securitize and Pubco currently believe are immaterial that could also cause actual results to differ 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 none of CEPT, Securitize or Pubco assumes any obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. None of CEPT, Securitize or Pubco gives any assurance that any of CEPT, Securitize or Pubco will achieve its expectations. The inclusion of any statement in this communication does not constitute an admission by CEPT, Securitize or Pubco or any other person that the events or circumstances described in such statement are material.
Item9.01. Financial Statements and Exhibits.
(d) Exhibits.
8
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: October 30, 2025
| CANTOR EQUITY PARTNERS II, INC. | |
|---|---|
| By: | /s/<br> Brandon Lutnick |
| Name: | Brandon Lutnick |
| Title: | Chief Executive Officer |
9
Exhibit 2.1
PRIVATE AND CONFIDENTIAL
Execution Version
Certain personally identifiable information has been omitted from this exhibit pursuant to item 601(a)(6) of Regulation S-K. [***] indicates that information has been redacted.
BUSINESS COMBINATION AGREEMENT
by and among
**CANTOR EQUITY PARTNERS II, INC.**as SPAC,
**Securitize,Inc.**as the Company
SecuritizeHoldings, Inc.
as PubCo,
PINECREST MERGER SUB
as SPAC Merger Sub,
and
SennaMerger Sub, Inc
as Company Merger Sub
Dated as of October 27, 2025
TABLE OF CONTENTS
| Page | ||
|---|---|---|
| Article I DEFINITIONS | 4 | |
| 1.1 | Certain Definitions | 4 |
| 1.2 | Section References | 29 |
| 1.3 | Interpretation | 31 |
| Article II MERGERS | 33 | |
| 2.1 | SPAC Merger | 33 |
| 2.2 | Company Merger | 33 |
| 2.3 | SPAC Merger Effective Time and Company Merger Effective Time | 33 |
| 2.4 | Effect of the Mergers | 34 |
| 2.5 | Organizational Documents | 35 |
| 2.6 | Directors and Officers of the Surviving Companies | 35 |
| 2.7 | Effect of SPAC Merger on Outstanding Securities of SPAC and SPAC Merger Sub | 35 |
| 2.8 | Effect of Company Merger on Outstanding Securities of Company and Company Merger Sub | 37 |
| 2.9 | Treatment of Company Equity Awards and Convertible Securities | 39 |
| 2.10 | Effect of Mergers on Outstanding Securities of PubCo | 40 |
| 2.11 | Exchange and Conversion Procedures | 40 |
| 2.12 | Intended Tax Treatment; Transfer Taxes | 43 |
| 2.13 | Taking of Necessary Action; Further Action | 43 |
| 2.14 | Release of Funds from Trust Account | 44 |
| 2.15 | Withholding | 44 |
| 2.16 | Company Earnout Shares; Issuance Events; Issuance Thresholds | 44 |
| Article III CLOSING | 47 | |
| 3.1 | Closing | 47 |
| 3.2 | Closing Deliveries | 47 |
| Article IV REPRESENTATIONS AND WARRANTIES OF SPAC | 48 | |
| 4.1 | Organization and Standing | 48 |
| 4.2 | Authorization; Binding Agreement | 48 |
| 4.3 | Governmental Approvals | 50 |
| 4.4 | Non-Contravention | 50 |
| 4.5 | Capitalization | 50 |
| 4.6 | SEC Filings; SPAC Financials; Internal Controls | 51 |
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| 4.7 | No Litigation; Orders; Permits | 53 |
|---|---|---|
| 4.8 | Absence of Certain Changes | 54 |
| 4.9 | Compliance with Laws | 54 |
| 4.10 | Taxes and Returns | 54 |
| 4.11 | Employees and Employee Benefit Plans | 55 |
| 4.12 | Properties | 55 |
| 4.13 | Material Contracts | 55 |
| 4.14 | Transactions with Affiliates | 55 |
| 4.15 | Finders and Brokers | 56 |
| 4.16 | Certain Business Practices | 56 |
| 4.17 | Insurance | 56 |
| 4.18 | SPAC Acknowledgment | 57 |
| 4.19 | Information Supplied | 57 |
| 4.20 | SPAC Trust Account | 58 |
| 4.21 | Private Placement | 58 |
| 4.22 | Company Merger Sub Activities | 58 |
| Article V REPRESENTATIONS AND WARRANTIES OF PUBCO | 59 | |
| 5.1 | Organization and Standing | 59 |
| 5.2 | Authorization; Binding Agreement | 59 |
| 5.3 | Governmental Approvals | 60 |
| 5.4 | Non-Contravention | 61 |
| 5.5 | Capitalization | 61 |
| 5.6 | PubCo and SPAC Merger Sub Activities | 61 |
| 5.7 | Absence of Changes | 62 |
| 5.8 | Actions | 62 |
| 5.9 | Finders and Brokers | 62 |
| 5.10 | Ownership of PubCo Common Stock | 62 |
| 5.11 | Investment Company Act | 62 |
| 5.12 | Private Placement | 62 |
| 5.13 | Information Supplied | 63 |
| 5.14 | PubCo Acknowledgement | 63 |
| Article VI REPRESENTATIONS AND WARRANTIES OF THE Company | 64 | |
| 6.1 | Organization and Standing | 64 |
| 6.2 | Authorization; Binding Agreement | 65 |
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| 6.3 | Capitalization | 65 |
|---|---|---|
| 6.4 | Governmental Approvals | 67 |
| 6.5 | Non-Contravention | 68 |
| 6.6 | Financial Statements | 68 |
| 6.7 | Absence of Certain Changes | 69 |
| 6.8 | Compliance with Laws | 70 |
| 6.9 | Company Permits | 70 |
| 6.10 | Litigation | 70 |
| 6.11 | Material Contracts | 71 |
| 6.12 | Intellectual Property | 73 |
| 6.13 | Taxes and Returns | 76 |
| 6.14 | Real Property | 77 |
| 6.15 | Personal Property | 77 |
| 6.16 | Employee Matters | 78 |
| 6.17 | Company Benefit Plans | 79 |
| 6.18 | Environmental Matters | 82 |
| 6.19 | Transactions with Related Persons | 83 |
| 6.20 | Insurance | 84 |
| 6.21 | Data Protection and Cybersecurity | 84 |
| 6.24 | Certain Business Practices | 86 |
| 6.25 | Anti-Money Laundering | 87 |
| 6.26 | Sanctions | 87 |
| 6.27 | Trade Compliance | 88 |
| 6.28 | Investment Company Act | 88 |
| 6.29 | Private Placement | 88 |
| 6.30 | Takeover Statutes and Charter Provisions | 88 |
| 6.31 | Finders and Brokers | 89 |
| 6.32 | Information Supplied | 89 |
| 6.33 | No Other Representations | 89 |
| Article VII COVENANTS | 90 | |
| 7.1 | Access and Information | 90 |
| 7.2 | Conduct of Business of the Company Entities, PubCo, and SPAC Merger Sub. | 90 |
| 7.3 | Conduct of Business of SPAC | 94 |
| 7.4 | Annual and Interim Financial Statements | 96 |
iii
| 7.5 | Interim Period Control | 97 |
|---|---|---|
| 7.6 | SPAC Public Filings | 97 |
| 7.7 | Stock Exchange Listing | 97 |
| 7.8 | Taxes | 97 |
| 7.9 | No Solicitation | 98 |
| 7.10 | No Trading | 99 |
| 7.11 | Notification of Certain Matters | 99 |
| 7.12 | Regulatory Approvals | 100 |
| 7.13 | Further Assurances | 101 |
| 7.14 | The Registration Statement | 102 |
| 7.15 | Public Announcements | 105 |
| 7.16 | Confidential Information | 107 |
| 7.17 | Post-Closing PubCo Board of Directors and Officers | 108 |
| 7.18 | Indemnification of Directors and Officers; Tail Insurance | 108 |
| 7.19 | Transaction Expenses; Trust Account Proceeds | 110 |
| 7.20 | Delisting and Deregistration | 111 |
| 7.21 | PubCo Organizational Documents | 111 |
| 7.22 | New Registration Rights Agreement | 111 |
| 7.23 | Lock-up Agreements | 111 |
| 7.24 | PIPE Investment | 111 |
| 7.25 | PubCo Employee Plans | 111 |
| 7.26 | Stockholder Litigation | 112 |
| 7.27 | Tokenization | 112 |
| Article VIII CLOSING CONDITIONS | 112 | |
| 8.1 | Conditions to Each Party’s Obligations | 112 |
| 8.2 | Conditions to Obligations of Company, PubCo, and SPAC Merger Sub | 113 |
| 8.3 | Conditions to Obligations of SPAC | 114 |
| 8.4 | Frustration of Conditions | 115 |
| Article IX TERMINATION | 115 | |
| 9.1 | Termination | 115 |
| 9.2 | Effect of Termination | 116 |
| Article X WAIVERS AND RELEASES | 117 | |
| 10.1 | Waiver of Claims Against Trust | 117 |
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| Article XI MISCELLANEOUS | 118 | |
|---|---|---|
| 11.1 | Survival | 118 |
| 11.2 | Notices | 118 |
| 11.3 | Binding Effect; Assignment | 119 |
| 11.4 | Third Parties | 119 |
| 11.5 | Fees and Expenses | 120 |
| 11.6 | Governing Law; Jurisdiction; Waiver of Jury Trial | 120 |
| 11.7 | Specific Performance | 121 |
| 11.8 | Severability | 121 |
| 11.9 | Amendment | 121 |
| 11.10 | Entire Agreement | 121 |
| 11.11 | Waiver | 122 |
| 11.12 | Counterparts | 122 |
| 11.13 | No Recourse | 122 |
| 11.14 | Legal Representation | 123 |
| 11.15 | Cumulative Remedies | 123 |
| EXHIBITS | ||
| --- | --- | |
| Exhibit A(i) | Form of Sponsor Support Agreement | |
| Exhibit A(ii) | Form of Company Stockholder Support Agreement | |
| Exhibit B | Form of Lock-Up Agreement | |
| Exhibit C | Form of New Registration Rights Agreement | |
| Exhibit D | Form of PIPE Subscription Agreement | |
| Exhibit E | Form of Certificate of Incorporation of PubCo | |
| Exhibit F | Form of Bylaws of PubCo | |
| Exhibit G | Form of Company Stockholder Written Consent |
v
BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement (this “Agreement”) is made and entered into as of October 27, 2025 by and among Cantor Equity Partners II, Inc., a Cayman Islands exempted company (“SPAC”), Securitize, Inc., a Delaware corporation (the “Company”), Securitize Holdings, Inc., a Delaware corporation and wholly owned Subsidiary of the Company (“PubCo”), Senna Merger Sub, Inc, a Delaware corporation and wholly-owned Subsidiary of SPAC (“Company Merger Sub”), and Pinecrest Merger Sub, a Cayman Islands exempted company and wholly-owned Subsidiary of PubCo (“SPAC Merger Sub”). SPAC, the Company, PubCo, Company Merger Sub and SPAC Merger Sub are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.” Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in Article I.
RECITALS:
WHEREAS, PubCo is a newly incorporated Delaware corporation, incorporated for the purpose of participating in the Transactions, that (a) is a direct wholly owned Subsidiary of the Company and (b) is treated as a corporation for U.S. federal income tax purposes;
WHEREAS, Company Merger Sub is a newly incorporated Delaware corporation, incorporated for the purpose of participating in the Transactions, that is a direct wholly owned Subsidiary of SPAC;
WHEREAS, SPAC Merger Sub is a newly incorporated Cayman Islands exempted company, incorporated for the purpose of participating in the Transactions, that (a) is a direct wholly owned Subsidiary of PubCo and (b) has for U.S. federal income tax purposes elected to be disregarded as an entity separate from PubCo effective as of the date of SPAC Merger Sub’s incorporation;
WHEREAS, SPAC is a Cayman Islands exempted company structured as a blank check company incorporated for the sole purpose of effecting a share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses;
WHEREAS, the Parties desire and intend to effect a business combination transaction whereby:
(a) SPAC will merge with and into SPAC Merger Sub, with SPAC Merger Sub continuing as the surviving company and a direct wholly owned Subsidiary of PubCo (the “SPAC Merger”), and with SPAC Shareholders receiving shares of PubCo Common Stock in exchange for their SPAC Shares in accordance with the terms of this Agreement, including Article II;
(b) following the SPAC Merger and prior to the Company Merger (as defined below), SPAC Merger Sub will distribute all of the issued and outstanding equity interests of Company Merger Sub to PubCo, as a result of which Company Merger Sub shall become a direct wholly owned Subsidiary of PubCo (the “Company Merger Sub Distribution”);
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(c) following the Company Merger Sub Distribution, and at least two (2) hours after the SPAC Merger, Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation and a direct wholly owned Subsidiary of PubCo (the “CompanyMerger”, and together with the SPAC Merger, the “Mergers”), and with Company Stockholders receiving shares of PubCo Common Stock in exchange for their shares of Company Stock in accordance with the terms of this Agreement, including Article II; and
(d) as a result of the Mergers, PubCo will become a publicly traded company, all upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Law;
WHEREAS, concurrently with the execution and delivery of this Agreement and in connection with the Transactions, PubCo, SPAC and Cantor EP Holdings II, LLC, a Delaware limited liability company (the “Sponsor”), have entered into a Sponsor Support Agreement, substantially in the form attached as Exhibit A(i) (the “Sponsor Support Agreement”), pursuant to which the Sponsor, among other things, agrees to: (a) waive its anti-dilution rights under the SPAC Memorandum with respect to the SPAC Class B Ordinary Shares; (b) subject certain of the SPAC Class B Ordinary Shares to potential cancellation for no consideration based on the number of SPAC Class A Ordinary Shares that remain outstanding as of the Closing; (c) subject certain of the shares of PubCo Common Stock received in the SPAC Merger in respect of the SPAC Class B Ordinary Shares to potential forfeiture pending the achievement of certain targets and subject to the terms therein; and (d) vote its SPAC Ordinary Shares in favor of the adoption and approval of this Agreement and the Transactions;
WHEREAS, concurrently with the execution and delivery of this Agreement and in connection with the Transactions, and as an inducement to SPAC’s willingness to enter into this Agreement, certain Company Stockholders have entered into the Company Stockholder Support Agreement with SPAC, PubCo, and the Company substantially in the form attached as Exhibit A(ii) (the “Company Stockholder Support Agreement”), pursuant to which, among other things, each such Company Stockholder executing the Company Stockholder Support Agreement agrees to (a) subject to certain exceptions, not transfer Company Stock, (b) vote their Company Stock (to the extent such Company Stock has voting rights) in favor of the adoption and approval of this Agreement, the Ancillary Documents to which the Company or any other Company Entity is a party and the Transactions (including by execution and delivery of the Company Written Consent on the date of this Agreement), the Company Merger and the other Transactions; and (c) consent to the termination of the Voting Agreement, the Investors’ Rights Agreement and the Right of First Refusal and Co-Sale Agreement (collectively, the “Existing Company Governance Agreements”), such termination to occur substantially contemporaneously with, and subject to the consummation of the Mergers;
WHEREAS, on or prior to the Closing Date, PubCo and each of the Company Stockholders shall enter into a Lock-Up Agreement substantially in the form attached as Exhibit B (the “Lock-Up Agreement”), pursuant to which, among other things, the Company Stockholders will agree not sell, for the applicable period set forth in the Lock-Up Agreement, the shares of PubCo Common Stock that they will receive as a result of the Transactions;
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WHEREAS, on or prior to the Closing Date, PubCo, Sponsor and certain Company Stockholders shall enter into a registration rights agreement substantially in the form attached as Exhibit C (the “New Registration Rights Agreement”), which agreement shall (a) provide the parties with certain registration rights in respect of the shares of PubCo Common Stock held by such parties and (b) supersede in all respects any prior registration rights agreement or instrument with similar effect entered into by PubCo, Sponsor or such Company Stockholders with respect to any Equity Interests of PubCo and/or the Company;
WHEREAS, on or around the date of this Agreement, the PIPE Investors have agreed to subscribe for and purchase 22,500,000 SPAC Class A Ordinary Shares at $10.00 per share for an aggregate purchase price equal to $225,000,000 (as may be reduced by any Open-Market Purchase Shares and/or Currently Owned Shares pursuant to the exercise of the Reduction Right (as each such term is defined in the PIPE Subscription Agreements), to the extent permitted by, and in accordance with the terms and conditions of, the PIPE Subscription Agreements) (the “PIPE”), pursuant to subscription agreements entered into with SPAC, Company and PubCo, substantially in the form set forth on Exhibit D (the “PIPE Subscription Agreements”), with the consummation of the PIPE to occur immediately prior to, and subject to, the consummation of the SPAC Merger;
WHEREAS, the board of directors of SPAC (the “SPAC Board”) has unanimously: (a) determined that this Agreement, the Ancillary Documents to which SPAC is a party and the Transactions are advisable and in the best interests of SPAC; (b) authorized and approved the execution, delivery and performance by SPAC of this Agreement, the Ancillary Documents to which SPAC is a party and the Transactions; (c) approved the Transactions as a Business Combination; and (d) recommended the adoption and approval of this Agreement and the Ancillary Documents to which SPAC is a party and the Transactions by the SPAC Shareholders; and
WHEREAS, the board of directors of the Company (the “Company Board”) has unanimously: (a) determined that this Agreement, the Ancillary Documents to which the Company is a party and the Transactions (including the Company Merger) are advisable, fair to, and in the best interests of, the Company, (b) approved and declared the advisability of this Agreement, the Ancillary Documents to which the Company is a party and the Transactions (including the Company Merger) in accordance with the DGCL and the Organizational Documents of the Company, (c) recommended the approval and adoption of this Agreement, the Ancillary Documents to which the Company is a party and the Transactions (including the Company Merger) by the Company Stockholders, (d) directed that this Agreement, the Ancillary Documents to which the Company is a party and the Transactions (including the Company Merger) be submitted to the Company Stockholders for adoption and approval by the Company Stockholders (collectively, the “Company Approval Matters”), and (e) resolved to recommend that the Company Stockholders adopt this Agreement and approve the Company Approval Matters, and execute and deliver the Company Written Consent; and
3
WHEREAS, the respective boards of directors of PubCo, SPAC Merger Sub and Company Merger Sub have each unanimously (a) determined that this Agreement and the Ancillary Documents to which their respective companies are a party and the Transactions (including the Mergers to which they are a party, as applicable) are advisable and in the best interests of their respective companies and shareholders or other equityholders (as applicable) and (b) authorized and approved this Agreement, the Ancillary Documents to which their respective companies are a party and the Transactions to the full extent required by applicable Law and in the manner required by their respective Organizational Documents, in each case upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties agree as follows:
Article I
DEFINITIONS
1.1 Certain Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“Acquisition Proposal” means, (I) as to the Company, PubCo or SPAC Merger Sub, other than the Transactions and other than any acquisition or disposition of non-material assets in the Ordinary Course, any offer or proposal relating to: (a) any acquisition or purchase, direct or indirect, of (i) 15% or more of the consolidated assets of such Person and its Subsidiaries or (ii) 15% or more of any class of equity or voting securities of (x) such Person or (y) one or more Subsidiaries of such Person holding assets constituting, individually or in the aggregate, 15% or more of the consolidated assets of such Person and its Subsidiaries, in each case, whether such transaction takes the form of a sale of Equity Interests or other securities, assets, merger, consolidation, issuance of debt securities or convertible securities, warrants, management Contract, joint venture or partnership; (b) any take-over bid, issuer bid, tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in any Person beneficially owning 15% or more of any class of equity or voting securities of (i) such Person or (ii) one or more Subsidiaries of such Person holding assets constituting, individually or in the aggregate, 15% or more of the consolidated assets of such Person and its Subsidiaries; or (c) a merger, amalgamation, consolidation, share exchange, business combination, arrangement, sale of substantially all the assets, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving (i) such Person or (ii) one or more Subsidiaries of such Person holding assets constituting, individually or in the aggregate, 15% or more of the consolidated assets of such Person and its Subsidiaries and (II) as to SPAC, other than the Transactions, a Business Combination.
“Action” means any claim, demand, charge, action, examination, petition, suit, litigation, audit, complaint, stipulation, assessment, arbitration or mediation, or any request (including any subpoena or request for information), inquiry, hearing, proceeding or investigation, by or before any Governmental Authority.
“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person (as of the date on which, or at any time during the period for which, the determination of affiliation is being made), whether through one or more intermediaries or otherwise. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.
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“AI Technology” means any and all machine learning, deep learning, and other artificial intelligence (“AI”) technologies, including statistical learning algorithms, models (including large language models), neural networks, and other AI tools or methodologies, all Software implementations of any of the foregoing, and related hardware or equipment.
“Ancillary Documents” means each agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates and instruments to be executed or delivered by any of the Parties in connection with or pursuant to this Agreement or the Transactions, including the Sponsor Support Agreement, the Company Stockholder Support Agreement, the Lock-Up Agreement, the New Registration Rights Agreement, the PIPE Subscription Agreements, the Company Written Consent, the Certificate of Incorporation and Bylaws of PubCo, and any agreements relating to or instruments governing any Additional Permitted Financing.
“Anti-CorruptionLaws” means all applicable Laws, regulations, requirements or guidelines, that are principally directed at the prevention of bribery, corruption, fraud, money-laundering, or other improper payments or benefits, in all jurisdictions applicable to each of the Company Entities, including the United States Foreign Corrupt Practices Act of 1977 and the United Kingdom Bribery Act 2010.
“Anti-Money LaunderingLaws” means all applicable Laws, regulations, requirements or guidelines, that are principally directed at the prevention, detection, investigation, or prosecution of money laundering, terrorist financing, or similar financial crimes, in all jurisdictions applicable to each of the Company Entities, including the United Kingdom Sanctions and Anti-Money Laundering Act 2018, the United Kingdom Proceeds of Crime Act 2002, the United States Anti-Money Laundering Act of 2020, Currency and Foreign Transactions Reporting Act of 1970, and applicable provisions of the US PATRIOT Act of 2001.
“Antitrust Law” means any Law designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization, restraint of trade or substantial lessening of competition.
“Appraisal Shares” means all shares of Company Stock held by a Company Stockholder who has validly exercised its appraisal rights pursuant to Section 262 of the DGCL with respect to its Company Stock.
“Authorization” means any authorization, approval, consent, certificate, license, permit or franchise of or from any Governmental Authority or pursuant to any Law.
“B8 Convertible PromissoryNotes” means those certain Convertible Promissory Notes, Note Series 2025A, issued by the Company to the noteholders thereof pursuant to the terms of a Promissory Note Purchase Agreement, dated September 29, 2025, among the Company and the noteholders thereof.
“B8 Convertible PromissoryNotes Fully-Diluted Company Shares” means the number of shares of Company Common Stock issuable upon the conversion of the B8 Convertible Promissory Notes pursuant to the Convertible Notes Conversion minus the number of shares of Company Common Stock that would be issuable upon the conversion of the B8 Convertible Promissory Notes pursuant to the Convertible Notes Conversion if the conversion price were equal to the product of (i) ten dollars ($10.00) multiplied by (ii) the Company Exchange Ratio, in each case determined on an as-converted basis.
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“Block” means that data record of all transaction information made during a specific time frame on a Blockchain Network.
“Blockchain” means a distributed ledger of transactions created by Software that relies on advanced cryptography and a consensus mechanism to verify and record information.
“Blockchain Network” means the network of computers that have downloaded and are running the publicly available protocol for a given Blockchain.
“Business Combination” has the meaning set forth in the SPAC Memorandum as in effect on the date of this Agreement.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York, and the Cayman Islands are authorized or required by Law to close for business.
“Cayman Act” means the Companies Act (As Revised) of the Cayman Islands.
“Cayman Islands Law” means all Laws of the Cayman Islands, including the Cayman Act.
“Cayman Registrar” means the Registrar of Companies of the Cayman Islands.
“Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code shall include such section and any valid treasury regulation promulgated thereunder.
“Company AcquisitionProposal” means an Acquisition Proposal with respect to the Company, PubCo or SPAC Merger Sub.
“Company ApprovalRequirement” means the approval (a) by written consent or affirmative vote of the holders of at least a majority of the outstanding shares of Company Preferred Stock, voting together as a single class on an as converted to Company Common Stock basis, (b) by written consent or the affirmative vote of holders of shares of Company Common Stock (other than the Company Class A Common Stock) and Company Preferred Stock (voting as a single class and with the Company Preferred Stock voting on an as converted to Company Common Stock basis), present in person or represented by proxy at the Company Stockholders Meeting, representing a majority of the votes represented by all outstanding shares of capital stock of the Company entitled to vote (in each case pursuant to the terms and subject to the conditions set forth in the Company’s Organizational Documents and applicable Law) and (c) the holders of at least a majority of the outstanding shares of the Company Preferred Stock (including shares of Company Preferred Stock issuable upon conversion of the Convertible Notes held by BLK SMI, LLC and its affiliates).
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“Company BenefitPlan” means any material (i) “employee benefit plan” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) other employee plan, agreement, arrangement, program, policy or practice providing for compensation or benefits, including any equity or equity-based compensation (including stock option, stock purchase, stock award, stock appreciation, phantom stock, restricted stock or restricted stock unit), deferred compensation, pension, retirement, savings, bonus, commission, profit sharing, incentive compensation, retention, change-in-control, medical, dental, vision, prescription drug, life insurance, death benefit, cafeteria, flexible spending, dependent care, health and welfare, fringe benefit, vacation, paid time off, holiday pay, disability, sick pay, workers compensation, unemployment, severance, pay in lieu of notice, end of service gratuity, employee loan or educational assistance plan, agreement, arrangement, program, policy or practice, and (iii) employment, consulting, or other individual services agreement, which in the case of each of the prior clauses (i), (ii) and (iii), is sponsored or maintained by any of the Company Entities, or to which any of the Company Entities contributes or is required to contribute or is a party, on behalf of current or former employees, officers, Contract Workers or directors of any of the Company Entities or their spouses, beneficiaries or dependents, or with respect to which any of the Company Entities has or may have any liability, contingent or otherwise, including any such plan, program, policy, practice, contract, agreement or other arrangement that is provided or sponsored by a PEO under which a current or former employee, officer, Contract Worker, director, or other service provider of any of the of the Company Entities may be eligible to receive benefits in connection with any of the Company Entities’ engagement of a PEO; provided, that in no event shall a Company Benefit Plan include any plan, policy, program or arrangement that is mandated, sponsored or maintained by a Governmental Authority.
“Company Class ACommon Stock” means those shares of Company Common Stock that are designated Class A Common Stock, par value $0.0001 per share.
“Company Common Stock” means the Common Stock, par value $0.0001 per share, of the Company, including those shares of Common Stock that are designated Class A Common Stock pursuant to the Company’s Organizational Documents; provided that, for the avoidance of doubt, in this Agreement the defined term “Company Class A Common Stock” is also used to separately refer solely to the shares of Common Stock that are designated Class A Common Stock.
“Company ConvertiblePromissory Notes” means those certain Convertible Promissory Notes, including (i) Note Series 2024A, issued by the Company to the noteholders thereof pursuant to the terms of a Promissory Note Purchase Agreement, dated January 19, 2024, among the Company and the noteholders thereof and (ii) B8 Convertible Promissory Notes.
“Company ConvertibleSecurities” means the Convertible Securities with respect to the Company, including, among others, the Company Convertible Promissory Notes, the Company SAFE Notes, the NHTV Side Letter and the Company Warrants (and for the avoidance of doubt, excluding the Company Equity Awards).
“Company Data” means all data (including Personal Information) collected, generated, or received by the Company Entities in connection with the marketing, delivery, or use of any Company Services, including Company-Licensed Data and Company-Owned Data.
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“Company-LicensedData” means all data that is Processed by any of the Company Entities which is owned, held, or controlled by a third party.
“Company-Owned Data” means each element of data collected, generated, or received by the Company Entities that any of the Company Entities owns, holds or controls, or purports to own, hold or control.
“Company EarnoutShares” means 6,250,000 shares of PubCo Common Stock.
“Company EarnoutStockholders” means the holders of Company Common Stock (after giving effect to the Conversions), Company Warrants and Company Equity Awards, in each case, as of immediately prior to the Closing.
“Company Entities” means the Company and each of its Subsidiaries, collectively (and “Company Entity” shall mean any one of them).
“Company Equity Awards” means the Company Options and any other conditional rights to receive Company Stock (or the beneficial interest in Company Stock), and any other equity or equity-based incentive awards of the Company that are or have been issued from time to time under any Company Share Plan.
“Company ExchangeRatio” means the quotient (expressed as a number) of (a) the Equity Value divided by (b) the Fully-Diluted Company Shares, divided by (c) ten dollars ($10.00). For illustration purposes only, assuming the Equity Value is $1,257,335,540 and the sum of the Fully-Diluted Company Shares is 27,240,928, the Company Exchange Ratio would be 4.615.
“Company Expenses” means any out-of-pocket fees, costs and expenses paid or payable by or on behalf of any of the Company, PubCo, SPAC Merger Sub or any of their respective Subsidiaries in connection with the preparation, negotiation, execution or performance of this Agreement or any Ancillary Document and the Transactions: (a) all fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers; (b) any change in control bonus, transaction bonus, retention bonus, termination or severance payment or payment relating to terminated options, warrants or other equity appreciation, phantom equity, profit participation or similar rights, in any case, to be made to any current or former employee, Contract Worker, director or officer of any of the Company Entities at or after the Company Closing pursuant to any agreement to which any of the Company Entities is a party prior to the Company Closing which become payable (including if subject to continued employment) as a result of the execution of this Agreement or the consummation of the Transactions (and, in each case, any employer portion of unemployment, social security, payroll or similar Tax payable in connection therewith); (c) any and all filing fees paid to Governmental Authorities in connection with the Transactions in accordance with Section 7.12 (including filing fees allocated pursuant to Section 7.12(b)); and (d) all costs, fees and expenses related to the Company D&O Tail Insurance.
“Company FundamentalRepresentations” means the representations and warranties made by the Company pursuant to Section 6.1 (Organizationand Standing), Section 6.2 (Authorization; Binding Agreement), Section 6.3(Capitalization) and Section 6.31 (Finders and Brokers).
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“Company IntellectualProperty” means, collectively, any and all Owned Intellectual Property and Licensed Intellectual Property.
“Company MaterialAdverse Effect” means any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on (i) the business, assets and Liabilities, results of operations or financial condition of the Company Entities, taken as a whole or (ii) the ability of any of the Company Entities, PubCo or SPAC Merger Sub to consummate the Transactions or to perform its obligations under this Agreement or any Ancillary Document to which it is a party or bound; provided, however, that in respect of clause (i), in no event would any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Company Material Adverse Effect”: (a) any enactment of, or change or proposed change in, any applicable Laws or GAAP or any interpretation thereof following the date of this Agreement; (b) any change in interest rates or economic, political, business or financial market conditions generally; (c) the taking of any action expressly required to be taken under this Agreement or any Ancillary Document; (d) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), epidemic, pandemic, disease or outbreak, acts of nature or change in climate; (e) any acts of terrorism or war (whether or not declared), sabotage, civil unrest, terrorism, curfews, public disorder, riots, the outbreak or escalation of hostilities, geopolitical conditions, local, regional, state, national or international political conditions, or social conditions; (f) any failure in and of itself of any Company Entity to meet any projections, forecasts, guidance, estimates, milestones, budgets or financial or operating predictions of revenue, earnings, cash flow or cash position (provided that the exception in this clause (f) shall not prevent or otherwise affect a determination that any Event underlying such change has resulted in or contributed to a Company Material Adverse Effect); (g) any action taken by or at the express written request of an authorized officer of SPAC (other than actions contemplated by this Agreement or any Ancillary Document); (h) any matter existing as of the date of this Agreement to the extent expressly set forth on the Company Disclosure Schedules; (i) changes or conditions generally affecting the industries in which the Company or its subsidiaries operate; (j) any change in the price or relative value of, or the trading volume (including any halt or suspension in trading) on any exchange of, any digital currency, cryptocurrency or other blockchain-based tokens or assets, including Bitcoin (provided that the exception in this clause (j) shall not prevent or otherwise affect a determination that any Event underlying such change has resulted in or contributed to a Company Material Adverse Effect); (k) any change in existence or legality of any digital currency or cryptocurrency, or any other blockchain-based token or asset, or any halt or suspension in trading of any such digital currency or cryptocurrency on any exchange, in each case, including Bitcoin (provided that the exception in this clause (k) shall not prevent or otherwise affect a determination that any Event underlying such change has resulted in or contributed to a Company Material Adverse Effect); (l) any change to block structure, methods and rules for adding transactions to the blockchain, methods for processing and adding new blocks, mining or staking rewards, or algorithms of any digital currency, cryptocurrency or other blockchain-based tokens or assets, including any “halving”, or the affects thereof (provided that the exception in this clause (l) shall not prevent or otherwise affect a determination that any Event underlying such change has resulted in or contributed to a Company Material Adverse Effect); or (m) any downturn in general economic conditions, including changes in the credit, debt, securities, financial or capital markets (including changes in interest or exchange rates, prices of any security or market index or commodity or any disruption of such markets); provided, that in the case of each of clauses (a), (b), (j), (k), (l) and (m), any such Event shall be taken into account in the determination of whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect to the extent such Event has a disproportionate and adverse effect on the Company Entities, taken as a whole, relative to other participants in the industries or geographical areas in which such Persons operate.
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“Company Merger ConsiderationShares” means the aggregate number of shares of PubCo Common Stock to be issued pursuant to clause (a) of the definition of Per Share Company Merger Consideration in connection with the Company Closing and the Transactions.
“Company Merger FilingDocuments” means the Company Certificate of Merger together with such other documents as may be required in accordance with the applicable provisions of the DGCL or by any other Law to make the Company Merger effective.
“Company Merger Shares” means a number of shares of PubCo Common Stock equal to the sum of (a) the Company Merger Consideration Shares plus (b) the Company Earnout Shares.
“Company Merger SubCommon Stock” means the shares of common stock of Company Merger Sub.
“Company Merger SubShareholder Approval” means the approval of the shareholders of Company Merger Sub required to approve the Company Merger Sub Shareholder Approval Matters, as determined in accordance with the Organizational Documents of Company Merger Sub and the DGCL.
“Company Merger SubShareholder Approval Matters” means the approval by the shareholders of Company Merger Sub of (a) the entry into this Agreement and any Ancillary Document to which Company Merger Sub is a party, (b) the Company Merger, (c) the filing of the Company Certificate of Merger and (d) the Transactions.
“Company Options” means all outstanding options to purchase shares of Company Common Stock, whether or not exercisable and whether or not vested, granted under any Company Share Plan.
“Company PreferredStock” means, collectively, the Company Series A Preferred Stock, the Company Series B-1 Preferred Stock, the Company Series B-2 Preferred Stock, the Company Series B-3 Preferred Stock and the Company Series B-4 Preferred Stock.
“Company SAFE Notes” means those certain Simple Agreements for Future Equity instruments executed by the Company and certain investors in the Company, in the aggregate representing total proceeds of $4,845,000.00.
“Company Series APreferred Stock” means the Series A Preferred Stock, par value $0.0001 per share, of the Company.
“Company Series B-1Preferred Stock” means the Series B-1 Preferred Stock, par value $0.0001 per share, of the Company.
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“Company Series B-2Preferred Stock” means the Series B-2 Preferred Stock, par value $0.0001 per share, of the Company.
“Company Series B-3Preferred Stock” means the Series B-3 Preferred Stock, par value $0.0001 per share, of the Company.
“Company Series B-4Preferred Stock” means the Series B-4 Preferred Stock, par value $0.0001 per share, of the Company. “Company Services” means each product, service, solution or offering anywhere in the world that is Developed by or on behalf of the Company or any other Company Entities that (a) has been sold, marketed or made available to third parties by any of the Company Entities at any time during the three-year period preceding the date of this Agreement or (b) that, as of the date of this Agreement is, in whole or in part, in Development stage, including digital transfer agent services, providing platforms for primary and secondary sales of digital assets, advising asset managers with respect to tokenized securities, providing fund administration services with respect to Digital Assets and investor onboarding and management services.
“Company Share Plan” means the Company’s 2018 Equity Incentive Plan, as amended from time to time, and any other equity incentive plan, scheme or other employee compensation plan or scheme covering any equity or equity-based incentive awards of the Company.
“Company Smart Contracts” mean any and all Smart Contracts Developed, owned or controlled by any of the Company Entities.
“Company Software” means any and all proprietary Software that is owned or purported to be owned by any of the Company Entities.
“Company Source Code” means, collectively, any Software source code of any Company Software.
“Company Stock” means, collectively, the Company Common Stock (including, for the avoidance of doubt, the Company Class A Common Stock) and the Company Preferred Stock.
“Company Stockholder” means any holder of any shares of Company Stock.
“Company Warrants” means those certain warrants to purchase shares of Preferred Stock issued by the Company pursuant to that certain Warrant to Purchase Shares of Preferred Stock, dated March 6, 2025, by and between J Digital 6 LLC and the Company.
“Company WrittenConsent” means the irrevocable written consent to resolutions of the Company Stockholders in the form attached as Exhibit G in favor of the approval and adoption of the Company Approval Matters and executed by sufficient Company Stockholders to meet the Company Approval Requirement.
“Computer SecurityIncident” means any data or security breaches, unauthorized access, acquisition, Processing, exfiltration, modification or disclosure, encryption, compromise, misuse, loss, or unavailability of Personal Information, Non-Public Information, Software or IT Systems.
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“Confidential CompanyInformation” means all Confidential Information regarding the Company Entities that is or was furnished by or on behalf of the Company to SPAC and its Representatives (as defined in the Confidentiality Agreement) in connection with the Transactions.
“Confidential Information” shall have the meaning set forth in the Confidentiality Agreement.
“Confidential SPACInformation” means all Confidential Information regarding the Company that is or was furnished by or on behalf of SPAC to the Company and its Representatives (as defined in the Confidentiality Agreement) in connection with the Transactions.
“ConfidentialityAgreement” means that certain Non-Disclosure Agreement, executed August 5, 2025, by and between SPAC and the Company.
“Consent” means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with, any Governmental Authority or any other Person.
“Continental” means Continental Stock Transfer & Trust Company.
“Contract Workers” means independent contractors, consultants, temporary employees, leased employees, contingent workers, or other agents employed or used with respect to the operation of the business of the Company Entities and classified by any of the Company Entities as other than employees or compensated other than through wages paid by the Company through its payroll department (and, for the United States only, reported on a form W-2).
“Contracts” means any legally binding contracts, subcontracts, agreements, arrangements, understandings, commitments, instruments, undertakings, indentures, leases, mortgages, debt instruments, and purchase orders, and other instruments or obligations of any kind (including any amendments and other modifications thereto), whether written or oral.
“Conversions” means the Preferred Stock Conversion, the Convertible Notes Conversion, the SAFE Notes Conversion and the NHTV Conversion.
“Convertible Securities” means, with respect to any Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person, or warrants, rights, or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted stock awards, restricted stock units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership or member interests therein), whether voting or nonvoting.
“Copyrights” means all rights in copyrights, and other rights in any works of authorship of any type, in all forms, media or medium, now known or hereinafter Developed, and whether or not completed, published, or used, including all drafts, plans, sketches, artwork, layouts, copy, designs, photographs, illustrations, collections, serials, printed or graphic matter, slides, compilations, promotions, audio or visual recordings, transcriptions, Software, and all derivative works, translations, adaptations and combinations of any of the foregoing, all registrations and applications therefor and all extensions, restorations, and renewals of any of the foregoing, all worldwide rights and priorities afforded under any Law with respect to any of the foregoing, and all termination rights, moral rights, author rights and all other rights associated therewith.
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“Databases” means all compilations of data, the selection and arrangement of that data, and all related documentation, including documentation regarding the procedures used in connection with the selection, collection, arrangement, processing and distribution of data contained therein to the extent they exist, together with documentation regarding the attributes of the data contained therein or the relationships among such data and documentation regarding data structures and formats, and file structures and formats, whether registered or unregistered, and any registrations or applications for registration therefor.
“Delaware Law” means all Laws of the State of Delaware, including the DGCL.
“Develop”, “Developed” or “Development” means any conception, reduction to practice, invention (whether patentable or unpatentable and whether or not reduced to practice), creation, formulation, design, enhancement, prototyping, architecting, origination, generation, adapting, testing, discovery, editing, modification, updating, improvement or development (and any contribution to the foregoing), whether independently or jointly.
“DGCL” means the General Corporation Law of the State of Delaware.
“Digital Asset” means digital assets, tokens, cryptocurrencies and any other cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger or similar technology and can be transferred, stored or traded electronically.
“Environmental Laws” means all foreign federal, state and local Laws as in effect on or prior to the date of this Agreement arising out of or relating to (a) the protection of human health and safety (to the extent relating to exposure to Hazardous Materials) (b) emissions, discharges, releases or threatened releases of any Hazardous Material into the environment (including ambient surface water, ground water, land surface or subsurface strata); and (c) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of any Hazardous Material.
“Equity Interests” means, in respect of any Person, (a) any capital stock, shares, partnership or membership interest, unit of participation or other similar interest (however designated) in such Person; (b) bonds, debentures, notes or other Indebtedness having general voting rights or that are convertible or exchangeable into securities having such rights; and (c) any Convertible Security, including any option, warrant, purchase right, conversion right, exchange right, preemptive or similar right or other Contract which would entitle any other Person to acquire any such interest in any such Person or otherwise entitle any other Person to share in the equity, profits or earnings of such Person.
“Equity Value” means $1,250,000,000 plus the aggregate exercise price of the first tranche of the Company Warrants and the vested Company Equity Awards that are included in the calculation of Fully-Diluted Company Shares (which, for the avoidance of doubt, shall not include any exercise price or other adjustments in respect of the B8 Convertible Promissory Notes Fully-Diluted Company Shares or the NHTV Fully-Diluted Company Shares).
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“ERISA” means the Employee Retirement Income Security Act of 1974.
“Exchange Act” means the Securities Exchange Act of 1934.
“Expenses” means, collectively, the SPAC Expenses and the Company Expenses.
“Event” means any event, state of facts, development, change, circumstance, occurrence or effect.
“Founder RegistrationRights Agreement” means the Registration Rights Agreement, dated as of May 1, 2025, by and between SPAC and Sponsor.
“Fraud Claim” means any claim of fraud (which means, with respect to any Person, the making of a statement of fact in the express representations and warranties set forth in this Agreement or any certificate delivered pursuant hereto, with the intent to deceive another Person and an actual knowledge or belief (as opposed to constructive, imputed or implied knowledge or belief) that such statement is false and which requires the elements of fraud defined by Delaware common law other than to the extent set forth in the final sentence of this definition) against the Person who committed a fraud, which such claim can only be brought by the Person alleged to have suffered from such alleged fraud. In no event shall fraud hereunder or a Fraud Claim include any claim for equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including a claim for fraud) based on negligence.
“Fully-Diluted CompanyShares” means the total number of issued and outstanding shares of Company Common Stock as of immediately prior to the Company Merger Effective Time, determined on a fully-diluted basis assuming (a) all of the Company Common Stock underlying all outstanding vested Company Equity Awards (whether exercised or not exercised) are deemed to be outstanding, (b) the conversion of all shares of Company Preferred Stock to shares of Company Common Stock in accordance with the terms of such shares of Company Preferred Stock; (c) all of the Company Common Stock underlying (i) all outstanding vested Company Warrants (whether exercised or not exercised) and (ii) to the extent not included in clause (i), the first tranche of the Company Warrants if such tranche remains outstanding and capable of vesting in accordance with the terms of the Company Warrants; (d) the conversion of all Company Convertible Securities to shares of Company Common Stock in accordance with the terms of such Company Convertible Securities; provided that (x) with respect to the B8 Convertible Promissory Notes, only the B8 Convertible Promissory Notes Fully-Diluted Company Shares shall be included in Fully-Diluted Company Shares and (y) with respect to the NHTV Side Letter, only the NHTV Fully-Diluted Company Shares shall be included in Fully-Diluted Company Shares; provided that Fully-Diluted Company Shares shall not include shares of Company Common Stock issued or issuable (I) pursuant to the Company Warrants (other than as set forth in the preceding clause (c)) or (II) upon the exercise of Company Options that are not vested as of immediately prior to the Effective Time.
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.
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“Generative AI Tools” means AI Technology capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied inputs or prompts.
“Government Official” means (a) any director, officer, employee, agent or representative (including anyone elected, nominated, or appointed to be an officer, employee, or representative) of any Governmental Authority, or anyone otherwise acting in an official capacity on behalf of a Governmental Authority; (b) any political party, political party official, or political party employee; (c) any candidate for public or political office; (d) any royal or ruling family member; or (e) any agent or representative of any of those Persons listed in subcategories (a) through (d).
“Governmental Authority” means any federal, state, provincial, municipal, local, international, supranational or foreign government, governmental authority, regulatory or administrative agency (which for the purposes of this Agreement shall include the SEC), governmental commission, department, board, bureau, agency, court, arbitral tribunal, securities exchange or similar body or instrumentality thereof.
“Hazardous Materials” means any chemical, waste, gas, liquid or other substance or material that is defined, listed, designated or regulated as a “hazardous substance,” “pollutant,” “contaminant,” “hazardous waste,” “regulated substance,” “hazardous chemical,” or “toxic chemical” (or by any similar term) under any Environmental Law, or that could result in the imposition of Liability, or responsibility for Remedial Action, under any Environmental Law, including petroleum and petroleum by-products or derivatives, asbestos or asbestos-containing materials, per- and polyfluoroalkyl substances, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
“Indebtedness” means, with respect to any Person, without duplication, any obligations, contingent or otherwise, in respect of (a) the principal of and premium (if any) in respect of all indebtedness for borrowed money, including accrued interest and any per diem interest accruals; (b) the principal and interest components of capitalized lease obligations under GAAP; (c) amounts drawn (including any accrued and unpaid interest) on letters of credit, bank guarantees, bankers’ acceptances and other similar instruments (solely to the extent such amounts have actually been drawn); (d) the principal of and premium (if any) in respect of obligations evidenced by bonds, debentures, notes and similar instruments; (e) the termination value of interest rate protection agreements and currency obligation swaps, hedges or similar arrangements (without duplication of other indebtedness supported or guaranteed thereby); (f) the principal component of all obligations to pay the deferred and unpaid purchase price of property and equipment which have been delivered, including “earn outs” and “seller notes,”; (g) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person; (h) breakage costs, prepayment or early termination premiums, penalties, or other fees or expenses payable as a result of the consummation of the Transactions in respect of any of the items in the foregoing clauses (a) through (g); and (i) all Indebtedness of another Person referred to in clauses (a) through (h) above guaranteed directly or indirectly, jointly or severally, or which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
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“Information SecurityProgram” means an information security program that is designed to comply with industry standard practices and with Privacy Laws and that includes: (i) policies and procedures regarding the Processing of Company Data, Non-Public Information, and Personal Information; (ii) administrative, technical and physical measures, security systems and safeguards designed to protect the security, confidentiality, and integrity of any Company Data, Non-Public Information, or Personal Information Processed by or for the Company Entities; (iii) disaster recovery, business continuity, incident response, and security plans, procedures and facilities and (iv) protections against Computer Security Incidents.
“Initial ConversionRatio” means the conversion of SPAC Class B Ordinary Shares into SPAC Class A Ordinary Shares on a one-for-one basis.
“Intellectual Property” means all intellectual property and proprietary rights arising anywhere worldwide, including any and all of the following: (a) Copyrights; (b) Trademarks; (c) Patents; (d) Proprietary Information (including knowledge databases, customer lists and customer databases); (e) Software, all domain names, uniform resource locators and other names and locators associated with the internet, including applications and registrations thereof; (f) all rights (as such may exist or be created in any jurisdiction), whether statutory, common law or otherwise, in, arising out of, or associated with the foregoing; (g) all other intellectual property or proprietary rights now known or hereafter recognized in any jurisdiction worldwide; (h) all rights equivalent or similar or pertaining to the foregoing, including those arising under international treaties and convention rights; (i) all rights and powers to assert, defend and recover title to any of the foregoing; (j) all rights to assert, defend, sue, and recover damages for any past, present and future infringement, misuse, misappropriation, impairment, unauthorized use or other violation of any rights in or to any of the foregoing; and (k) all administrative rights arising from the foregoing, including the right to prosecute applications and oppose, interfere with or challenge the applications of others, the rights to obtain renewals, continuations, divisions and extensions of legal protection pertaining to any of the foregoing.
“Investment CompanyAct” means the United States Investment Company Act of 1940.
“Investors’Rights Agreement” means that certain Fourth Amended and Restated Investors’ Rights Agreement, made as of January 19, 2024, by and among the Company, the Investors (as defined therein) and the Key Holders (as defined therein).
“IPO” means the initial public offering of SPAC Class A Ordinary Shares pursuant to the IPO Prospectus.
“IPO Prospectus” means the final prospectus of SPAC, dated as of May 1, 2025, and filed with the SEC on May 2, 2025 (Files No. 333-285681 and 333-286916).
“IRS” means the United States Internal Revenue Service.
“IT Systems” means, collectively, the hardware, data communication lines, network and telecommunications equipment, platforms, servers, peripherals, computer systems, and other information technology equipment, facilities, infrastructure and documentation owned, leased or licensed by any of the Company Entities and used in their business as currently conducted.
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“Knowledge” means, with respect to (a) the Company or PubCo, the actual knowledge of Persons set forth on Section 1.1 of the Company Disclosure Schedules, or the knowledge that any such individual would have acquired following reasonable inquiry of his or her direct reports responsible for the applicable subject matter; (b) SPAC, the actual knowledge of Persons set forth on Section 1.1(a) of the SPAC Disclosure Schedules, or the knowledge that any such individual would have acquired following reasonable inquiry of his or her direct reports responsible for the applicable subject matter; and (c) any other Party, the actual knowledge of its executive officers, directors or secretary, in each case of clauses (a), (b) and (c), as such individuals would have acquired in the exercise of a reasonable inquiry of direct reports.
“KPMG Audited 2024Financials” means the consolidated balance sheets of the Company and the other Company Entities as of December 31, 2024, and the related consolidated statements of comprehensive income, changes in equity and cash flows for the year then-ended, in each case, audited in accordance with PCAOB standards and including the notes thereto and the report of KPMG LLP.
“Law” means any federal, state, local, municipal, foreign or other law, statute, legislation, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority, or any provisions or interpretations of the foregoing, including general principles of common law, civil law and equity.
“Leased Real Property” means all real property leased, licensed, subleased, sublicensed or otherwise used or occupied by any of the Company Entities or to which the Company Entities otherwise have a right to use.
“Liabilities” means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise, whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards), including Tax liabilities due or to become due.
“Licensed IntellectualProperty” means any and all Intellectual Property owned by a third party and licensed or sublicensed, or purported to be licensed or sublicensed, to any of the Company Entities.
“Lien” means all liens, mortgages, deeds of trust, pledges, hypothecations, charges, security interests, options, leases, subleases, restrictions, title retention devices (including the interest of a seller or lessor under any conditional sale agreement or capital lease, or any financing lease having substantially the same economic effect as any of the foregoing), collateral assignments, claims or other encumbrances of any kind whether consensual, statutory or otherwise, and whether filed, recorded or perfected under applicable Law (including any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset, but in any event excluding restrictions under applicable securities Laws).
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“Measurement PeriodVWAP” means the volume weighted average price of a share of PubCo Common Stock, as reported on the Trading Market, determined for any Trading Days that occur during the Measurement Period (as reported on Bloomberg).
“Minimum Cash Amount” means one hundred million dollars ($100,000,000.00).
“Nasdaq” means the Nasdaq Stock Market.
“NHTV Side Letter” means that certain Letter Agreement, dated June 2, 2021, by and between NHTV Sierra Holdings LLC and the Company.
“NHTV Fully-DilutedCompany Shares” means the number of shares of Company Common Stock issuable pursuant to the exercise of the option pursuant to the NHTV Side Letter minus the number of shares of Company Common Stock that would be issuable pursuant to the exercise of the option pursuant to the NHTV Side Letter if the exercise price were equal to the product of (i) ten dollars ($10.00) multiplied by (ii) the Company Exchange Ratio, in each case determined on an as-converted basis.
“Node” means a device that can connect to a Blockchain via a peer-to-peer network and verify incoming Blocks and transactions as well as broadcast transactions back to the Blockchain Network.
“Non-Public Information” means any non-public information of or concerning the Company Entities or any of their respective businesses, including business plans, financial data, customer and client lists, customer and client information (including names, addresses and contact information and including prospective customers and prospective clients), marketing plans, technology, products, services, solutions, offerings, platforms and other Proprietary Information, whether existing or being developed.
“NYSE” means the New York Stock Exchange or a successor that is a national securities exchange registered under Section 6 of the Exchange Act.
“OFAC” means the U.S. Office of Foreign Assets Control.
“Open Source Software” means all Software that is distributed as “free software,” “open source software,” “shareware” or under a similar licensing or distribution model including Software licensed, provided, or distributed under any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Foundation (as promulgated by the Free Software Foundation) or any Software that contains or is derived from any such Software.
“Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Ordinary Course” means, with respect to an action taken by a Person, that (i) such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person; and (ii) such action complies with, in all material respects, all applicable Laws.
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“Organizational Documents” means, with respect to any Person that is not an individual, the legal document(s) by which such Person establishes its legal existence or by which the internal affairs of such Person are governed, including in the case of a Person (a) that is a corporation or company, its certificate of incorporation and bylaws, and/or memorandum of association and articles of association (in respect of a Cayman Islands exempted company) or comparable documents, (b) that is a partnership, its certificate of partnership and partnership agreement, or comparable documents, (c) that is a limited liability company, its certificate of formation and limited liability company agreement, or comparable documents, (d) that is a trust, its declaration of trust, or comparable documents and (e) that is any other Person but that is not an individual, its comparable organizational documents.
“Owned IntellectualProperty” means any and all Intellectual Property owned or purported to be owned by any of the Company Entities.
“Patents” means all (a) U.S. and foreign patents (including certificates of invention and other patent equivalents), utility models, and applications for any of the foregoing, including provisional applications, and all patents of addition, improvement patents, continuations, continuations-in-part, divisionals, reissues, re-examinations, renewals, confirmations, substitutions and extensions thereof or related thereto, and all applications or counterparts in any jurisdiction pertaining to any of the foregoing, including applications filed pursuant to any international patent law treaty, (b) inventions, discoveries, improvements, idea submissions and invention disclosures, that are the subject of any patent or patent application, and (c) other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventors’ certificates, petty patents and innovation patents), together with all worldwide rights and priorities afforded under any Law with respect to any of the foregoing.
“PCAOB” means the U.S. Public Company Accounting Oversight Board.
“PEO” means Professional Employer Organization.
“Per Share CompanyMerger Consideration” means, for each share of Company Common Stock being converted in the Company Merger (after giving effect to the Conversions), (a) a number of shares of validly issued, fully paid and nonassessable PubCo Common Stock equal to the Company Exchange Ratio and (b) the right to receive the Stockholder Earnout Portion of the Company Earnout Shares to the extent issued pursuant to and in accordance with the terms of Section 2.16.
“Per Share MergerConsideration” means the Per Share SPAC Merger Consideration or the Per Share Company Merger Consideration, as the context may require.
“Per Share SPAC MergerConsideration” means for each SPAC Ordinary Share being converted in the SPAC Merger, one share of validly issued, fully paid and nonassessable PubCo Common Stock.
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“Permits” means any consent, franchise, approval, registration, variance, license, permit, grant, certificate, registration or other authorization or approval of a Governmental Authority or pursuant to any Law, and all pending applications for any of the foregoing.
“Permitted Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not delinquent or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto, (b)other Liens imposed by operation of Law arising in the Ordinary Course for amounts which are not due and payable and as would not in the aggregate adversely affect the value of, or adversely interfere with the use of, the property subject thereto, (c) Liens expressly identified in the Company Audited Financial Statements, (d) Liens existing on the date of this Agreement and listed on Section 1.1 of the Company Disclosure Schedules, (e) Liens constituting non-exclusive licenses or sublicenses of, or covenants not to sue with respect to, any Intellectual Property entered into in the Ordinary Course or (e) Liens arising under this Agreement or any Ancillary Document.
“Person” means an individual, firm, corporation, company, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a Governmental Authority or instrumentality or other entity of any kind.
“Personal Information” means (a) all data and information that, whether alone or in combination with any other data or information, identifies, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a natural person, household, or his, her or its device, including name, street address, telephone number, e-mail address, photograph, social security number, driver’s license number, passport number, government-issued ID number, customer or account number, health information, financial information, credit report information, device identifiers, transaction identifier, cookie ID, browser or device fingerprint or other probabilistic identifier, IP addresses, physiological and behavioral biometric identifiers, viewing history, platform behaviors, and any other similar piece of data or information; and (b) all other data or information that is otherwise protected by, considered personally identifiable information or personal data under, applicable Privacy Laws.
“Personal Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible personal property.
“PIPE Investments” means the PIPE.
“PIPE Investors” means, collectively, the Subscribers (as such term is defined in the PIPE Subscription Agreements).
“Privacy Laws” means all Laws pertaining to (i) privacy, information security, cyber security, data protection, security incident notification, e-commerce, marketing, and electronic and telephonic communications; and (ii) the Processing of Personal Information.
“Process” or “Processing” (and any inflection thereof) means any operation or set of operations that are performed with respect to any data or information, whether or not by automated means. Processing includes the access, acquisition, collection, use, recording, organization, structuring, adaptation, alteration, retrieval, combination, erasure, storage, retention, sharing, distribution, transfer, disclosure, destruction, disposal, aggregation, deidentification, or any other processing of data or information in any medium.
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“Proprietary Information” means all rights under applicable Laws in and to trade secrets, confidential information, proprietary information, formulas, algorithms, procedures, methods, techniques, Developments, know-how, research and development, technical data, tools, materials, specifications, processes, apparatus, graphs, drawings, reports, analyses, documented and undocumented information, information and materials not generally known to the public, protocols, schematics, compositions, build instructions, pricing, customer and user lists, market studies, business plans, systems, structures, architectures, devices, concepts and methods, together with any and all notes, analysis, compilations, lab reports, notebooks, invention disclosures, studies, summaries, and other material containing or based, in whole or in part, on any information included in the foregoing, including all copies and tangible embodiments of any of the foregoing in whatever form or medium.
“PubCo Common Stock” means the shares of common stock, par value $0.0001 per share, of PubCo.
“PubCo FundamentalRepresentations” means the representations and warranties made by PubCo pursuant to Section 5.1 (Organization andStanding), Section 5.2 (Authorization; Binding Agreement), Section 5.5 (Capitalization) and Section 5.9 (Finders and Brokers).
“PubCo OrganizationalDocuments” means the certificate of incorporation and bylaws of PubCo as of the date of this Agreement, as in effect under the DGCL.
“Redemption Amount” means the aggregate amount actually payable from the Trust Account with respect to all Redemptions of the SPAC Class A Ordinary Shares pursuant to and in accordance with the SPAC Memorandum.
“Redemption Right” means the election of an eligible (as determined in accordance with the SPAC Memorandum) holder of SPAC Class A Ordinary Shares to redeem all or a portion of the SPAC Class A Ordinary Shares held by such holder at a per-share price, payable in cash, equal to a pro rata share of the aggregate amount then on deposit in the Trust Account (including any amounts drawn down by SPAC pursuant to the Sponsor Note and added to the Trust Account to fund a portion of the Redemption Amount and the interest earned on the funds held in the Trust Account, but net of Taxes payable (as determined in accordance with the SPAC Memorandum)) in connection with the Business Combination.
“Registered IP” means all Intellectual Property that is registered, filed, certified, applied for, recorded, renewed or issued under the authority of, with or by any Governmental Authority, domain name registrar or other public or quasi-public legal authority anywhere in the world.
“Related Persons” means, as to any Person, the Affiliates of such Person, the Representatives of such Person and such Person’s Affiliates, and the immediate family members of any of the foregoing.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, deposit, disposal, discharge, dispersal, escaping, dumping, or leaching into or through the environment including ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata.
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“Remedial Action” means all action required under applicable Laws (i) to cleanup, remove, treat or in any other way remediate any chemical, Hazardous Material or waste containing any chemical or Hazardous Material in the environment; (ii) to prevent the release of any chemical, Hazardous Material or waste containing any chemical or Hazardous Material so that they do not endanger or otherwise adversely affect the environment or public health or welfare; or (iii) to perform pre-remedial studies, investigations or monitoring, in or under any real property, assets or facilities.
“Representatives” means, as to any Person, the respective managers, directors, officers, employees, independent contractors, consultants, advisors (including financial advisors, legal counsel and accountants), agents and other representatives of such Person or his, her or its Affiliates.
“Right of First Refusaland Co-Sale Agreement” means that certain Third Amended and Restated Right of First Refusal and Co-Sale Agreement, made as of January 19, 2024, by and among the Company, the Investors (as defined therein) and the Key Holders (as defined therein).
“SAFE Note ExchangeRatio” means the exchange ratio determined in accordance with the terms of any Company SAFE Note.
“Sanctions” means (i) the economic, financial and trade sanctions Laws or restrictive measures administered, implemented, enacted or enforced by any Sanctions Authority; and (ii) any other applicable economic, financial and trade sanctions Laws or restrictive measures administered, implemented, enacted or enforced by any comparable Governmental Authority that do not conflict with the measures referred to in the foregoing clause (i).
“Sanctions Authority” means any Governmental Authority of (i) the United States of America (including OFAC, the U.S. Department of State and the U.S. Department of Commerce Bureau of Industry and Security); (ii) the United Kingdom (including the Office of Financial Sanctions Implementation in His Majesty’s Treasury, the Office of Trade Sanctions Implementation in the Department of Business and Trade, and His Majesty’s Revenue and Customs); (iii) the European Union (including individual EU Member States); (iv) the United Nations (including the United Nations Security Council and any United Nations Security Council Sanctions Committee); and (v) the United Arab Emirates.
“Sanctions List” means any Sanctions-related list maintained by any Sanctions Authority, including the Specially Designated Nationals and Blocked Persons List maintained by OFAC, lists maintained by the U.S. Department of State, the Consolidated List of Persons and Entities subject to Financial Sanctions maintained by the European Commission, the UK Sanctions List maintained by the UK Government, and/or any other similar or equivalent list maintained by, or public announcement of Sanctions, blocking, designation or asset freeze made by any Sanctions Authority.
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“Sanctions RestrictedPerson” means any Person that is (a) listed or referred to on any Sanctions List, whether by name or description; (b) located, resident or domiciled in, a national or incorporated, constituted or organized under the Laws of, or that is or is part of a Governmental Authority of, a country or territory that is subject to comprehensive country- or territory-wide sanctions under Sanctions or Trade Laws, including Iran, Cuba, Syria, Crimea, and North Korea, and those portions of the Donetsk People’s Republic or Luhansk People’s Republic regions of Ukraine and such other regions of Ukraine where such activities would be prohibited by applicable Law, as well as Russia and Belarus; or (c) “owned” or “controlled” by, or “acting on behalf of or at the direction” of (as those terms are defined or understood under relevant Sanctions and associated guidance), a Person referred to in the foregoing clauses (a) or (b).
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933.
“Smart Contract” means a software program that self-executes on Nodes in a Blockchain Network.
“Software” means all (a) computer software, programs, applications, scripts, middleware, firmware, interfaces, tools, operating systems, Smart Contracts, software code of any nature, (including object code, source code, interpreted code, data files, rules, definitions and methodology derived from the foregoing) and any derivations, updates, enhancements and customization of any of the foregoing, together with all related processes, technical data, algorithms, APIs, subroutines, operating procedures, report formats, Development tools, templates and user interfaces, (b) electronic data, Databases and data collections, and (c) documentation, including user manuals, technical manuals, programming comments, descriptions, flow charts and other work products used to design, plan, organize and Develop any of the foregoing, and training materials related to any of the foregoing.
“SPAC AcquisitionProposal” means an Acquisition Proposal with respect to SPAC or Company Merger Sub.
“SPAC Class A OrdinaryShares” means a Class A ordinary share of SPAC, par value $0.0001 per share.
“SPAC Class B OrdinaryShares” means a Class B ordinary share of SPAC, par value $0.0001 per share.
“SPAC Expenses” means any out-of-pocket fees, costs and expenses paid or payable by or on behalf of SPAC or Company Merger Sub (whether or not billed or accrued for) as a result of or in connection with the preparation, negotiation, documentation, execution, performance or consummation of this Agreement or any Ancillary Document and the Transactions, including: (a) all fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers, including the business combination marketing fee payable by SPAC to Cantor Fitzgerald & Co., the M&A financial advisory fee payable by SPAC to Cantor Fitzgerald & Co., and any placement agent fees payable to Cantor Fitzgerald & Co. and Citibank, N.A. in respect of any PIPE Investment; (b) Transfer Taxes; (c) the repayment of any outstanding SPAC Loans and any other outstanding promissory notes owed to Sponsor or any other Affiliates of SPAC; (d) any filing fees in connection with obtaining regulatory approvals or similar filings with Governmental Authorities (including filing fees allocated pursuant to Section 7.12(b)); and (e) all costs, fees and expenses related to the SPAC D&O Tail Insurance.
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“SPAC FundamentalRepresentations” means the representations and warranties made by SPAC pursuant to Section 4.1 (Organization and Standing), Section 4.2 (Authorization; Binding Agreement), Section 4.5 (Capitalization), Section 4.15 (Findersand Brokers), and Section 4.20 (SPAC Trust Account).
“SPAC Loans” means the loans made or to be made to SPAC by the Sponsor for the purpose of financing costs and expenses incurred in connection with the IPO, a Business Combination or other working capital expenditures of SPAC, including pursuant to the Sponsor Loan and the Sponsor Note.
“SPAC Material AdverseEffect” means any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on (i) the business, assets and liabilities, results of operations or financial condition of SPAC or (ii) the ability of SPAC to consummate the Transactions; provided, however, that in no event would any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “SPAC Material Adverse Effect”: (a) any enactment of, or change or proposed change in, any applicable Laws or GAAP or any interpretation thereof following the date of this Agreement, (b) any change in interest rates or economic, political, business or financial market conditions generally, (c) the taking of any action expressly required to be taken under this Agreement or any Ancillary Document, (d) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), epidemic, pandemic, disease or outbreak (including any binding interpretations of an applicable Governmental Authority with respect thereto following the date of this Agreement), acts of nature or change in climate, (e) any acts of terrorism or war (whether or not declared), sabotage, civil unrest, terrorism, riots, the outbreak or escalation of hostilities, geopolitical conditions, local, regional, state, national or international political conditions, or social conditions, (f) any action taken by or at the express written request of an authorized officer of, the Company (other than actions contemplated by this Agreement or any Ancillary Document), (g) any downturn in general economic conditions, including changes in the credit, debt, securities, financial or capital markets (including changes in interest or exchange rates, prices of any security or market index or commodity or any disruption of such markets), (h) the consummation and effects of any redemption pursuant to the Redemption Rights or the failure to obtain the Required Shareholder Approval, (i) any Events generally applicable to blank check companies or the market in which blank check companies operate; (j) any matter as of the date of this Agreement to the extent expressly set forth on the SPAC Disclosure Schedules; (k) any change in the price or relative value of, or the trading volume (including any halt or suspension in trading) on any exchange of, any digital currency, cryptocurrency or other blockchain-based tokens or assets, including Bitcoin (provided that the exception in this clause (k) shall not prevent or otherwise affect a determination that any Event underlying such change has resulted in or contributed to a SPAC Material Adverse Effect); (l) any change in existence or legality of any digital currency or cryptocurrency, or any other blockchain-based token or asset, or any halt or suspension in trading of any such digital currency or cryptocurrency on any exchange, in each case, including Bitcoin (provided that the exception in this clause (l) shall not prevent or otherwise affect a determination that any Event underlying such change has resulted in or contributed to a SPAC Material Adverse Effect); (m) any change to block structure, methods and rules for adding transactions to the blockchain, methods for processing and adding new blocks, mining or staking rewards, or algorithms of any digital currency, cryptocurrency or other blockchain-based tokens or assets, including any “halving”, or the affects thereof (provided that the exception in this clause (m) shall not prevent or otherwise affect a determination that any Event underlying such change has resulted in or contributed to a SPAC Material Adverse Effect); or (n) any Events that are cured by SPAC prior to the SPAC Closing; provided, that in the case of each of clauses (a), (b), (g), (i), (k), (l) and (m), any such Event shall be taken into account in determining whether a SPAC Material Adverse Effect has occurred or could reasonably be expected to occur to the extent such Event has a disproportionate and adverse effect on SPAC relative to other blank check companies.
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“SPAC Memorandum” means the amended and restated memorandum and articles of association of SPAC as of the date of this Agreement, as in effect under the Cayman Act.
“SPAC Merger FilingDocuments” means the SPAC Plan of Merger together with such other documents as may be required in accordance with the applicable provisions of the Cayman Act or by any other Law to make the SPAC Merger effective.
“SPAC Merger SubOrdinary Shares” means the ordinary shares of SPAC Merger Sub, par value $0.01 per share.
“SPAC Merger SubShareholder Approval” means the vote during a general meeting or unanimous written resolution of the shareholder(s) of SPAC Merger Sub required to approve the SPAC Merger Sub Shareholder Approval Matters.
“SPAC Merger SubShareholder Approval Matters” means the following approvals by the shareholder(s) of SPAC Merger Sub: (a) as a special resolution, the approval of the SPAC Merger and authorization of SPAC Merger Sub’s entry into the SPAC Plan of Merger, (b) as an ordinary resolution (or if required by applicable Law or the SPAC Merger Sub memorandum and articles, as a special resolution) the adoption and approval of such other matters as the Company, PubCo and SPAC shall hereafter mutually determine to be necessary or appropriate in order to effect the Transactions.
“SPAC Ordinary Shares” means the SPAC Class A Ordinary Shares and the SPAC Class B Ordinary Shares.
“SPAC PreferenceShare” means a preference share of SPAC, par value $0.0001 per share.
“SPAC Shareholders” means the holders of any SPAC Shares immediately prior to the Effective Time.
“SPAC Shares” means, collectively, the SPAC Ordinary Shares and the SPAC Preference Shares.
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“Sponsor ClosingShares” means a number of SPAC Class B Ordinary Shares as determined in accordance with the Sponsor Support Agreement.
“Sponsor Loan” means the Promissory Note in the aggregate principal amount of up to $1,750,000 entered into by SPAC in favor of the Sponsor on May 1, 2025 in connection with loans the Sponsor has made, and will make, to SPAC to fund SPAC’s expenses relating to investigating and selecting a target business and other working capital requirements.
“Sponsor Note” means the Promissory Note in the aggregate principal amount of up to $3,600,000 entered into by SPAC in favor of the Sponsor on May 1, 2025 in connection with loans the Sponsor may make to SPAC to fund a portion of the Redemption Amount as further described in the SEC Reports.
“Sponsor PrivatePlacement” means the private sale by SPAC to Sponsor of certain SPAC Class A Ordinary Shares, as set forth and more particularly described in that certain Private Placement Shares Purchase Agreement, dated as of May 1, 2025, by and between SPAC and Sponsor.
“Stockholder EarnoutPortion” means, with respect to any Company Earnout Stockholder, a number of shares of PubCo Common Stock (rounded down to the nearest whole number divisible by two), equal to the number of Company Earnout Shares (or applicable portion thereof) multiplied by a fraction, (i) the numerator of which is the number of shares of Company Common Stock and shares of Company Common Stock underlying Company Warrants and Company Equity Awards held by such holder immediately prior to the Effective Time (and giving effect to the Conversions) and (ii) the denominator of which is the total number of shares of Company Common Stock and shares of Company Common Stock underlying Company Warrants and Company Equity Awards outstanding immediately prior to the Effective Time (and after giving effect to the Conversions); provided that the Stockholder Earnout Portion of the Company Earnout Stockholders shall be subject to adjustment as provided in Section 2.16(a).
“Subsidiary” means, with respect to a Person, any corporation, general or limited partnership, limited liability company, joint venture or other entity in which such Person, directly or indirectly, (a) owns or controls fifty percent (50%) or more of the outstanding voting securities, profits interest or capital interest, (b) is entitled to elect at least a majority of the board of directors or similar governing body or (c) in the case of a limited partnership, limited liability company or similar entity, is a general partner or managing member and has the power to direct the policies, management and affairs of such entity, respectively.
“Tax Return” means any return, declaration, report, claim for refund, information return or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
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“Taxes” means (a) all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property, windfall profits, tariffs, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for any period or otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as a result of any tax sharing, tax group, tax indemnity or tax allocation agreement with, or any other express or implied agreement to indemnify, any other Person.
“Total Cash ProceedsAmount” means the aggregate cash proceeds amount (prior to payment of any fees or expenses) from the PIPE Investments (which such amount shall include any proceeds deemed to be received in the PIPE in an amount, in U.S. dollars, equal to the product of (i) the sum of any Open-Market Purchase Shares and Currently Owned Shares in respect of which any PIPE Investors have elected to exercise their Reduction Right, to the extent permitted by, and in accordance with the terms and conditions of, the PIPE Subscription Agreements, multiplied by (ii) $10.00 per share).
“Trade Laws” means any applicable Laws relating to and governing economic sanctions or the import, export, reexport, release, brokering, or transfer of goods, software, technology, technical data and services, including Canada’s Customs Act, Customs Tariff, Export and Import Permits Act, the Criminal Code (Canada), the Special Economic Measures Act, the United Nations Act, the Justice for Victims of Corrupt Foreign Officials Act and the Freezing Assets of Corrupt Foreign Officials Act, the U.S. International Emergency Economic Powers Act, U.S. Outbound Investment Regulations under 31 C.F.R. Part 850, the Tariff Act of 1930 and other Laws and programs administered or enforced by the U.S. Department of Commerce, U.S. International Trade Commission, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement and their predecessor agencies, the U.S. Export Control Reform Act of 2018, the U.S. Export Administration Regulations (15 C.F.R. Parts 730 774), including related restrictions with regard to transactions involving Persons on the U.S. Department of Commerce’s Denied Persons List or Entity List, the U.S. Arms Export Control Act, the U.S. International Traffic in Arms Regulations (22 C.F.R. Parts 120 130), including related restrictions with regard to transactions involving Persons on the U.S. Department of State’s Debarred List, the U.S. Trading With the Enemy Act, the embargoes and restrictions administered by the U.S. Department of the Treasury, OFAC, Orders of the President of the United States of America regarding embargoes and restrictions on transactions with designated countries and entities, including Persons designated on OFAC’s List of Specially Designated Nationals and Blocked Persons, the antiboycott regulations administered by the U.S. Department of Commerce and the antiboycott regulations administered by the U.S. Department of the Treasury, the United Nations Security Council, His Majesty’s Treasury, the European Union and any other locally applicable similar or equivalent Laws regarding economic sanctions, export controls or trade compliance.
“Trademarks” means all trademarks, service marks, trade names, business names, corporate names, trade dress, look and feel, product and service names, logos, brand names, slogans, Internet domain names, URLs, social media usernames, handles, hashtags and account names, symbols, emblems, insignia and other distinctive identification and indicia of source of origin, whether or not registered, including all common law rights thereto, and all applications and registrations therefor, and all goodwill associated with any of the foregoing or the business connected with the use of and symbolized by the foregoing.
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“Trading Day” means any day on which the Trading Market is open for trading.
“Trading Market” means the national stock exchange on which the PubCo Common Stock is listed for trading.
“Transaction ConsiderationValue” means, in respect of any Transaction Consideration (expressed on a per-share basis (i.e., per share of PubCo Common Stock exchanged in the transaction)), either:
(a) with respect to Transaction Consideration in the form of cash, the U.S. dollar amount of such cash;
(b) with respect to Transaction Consideration in the form of securities listed and publicly traded on one or more national securities exchanges:
i. if holders of shares of PubCo Common Stock will receive a “floating” amount of such securities equal to a fixed U.S. dollar amount of consideration, the Transaction Consideration Value shall be such fixed U.S. dollar amount of consideration;
ii. if holders of shares of PubCo Common Stock will receive a “fixed” number of such securities per share of PubCo Common Stock, the Transaction Consideration Value of such consideration shall equal the product of (A) the number of securities to be received per share of PubCo Common Stock multiplied by (B) the volume weighted average price of one such security, as reported on the Trading Market, determined for the twenty (20) continuous Trading Days ending three (3) Business Days prior to the closing date of such transaction (as reported on Bloomberg); provided that for purposes of this clause, references to “PubCo Common Stock” in the definition of Trading Market shall be deemed to be references to the national stock exchange on which such security is listed; or
(c) with respect to Transaction Consideration in the form of other securities (if any), the Transaction Consideration Value shall be $0.00.
“Transactions” means, collectively, the Mergers and the other transactions contemplated by this Agreement and the Ancillary Documents, including the PIPE Investments.
“Trust Account” means the trust account established by SPAC for the benefit of its Public Shareholders with the net proceeds from the IPO and the Sponsor Private Placement, pursuant to the Trust Agreement in accordance with the IPO Prospectus.
“Trust Agreement” means that certain Investment Management Trust Agreement, effective as of May 1, 2025, by and between SPAC and Continental, as trustee.
“Voting Agreement” means that certain Third Amended and Restated Voting Agreement, made and entered into as of January 19, 2024, by and among the Company and the Stockholders (as defined therein).
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1.2 Section References. The following capitalized terms, as used in this Agreement, have the respective meanings given to them in the Section as set forth below adjacent to such terms:
| Agreed Terms | 7.25 |
|---|---|
| Agreement | Preamble |
| Allocation Schedule | 3.2(c)(ii) |
| Assumed Option | 2.9(a) |
| Assumed Warrant | 2.9(b) |
| Authorization Notice | 2.7(e) |
| Closing | 3.1 |
| Closing Date | 3.1 |
| Closing Filing | 7.15(b) |
| Closing Press Release | 7.15(b) |
| Company | Preamble |
| Company Approval Matters | Recitals |
| Company Audited Financial Statements | 6.6(a) |
| Company Board | Recitals |
| Company Certificate of Merger | 2.3(c) |
| Company Closing | 3.1 |
| Company D&O Tail Insurance | 7.18(c) |
| Company Disclosure Schedules | Article VI |
| Company Financial Statements | 6.6(a) |
| Company Material Contract | 6.11(a) |
| Company Merger | Recitals |
| Company Merger Effective Time | 2.3(e) |
| Company Merger Intended Tax Treatment | 2.12(a) |
| Company Merger Sub | Preamble |
| Company Merger Sub Distribution | Recitals |
| Company Permits | 6.9 |
| Company Stockholder Support Agreement | Recitals |
| Company Surviving Subsidiary | 2.2 |
| Contracting Parties | 11.13 |
| Convertible Notes Conversion | 2.9(c) |
| D&O Indemnified Persons | 7.18(a) |
| Data Processing Contracts | 6.21(c) |
| Designated Entity | 6.12(a) |
| Effective Time | 2.3(e) |
| Enforceability Exceptions | 4.2 |
| Environmental Permits | 6.18(a) |
| Exchange Agent | 2.11(a) |
| Existing Company Governance Agreements | Recitals |
| Extraordinary General Meeting | 7.14(a) |
| Federal Securities Laws | 7.10 |
| FLSA | 6.16(d) |
| Foreign Antitrust Laws | 2.16(f) |
| HHR | 11.14 |
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| Intended Tax Treatment | 2.12(a) |
|---|---|
| Interim Financial Statements | 6.6(a) |
| Interim Period | 7.1(a) |
| Intervening Event Change in Recommendation | 7.14(f)(i) |
| Intervening Event Notice Period | 7.14(f)(i) |
| IP Assignment Agreements | 6.12(k) |
| IP Licenses | 6.12(f) |
| Issuance Event. | 2.16(a) |
| Lock-Up Agreement | Recitals |
| Measurement Period | 2.16(a) |
| Mergers | Recitals |
| Modification in Recommendation | 7.14(f)(i) |
| New Registration Rights Agreement | Recitals |
| NHTV Conversion | 2.9(e) |
| Nonparty Affiliates | 11.13 |
| Outside Date | 9.1(b) |
| Parties | Preamble |
| Party | Preamble |
| Per Share Transaction Value | 2.16(g) |
| PIPE | Recitals |
| PIPE Subscription Agreements | Recitals |
| Post Closing PubCo Officers | 7.17 |
| Post-Closing PubCo Board | 7.17 |
| Preferred Stock Conversion | 2.8(a) |
| Privacy Policies | 6.21(c) |
| Proxy Statement | 7.14(a) |
| Proxy/Registration Statement | 7.14(a) |
| PubCo | Preamble |
| PubCo Disclosure Schedules | Article V |
| PubCo Equity Incentive Plan | 7.25 |
| PubCo ESPP | 7.25 |
| Public Shareholders | 10.1 |
| Real Property Lease | 6.11(a)(iii) |
| Regulatory Approvals | 7.12(a) |
| Related Person | 6.19 |
| Released Claims | 10.1 |
| Required Shareholder Approval | 8.1(a) |
| SAFE Notes Conversion | 2.9(d) |
| SEC Reports | 4.6(a) |
| Signing Filing | 7.15(b) |
| Signing Press Release | 7.15(b) |
| SPAC | Preamble |
| SPAC Board | Recitals |
| SPAC Closing | 3.1 |
| SPAC D&O Tail Insurance | 7.18(b) |
| SPAC Deal Communications | 11.14 |
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| SPAC Disclosure Schedules | Article IV |
|---|---|
| SPAC Dissenting Shareholders | 2.7(e) |
| SPAC Dissenting Shares | 2.7(e) |
| SPAC Financials | 4.6(d) |
| SPAC Material Contract | 4.13(a) |
| SPAC Merger | Recitals |
| SPAC Merger Effective Time | 2.3(d) |
| SPAC Merger Intended Tax Treatment | 2.12(a) |
| SPAC Merger Sub | Preamble |
| SPAC Plan of Merger | 2.3 |
| SPAC Recommendation | 4.2 |
| SPAC Shareholder Approval Matters | 7.14(a) |
| SPAC Surviving Subsidiary | 2.1 |
| Sponsor | Recitals |
| Sponsor Support Agreement | Recitals |
| Stockholder Litigation | 7.26 |
| Transaction Consideration | 2.16(g) |
| Transfer Taxes | 2.12(b) |
| WARN Act | 6.16(a) |
| Written Objection | 2.7(e) |
1.3 Interpretation.
(a) The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.
(b) In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (ii) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (iii) any accounting term used and not otherwise defined in this Agreement or any Ancillary Document has the meaning assigned to such term in accordance with GAAP based on the accounting principles used by the applicable Person; (iv) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (v) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement; (vi) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (vii) the term “or” means “and/or” unless clearly indicated otherwise, including, by use of “either”; (viii) any reference to the term “ordinary course” or “ordinary course of business” shall be deemed in each case to be followed by the words “consistent with past practice”; (ix) any agreement, instrument, insurance policy, Law defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument, insurance policy, Law as from time to time amended, modified or supplemented as of the applicable date or during the applicable period of time, including (in the case of agreements or instruments) by waiver or consent (and in the case of agreements or instruments, in accordance with the term of the agreement or instrument, and in the case of any Ancillary Document, in accordance with the terms of this Agreement) and (in the case of statutes, regulations, rules or orders) by succession of comparable successor statutes, regulations, rules or orders and references to all attachments thereto and instruments incorporated therein; (x) unless the context of this Agreement otherwise requires, references to statutes shall include all rules and regulations promulgated thereunder; (xi) except as otherwise indicated, all references in this Agreement to the words “Section,” “Article”, “Schedule”, “Annex” and “Exhibit” are intended to refer to Sections, Articles, Schedules, Annexes and Exhibits to this Agreement; and (xii) the term “dollars” or “$” means United States dollars.
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(c) Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing body and any reference in this Agreement to a Person’s officers shall include any Person filling a substantially similar position for such Person.
(d) Any reference in this Agreement or any Ancillary Document to a Person’s shareholders or stockholders shall include any applicable owners of the Equity Interests of such Person, in whatever form.
(e) The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
(f) The Company Disclosure Schedules, the PubCo Disclosure Schedules and the SPAC Disclosure Schedules (including, in each case, any section thereof) referenced herein are a part of this Agreement as if fully set forth herein. All references herein to the Company Disclosure Schedules, the PubCo Disclosure Schedules or the SPAC Disclosure Schedules (including, in each case, any section thereof) shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a Party in the Company Disclosure Schedules, the PubCo Disclosure Schedules or the SPAC Disclosure Schedules, as applicable, or any section thereof, with reference to any section of this Agreement or section of the Company Disclosure Schedules, the PubCo Disclosure Schedules or the SPAC Disclosure Schedules, as applicable, shall be deemed to be a disclosure with respect to such other applicable sections of this Agreement or sections of the Company Disclosure Schedules, the PubCo Disclosure Schedules or the SPAC Disclosure Schedules, as applicable, if it is reasonably apparent on the face of such disclosure that such disclosure is responsive to such other section of this Agreement or section of the Company Disclosure Schedules, the PubCo Disclosure Schedules or the SPAC Disclosure Schedules, as applicable. Certain information set forth in the Company Disclosure Schedules, the PubCo Disclosure Schedules or the SPAC Disclosure Schedules, as applicable, is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. Unless expressly contemplated by this Agreement, the disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made in this Agreement, nor shall such information be deemed to establish a standard of materiality.
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(g) To the extent that any Contract, document, certificate or instrument is represented and warranted to by PubCo or the Company to be given, delivered, provided or made available by PubCo or the Company, in order for such Contract, document, certificate or instrument to have been deemed to have been given, delivered, provided and made available to SPAC or its Representatives, such Contract, document, certificate or instrument shall have been posted no later than two (2) days prior to the date of this Agreement to the Project Senna electronic data room established by the Company on the Intralinks Data Rooms platform, and SPAC and its Representatives must have been given access to the electronic folders containing such information at such time.
Article II
MERGERS
2.1 SPAC Merger. At the SPAC Merger Effective Time, and subject to and upon the terms and conditions of this Agreement and the SPAC Plan of Merger, and in accordance with the applicable provisions of the Cayman Act, SPAC and SPAC Merger Sub shall consummate the SPAC Merger, pursuant to which SPAC shall be merged with and into SPAC Merger Sub, following which the separate corporate existence of SPAC shall cease and SPAC Merger Sub shall continue as the surviving company. SPAC Merger Sub, as the surviving company after the SPAC Merger, is hereinafter sometimes referred to as the “SPAC Surviving Subsidiary” (provided that, for the avoidance of doubt, references in this Agreement to SPAC Merger Sub in respect of any time period occurring after the SPAC Merger Effective Time (in whole or in part) shall be deemed to be references to SPAC Merger Sub as the SPAC Surviving Subsidiary for the portion of such time period occurring after the SPAC Merger Effective Time). The SPAC Merger shall have the effects specified in the Cayman Act.
2.2 Company Merger. At the Company Merger Effective Time, but at least two (2) hours after the SPAC Merger Effective Time, and subject to and upon the terms and conditions of this Agreement and the Company Certificate of Merger, and in accordance with the provisions of the DGCL, the Company and Company Merger Sub shall consummate the Company Merger, pursuant to which Company Merger Sub shall be merged with and into the Company, following which the separate corporate existence of Company Merger Sub shall cease and the Company shall continue as the surviving company. The Company, as the surviving company after the Company Merger, is hereinafter sometimes referred to as the “Company Surviving Subsidiary” (provided that, for the avoidance of doubt, references in this Agreement to the Company in respect of any time period occurring after the Company Merger Effective Time (in whole or in part) shall be deemed to be references to the Company as the Company Surviving Subsidiary for the portion of such time period occurring after the Company Merger Effective Time). The Company Merger shall have the effects specified in the DGCL.
2.3 SPAC Merger Effective Time and Company Merger Effective Time. On the Closing Date:
(a) with respect to the SPAC Merger, SPAC Merger Sub and SPAC shall enter into and file a plan of merger (the “SPAC Plan of Merger”) together with such other documents as provided by the Cayman Act with the Cayman Registrar in accordance with the Cayman Act;
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(b) following the completion of the actions set forth in Section 2.3(a) above, SPAC Surviving Subsidiary shall distribute one hundred percent (100%) of its ownership interests in Company Merger Sub (representing all of the ownership interests in Company Merger Sub outstanding at such time) to PubCo in the Company Merger Sub Distribution, with the result that Company Merger Sub shall be a direct wholly owned Subsidiary of PubCo before taking the actions set forth in Section 2.3(c) below;
(c) with respect to the Company Merger, Company Merger Sub, the Company and PubCo shall file a certificate of merger (the “Company Certificateof Merger”) with the Delaware Secretary of State in accordance with the DGCL;
(d) the SPAC Merger shall become effective on the Closing Date at such time when the SPAC Plan of Merger is registered by the Cayman Registrar in accordance with the Cayman Act, or such other time as may be specified in the SPAC Plan of Merger, as applicable (such time, the “SPACMerger Effective Time”); and
(e) the Company Merger shall become effective on the Closing Date at such time when the Company Certificate of Merger has been duly accepted for filing by the Delaware Secretary of State in accordance with the DGCL, or such other time as specified in the Company Certificate of Merger, as applicable (such time, the “Company Merger Effective Time” or the “Effective Time”), provided that the Company Merger Effective Time shall be at least two (2) hours after the SPAC Merger Effective Time.
2.4 Effect of the Mergers.
(a) At the SPAC Merger Effective Time, the effect of the SPAC Merger shall be as provided in this Agreement, the SPAC Plan of Merger and the applicable provisions of the Cayman Act. Without limiting the generality of the foregoing, and subject thereto, at the SPAC Merger Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of SPAC Merger Sub and SPAC shall vest in and become the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of the SPAC Surviving Subsidiary (including all rights and obligations with respect to the Trust Account), which shall include the assumption by the SPAC Surviving Subsidiary of any and all agreements, covenants, duties and obligations of SPAC Merger Sub and SPAC set forth in this Agreement to be performed after the SPAC Merger Effective Time, and the SPAC Surviving Subsidiary shall continue its existence as a wholly-owned Subsidiary of PubCo.
(b) At the Company Merger Effective Time, the effect of the Company Merger shall be as provided in this Agreement, the Company Certificate of Merger and the provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Company Merger Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of Company Merger Sub and the Company shall become the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of the Company Surviving Subsidiary which shall include the assumption by Company Surviving Subsidiary of any and all agreements, covenants, duties and obligations of Company Merger Sub and Company set forth in this Agreement to be performed after the Effective Time, and the Company Surviving Subsidiary shall continue its existence as a wholly-owned Subsidiary of PubCo.
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2.5 Organizational Documents.
(a) At the SPAC Merger Effective Time, the Organizational Documents of SPAC Surviving Subsidiary shall be the Organizational Documents of SPAC Merger Sub, as in effect immediately prior to the SPAC Merger Effective Time.
(b) At the Company Merger Effective Time, the Organizational Documents of the Company Surviving Subsidiary shall be the Organizational Documents of Company Merger Sub, as in effect immediately prior to the Company Merger Effective Time.
(c) As of the Effective Time, the Organizational Documents of PubCo shall be substantially in the form of the Certificate of Incorporation set forth in Exhibit E and the Bylaws set forth in Exhibit F.
2.6 Directors and Officers of the Surviving Companies.
(a) At the SPAC Effective Time, the directors and officers of the SPAC Surviving Subsidiary shall be the directors and officers selected by the Company.
(b) At the Company Merger Effective Time, the directors and officers of the Company Surviving Subsidiary shall be the directors and officers selected by the Company prior to the Company Merger Effective Time.
(c) As of the Effective Time, the directors and officers of PubCo shall be the directors and officers identified in the Proxy/Registration Statement at the time it becomes effective, which directors and officers shall be selected by the Company.
2.7 Effect of SPAC Merger on Outstanding Securities of SPAC and SPAC Merger Sub. At the SPAC Merger Effective Time, by virtue of the SPAC Merger and without any action on the part of any Party or the holders of securities of SPAC, PubCo or SPAC Merger Sub:
(a) SPAC Ordinary Shares.
(i) Conversion of SPAC Class B Ordinary Shares. First, a number of the then-issued and outstanding SPAC Class B Ordinary Shares equal to the Sponsor Closing Shares shall be converted automatically into SPAC Class A Ordinary Shares on a one-for-one basis in accordance with the Initial Conversion Ratio and the other terms of the SPAC Memorandum and the Sponsor Support Agreement, following which, any and all SPAC Class B Ordinary Shares that remain outstanding following such conversion shall cease to be issued and outstanding and shall automatically be canceled in accordance with the terms of the Sponsor Support Agreement and shall cease to exist. The holders of SPAC Class B Ordinary Shares issued and outstanding immediately prior to the SPAC Merger Effective Time shall cease to have any rights with respect to such shares, except as provided herein or by Law.
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(ii) Conversion of SPAC Class A Ordinary Shares. Second, each issued and outstanding SPAC Class A Ordinary Share (including the SPAC Class A Ordinary Shares resulting from the conversion set forth in Section 2.7(a)(i), but excluding those SPAC Class A Ordinary Shares described in Section 2.7(a)(iii), Section 2.7(b) and Section 2.7(e)) shall automatically be cancelled and cease to exist in exchange for the right to receive a number of shares of PubCo Common Stock equal to the Per Share SPAC Merger Consideration, without interest. All of the SPAC Class A Ordinary Shares converted into the right to receive the Per Share SPAC Merger Consideration pursuant to this Section 2.7(a)(ii) shall no longer be outstanding and shall automatically be cancelled and shall cease to exist at the SPAC Merger Effective Time, and each holder of a certificate (if any) previously representing any such SPAC Class A Ordinary Shares shall thereafter cease to have any rights with respect to such securities, except the right to receive the Per Share SPAC Merger Consideration into which such SPAC Class A Ordinary Shares shall have been converted in the SPAC Merger.
(iii) Redeeming SPAC Shares. At or immediately prior to the SPAC Merger Effective Time, each issued and outstanding SPAC Class A Ordinary Share in respect of which the holder thereof has validly exercised its Redemption Right pursuant to and in accordance with the SPAC Memorandum (and not waived, withdrawn or otherwise lost such rights), if any, shall automatically be canceled and shall cease to exist and shall thereafter represent only the right to receive a pro rata share of the Redemption Amount in accordance with the SPAC Memorandum (and each holder of such Redeeming SPAC Shares shall thereafter cease to have any rights with respect to such securities except the right to be paid a pro rata share of the Redemption Amount in accordance with the SPAC Memorandum).
(b) Treasury Shares. Notwithstanding Section 2.7(a) or any other provision of this Agreement to the contrary, at the Effective Time, if there are any SPAC Ordinary Shares that are owned by the SPAC as treasury shares immediately prior to the Effective Time, such SPAC Ordinary Shares shall be automatically canceled and shall cease to exist without any conversion thereof or payment therefor.
(c) No Liability. Notwithstanding anything to the contrary in this Section 2.7, none of the SPAC Surviving Subsidiary, PubCo or any other Party shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(d) SPAC Merger Sub Shares. At the Effective Time, all SPAC Merger Sub Ordinary Shares issued and outstanding immediately prior to the Effective Time shall be converted into an equal number of ordinary shares, par value $0.0001, of the SPAC Surviving Subsidiary, with the same rights, powers and privileges as the shares so converted and shall constitute the only issued and outstanding share capital of the SPAC Surviving Subsidiary, held by PubCo.
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(e) Dissenting Shares. Notwithstanding any provision of this Agreement to the contrary and to the extent available under the Cayman Act, the SPAC Ordinary Shares that are issued and outstanding immediately prior to the SPAC Merger Effective Time and that are held by SPAC Shareholders who shall have demanded properly in writing dissenters’ rights for such SPAC Ordinary Shares in accordance with Section 238 of the Cayman Act and otherwise complied with all of the provisions of the Cayman Act relevant to the exercise and perfection of dissenters’ rights (the “SPAC Dissenting Shares” and the holders of such SPAC Dissenting Shares being the “SPAC DissentingShareholders”) shall be automatically canceled and cease to exist at the SPAC Merger Effective Time and shall thereafter represent only the right to be paid by the Surviving SPAC Subsidiary the fair value of such SPAC Dissenting Shares and such other rights provided pursuant to Section 238 of the Cayman Act and shall not be converted into, and such SPAC Dissenting Shareholders shall have no right to receive, the applicable shares of PubCo Common Stock, unless and until such SPAC Shareholder fails to perfect or withdraws or otherwise loses his, her or its right to dissenters’ rights under the Cayman Act. The SPAC Ordinary Shares owned by any SPAC Shareholder who fails to perfect or who effectively withdraws or otherwise loses his, her or its dissenters’ rights pursuant to the Cayman Act shall be canceled and converted into, and become exchangeable for, as of the SPAC Merger Effective Time, the right to receive the applicable shares of PubCo Common Stock pursuant to Section 2.7(a), without any interest thereon. Prior to the Closing, SPAC shall give the Company notice as promptly as practicable of any demands for dissenters’ rights received by SPAC and any withdrawals of such demands. If any SPAC Shareholder gives to SPAC, before the Required Shareholder Approval is obtained at the Extraordinary General Meeting, written objection to the SPAC Merger (each, a “Written Objection”) in accordance with Section 238(2) of the Cayman Act (i) SPAC shall, in accordance with Section 238(4) of the Cayman Act, as promptly as practicable give written notice of the authorization of the SPAC Merger (the “Authorization Notice”) to each such SPAC Shareholder who has made a Written Objection, and (ii) SPAC and Company may, but are not obliged to, delay the commencement of the Closing and the filing of the SPAC Plan of Merger with the Cayman Registrar, until at least twenty (20) days shall have elapsed since the date on which the Authorization Notice is given (being the period allowed for written notice of an election to dissent under Section 238(5) of the Cayman Act, as referred to in Section 239(1) of the Cayman Act), but in any event subject to the satisfaction or waiver of all of the conditions set forth in Article VIII.
2.8 Effect of Company Merger on Outstanding Securities of Company and Company Merger Sub.
(a) Company Preferred Stock. Immediately prior to the Effective Time pursuant to the Organizational Documents of the Company and the Company Written Consent, each share of Company Preferred Stock that is issued and outstanding as of such time will be converted into one share of Company Common Stock (the “Preferred Stock Conversion” ). For the avoidance of doubt, no cash will be paid in the Preferred Stock Conversion. All of the shares of Company Preferred Stock converted into shares of Company Common Stock pursuant to this Section 2.8(a) shall no longer be outstanding and shall cease to exist, and each holder of Company Preferred Stock shall thereafter cease to have any rights with respect to such Company Preferred Stock.
(b) Company Common Stock. At the Effective Time, by virtue of the Company Merger and without any action on the part of any Party or the holders of securities of any Party, each share of Company Common Stock issued and outstanding as of such time (including Company Class A Common Stock and shares of Company Common Stock resulting from the conversion of the Company Preferred Stock pursuant to Section 2.8(a), and the Company Stockholder Written Consent, and the conversion of Company Convertible Promissory Notes and Company SAFE Notes pursuant to Section 2.9 but excluding any Appraisal Shares and any shares referred to in Section 2.8(c)) shall automatically be cancelled and cease to exist in exchange for the right to receive the Per Share Company Merger Consideration, without interest.
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(c) Treasury Stock. Notwithstanding Section 2.8(b) or any other provision of this Agreement to the contrary, at the Effective Time, if there are any shares of Company Stock that are owned by Company as treasury interests or any shares of Company Stock owned by any direct or indirect Subsidiary of the Company immediately prior to the Effective Time, such shares of Company Stock shall be canceled and shall cease to exist without any conversion thereof or payment therefor.
(d) No Liability. Notwithstanding anything to the contrary in this Section 2.8, none of Company Surviving Subsidiary, PubCo or any other Party shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(e) Company Merger Sub Shares. At the Effective Time, all of the shares of Company Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into an equal number of shares of common stock of Company Surviving Subsidiary, with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of Company Surviving Subsidiary.
(f) Appraisal Rights.
(i) Notwithstanding any provision of this Agreement to the contrary and to the extent available under the DGCL, shares of Company Stock that are outstanding immediately prior to the Company Merger Effective Time and that are held by Company Stockholders who shall have neither voted in favor of the Company Merger nor consented thereto in writing and who shall have demanded properly in writing appraisal for such Company Stock in accordance with Section 262 of the DGCL and otherwise complied with all of the provisions of the DGCL relevant to the exercise and perfection of dissenters’ rights shall not be converted into, and any such Company Stockholder shall have no right to receive, the Per Share Company Merger Consideration (or any portion of the Company Merger Shares or the Company Earnout Shares) unless and until such Company Stockholder fails to perfect or withdraws or otherwise loses his, her or its right to appraisal and payment under the DGCL. Any Company Stockholder who fails to perfect or who effectively withdraws or otherwise loses his, her or its rights to appraisal of such shares of Company Stock under Section 262 of the DGCL shall thereupon be deemed (A) to no longer be “Appraisal Shares” within the meaning of this Agreement, and (B) to have such Company Stockholder’s shares of Company Stock converted into, and to have become exchangeable for, as of the Company Merger Effective Time, the right to receive the Per Share Company Merger Consideration (on an as-converted to Company Common Stock basis in respect of Company Preferred Stock (if any) held by such Company Stockholder), without any interest thereon, in accordance with and pursuant to the provisions of this Article II, including this Section 2.8.
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(ii) Prior to the SPAC Closing, the Company shall give SPAC (i) notice as promptly as practicable of any demands for appraisal received by the Company and any withdrawals of such demands, and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for appraisal under the DGCL. Prior to the SPAC Closing, the Company shall not, except with the prior written consent of SPAC (which consent shall not be unreasonably withheld), make any payment with respect to any demands for appraisal or offer to settle or settle any such demands.
2.9 Treatment of Company Equity Awards and Convertible Securities.
(a) Company Options. Effective as of the Company Closing, by virtue of the Company Merger and without any further action on the part of any Person, the Company Share Plan shall be terminated and no new Equity Awards shall be granted thereunder and each Company Option, whether vested or unvested, shall be assumed by PubCo and become an option to purchase shares of PubCo Common Stock (each, an “Assumed Option” ) on the same terms and conditions (including vesting, exercise and expiration provisions) as applied to each corresponding Company Option prior to the Company Closing, except that (A) the number of shares of PubCo Common Stock subject to each Assumed Option shall be equal to the product of (x) the number of shares of Company Common Stock that were subject to the corresponding Company Option immediately prior to the Company Closing, multiplied by (y) the Company Exchange Ratio, rounded down to the nearest whole share, and (B) the per-share exercise price applicable to each Assumed Option shall be equal to the quotient of (x) the exercise price per share of Company Common Stock subject to the corresponding Company Option immediately prior to the Company Closing, divided by (y) the Company Exchange Ratio, rounded up to the nearest whole cent. In addition, each holder of a Company Option, whether vested or unvested, will have the right to receive their Stockholder Earnout Portion of the Company Earnout Shares, pursuant to and subject to the terms and conditions set forth in Section 2.16 below.
(b) Company Warrants. Effective as of the Company Closing, by virtue of the Company Merger and without any further action on the part of any Person, each Company Warrant shall be assumed by PubCo and become a warrant to purchase shares of PubCo Common Stock (each, an “AssumedWarrant” ) on the same terms and conditions as applied to each corresponding Company Warrant prior to the Company Closing, except that (A) the number of shares of PubCo Common Stock subject to each Assumed Warrant shall be equal to the product of (x) the number of shares of Company Common Stock that were subject to the corresponding Company Warrant immediately prior to the Company Closing multipliedby (y) the Company Exchange Ratio, rounded down to the nearest whole share, and (B) the per-share exercise price applicable to each Assumed Warrant shall be equal to the quotient of (x) the exercise price per share of Company Common Stock subject to the corresponding Company Warrant immediately prior to the Company Closing, divided by (y) the Company Exchange Ratio, rounded up to the nearest whole cent. In addition, each holder of a Company Warrant will have the right to receive their Stockholder Earnout Portion of the Company Earnout Shares, pursuant to and subject to the terms and conditions set forth in Section 2.16 below.
(c) Company Convertible Promissory Notes. Each Company Convertible Promissory Note outstanding as of immediately prior to the Company Closing shall, subject to the terms and conditions of the applicable promissory note and subject to the occurrence of the Company Closing, be converted into a number of shares of Company Common Stock as calculated in accordance with the terms and conditions of the applicable promissory note (the “Convertible Notes Conversion” ).
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(d) Company SAFE Notes. Each Company SAFE Note outstanding as of immediately prior to the Company Closing shall, subject to the terms and conditions of the applicable Company SAFE Note and subject to the occurrence of the Company Closing, be converted into a number of shares of Company Common Stock equal to the SAFE Note Exchange Ratio (the “SAFE Notes Conversion” ).
(e) NHTV Side Letter. The Company shall provide the holder of the NHTV Side Letter with written notice at least forty-five (45) days prior to Closing. If the holder elects to exercise any options in accordance with the NHTV Side Letter prior to the Closing, the Company shall issue the applicable number of shares of Company Preferred Stock to the holder thereof in accordance with the terms of the NHTV Side Letter prior to the Preferred Stock Conversion. The shares of Company Preferred Stock issued therefor shall be exchanged as provided for in Section 2.8(a) and Section 2.8(b) at the times provided thereto (the “NHTV Conversion” ). Any options issued in accordance with the NHTV Side Letter that are not elected to be exercised prior to the Closing shall, as of the Company Merger Effective Time, be cancelled and shall cease to exist without any conversion thereof or payment thereof.
(f) Company Actions to Effect Treatment of Awards and Convertible Securities. Prior to the Company Merger Effective Time, the Company Board (or, if appropriate, any committee administering the Company Share Plans or the Company Equity Awards) shall take all actions necessary (including adopting such appropriate resolutions of the Company Board or any committee of the Company Board and obtaining such waivers, consents and/or amendments from the holders of any Company Convertible Securities prior to the Company Closing as may be necessary) to (i) effectuate the treatment of the Company Equity Awards and Company Convertible Securities set forth in this Section 2.9; (ii) ensure that after the Company Merger Effective Time, (A) no recipient of any Company Equity Award, any beneficiary thereof, nor any other participant in any Company Share Plan and (B) no holder of any Company Convertible Security shall have any right following the Company Merger Effective Time to acquire any securities of the Company or PubCo or to receive any payment or benefit with respect to such Company Equity Award and/or Company Convertible Security, except as expressly provided in this Section 2.9.
2.10 Effect of Mergers on Outstanding Securities of PubCo. At the SPAC Merger Effective Time, by virtue of the Mergers and without any action on the part of any Party or the holders of securities of any Party, all of the shares of PubCo Common Stock issued and outstanding immediately prior to the SPAC Merger Effective Time shall be canceled and extinguished without any conversion thereof or payment therefor.
2.11 Exchange and Conversion Procedures.
(a) Prior to the SPAC Merger Effective Time, PubCo shall appoint SPAC’s transfer agent, Continental, or another agent reasonably acceptable to Company (the “Exchange Agent”), as its agent for the purpose of exchanging the SPAC Ordinary Shares and the Company Common Stock held by Persons immediately prior to the Effective Time for shares of PubCo Common Stock.
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(b) At or prior to the applicable Effective Time noted below, PubCo shall deliver to the Exchange Agent written instructions to issue, in uncertificated book-entry form:
(i) at the SPAC Merger Effective Time, a number of shares of PubCo Common Stock to each holder of a SPAC Class A Ordinary Share immediately prior to the SPAC Merger equal to the number of SPAC Class A Ordinary Shares held by such Person immediately prior to the SPAC Merger; and
(ii) at the Company Merger Effective Time, the Company Merger Consideration Shares to the holders of shares of Company Stock immediately prior to the Company Merger Effective Time.
(c) For the avoidance of doubt, each SPAC Class A Ordinary Share issued and outstanding immediately prior to the SPAC Merger (including the SPAC Class A Ordinary Shares issued in respect of the conversion of SPAC Class B Ordinary Shares, but excluding those SPAC Class A Ordinary Shares described in Section 2.7(a)(iii), Section 2.7(b) and Section 2.7(e)) shall be cancelled in exchange for the right to receive shares of PubCo Common Stock pursuant to Section 2.7(a)(ii).
(d) For the avoidance of doubt, each share of Company Stock issued and outstanding immediately prior to the Company Merger shall be cancelled in exchange for (i) the right to receive shares of PubCo Common Stock pursuant to Section 2.8(b) and (ii) the right to receive a portion of the Company Earnout Shares pursuant to Section 2.16, provided that (in the case of this clause (ii)) the conditions for release of such Company Earnout Shares set forth in Section 2.16 have been satisfied.
(e) PubCo Common Stock to be delivered as the Per Share Merger Consideration shall be settled through DTC and issued in uncertificated book-entry form through the procedures of DTC, unless a physical share of PubCo Common Stock is required by applicable Law, in which case PubCo shall cause the Exchange Agent to promptly send certificates representing such shares of PubCo Common Stock to such holder. If payment of the Per Share Merger Consideration is to be made to a Person other than the Person in whose name the cancelled SPAC Share or cancelled share of Company Stock, as applicable, in exchange therefor is registered, it shall be a condition of payment that (i) the Person requesting such exchange present proper evidence of transfer or shall otherwise be in proper form for transfer; and (ii) the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Per Share Merger Consideration to a Person other than the registered holder of the SPAC Share cancelled or share of Company Stock cancelled or shall have established to the reasonable satisfaction of PubCo and SPAC that such Tax either has been paid or is not applicable.
(f) Share Transfer Books.
(i) At the SPAC Merger Effective Time, the register of members of SPAC maintained by Continental shall be closed, there shall be no further registration of transfers of SPAC Shares, and the holders of book-entry SPAC Ordinary Shares outstanding immediately prior to the SPAC Merger Effective Time shall cease to have any rights with respect to SPAC other than the rights expressly set forth in Section 2.7.
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(ii) At the Company Merger Effective Time, there shall be no further registration of the transfers of shares of Company Stock, and the holders of shares of Company Stock outstanding immediately prior to the Company Merger Effective Time shall cease to have any rights with respect to the Company other than the rights expressly set forth in Section 2.8;
(g) No Fractional Shares. Notwithstanding anything to the contrary contained herein, no fraction of a share of PubCo Common Stock will be issued by PubCo by virtue of this Agreement or the Transactions, and each Person who would otherwise be entitled to a fraction of a share of PubCo Common Stock (after aggregating all fractional shares of PubCo Common Stock that otherwise would be received by such holder) shall instead have the number of shares of PubCo Common Stock issued to such Person rounded down in the aggregate to the nearest whole share of PubCo Common Stock (without payment in lieu of such fractional shares).
(h) Distributions with Respect to Unexchanged Shares of PubCo Common Stock. All shares of PubCo Common Stock to be issued as the Per Share Merger Consideration shall be deemed issued and outstanding as of each of the SPAC Merger Effective Time and the Company Merger Effective Time. Subject to the effect of escheat, Tax or other applicable Laws, the holder of whole shares of PubCo Common Stock issued in exchange for SPAC Shares or shares of Company Stock pursuant to Section 2.7 or Section 2.8, respectively, will be promptly paid, without interest (subject to any applicable withholding Tax), the amount of dividends or other distributions with a record date after the SPAC Merger Effective Time or Company Merger Effective Time, respectively, and theretofore paid with respect to such whole share of PubCo Common Stock.
(i) Lost, Stolen or Destroyed Certificates. In the event any certificates representing SPAC Shares (if any) or shares of Company Stock shall have been lost, stolen or destroyed, upon the making of an affidavit of such fact and indemnity by the Person claiming such certificate to be lost, stolen or destroyed, PubCo shall issue, or shall instruct the Exchange Agent to issue, in exchange for such lost, stolen or destroyed certificates, as the case may be, such shares of PubCo Common Stock, as may be required pursuant to Sections 2.7, 2.8 or 2.9 (as applicable).
(j) Adjustments to Per Share Merger Consideration. The applicable Per Share Merger Consideration shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares, share split, share consolidation, capitalisation or other like change with respect to SPAC Shares or shares of Company Stock occurring on or after the date of this Agreement and prior to the SPAC Merger Effective Time or Company Merger Effective Time, respectively.
(k) Termination of Fund. At any time following the first (1st) anniversary of the Company Merger Effective Time, PubCo shall be entitled to require the Exchange Agent to deliver to it any funds or other property (including any interest received with respect thereto) that had been made available to the Exchange Agent and which have not been disbursed in accordance with this Article II, and thereafter Persons entitled to receive payment pursuant to this Article II shall be entitled to look only to PubCo (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the delivery of any Per Share Merger Consideration and payment of any dividends or other distributions to which such holder is entitled pursuant to Section 2.7 or Section 2.8, in each case, without interest (subject to any applicable withholding Tax), that may be deliverable or payable upon cancellation of any SPAC Shares or shares of Company Stock, as applicable, held by such holders, as determined pursuant to this Agreement, without any interest thereon.
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(l) Notwithstanding anything to the contrary of this Agreement, the right of any Company Stockholder to receive the Per Share Company Merger Consideration into which the shares of Company Common Stock held by such Company Stockholder are converted as a result of the Company Merger shall be conditioned on such Company Stockholder (i) delivering a letter of transmittal in customary form to be agreed by the Company and SPAC and (ii) entering into the Lock-Up Agreement.
2.12 Intended Tax Treatment; Transfer Taxes.
(a) Intended Tax Treatment. The Parties hereby agree and acknowledge that, for U.S. federal income tax purposes, (a) the SPAC Merger is intended to be treated as a “reorganization” described in Section 368(a)(1)(F) of the Code (the “SPAC Merger Intended TaxTreatment”), and (b) the Company Merger is intended to be treated as a reorganization described in Section 368(a) of the Code (the “Company Merger Intended Tax Treatment” and, together with the SPAC Merger Intended Tax Treatment, the “IntendedTax Treatment”). The Parties hereby agree to file all Tax and other informational returns on a basis consistent with the Intended Tax Treatment, unless otherwise required pursuant to a determination within the meaning of Section 1313(a) of the Code. Each of the Parties acknowledge and agree that each (a) has had the opportunity to obtain independent legal and tax advice with respect to the Transactions, and (b) is responsible for paying its own Taxes, including any adverse Tax consequences that may result if the SPAC Merger and/or the Company Merger do not qualify for the Intended Tax Treatment, respectively. The Parties hereby adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a).
(b) Transfer Taxes. Subject to Section 2.11(e), all transfer, documentary, sales, use, real property transfer, stamp, recording, registration and other similar Taxes, fees and costs (including any associated penalties and interest) incurred as a result of the Transactions (“TransferTaxes”) shall be borne by PubCo. The Party required by Law to do so shall file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes and, if required by applicable Law, the other Parties shall, and shall cause their respective Affiliates to, join in the execution of such Tax Returns and other documentation. The Parties shall use commercially reasonable efforts in good faith to minimize the amount of any Transfer Taxes payable in connection with the Transactions. To the extent applicable Law requires a Person other than PubCo to pay any Transfer Taxes, PubCo shall, upon written demand from such Person and without duplication of any amounts paid under Section 11.5, promptly reimburse such Person for such Transfer Taxes.
2.13 Taking of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the SPAC Surviving Subsidiary or Company Surviving Subsidiary, as applicable, with full right, title and possession to all assets, property, rights, privileges, powers and franchises of SPAC and SPAC Merger Sub, on the one hand, or Company and Company Merger Sub, on the other hand, the officers and directors of SPAC, SPAC Merger Sub, Company and Company Merger Sub, as applicable, are fully authorized in the name of their respective entities to take, and will take, all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.
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2.14 Release of Funds from Trust Account. Subject to the terms and conditions of the Trust Agreement, each Party shall use commercially reasonable efforts, and shall cooperate fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to cause the funds held in the Trust Account to be released simultaneously with, or as promptly as practicable after, the SPAC Merger Effective Time.
2.15 Withholding. Each of PubCo, the SPAC Surviving Subsidiary, Company Surviving Subsidiary and the Exchange Agent (without duplication) shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under any applicable Law; provided, however, that the relevant payor will reasonably cooperate with the relevant payee prior to the making of such deductions and withholding payments to determine whether any such deductions or withholding payments (other than with respect to compensatory payments, if any) are required under applicable Law and in obtaining any available exemption or reduction of, or otherwise minimizing to the extent permitted by applicable Law, such deduction and withholding. Any amounts so deducted and withheld shall be paid over to the appropriate Governmental Authority in accordance with applicable Law, and to that extent 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. The Parties acknowledge that no withholding is expected to be required under the Code or other applicable Law in respect of Taxes as in effect as of the date of this Agreement with respect to any amounts payable pursuant to this Agreement. To the extent any Party becomes aware of any obligation to deduct or withhold from amounts otherwise payable, issuable or transferable pursuant to this Agreement, such Party shall notify the other Parties as soon as reasonably practicable, and the Parties shall reasonably cooperate to obtain any certificates or other documentation required in respect of such withholding obligation.
2.16 Company Earnout Shares; Issuance Events; Issuance Thresholds.
(a) Company Earnout Shares. During the period commencing on the ninetieth (90^th^) day following Closing and ending on the fifth (5^th^) anniversary of the Closing Date (the “Measurement Period”), the Company Earnout Stockholders shall have the right to receive their respective Stockholder Earnout Portion of the Company Earnout Shares (subject to equitable adjustment for stock splits, stock dividends, combinations, recapitalizations and the like after the Closing, including to account for any equity securities into which such shares are exchanged or converted) based on the performance of the PubCo Common Stock during such Measurement Period; provided that holders of Company Options as of immediately prior to the Closing that were unvested as of immediately prior to the Closing will not receive any Company Earnout Shares in respect of any Company Options to the extent that the corresponding Assumed Options have been forfeited by their terms prior to the issuance of the relevant Company Earnout Shares, and any Company Earnout Shares that are not issued as a result of such forfeiture shall be issued to the other Company Earnout Stockholders on a pro-rata basis; provided further that if any Company Earnout Shares would be allocated to holders of Company Options or Company Warrants as of immediately prior to the Closing and, as of the time such Company Earnout Shares are issued, the corresponding Assumed Options or Assumed Warrants remain outstanding but have not yet vested as it relates to Assumed Options or been exercised as it relates to Company Warrants, then such Company Earnout Shares shall be set aside and either (x) upon the vesting of such Assumed Options or exercise of such Assumed Warrants, delivered to the holder of such Assumed Options or Assumed Warrants or (y) upon the forfeiture or termination of such Assumed Options or Assumed Warrants, issued to the other Company Earnout Stockholders on a pro rata basis; provided further that any issuance of Company Earnout Shares in respect of Company Options shall be subject to withholding.
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(b) Issuance Events. PubCo shall issue, and the Company Earnout Stockholders shall have the right to receive, their respective Stockholder Earnout Portion of the Company Earnout Shares in the event that one or more of the thresholds set forth in Section 2.16(c) is satisfied during the Measurement Period (such event, an “Issuance Event”). Such issuance shall be made promptly by PubCo (and in any event no later than the fifth (5th) Business Day) following the Issuance Event, and PubCo shall or shall cause its transfer agent to provide evidence of such issuance to each such Company Earnout Stockholder promptly thereafter.
(c) Issuance Thresholds. In the event the Measurement Period VWAP satisfies any of the issuance thresholds set forth in clauses (i)–(iii) below, PubCo shall issue and the Company Earnout Stockholders shall have the right to receive their respective portions of the number of Company Earnout Shares indicated in respect of each issuance threshold below.
(i) Issuance Threshold I: One-third (1/3) of the total Company Earnout Shares shall be issued in the event that the Measurement Period VWAP shall equal or exceed fifteen dollars ($15.00) for any twenty (20) Trading Days within a thirty (30) Trading Day period during the Measurement Period;
(ii) Issuance Threshold II: One-third (1/3) of the total Company Earnout Shares shall be issued in the event that the Measurement Period VWAP shall equal or exceed twenty dollars ($20.00) for any twenty (20) Trading Days within a thirty (30) Trading Day period during the Measurement Period; and
(iii) Issuance Threshold III: One-third (1/3) of the total Company Earnout Shares shall be issued in the event that the Measurement Period VWAP shall equal or exceed twenty-five dollars ($25.00) for any twenty (20) Trading Days within a thirty (30) Trading Day period during the Measurement Period.
(d) Monitoring. During the Measurement Period, PubCo’s chief financial officer or controller will monitor (or will have monitored) the closing price of the shares of PubCo Common Stock on the principal securities exchange or securities market on which the PubCo Common Stock is then traded, and PubCo shall notify the Company Earnout Stockholders in writing promptly following the occurrence of any Issuance Event.
(e) The issuance thresholds set forth in Section 2.16(c) and the applicable number of Company Earnout Shares that shall vest in respect of each such issuance threshold shall be subject to equitable adjustment for share splits, share dividends, reorganizations, combinations, recapitalizations and similar transactions affecting the PubCo Common Stock after the Closing.
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(f) To the extent any amount of Company Earnout Shares has not been issued on or before the expiry of the Measurement Period due to failure to satisfy the issuance thresholds set forth in Section 2.16(b), the Company Earnout Stockholders shall have no future rights to receive any such unissued Company Earnout Shares; provided that, for the avoidance of doubt, in the event an Issuance Event has occurred on or prior to the end of the Measurement Period, but the shares of PubCo Common Stock to be issued in accordance with such Issuance Event have not yet been issued by the end of the Measurement Period, the Company Earnout Shares to be issued in such circumstance shall be issued pursuant to the mechanics set forth in Section 2.16(b) even if such issuance occurs after the end of the Measurement Period.
(g) Notwithstanding anything to the contrary in this Agreement, in the event that, prior to the expiration of the Measurement Period and before the Issuance Thresholds are met, PubCo consummates a merger, consolidation, business combination, tender offer, reorganization, recapitalization, or other transaction or series of related transactions pursuant to which the holders of PubCo Common Stock have the right to receive cash or securities (collectively, “Transaction Consideration” ) in exchange for their shares, and the Transaction Consideration Value of such Transaction Consideration per share of PubCo Common Stock (the “Per Share Transaction Value” ) equals or exceeds the applicable Issuance Thresholds, then immediately prior to the consummation of such transaction, PubCo shall issue to the Company Earnout Stockholders the lesser of (i) the number of Company Earnout Shares that would have been issued under Section 2.16(c) if the Per Share Transaction Value had been the Measurement Period VWAP for any twenty (20) Trading Days within a thirty (30) Trading Day period during the Measurement Period and (ii) the remaining Company Earnout Shares that have not yet been issued as of such date. For the avoidance of doubt, if the Per Share Transaction Value is less than the Issuance Thresholds, no Company Earnout Shares shall be issued.
(h) Unless otherwise required by Law, all issuances of Company Earnout Shares shall be treated by the Parties as an adjustment to the Per Share Merger Consideration received by the Company Earnout Stockholders pursuant to Article II.
(i) No Company Earnout Shares issuable pursuant to this Section 2.16 shall be issued to any Company Earnout Stockholder who is required to file notification pursuant to the HSR Act or under any applicable Antitrust Law of any non-U.S. jurisdictions (collectively, “ForeignAntitrust Laws”) until any applicable waiting period pursuant to the HSR Act or Foreign Antitrust Laws has expired or been terminated (provided, that any such Company Earnout Stockholder has notified PubCo of such required filing pursuant to the HSR Act or Foreign Antitrust Laws in connection therewith following reasonable advance notice from PubCo of the reasonably anticipated issuance of Company Earnout Shares).
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Article III
CLOSING
3.1 Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VIII, the closing of the SPAC Merger (the “SPACClosing”) and the closing of the Company Merger (the “Company Closing” and, with the SPAC Closing, collectively the “Closing”) shall take place by electronic exchange of signatures, on a date that shall be no later than the fifth (5th) Business Day after all the Closing conditions in Article VIII have been satisfied or, to the extent legally permissible, waived (other than any such conditions which by their nature are to be satisfied at the Closing, but subject to the satisfaction of, or to the extent legally permissible, waiver by the Party benefitting from, such conditions at the Closing) at 10:00 a.m. New York time, or at such other date, time or place as SPAC and the Company may agree in writing (the date at which the SPAC Closing and the Company Closing are actually held being the “Closing Date”).
3.2 Closing Deliveries.
(a) At the Closing, SPAC shall deliver or cause to be delivered:
(i) to Company and PubCo, a certificate, dated the Closing Date, signed by an executive officer or director of SPAC in such capacity, certifying as to the satisfaction of the conditions specified in Sections 8.2(a), 8.2(b) and 8.2(c) with respect to SPAC; and
(ii) to the Company and PubCo, a copy of the New Registration Rights Agreement duly executed by SPAC and Sponsor.
(b) At the Closing, PubCo shall deliver or cause to be delivered:
(i) to SPAC, a certificate, dated the Closing Date, signed by an executive officer of PubCo, certifying as to the satisfaction of the conditions specified in Sections 8.3(a), 8.3(b) and 8.3(c) with respect to PubCo and SPAC Merger Sub, as applicable; and
(ii) to SPAC, a copy of the New Registration Rights Agreement duly executed by PubCo.
(c) At the Closing, Company shall deliver or cause to be delivered:
(i) to SPAC, a certificate, dated as of the Closing Date, signed by an executive officer or director of Company, certifying as to the satisfaction of the conditions specified in Sections 8.3(a), 8.3(b) and 8.3(c) with respect to Company;
(ii) to SPAC, a spreadsheet schedule (the “Allocation Schedule”) in excel format with underlying calculations setting forth the portion of the Company Merger Shares payable to each Company Stockholder in exchange for such holder’s shares of Company Stock, Company Equity Awards and Company Convertible Securities, in each case, in accordance with the terms of this Agreement, the Company’s Organizational Documents and any other instruments governing such Company Stock, Company Equity Awards and Company Convertible Securities; provided that, no less than five (5) Business Days prior to the Closing Date the Company shall deliver to SPAC a draft of the Allocation Schedule to review, and as promptly as practicable following the Company’s delivery of such Allocation Schedule, Representatives of SPAC and the Company shall work together in good faith to finalize the Allocation Schedule in accordance with this Agreement prior to Closing; and
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(iii) to PubCo, a certificate and notice to the Internal Revenue Service that complies with Sections 897 and 1445 of the Code and the applicable Treasury Regulations certifying that interests in the Company are not U.S. real property interests within the meaning of Section 897 of the Code; provided that, the sole recourse in the event the Company does not deliver such certificate and notice shall be withholding any amounts of Taxes required to be withheld by applicable Law.
Article IV
REPRESENTATIONS AND WARRANTIES OF SPAC
Except as set forth in (a) the disclosure schedules delivered by SPAC to the Company and PubCo on the date of this Agreement (the “SPAC Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, or (b) the SEC Reports that are available prior to the date of this Agreement on the SEC’s website through EDGAR (excluding any disclosures in such SEC Reports under the headings “Risk Factors,” “Forward-Looking Statements” or “Qualitative Disclosures About Market Risk” and other disclosures that are predictive, cautionary or forward looking in nature, and excluding, for the avoidance of doubt, any content of such SEC Reports that have been redacted or omitted pursuant to applicable Law) (it being acknowledged that nothing disclosed in such SEC Reports will be deemed to modify or qualify the representations and warranties set forth in Section 4.1 (Organizationand Standing), Section 4.2 (Authorization; Binding Agreement), Section 4.5(a) (Capitalization), Section 4.10 (Taxes and Returns), Section 4.15 (Finders and Brokers) and Section 4.20 (SPAC Trust Account)), SPAC represents and warrants to PubCo, SPAC Merger Sub and the Company as of the date of this Agreement and as of the Closing, as follows:
4.1 Organization and Standing. SPAC is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands. Company Merger Sub is a company duly incorporated, validly existing and in good standing under the Laws of the State of Delaware. Each of SPAC and Company Merger Sub has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of SPAC and Company Merger Sub is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified, licensed, or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a SPAC Material Adverse Effect. Prior to the date of this Agreement, SPAC has made available to the Company accurate and complete copies of the Organizational Documents of SPAC and of Company Merger Sub, each as currently in effect. None of SPAC or Company Merger Sub is in violation of any provision of its Organizational Documents.
4.2 Authorization; Binding Agreement.
(a) All corporate action on the part of SPAC necessary for the (i) authorization, execution and delivery by SPAC of this Agreement and each Ancillary Document to which it is or will be a party, (ii) consummation of the SPAC Merger and the other Transactions and (iii) performance of all of SPAC’s obligations hereunder or thereunder has been taken or will be taken prior to the SPAC Closing, subject to (A) obtaining the Required Shareholder Approval, (B) the filing of the SPAC Merger Filing Documents, and (C) receipt of the Regulatory Approvals.
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(b) All corporate or other entity action on the part of Company Merger Sub necessary for the (i) authorization, execution and delivery by Company Merger Sub of this Agreement and each Ancillary Document to which it is or will be a party, (ii) consummation of the Company Merger and the other Transactions and (iii) performance of all of Company Merger Sub’s obligations hereunder or thereunder has been taken or will be taken prior to the Company Closing, subject to (A) obtaining the Company Merger Sub Shareholder Approval, (B) the filing of the Company Merger Filing Documents, and (C) receipt of the Regulatory Approvals.
(c) This Agreement has been, and each Ancillary Document to which SPAC or Company Merger Sub is a party has been or shall be when delivered, duly and validly executed and delivered by SPAC or Company Merger Sub, as applicable, and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of SPAC or Company Merger Sub, as applicable, enforceable against SPAC (or Company Merger Sub, as applicable) in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization and moratorium Laws and other laws of general application affecting the enforcement of creditors’ rights generally and (ii) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or by general principles of equity (collectively, the “EnforceabilityExceptions”).
(d) The SPAC Board, either (A) at a duly called and held meeting or (B) by way of written resolution, has unanimously (i) determined that this Agreement, the Ancillary Documents to which SPAC is or will be a party, the SPAC Merger and the other Transactions are advisable and in the best interests of SPAC, (ii) approved this Agreement, the Ancillary Documents to which SPAC is or will be a party, the SPAC Merger and the other Transactions in accordance with the Cayman Act and the SPAC Memorandum, (iii) approved the Transactions as a Business Combination, (iv) directed that this Agreement and the SPAC Shareholder Approval Matters be submitted to the SPAC Shareholders for adoption and approval at the appropriate time, and (v) resolved to recommend that the SPAC Shareholders adopt this Agreement and approve the SPAC Shareholder Approval Matters (subject, in the case of this clause (v), to the provisions of Section 7.14, as applicable) (collectively, the “SPAC Recommendation”).
(e) The Company Merger Sub board of directors has unanimously (i) determined that this Agreement, the Ancillary Documents to which Company Merger Sub is or will be a party, the Company Merger and the other Transactions are advisable and in the best interests of Company Merger Sub, (ii) approved this Agreement, the Ancillary Documents to which Company Merger Sub is or will be a party, the Company Merger and the other Transactions in accordance with the DGCL, (iii) directed that the Company Merger Sub Shareholder Approval Matters be submitted to the Company Merger Sub shareholders for adoption and approval, and (v) resolved to recommend that the Company Merger Sub shareholders adopt this Agreement and approve the Company Merger Sub Shareholder Approval Matters.
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4.3 Governmental Approvals. Assuming the accuracy of the representations made by PubCo in Article V and by the Company in Article VI, no Consent of any Governmental Authority on the part of SPAC or Company Merger Sub, is required to be obtained in connection with the execution, delivery or performance by such Party of this Agreement and each Ancillary Document to which it is a party or the consummation by such Party of the Transactions, other than (a) such filings as contemplated by this Agreement, (b) any filings required with Nasdaq or the SEC with respect to the Transactions, (c) 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 (d) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a SPAC Material Adverse Effect.
4.4 Non-Contravention. SPAC is not in material violation of any term of the SPAC Memorandum. SPAC is not in violation of any term or provision of any Order to which it is party or by which it is bound which has had or would reasonably be expected to have, individually or in the aggregate, a SPAC Material Adverse Effect. The execution and delivery by SPAC and the performance by SPAC of its obligations pursuant to this Agreement and the Ancillary Documents to which it is or will be a party will not result in, by the giving of notice, the lapse of time or otherwise, (a) any violation of, conflict with, or except for (i) the Company Written Consent remaining in full force and effect from the date of this Agreement, (ii) the filing of the SPAC Merger Filing Documents and (iii) the receipt of the Regulatory Approvals, require any Consent or constitute a default under (1) the SPAC Memorandum, (2) any Contract to which SPAC is a party or by which any of SPAC’s assets are bound or (3) any applicable Law, Permit or Order, nor (b) the creation of any Lien upon any of the properties or assets of SPAC (other than Permitted Liens), except, in the case of clauses (a)(2), (a)(3) and (b), to the extent that the occurrence of the foregoing has not had, and would not reasonably be expected to have, individually or in the aggregate, a SPAC Material Adverse Effect.
4.5 Capitalization.
(a) The authorised share capital of SPAC consists of (i) 550,000,000 SPAC Ordinary Shares, consisting of (A) 500,000,000 SPAC Class A Ordinary Shares and (B) 50,000,000 SPAC Class B Ordinary Shares; and (ii) 5,000,000 SPAC Preference Shares. The issued and outstanding SPAC Ordinary Shares as of the date of this Agreement consist of (A) 24,580,000 SPAC Class A Ordinary Shares, of which (x) 24,000,000 were issued in the IPO and are subject to possible redemption and (y) 580,000 were issued to, and are currently owned by, the Sponsor pursuant to a private placement consummated simultaneously with the closing of the IPO, and (B) 6,000,000 SPAC Class B Ordinary Shares. There are no issued or outstanding SPAC Preference Shares. All issued and outstanding SPAC Ordinary Shares are duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under applicable Law, the SPAC Memorandum or any Contract to which SPAC is a party. None of the outstanding SPAC Ordinary Shares has been issued in violation of any applicable securities Laws. Other than the Company Merger Sub, SPAC does not have any Subsidiaries or own any Equity Interests in any other Person. SPAC does not own any SPAC Ordinary Shares as treasury shares.
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(b) Except as set forth in this Section 4.5 or as contemplated by this Agreement or the Ancillary Documents, there are no (i) outstanding Equity Interests or (ii) subscriptions or other rights, agreements, arrangements, Contracts or commitments of any character (other than this Agreement and the Ancillary Documents), (A) relating to the issued or unissued securities of SPAC, (B) obligating SPAC to issue, transfer, deliver or sell or cause to be issued, transferred, delivered, sold or repurchased any options or shares or securities convertible into or exchangeable for any securities of SPAC, or (C) obligating SPAC to grant, extend or enter into any option, warrant, call, subscription or other right, agreement, arrangement or commitment for such securities of SPAC. Other than the Redemption Rights or as expressly set forth in this Agreement, there are no outstanding obligations of SPAC to repurchase, redeem or otherwise acquire any securities of SPAC or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Person. Except as contemplated by this Agreement or the Ancillary Documents, there are no shareholders agreements, voting trusts or other agreements or understandings to which SPAC is a party with respect to the voting of any securities of SPAC.
(c) (i) Other than the SPAC Loans, SPAC does not have any Indebtedness and (ii) no Indebtedness of SPAC contains any restriction upon (A) the prepayment of any of such Indebtedness, (B) the incurrence of Indebtedness by SPAC, (C) the ability of SPAC to grant any Lien on its properties or assets, or (D) the consummation of the Transactions.
(d) Since the date of incorporation of SPAC, and except as contemplated by this Agreement, SPAC has not declared or paid any distribution or dividend in respect of its shares and has not repurchased, redeemed or otherwise acquired any of its shares, and the SPAC Board has not authorized any of the foregoing.
(e) Company Merger Sub is authorized to issue 100 shares of Company Merger Sub Common Stock, of which 100 shares are issued and outstanding as of the date of this Agreement, which 100 shares are owned by SPAC. The shares of Company Merger Sub Common Stock issued and outstanding on the date of this Agreement, and any shares of Company Merger Sub Common Stock that will be issued pursuant to the Transactions, (i) have been, or will be prior to such issuance, duly authorized and have been, or will be at the time of issuance, validly issued and are fully paid, (ii) were, or will be, issued, in compliance in all material respects with applicable Law, (iii) were not, and will not be, issued in breach or violation of any preemptive rights or Contract, and (iv) are, and will be, free from any Liens other than those imposed under the Company Merger Sub’s Organizational Documents, as applicable, or under applicable securities Laws.
4.6 SEC Filings; SPAC Financials; Internal Controls.
(a) SPAC, since the IPO and through the date of this Agreement, has filed all forms, reports, schedules, statements, registration statements, prospectuses and other documents required to be filed or furnished by SPAC with the SEC under the Securities Act and/or the Exchange Act (collectively, and together with any amendments, restatements or supplements thereto, the “SEC Reports”), which SEC Reports are all available on the SEC’s website through EDGAR, and will file all such SEC Reports required to be filed or furnished subsequent to the date of this Agreement.
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(b) The SEC Reports (x) were prepared in all material respects in accordance with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, and the rules and regulations promulgated thereunder, as applicable, and (y) did not, as of their respective effective dates (in the case of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and at the time they were filed with the SEC (in the case of all other SEC Reports) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As used in this Section 4.6, the term “file” shall be broadly construed to include any manner permitted by SEC rules and regulations in which a document or information is furnished, supplied or otherwise made available to the SEC.
(c) As of the date of this Agreement, the SPAC Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed on Nasdaq under the symbol “CEPT”. Since the IPO, SPAC has complied in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq. There is no Action or proceeding pending or, to the Knowledge of SPAC, threatened against SPAC, by Nasdaq or the SEC with respect to any intention by such entity to deregister or terminate the listing of the SPAC Class A Ordinary Shares. None of SPAC or its Affiliates has taken any action in an attempt to terminate the registration of the SPAC Class A Ordinary Shares under the Exchange Act except as contemplated by this Agreement.
(d) The financial statements and notes of SPAC contained or incorporated by reference in the SEC Reports (the “SPAC Financials”), fairly present in all material respects the financial position and the results of operations, changes in shareholders’ equity, and cash flows of SPAC at the respective dates of and for the periods referred to in such financial statements, all in accordance with (i) GAAP methodologies applied on a consistent basis throughout the periods involved and (ii) Regulation S-X or Regulation S-K under the Securities Act, as applicable (except as may be indicated in the notes thereto and for the omission of notes and audit adjustments in the case of unaudited quarterly financial statements to the extent permitted by Regulation S-X or Regulation S-K, as applicable).
(e) Except as and to the extent reflected or reserved against in the SPAC Financials, SPAC has not incurred any Liabilities or obligations of the type required to be reflected on a balance sheet in accordance with GAAP that is not adequately reflected or reserved on or provided for in the SPAC Financials, other than (i) Liabilities incurred since the date of the SPAC Financials in the Ordinary Course or (ii) Liabilities or obligations incurred pursuant to this Agreement. SPAC has no off-balance sheet arrangements that are not disclosed in the SEC Reports.
(f) Since the IPO, (i) SPAC has not received any complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of SPAC or its internal accounting controls, including any such complaint, allegation, assertion or claim that SPAC has engaged in questionable accounting or auditing practices and (ii) there have been no internal unresolved, material investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, the SPAC Board or any committee thereof.
(g) SPAC has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) that are designed to ensure that material information relating to SPAC and other material information required to be disclosed by SPAC in the reports and other documents that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to SPAC’s principal executive officer and its principal financial officer as appropriate to allow timely decisions regarding required disclosure. Such disclosure controls and procedures are effective in timely alerting SPAC’s principal executive officer and principal financial officer to material information required to be included in SPAC’s periodic reports required under the Exchange Act.
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(h) SPAC maintains systems of internal accounting controls that are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies and procedures that are sufficient to provide reasonable assurance: (i) that SPAC maintains records that in reasonable detail accurately and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) that transactions are executed, and access to assets is permitted, in accordance with management’s general or specific authorization; and (iv) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Neither SPAC nor SPAC’s independent auditors identified or have been made aware of any “significant deficiencies” or “material weaknesses” (as defined by the PCAOB) in the design or operation of SPAC’s internal controls over financial reporting which would reasonably be expected to adversely affect SPAC’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. SPAC has no Knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of SPAC. Since the IPO, there have been no material changes in SPAC’s internal control over financial reporting.
(i) There are no outstanding loans or other extensions of credit made by SPAC to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of SPAC, in their capacity as such, and SPAC has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(j) As of the date of this Agreement, there are no outstanding comments from the SEC with respect to the SEC Reports. To the Knowledge of SPAC, none of the SEC Reports filed on or prior to the date of this Agreement is subject to ongoing SEC review or investigation as of the date of this Agreement.
4.7 No Litigation; Orders; Permits. There is no Action pending, or, to the Knowledge of SPAC, threatened Action against SPAC, or, to the Knowledge of SPAC, any of its directors or officers (in their capacity as such) or otherwise affecting SPAC or its assets nor is any Order outstanding, against or involving SPAC, whether at law or in equity, before or by any Governmental Authority, which, in each case, would reasonably be expected to have a SPAC Material Adverse Effect. There is no unsatisfied judgment or open injunction binding upon SPAC that would, individually or in the aggregate, reasonably be expected to have a SPAC Material Adverse Effect. There is no Action that SPAC has pending against any other Person. SPAC holds all Permits necessary to lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties, all of which are in full force and effect.
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4.8 Absence of Certain Changes. SPAC has, (a) since its incorporation, conducted no business other than its incorporation, the public offering of its SPAC Class A Ordinary Shares (and the related private offering), public reporting and its search for an initial Business Combination as described in the IPO Prospectus (including the investigation of Company and the negotiation and execution of this Agreement) and related activities and (b) since the IPO, not been subject to a SPAC Material Adverse Effect.
4.9 Compliance with Laws. SPAC (a) is, and has since its incorporation been, in compliance with all Laws applicable to it and the conduct of its business in all material respects, (b) has not received written notice alleging any violation of applicable Law in any material respect by SPAC and (c) is not under investigation with respect to any violation or alleged violation of any Law or Order of any Governmental Authority.
4.10 Taxes and Returns.
(a) SPAC has filed all material Tax Returns as required by Law, which Tax Returns are true, correct and complete in all material respects; (ii) SPAC has paid and remitted all material Taxes, other than Taxes being contested in good faith and for which adequate reserves have been established; (iii) SPAC is not currently engaged in any material audit, administrative or judicial proceeding with respect to Taxes, nor has SPAC waived or extended any statute of limitations applicable to the assessment of material Taxes; (iv) SPAC has not received any written notice from a Governmental Authority of a proposed deficiency of any material amount of Taxes; (v) SPAC has withheld or collected from each payment made to its employees all material Taxes required to be withheld or collected therefrom and has paid the same to the proper tax authority; (vi) SPAC has not (a) received a material written notice from a taxing authority that it has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized or incorporated, or (b) received a material written notice from a jurisdiction where it does not file Tax Returns that it is subject to Tax or required to file Tax Returns in that jurisdiction; (vii) SPAC has not engaged in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4; (viii) there are no Liens on the assets of SPAC related to material Taxes, other than Permitted Liens; (ix) within the past two (2) years, SPAC has not been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code; and (x) SPAC has no material liability for the Taxes of any other Person (a) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), (b) as a transferee or successor or (c) by contract (except, in each case, for liabilities pursuant to commercial contracts not primarily relating to Taxes).
(b) SPAC has not taken, or agreed to take, any action not contemplated by this Agreement and/or any Ancillary Documents that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment. To the Knowledge of SPAC, there are no facts or circumstances that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment. SPAC is and has been since its formation treated as a corporation for U.S. federal income tax purposes.
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4.11 Employees and Employee Benefit Plans. SPAC has never (a) had any paid employees, (b) retained any contractors, other than consultants and advisors in the Ordinary Course or (c) maintained, sponsored, contributed to or otherwise had any Liability under, any employee benefit plans. Other than reimbursement of any reasonable out-of-pocket expenses incurred by SPAC’s officers and directors in connection with activities on SPAC’s behalf, neither SPAC nor its Affiliates have any material liability to any officer or director of SPAC (in their capacity as such).
4.12 Properties. SPAC does not own, license or otherwise have any right, title or interest in any material Intellectual Property. SPAC does not own or lease any material real property or Personal Property.
4.13 Material Contracts.
(a) Other than this Agreement and the Ancillary Documents to which SPAC is a party as of the date of this Agreement or such other Ancillary Documents that SPAC shall execute after the date of this Agreement and which are attached as exhibits hereto, Section 4.13(a) of the SPAC Disclosure Schedules set forth a true, correct and complete list of the Contracts to which SPAC is a party or by which any of its properties or assets may be bound, subject or affected, which (i) creates or imposes a Liability greater than $100,000, (ii) may not be canceled by SPAC on less than sixty (60) days’ prior notice without payment of a material penalty or termination fee or (iii) prohibits, prevents, restricts or impairs in any material respect any business practice of SPAC as its business is currently conducted, any acquisition of material property by SPAC, or restricts in any material respect the ability of SPAC from entering into this Agreement or Ancillary Documents or consummating the Transactions (each such Contract, a “SPAC Material Contract”). All SPAC Material Contracts have been made available to the Company.
(b) With respect to each SPAC Material Contract: (i) the SPAC Material Contract was entered into at arms’ length and in the Ordinary Course; (ii) the SPAC Material Contract is legal, valid, binding and enforceable in all material respects against SPAC and, to the Knowledge of SPAC, the other parties thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions); (iii) SPAC is not in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default in any material respect by SPAC, or permit termination or acceleration by the other party, under such SPAC Material Contract; (iv) no party to a SPAC Material Contract has given written notice of or, to the Knowledge of SPAC, threatened any potential exercise of termination rights with respect to any SPAC Material Contract; and (v) to the Knowledge of SPAC, no other party to any SPAC Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by SPAC under any SPAC Material Contract.
4.14 Transactions with Affiliates. Section 4.14 of the SPAC Disclosure Schedules sets forth a true, correct and complete list of the Contracts and arrangements that are in existence as of the date of this Agreement under which there are any existing or future Liabilities or obligations between SPAC and any (a) present or former director, officer, employee, direct equityholder or Affiliate of SPAC or (b) record or beneficial owner of more than five percent (5%) of outstanding SPAC Ordinary Shares as of the date of this Agreement.
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4.15 Finders and Brokers. No broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission from SPAC, PubCo or Company, or any of their respective Affiliates, in connection with the Transactions based upon arrangements made by or on behalf of SPAC or any of its Affiliates, including the Sponsor.
4.16 Certain Business Practices.
(a) Neither SPAC, nor any of its Representatives acting on its behalf, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic Government Officials or employees, to foreign or domestic political parties or campaigns or violated any provision of any applicable Anti-Corruption Laws, (iii) made any other unlawful payment or (iv) since the formation of SPAC, directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder SPAC or assist it in connection with any actual or proposed transaction.
(b) The operations of SPAC are and have been conducted at all times in compliance with Anti-Money Laundering Laws in all applicable jurisdictions and no Action involving SPAC with respect to any of the foregoing is pending or, to the Knowledge of SPAC, threatened.
(c) None of SPAC or any of its directors or officers, or, to the Knowledge of SPAC, any other Representative acting on behalf of SPAC is currently identified on a Sanctions List or otherwise currently subject to any Sanctions administered by a Sanctions Authority, and SPAC has not, directly or indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any joint venture partner or other Person, in connection with any sales or operations in any other country sanctioned by a Sanctions Authority or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by a Sanctions Authority in the last five (5) fiscal years.
4.17 Insurance. Section 4.17 of the SPAC Disclosure Schedules lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by SPAC relating to SPAC or its business, properties, assets, directors, officers and employees, copies of which have been provided to the Company. All premiums due and payable under all such insurance policies have been timely paid and SPAC is otherwise in material compliance with the terms of such insurance policies. All such insurance policies are in full force and effect, and to the Knowledge of SPAC, there is no threatened termination of, or material premium increase with respect to, any of such insurance policies. There have been no insurance claims made by SPAC. SPAC has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to have a SPAC Material Adverse Effect.
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4.18 SPAC Acknowledgment. Except for the representations and warranties expressly made by SPAC in this Article IV (as modified by the SPAC Disclosure Schedule) or as expressly set forth in any Ancillary Document, neither SPAC nor Company Merger Sub nor any other Person on their behalf makes any express or implied representation or warranty with respect to SPAC or Company Merger Sub or their respective business, operations, assets or Liabilities, or the Transactions, and each of SPAC and Company Merger Sub hereby expressly disclaims any other representations or warranties, whether implied or made by SPAC, the Company Merger Sub or any of their respective Representatives. Each of SPAC and Company Merger Sub acknowledges that, except for the representations and warranties expressly made by PubCo in Article V or by the Company in Article VI, none of PubCo, SPAC Merger Sub or the Company is making or has made, communicated or furnished (orally or in writing) any representation, warranty, statement or information to SPAC, Company Merger Sub or their respective Representatives (including any opinion, information or advice that may have been or may be provided to SPAC or Company Merger Sub or their respective Representatives by any Representative of PubCo, SPAC Merger Sub or the Company). Each of SPAC and Company Merger Sub specifically disclaims that it is relying upon or has relied upon any such other representations and warranties that may have been made by any Person and acknowledges and agrees that PubCo, SPAC Merger Sub and the Company have specifically disclaimed any such other representations and warranties. Notwithstanding the foregoing provisions of this Section 4.18, nothing in this Section 4.18 shall limit SPAC’s remedies with respect to Fraud Claims in connection with, or arising out of this Agreement, the Ancillary Documents or the Transactions.
4.19 Information Supplied. The information supplied or to be supplied by SPAC expressly for inclusion or incorporation by reference in the Proxy/Registration Statement or any current report on Form 8-K or report on Form 10-K or 10-Q, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority (including the SEC), in each case, with respect to the Transactions, shall not: (a) in the case of the Proxy/Registration Statement, on the effective date of the Proxy/Registration Statement, (b) in the case of the Registration Statement or any current report on Form 8-K, or any report on Form 10-K or 10-Q, when filed, made available, mailed or distributed, as the case may be, and (c) in the case of the Proxy/Registration Statement, at the time of the Extraordinary General Meeting and the SPAC Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. All documents that SPAC is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing, SPAC makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the Company, PubCo or SPAC Merger Sub, or any of their respective Affiliates.
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4.20 SPAC Trust Account. As of the date of this Agreement, there is at least $240,000,000 held in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released except in accordance with the Trust Agreement, the SPAC Memorandum and the IPO Prospectus. Amounts in the Trust Account are invested in United States Government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act. SPAC has performed all obligations required to be performed by it to date under, and is not in default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of SPAC, enforceable in accordance with its terms, subject to the Enforceability Exceptions. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified, in any material respect, and to the Knowledge of SPAC, no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no separate Contracts, side letters or other arrangements (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the SEC Reports filed, or furnished by SPAC to the Company, to be inaccurate or that would entitle any Person (other than holders of SPAC Class A Ordinary Shares who shall have elected to redeem their SPAC Class A Ordinary Shares pursuant to the SPAC Memorandum) to any portion of the proceeds in the Trust Account prior to the closing of a Business Combination. There are no Actions pending with respect to the Trust Account. SPAC has not released any money from the Trust Account other than as permitted by the Trust Agreement. Following the Closing, no SPAC Shareholder is or shall be entitled to receive any amount from the Trust Account except to the extent such shareholder shall have elected to redeem its SPAC Class A Ordinary Shares pursuant to the Redemption Rights.
4.21 Private Placement.
(a) As of the date of this Agreement, other than the PIPE Subscription Agreements, there are no other agreements, side letters or arrangements between SPAC and any PIPE Investor relating to any PIPE Subscription Agreement that could materially and adversely affect the obligation of such PIPE Investors to contribute to SPAC the applicable portion of the PIPE amount set forth in the PIPE Subscription Agreement of such PIPE Investors. As of the date of this Agreement, assuming the due authorization, execution and delivery by each other party thereto, all of the PIPE Subscription Agreements are in full force and effect and are legal, valid and binding obligations of SPAC, enforceable in accordance with its terms, except as limited by the Enforceability Exceptions. As of the date of this Agreement, to the Knowledge of SPAC, no PIPE Subscription Agreement has been withdrawn or terminated, amended or modified in writing in any respect. As of the date of this Agreement, SPAC is not and, with the giving of notice, the lapse of time or both, would not be in default under any PIPE Subscription Agreements.
(b) No fees, consideration or other discounts are payable or have been agreed to by SPAC (including, from and after the Closing) to any PIPE Investor in respect of the PIPE, except as set forth in the PIPE Subscription Agreements.
(c) As of the date of this Agreement, other than the PIPE Subscription Agreements, there are no agreements, side letters, or arrangements between SPAC, on the one hand, and any actual or prospective investor, on the other hand, relating to any PIPE Investment.
4.22 Company Merger Sub Activities. Since its formation, Company Merger Sub has not engaged in any business activities or conducted any operations other than as contemplated by this Agreement, does not own, directly or indirectly, any ownership equity, profits or voting interest in any Person and has no assets or Liabilities except those incurred in connection with this Agreement and the Ancillary Documents to which it is a party and the Transactions, and other than this Agreement and the Ancillary Documents to which it is a party, Company Merger Sub is not party to or bound by any Contract.
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Article V
REPRESENTATIONS AND WARRANTIES OF PUBCO
Except as set forth in the disclosure schedules delivered by PubCo to SPAC on the date of this Agreement (the “PubCo Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, PubCo represents and warrants to SPAC, Company Merger Sub and the Company, as of the date of this Agreement and as of the Closing as follows:
5.1 Organization and Standing. PubCo is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware. SPAC Merger Sub is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands. Each of PubCo and SPAC Merger Sub has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of PubCo and SPAC Merger Sub is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified, licensed, or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of PubCo or SPAC Merger Sub, as applicable, to enter into this Agreement or any of the Ancillary Documents to which it is or will be a party or to consummate the Mergers or the other Transactions. Prior to the date of this Agreement, PubCo has made available to SPAC accurate and complete copies of the Organizational Documents of PubCo and of SPAC Merger Sub, each as currently in effect. None of PubCo or SPAC Merger Sub is in violation of any provision of its Organizational Documents.
5.2 Authorization; Binding Agreement.
(a) All corporate action on the part of PubCo necessary for the (i) authorization, execution and delivery by PubCo of this Agreement and each Ancillary Document to which it is or will be a party, (ii) consummation of the Mergers and the other Transactions and (iii) performance of all of PubCo’s obligations hereunder or thereunder has been taken or will be taken prior to the SPAC Closing and the Company Closing, as applicable, subject to (A) obtaining the Required Shareholder Approval, Company Merger Sub Shareholder Approval, and SPAC Merger Sub Shareholder Approval, as applicable, (B) the filing of the SPAC Merger Filing Documents and the Company Merger Filing Documents, as applicable, and (C) the receipt of the Regulatory Approvals.
(b) All corporate action on the part of SPAC Merger Sub necessary for the (i) authorization, execution and delivery by SPAC Merger Sub of this Agreement and each Ancillary Document to which it is or will be a party, (ii) consummation of the SPAC Merger and the other Transactions and (iii) performance of all of SPAC Merger Sub’s obligations hereunder or thereunder has been taken or will be taken prior to the SPAC Closing, subject to (A) obtaining the SPAC Merger Sub Shareholder Approval, (B) the filing of the SPAC Merger Filing Documents, and (C) the receipt of the Regulatory Approvals.
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(c) This Agreement has been, and each Ancillary Document to which PubCo or SPAC Merger Sub is a party has been or shall be when delivered, duly and validly executed and delivered by PubCo or SPAC Merger Sub, as applicable, and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of PubCo or SPAC Merger Sub, as applicable, enforceable against PubCo (or SPAC Merger Sub, as applicable) in accordance with its terms, except to the extent limited by the Enforceability Exceptions.
(d) The PubCo board of directors has unanimously (A) determined that this Agreement, each Ancillary Document to which PubCo is or will be a party, the Mergers and the other Transactions are advisable and in the best interests of PubCo and its stockholders, (B) approved this Agreement, each Ancillary Document to which PubCo is or will be a party, the Mergers and the other Transactions in accordance with the DGCL and PubCo’s Organizational Documents, (C) directed that this Agreement, each Ancillary Document to which PubCo is or will be a party, the Mergers and the other Transactions be submitted to the stockholders of PubCo for adoption and approval, and (D) resolved to recommend that the stockholders of PubCo adopt this Agreement (and each Ancillary Document to which PubCo is or will be a party) and approve the Mergers and the other Transactions.
(e) The SPAC Merger Sub board of directors either: (i) at a duly called and held meeting or (i) by way of written resolution, has unanimously (A) determined that this Agreement, the SPAC Merger and the other Transactions are advisable and in the best interests of SPAC Merger Sub, (B) approved this Agreement, the SPAC Merger and the other Transactions in accordance with the Cayman Act and the SPAC Merger Sub Memorandum and Articles, (C) directed that this Agreement and the SPAC Merger Sub Shareholder Approval Matters be submitted to the shareholders of SPAC Merger Sub for adoption and approval, and (D) resolved to recommend that the shareholders of SPAC Merger Sub adopt this Agreement and approve the SPAC Merger Sub Shareholder Approval Matters.
5.3 Governmental Approvals. Assuming the accuracy of the representations made by SPAC in Article IV and the Company in Article VI, no Consent of any Governmental Authority on the part of PubCo or SPAC Merger Sub is required to be obtained in connection with the execution, delivery or performance by such Party of this Agreement and each Ancillary Document to which it is a party or the consummation by such Party of the Transactions, other than (a) such filings as contemplated by this Agreement, (b) any filings required with Nasdaq or the SEC with respect to the Transactions, (c) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws, (d) requirements under Delaware Law, Cayman Islands Law and pursuant to any other applicable Laws, and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a material adverse effect on the ability of PubCo or SPAC Merger Sub to enter into this Agreement or any of the Ancillary Documents to which either is a party or to consummate the Mergers or the other Transactions.
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5.4 Non-Contravention. Neither PubCo nor SPAC Merger Sub is in material violation of any term of its Organizational Documents. Neither PubCo nor SPAC Merger Sub is in violation of any term or provision of any Order to which it is party or by which it is bound which has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of PubCo or SPAC Merger Sub, as applicable, to enter into this Agreement or any of the Ancillary Documents to which it is or will be a party or to consummate the Mergers or the other Transactions. The execution and delivery by PubCo and SPAC Merger Sub and the performance by each of its respective obligations pursuant to this Agreement and the Ancillary Documents to which it is or will be a party will not result in, by the giving of notice, the lapse of time or otherwise, (a) any violation of, conflict with, or except for (i) the filing of the SPAC Merger Filing Documents and (ii) the receipt of the Regulatory Approvals, require any Consent or constitute a default under (1) its Organizational Documents, (2) any Contract to which it is a party or by which its assets are bound or (3) any applicable Law, Permit or Order, nor (b) the creation of any Lien upon any of its properties or assets (other than Permitted Liens), except, in the case of clauses (a)(2), (a)(3) and (b), to the extent that the occurrence of the foregoing has not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of PubCo or SPAC Merger Sub, as applicable, to enter into this Agreement or any of the Ancillary Documents to which it is or will be a party or to consummate the Mergers or the other Transactions.
5.5 Capitalization.
(a) PubCo is authorized to issue 10,000 shares of PubCo Common Stock, of which 100 shares of PubCo Common Stock are issued and outstanding as of the date of this Agreement, all of which shares are owned by the Company.
(b) SPAC Merger Sub is authorized to issue 5,000,000 SPAC Merger Sub Ordinary Shares, of which 1 SPAC Merger Sub Ordinary Shares is issued and outstanding as of the date of this Agreement, all of which shares is owned by PubCo.
(c) Prior to giving effect to the Transactions, other than SPAC Merger Sub, PubCo does not, and shall not, have any Subsidiaries or own any Equity Interests in any other Person.
(d) The shares of PubCo Common Stock and SPAC Merger Sub Ordinary Shares issued and outstanding on the date of this Agreement, and any shares of PubCo Common Stock and SPAC Merger Sub Ordinary Shares that will be issued pursuant to the Transactions, (i) have been, or will be prior to such issuance, duly authorized and have been, or will be at the time of issuance, validly issued and are fully paid, (ii) were, or will be, issued, in compliance in all material respects with applicable Law, (iii) were not, and will not be, issued in breach or violation of any preemptive rights or Contract, and (iv) are, and will be, free from any Liens other than those imposed under the PubCo Organizational Documents or SPAC Merger Sub’s Organizational Documents, as applicable, or under applicable securities Laws.
5.6 PubCo and SPAC Merger Sub Activities. Since their incorporation, PubCo and SPAC Merger Sub have not engaged in any business activities or conducted any operations other than as contemplated by this Agreement, do not own, directly or indirectly, any ownership equity, profits or voting interest in any Person (other than PubCo’s 100% ownership of SPAC Merger Sub) and have no assets or Liabilities except those incurred in connection with this Agreement and the Ancillary Documents to which they are a party and the Transactions, and, other than this Agreement and the Ancillary Documents to which they are a party, PubCo and SPAC Merger Sub are not party to or bound by any Contract. For U.S. federal income tax purposes. SPAC Merger Sub has elected to be disregarded as an entity separate from PubCo effective as of the date of SPAC Merger Sub’s incorporation.
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5.7 Absence of Changes. Since their respective incorporation, there has not been, individually or in the aggregate, a material adverse effect on the ability of PubCo or SPAC Merger Sub to enter into this Agreement or any of the Ancillary Documents to which either is a party or to consummate the Mergers or the other Transactions.
5.8 Actions. (a) There are no Actions pending or, to the Knowledge of the Company, threatened in writing against PubCo or SPAC Merger Sub; and (b) there is no judgment or award unsatisfied against PubCo or SPAC Merger Sub, nor is there any Order in effect and binding on PubCo or SPAC Merger Sub, or on their respective assets or properties that has, individually or in the aggregate, a material adverse effect on the ability of PubCo or SPAC Merger Sub to enter into this Agreement or any of the Ancillary Documents to which either is a party or to consummate the Mergers or the other Transactions.
5.9 Finders and Brokers. No broker, finder or investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission from SPAC, PubCo, Company or any of their respective Affiliates in connection with the Transactions based upon arrangements made by or on behalf of PubCo or SPAC Merger Sub or any of their Affiliates.
5.10 Ownership of PubCo Common Stock. All shares of PubCo Common Stock to be issued and delivered to the Company Stockholders as Company Merger Shares and to the SPAC Shareholders in exchange for their SPAC Class A Ordinary Shares in accordance with this Agreement shall be, upon issuance and delivery of such shares of PubCo Common Stock, duly authorized and validly issued and fully paid and non-assessable, free and clear of all Liens. The issuance and sale of such shares of PubCo Common Stock pursuant hereto will not be subject to or give rise to any preemptive rights or rights of first refusal.
5.11 Investment Company Act. PubCo is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of a Person subject to registration and regulation as an “investment company,” in each case, within the meanings of the Investment Company Act.
5.12 Private Placement.
(a) As of the date of this Agreement, other than the PIPE Subscription Agreements, there are no other agreements, side letters or arrangements between PubCo and any PIPE Investor relating to any PIPE Subscription Agreement that could materially and adversely affect the obligation of such PIPE Investors to contribute to SPAC the applicable portion of the PIPE amount set forth in the PIPE Subscription Agreement of such PIPE Investors. As of the date of this Agreement, assuming the due authorization, execution and delivery by each other party thereto (other than Company), all of the PIPE Subscription Agreements are in full force and effect and are legal, valid and binding obligations of PubCo, enforceable in accordance with its terms, except as limited by the Enforceability Exceptions. As of the date of this Agreement, to the Knowledge of PubCo, no PIPE Subscription Agreement has been withdrawn or terminated, amended or modified in writing in any respect. As of the date of this Agreement, PubCo is not and, with the giving of notice, the lapse of time or both, would not be in default under any PIPE Subscription Agreements.
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(b) No fees, consideration or other discounts are payable or have been agreed to by PubCo (including, from and after the Closing) to any PIPE Investor in respect of the PIPE, except as set forth in the PIPE Subscription Agreements.
(c) As of the date of this Agreement, other than the PIPE Subscription Agreements, there are no agreements, side letters, or arrangements between PubCo or SPAC Merger Sub, on the one hand, and any actual or prospective investor, on the other hand, relating to any PIPE Investment.
5.13 Information Supplied. The information supplied or to be supplied by PubCo or SPAC Merger Sub expressly for inclusion or incorporation by reference in the Proxy/Registration Statement or any current report on Form 8-K or report on Form 10-K or 10-Q, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority (including the SEC), in each case, with respect to the Transactions, shall not: (a) in the case of the Proxy/Registration Statement, on the effective date of the Proxy/Registration Statement, (b) in the case of the Proxy/Registration Statement or any current report on Form 8-K, any report on Form 10-K or 10-Q, when filed, made available, mailed or distributed, as the case may be, or (c) in the case of the Proxy/Registration Statement, at the time of the Extraordinary General Meeting and the Cayman Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. All documents that PubCo or SPAC Merger Sub is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing, neither PubCo nor SPAC Merger Sub makes any representation, warranty or covenant with respect to any information supplied by or on behalf of SPAC or any of its Affiliates.
5.14 PubCo Acknowledgement. Except for the representations and warranties expressly made by PubCo in this Article V (as modified by the PubCo Disclosure Schedules) or as expressly set forth in any Ancillary Document, neither PubCo nor SPAC Merger Sub nor any other Person on any of their behalf makes any express or implied representation or warranty with respect to any of PubCo or SPAC Merger Sub or their respective business, operations, assets or Liabilities, or the Transactions, and each of PubCo and SPAC Merger Sub hereby expressly disclaims any other representations or warranties, whether implied or made by PubCo, SPAC Merger Sub or any of their respective Representatives. Each of PubCo and SPAC Merger Sub acknowledges that, except for the representations and warranties expressly made by SPAC in Article IV and by the Company in Article VI, none of SPAC, Company Merger Sub or the Company is making or has made, communicated or furnished (orally or in writing) any representation, warranty, statement or information to PubCo, SPAC Merger Sub or their respective Representatives (including any opinion, information or advice that may have been or may be provided to PubCo and SPAC Merger Sub or any of their respective Representatives by any Representative of SPAC, Company Merger Sub or the Company). Each of PubCo and SPAC Merger Sub specifically disclaims that it is relying upon or has relied upon any such other representations and warranties that may have been made by any Person and acknowledges and agrees that SPAC, Company Merger Sub and the Company have specifically disclaimed any such other representations and warranties. Notwithstanding the foregoing provisions of this Section 5.14 nothing in this Section 5.14 shall limit PubCo’s or SPAC Merger Sub’s remedies with respect to Fraud Claims in connection with, or arising out of this Agreement, the Ancillary Documents or the Transactions.
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Article VI
REPRESENTATIONS AND WARRANTIES OF THE Company
Except as set forth in the disclosure schedules delivered by Company to SPAC on the date of this Agreement (the “Company Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, Company hereby represents and warrants to SPAC, as of the date of this Agreement and as of the Closing, as follows:
6.1 Organization and Standing.
(a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified, licensed, or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Prior to the date of this Agreement, the Company has made available to SPAC accurate and complete copies of the Organizational Documents of the Company as currently in effect. The Company is not in material violation of any provision of its Organizational Documents.
(b) Each of the Company’s Subsidiaries is duly incorporated, formed or otherwise organized, and each is validly existing and in good standing under the Laws of its jurisdiction of incorporation, formation or organization. Each of the Company’s Subsidiaries has all requisite corporate or other entity power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. Each of the Company’s Subsidiaries is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified, licensed, or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Prior to the date of this Agreement, the Company has made available to SPAC accurate and complete copies of the Organizational Documents of each such Subsidiary of the Company as currently in effect. None of the Company’s Subsidiaries is in material violation of any provision of its Organizational Documents.
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6.2 Authorization; Binding Agreement. All corporate action on the part of each of the Company Entities and their shareholders necessary for the (a) authorization, execution and delivery by the Company (or any other Company Entity, as applicable) of this Agreement and the Ancillary Documents to which it is or will be a party, (b) consummation of the Company Merger and the other Transactions and (c) performance of all of the Company’s obligations hereunder or thereunder has been taken or will be taken prior to the Company Closing, subject to (i) obtaining the Company Written Consent, (ii) the filing of Company Certificate of Merger and related documents and (iii) the receipt of the Regulatory Approvals. This Agreement has been, and each Ancillary Document to which the Company (or any other Company Entity, as applicable) is a party has been or shall be when delivered, duly and validly executed and delivered by the Company (or any other Company Entity, as applicable) and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of the Company (or such other Company Entity, as applicable), enforceable against the Company (or such other Company Entity, as applicable) in accordance with its terms, except to the extent limited by the Enforceability Exceptions. The Company Board either: (A) at a duly called and held meeting or (B) by way of written resolution, has unanimously (i) determined that this Agreement, the Ancillary Documents to which the Company is a party and the Transactions (including the Company Merger) are advisable, fair to, and in the best interests of, the Company, (ii) approved and declared the advisability of this Agreement, the Ancillary Documents to which the Company is a Party and the Transactions (including the Company Merger) in accordance with the DGCL and the Organizational Documents of the Company, (iii) recommended the approval and adoption of this Agreement, the Ancillary Documents to which the Company is a party and the Transactions (including the Company Merger) by the Company Stockholders, (iv) directed that the Company Approval Matters be submitted to the Company Stockholders for adoption and approval, and (v) resolved to recommend that the Company Stockholders adopt this Agreement and approve the Company Approval Matters, and execute and deliver the Company Written Consent.
6.3 Capitalization.
(a) The Company is authorized to issue: (i) 33,159,331 shares of Company Common Stock, of which 5,100,000 shares are designated Class A Common Stock, (ii) 2,999,412 shares of Series A Preferred Stock; (iii) 2,881,387 shares of Series B-1 Preferred Stock; (iv) 2,630,197 shares of Series B-2 Preferred Stock; (v) 1,219,998 shares of Series B-3 Preferred Stock; and (vi) 2,928,625 shares of Series B-4 Preferred Stock. The issued share capital of the Company consists of: (A) 8,789,656 shares of Company Common Stock, of which 256,901 shares are designated Class A Common Stock, (B) 2,999,412 shares of Series A Preferred Stock; (C) 2,881,387 shares of Series B-1 Preferred Stock; (D) 2,630,197 shares of Series B-2 Preferred Stock; (E) 1,219,998 shares of Series B-3 Preferred Stock; and (F) 2,089,457 shares of Series B-4 Preferred Stock and there are no other issued or outstanding Equity Interests of the Company. All outstanding shares of Company Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under applicable Law, the Organizational Documents of the Company or any Contract to which SPAC is a party. None of the outstanding shares of Company Stock has been, or was, issued in violation of any applicable securities Laws. The Company does not own any shares of Company Stock as treasury shares. Section 6.3(a)-1 of the Company Disclosure Letter lists all Convertible Securities outstanding as of the date of this Agreement. As of the date of this Agreement, the aggregate principal amount outstanding under the Company Convertible Promissory Notes is $79,915,000.
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(b) As of the date of this Agreement, the Company has reserved 5,100,000 shares of Company Common Stock for issuance upon exercise of Company Options, of which 960,186 shares of Company Common Stock remain available for future grants under the Company Share Plan. Section 6.3(b) of the Company Disclosure Schedule sets forth the Company Option ledger dated as of the date of this Agreement, which reflects (i) all then outstanding Company Options and lists each holder of such Company Options (by employee identification number), (ii) the number of Company Options such holder holds, and (iii) the applicable exercise prices and vesting schedules therefor.
(c) Except as set forth in this Section 6.3 or as contemplated by this Agreement or the Ancillary Documents, there are no (i) outstanding options, warrants, puts, calls, convertible securities, preemptive or similar rights, (ii) bonds, debentures, notes or other Indebtedness having general voting rights or that are convertible or exchangeable into securities having such rights or (iii) subscriptions or other rights, agreements, arrangements, Contracts or commitments of any character (other than this Agreement and the Ancillary Documents), (A) relating to the issued or unissued securities of the Company, (B) obligating the Company to issue, transfer, deliver or sell or cause to be issued, transferred, delivered, sold or repurchased any options or shares or securities convertible into or exchangeable for any securities of the Company or (C) obligating the Company to grant, extend or enter into any option, warrant, call, subscription or other right, agreement, arrangement or commitment for such securities of the Company, nor are there any Contracts, commitments, arrangements or restrictions to which the Company or, to the Knowledge of the Company, any of the Company Stockholders or any of their respective Affiliates are a party or bound relating to any equity securities of the Company, whether or not outstanding. There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any securities of the Company or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Person. Except as contemplated by this Agreement or the Ancillary Documents, there are no shareholders agreements, voting trusts or other agreements or understandings to which the Company is a party with respect to the voting of any securities of the Company.
(d) Except as set forth on Section 6.3(d), as a result of the consummation of the Transactions, no Equity Interests of the Company are issuable, and no rights in connection with any interests, warrants, rights, options or other securities of the Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
(e) After giving effect to the Company Merger, PubCo shall own all of the issued shares of Company Stock free from any Liens other than those arising under the Company’s Organizational Documents and applicable securities Laws. All of the issued shares of Company Stock have been duly authorized and are fully paid and not in violation of any purchase option, right of first refusal, pre-emptive right, subscription right or any similar right under any applicable Laws, the Company’s Organizational Documents or any Contract to which the Company is a party or by which the Company or its securities are bound.
(f) Since January 1, 2022, the Company has not declared or paid any distribution or dividend in respect of its Equity Interests and has not repurchased, redeemed or otherwise acquired any Equity Interests of the Company, and the Company Board has not authorized any of the foregoing.
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(g) Section 6.3(g) contains a true, correct and complete list of each direct or indirect Subsidiary of the Company, including the name of the Subsidiary, the jurisdiction in which each such Subsidiary is organized, the number of issued and outstanding shares of capital stock or other Equity Interests of each such Subsidiary and the record and beneficial ownership thereof. Other than ownership of Equity Interests in the Company Subsidiaries and affiliated funds, no Company Entity owns, directly or indirectly, any capital stock, shares, membership interests, Equity Interests or other securities or derivatives thereof in any Person. All of the outstanding equity securities of each Company Subsidiary are duly authorized and validly issued, fully paid and non-assessable (if applicable), and were offered, sold and delivered in compliance with all applicable Laws, and owned by one or more of the Company Entities free and clear of all Liens (other than those, if any, imposed by such Company Subsidiary’s Organizational Documents or applicable Laws), and have not been issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or other similar right. There are no Contracts to which the Company or any of the Company Subsidiaries is a party or bound with respect to the voting (including voting trusts or proxies) or transfer of the Equity Interests of any Company Subsidiary other than the Organizational Documents of any such Company Subsidiary. There are no outstanding or authorized options, warrants, rights, agreements, subscriptions, convertible securities or commitments to which any Company Subsidiary is a party or which are binding upon any Company Subsidiary providing for the issuance or redemption of any Equity Interests of any Company Subsidiary. There are no outstanding equity appreciation, phantom equity, profit participation or similar rights granted by any Company Subsidiary. No Company Subsidiary has any limitation, whether by Contract, Order, or applicable Law, on its ability to make any distributions or dividends to its equity holders or repay any debt owed to another Company Entity. Other than the Company Subsidiaries listed on Section 6.3(g) of the Company Disclosure Schedules, no Company Entity has any Subsidiaries. Except for the Equity Interests of the Company Subsidiaries listed on Section 6.3(g) of the Company Disclosure Schedules, (i) no Company Entity owns or has any rights to acquire, directly or indirectly, any Equity Interests of, or otherwise control, any Person, (ii) no Company Entity is a participant in any joint venture, partnership or similar arrangement and (iii) there are no outstanding contractual obligations of a Company Entity to provide funds to or make any loan or capital contribution to any other Person.
6.4 Governmental Approvals. Assuming the accuracy of the representations made by SPAC in Article IV and PubCo in Article V, no Consent of any Governmental Authority on the part of Company or any other Company Entities is required to be obtained in connection with the execution, delivery or performance by Company of this Agreement or any Ancillary Documents or the consummation by Company of the Transactions other than (a) such filings as expressly contemplated by this Agreement, including filing those documents associated with the Company Merger, (b) pursuant to requirements under Delaware Law or any other applicable Laws and (c) those Consents, the failure of which to obtain prior to the Closing, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
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6.5 Non-Contravention. None of the Company Entities is in material violation of any term of its Organizational Documents. None of the Company Entities is in violation of any term or provision of any Order to which it is party or by which it is bound which has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The execution and delivery by the Company (or any other Company Entity, as applicable) and the performance by any Company Entity of its obligations pursuant to this Agreement and the Ancillary Documents to which it is or will be a party will not result in, by the giving of notice, the lapse of time or otherwise, (a) any violation of, conflict with, or except for (i) obtaining the Company Written Consent, (ii) the filing of the Company Certificate of Merger and (iii) the receipt of the Regulatory Approvals, require any Consent or constitute a default under (1) any Company Entity’s Organizational Documents, (2) any Contract to which any of the Company Entities is a party or by which any of Company Entity’s assets are bound or (3) any applicable Law, Permit or Order, nor (b) the creation of any Lien upon any of the properties or assets of any Company Entity (other than Permitted Liens), except, in the case of clauses (a)(iii)(2), (a)(iii)(3) and (b), to the extent that the occurrence of the foregoing has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
6.6 Financial Statements.
(a) The Company has made or will make available to SPAC (i) the consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2024, and December 31, 2023, and the related consolidated statements of comprehensive income, changes in equity and cash flows for the years then-ended, in each case, audited in accordance with auditing standards generally accepted in the United States of America and including the notes thereto and the report of Wolf & Company, P.C. (collectively, the “Company Audited Financial Statements”); and (ii) the unaudited condensed consolidated statements of financial position of the Company and its Subsidiaries as of September 30, 2025, and related condensed consolidated statements of comprehensive income, changes in equity and cash flows for the 9-month periods then-ended (the “Interim Financial Statements”, and any other financial statements to the extent required in accordance with Section 7.4 (including the KPMG Audited 2024 Financials), following, in each case, delivery thereof, collectively with the Company Audited Financial Statements, the “Company Financial Statements”). The Company Financial Statements including any related notes are true and correct in all material respects and present fairly the financial condition, operating results, equityholders’ equity and cash flows of the Company and its Subsidiaries as of the dates and during the periods indicated. The Company Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated, except as may be indicated in the notes thereto and for the omission of notes and audit adjustments in the case of the Interim Financial Statements to the extent permitted by Regulation S-X or Regulation S-K under the Securities Act, applicable as if the Company was a registrant. The books of account, ledgers, order books, records and other financial documents of the Company accurately and completely reflect all material information relating to the Company’s business, the nature, acquisition, maintenance, location and collection of its assets and the nature of all transactions giving rise to its obligations and accounts receivable.
(b) The Company has in place disclosure controls and procedures that are designed to reasonably ensure that material information relating to the Company and its Subsidiaries (including any fraud that involves management or other employees who have a significant role in the internal controls of the Company and its Subsidiaries ) is made known to the management of the Company by others within any of the Company and its Subsidiaries and are effective in recording, processing, summarizing and reporting financial data. The Company and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
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(c) Since December 31, 2022, no Company Entity nor, to the Knowledge of the Company, any Representative of any Company Entity, has received or otherwise had or obtained Knowledge of any written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of any of the Company and its Subsidiaries with respect to the Company Financial Statements or the internal accounting controls of any of the Company and its Subsidiaries, including any written complaint, allegation, assertion or claim that any of the Company Entities has engaged in questionable accounting or auditing practices. Since December 31, 2022, no attorney representing any of the Company Entities, whether or not employed by any of the Company Entities, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by any of the Company Entities or any of their respective Representatives to the Company Board or the board of directors (or similar governing body) of any of its Subsidiaries or any committee thereof or to any director or officer of any of the Company Entities.
(d) Since December 31, 2022, none of the Company Entities has any liability or obligation, absolute or contingent, individually or in the aggregate, that would be required to be set forth on a consolidated balance sheet of the Company Entities prepared in accordance with GAAP applied and in accordance with past practice, other than (i) obligations and liabilities that have not been and would not reasonably be expected to be, individually or in the aggregate, material to the Company Entities, taken as a whole, (ii) obligations and liabilities under Contracts incurred in the Ordinary Course (other than due to a breach under such Contracts, or any act or omission that with the giving of notice, the lapse of time or otherwise, would constitute a breach thereunder), (iii) any Company Expenses, (iv) obligations incurred by the Company’s execution of this Agreement (other than due to a breach hereunder, or any act or omission that with the giving of notice, the lapse of time or otherwise, would constitute a breach hereunder), and (v) obligations and liabilities reflected, or reserved against, in the Company Financial Statements or as set forth in Section 6.6(d) of the Company Disclosure Schedules.
(e) The financial projections provided by the Company and included in the “Investor Presentation” dated October 2025, which was provided to prospective investors in connection with any PIPE Investment were prepared in good faith using assumptions that the Company believes as of the date of this Agreement to be reasonable. Any financial projections provided by the Company to SPAC or to prospective investors after the date of this Agreement in connection with any PIPE Investment will be prepared in good faith using assumptions that the Company believes to be reasonable as of the date such projections are so provided.
6.7 Absence of Certain Changes. Since the date of the most recent Company Audited Financial Statements (a) there has not been, individually or in the aggregate, any Company Material Adverse Effect, (b) the Company Entities have conducted their businesses in all material respects in the Ordinary Course (other than with respect to the evaluation of and negotiations in connection with this Agreement and the Transactions) and (c) none of the Company Entities has sold, assigned or otherwise transferred any material right, title or interest in or to any of their respective assets (including ownership in Intellectual Property and IT Systems) to any Person (other than any of the other Company Entities) other than non-exclusive licenses in the Ordinary Course.
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6.8 Compliance with Laws.
(a) Each of the Company Entities is in compliance with, and has during the three (3) years preceding the date of this Agreement been in compliance with, all applicable Laws, except where such failure to comply has not been, or would not reasonably be expected to be, individually or in the aggregate, material to the Company Entities, taken as a whole. For the past three (3) years, none of the Company Entities has received any written notice of or been charged with the violation of any Laws, except where such violation has not been, or would not reasonably be expected to be, individually or in the aggregate, material to the Company Entities, taken as a whole.
(b) Except as would not, individually or in the aggregate, be expected to have a Company Material Adverse Effect, the Company Entities have been, and are currently, in compliance with all Laws applicable to them or their respective businesses, properties or assets, including any Laws relating to product safety, product responsibility, product liability or defective products.
6.9 Company Permits. Each Company Entity (and its employees who are legally required to be licensed by a Governmental Authority in order to perform his or her duties with respect to his or her employment with any Company Entity), holds all Permits necessary to lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties (collectively, the “Company Permits”), except where the failure to obtain or maintain the same, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company Entities, taken as a whole. Section 6.9 of the Company Disclosure Schedules lists all Company Permits issued to the Company Entities, including the names of the Company Permits, the issuing authorities, and their respective dates of issuance and expiration. All fees and charges with respect to the Company Permits have been paid in full in all material respects. Each material Company Permit is in full force and effect, and no suspension or cancellation of any of the material Company Permits is pending or, to the Knowledge of the Company, threatened, (b) no Company Entity is or, with the giving notice, the lapse of time or otherwise, would be in violation or default in any material respect of the terms of any Company Permit and (c) since January 1, 2022, no Company Entity has received any written, or to the Knowledge of the Company, oral notice of any Actions relating to the revocation or material modification of any material Company Permit.
6.10 Litigation. Except as set forth in Section 6.10 of the Company Disclosure Schedules, as of the date of this Agreement (a) there are no Actions pending or, to the Knowledge of the Company, currently threatened against any of the Company Entities or their respective assets or properties before any Governmental Authority that (i) question the validity of this Agreement or any Ancillary Document, or the right of the Company to enter into this Agreement or any Ancillary Document, or the right of any of the Company Entities to perform its obligations contemplated by this Agreement or any Ancillary Document, or (ii) if determined adversely to any Company Entity, would reasonably be expected to be, individually or in the aggregate, material to the Company or result in any non-de minimis change in the current equity ownership of the Company; (b) none of the Company Entities is a party or subject to the provisions of any Order; and (c) there is no Action initiated by any of the Company Entities currently pending or which any of the Company Entities currently intends to initiate, except, in the case of each of clauses (b) and (c), as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company Entities.
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6.11 Material Contracts.
(a) Section 6.11(a) of the Company Disclosure Schedules lists all Contracts (excluding any Company Benefit Plans disclosed in Section 6.17(a) of the Company Disclosure Schedules) to which any Company Entity is a party, by which any Company Entity is bound or to which any Company Entity or any of its assets or properties are subject that are in effect as of the date of this Agreement and constitute or involve the following (together with all amendments, waivers or other changes thereto, each of the following, a “Company Material Contract”):
(i) obligations of, or payments to, any of the Company Entities of $500,000 or more;
(ii) any outstanding Indebtedness (other than capitalized lease obligations incurred in the Ordinary Course) of $500,000 or more, including any convertible debt/equity instruments;
(iii) any real property leasehold interest (“Real Property Lease”) involving aggregate payments by any of the Company Entities of $500,000 or more;
(iv) any IP Licenses that are required to be listed on Section 6.12(f) of the Company Disclosure Schedules;
(v) Contracts to provide any of the Company Services to any third party (A) that, along with any Affiliates of such third party, represented the source of more than 10% of the revenue of the Company Entities (taken as a whole) over the twelve (12)-month period prior to the date of this Agreement or (B) that, along with any Affiliates of such third party, is projected will represent the source of more than 10% of the revenue the Company Entities (taken as a whole) will receive over the twelve (12)-month period following the date of this Agreement;
(vi) Contracts with suppliers of services (other than Intellectual Property) that are necessary for the provision of the Company Services, in each case involving aggregate payments by the Company Entities, taken as a whole, of $500,000 or more over the twelve (12)-month period prior to the date of this Agreement, including arrangements with providers of custodial exchange, DeFi protocol, prime broker, market maker, interoperability, Web3 security and compliance or oracle services and similar arrangements;
(vii) Contracts providing for the Development on behalf of, or acquisition by, the Company Entities of any material Intellectual Property (other than IP Assignment Agreements);
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(viii) any material Contracts relating to the membership of, or participation by, any of the Company Entities in, or the affiliation of such Company Entities with, any industry standards group or association;
(ix) Contracts with any Governmental Authority;
(x) Contracts which remain in effect immediately following the Company Closing and (A) limit the right of any Company Entity to engage in any line of business or in any geographic area, or to market, license or sell any products or services (including the Company Services), or to compete with any Person; or (B) grant any exclusive license of material Intellectual Property to any Person that is not an Company Entity including any Contracts granting to any Person any exclusive right to use, exploit, register or practice any Owned Intellectual Property;
(xi) Contracts with any employee or Contract Worker that (A) provide for annual payments in excess of $300,000; (B) involve any severance (except as required by applicable Law), change of control, transaction bonus, retention or similar type of payment; or (C) are not terminable at-will without notice or any additional liability to the Company Entities (except as required by applicable Law);
(xii) any staffing agreement or any other Contract whereby any Company Entity retains the services of any staffing agency or PEO;
(xiii) with any labor union, organization, association or body representing any employee (whether engaged through a PEO or otherwise), including any collective bargaining agreement;
(xiv) Contracts between (A) on the one hand, any of the Company Entities, and (B) on the other hand, any Company Stockholder; and
(xv) Contracts that in the Company’s determination will be required to be filed with the Proxy/Registration Statement under applicable SEC requirements pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act if the Company was the registrant.
(b) True, correct and complete copies of the Contracts required to be listed on Section 6.11(a) of the Company Disclosure Schedules have been delivered to or made available to SPAC prior to the date of this Agreement, together with all amendments thereto.
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(c) Except where the failure, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company Entities, with respect to each Company Material Contract, (i) such Company Material Contract listed (or required to be listed, in each case, without regard to the reference to “legally binding” in the definition of “Contracts”) is valid and binding and enforceable against the Company Entity party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions), (ii) the consummation of the Transactions will not affect the validity or enforceability of any Company Material Contract, (iii) no Company Entity is in breach or default, and to the Knowledge of the Company, no event has occurred that with the passage of time or giving of notice or both would constitute a breach or default by any Company Entity, or permit termination or acceleration by the other party thereto, under such Company Material Contract, (iv) to the Knowledge of the Company, no other party to such Company Material Contract is in breach or default, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by any Company Entity, under such Company Material Contract, (v) no Company Entity has received or served written or, to the Knowledge of the Company, oral notice of an intention by any party to any such Company Material Contract to terminate such Company Material Contract or amend the terms thereof, other than modifications in the Ordinary Course that do not adversely affect the Company Entities and (vi) no Company Entity has waived any rights under any such Company Material Contract.
6.12 Intellectual Property.
(a) Section 6.12(a) of the Company Disclosure Schedules sets forth an accurate and complete list of each item of Owned Intellectual Property which is Registered IP, in each case, enumerating specifically the applicable filing, serial or registration/application number, title, jurisdiction, date of filing/issuance, registrar and current applicant(s)/registered owners(s), as applicable.
(b) Except as set forth on Section 6.12(b) of the Company Disclosure Schedules, no funding, facilities, material, information, Intellectual Property or personnel of a university, college, other educational institution or research center, Governmental Authority (each a “DesignatedEntity”) were used, directly or indirectly, in the Development or commercialization, in whole or in part, of any material Owned Intellectual Property and no Designated Entity has any right, title or interest (including any usage, license, “march in,” ownership, co-ownership or other rights) in or to any Owned Intellectual Property material to the business of the Company Entities.
(c) Since January 1, 2022, there have no Actions instituted before any Governmental Authority, domain name registrar or other public or quasi-public legal authority anywhere in the world (including before U.S. Patent and Trademark Office, the U.S. Copyright Office, or similar authority anywhere in the world), or threatened in writing, including any interference, reexamination, cancellation, nullity or opposition proceedings or inventorship challenges, in which any claims have been raised relating to the validity, enforceability, registrability, scope, misappropriation, ownership, violation or infringement with respect to any material Owned Intellectual Property.
(d) The Company Entities (i) are the sole and exclusive owner of, and possess all right, title, and interest in and to, any and all material Owned Intellectual Property, free and clear of all Liens, except for Permitted Liens, and (ii) duly license or otherwise possess the right to use any and all other material Intellectual Property used or held for use by the Company Entities in, or otherwise necessary for, the operation of the business of the Company Entities as conducted as of the Company Closing, including the material Licensed Intellectual Property. Except as would not, individually or in the aggregate, be material to the Company Entities, taken as a whole, the Company Entities have taken all reasonably necessary actions consistent with applicable Law to maintain and protect each item of Owned Intellectual Property material to the business of the Company Entities, including with respect to the validity and enforceability thereof. To the Knowledge of the Company, except as described in Section 6.12(d) of the Company Disclosure Schedules, none of the Company Entities is a party to or bound by any Contract that materially limits, restricts, or impairs its or their ability to use, sell, transfer, assign, license or convey any of their interests in any material Owned Intellectual Property.
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(e) All of the Registered IP included in the Owned Intellectual Property that is material to the business of the Company Entities is subsisting, and, to the Knowledge of the Company, valid and enforceable, and payment of all renewal and maintenance fees, costs and expenses and other payments that are or have become due with respect thereto have been timely paid by or on behalf of the Company Entities, and all filings related thereto have been duly made. The Company Entities have not and are not conducting the business in a manner that, to the Knowledge of the Company, could reasonably be expected to result in the cancellation or unenforceability of any such material Owned Intellectual Property.
(f) Section 6.12(f) of the Company Disclosure Schedules sets forth a true, correct and complete list of all Contracts (i) pursuant to which the Company Entities use any Licensed Intellectual Property material to the business of the Company Entities (other than non-exclusive licenses for commercially available Software or IT Systems) or (ii) pursuant to which the Company Entities have granted to a third party any right in or to any Owned Intellectual Property material to the business of the Company Entities (excluding non-exclusive license agreements entered into in the Ordinary Course) (collectively, the “IP Licenses”).
(g) To the Knowledge of the Company, neither the operation and conduct of the business of the Company Entities (including the provision of Company Services), nor the Company Entities’ use of Company Intellectual Property, infringes, dilutes, violates, interferes with, misappropriates or makes unlawful use of (or since January 1, 2022, has infringed, diluted, violated, interfered with, misappropriated or made unlawful use of) any Intellectual Property or other proprietary rights of any other Person in any material respect. To the Knowledge of the Company, (i) there is no actual or threatened in writing infringement, violation, interferences, dilution, misappropriation or unlawful use by a third party of any of the material Company Intellectual Property and (ii) there has been no such material infringement, violation, interferences, dilution, misappropriation or unlawful use since January 1, 2022.
(h) To the Knowledge of the Company, except as described in Section 6.12(h) of the Company Disclosure Schedules, upon the Company Closing, the Company Entities will continue to have the right to use all Owned Intellectual Property on identical terms and conditions as the Company Entities enjoyed immediately prior to the Company Closing.
(i) Except as set forth on Section 6.12(i) of the Company Disclosure Schedules, to the Knowledge of the Company, no Open Source Software has, in any material respect, been used in connection with the Development of, is incorporated into or has been distributed with, in whole, or in part, any material Owned Intellectual Property in a manner that (i) requires the licensing, disclosure or distribution of any such material Owned Intellectual Property to any other Person, (ii) prohibits or limits the receipt of consideration in connection with licensing or distribution of any such material Owned Intellectual Property, or imposition of contractual restrictions on the rights of licensees or other recipients to decompile, disassemble or otherwise reverse engineer any such material Owned Intellectual Property, or (iii) to the Knowledge of the Company, grants to any Person any rights to any material Owned Intellectual Property, including any material license or non-assertion covenant. Each of the Company Entities has complied with all material notice, attribution and other requirements applicable to any and all Open Source Software used in the business of the Company Entities, except as would not reasonably be expected to result in a Company Material Adverse Effect.
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(j) The Company Entities have taken all commercially reasonable actions designed to maintain and protect the confidentiality, security and value of all Company Source Code and Non-Public Information, in each case, that is material to the business of the Company Entities. To the Knowledge of the Company, (i) there has been no misappropriation of any such material Company Source Code or material Non-Public Information by any Person, (ii) no employee, agent or other Contract Worker of the Company Entities has misappropriated any material Proprietary Information of any other Person in the course of his or her performance as an employee, agent or other Contract Worker of the Company Entities, and (iii) no employee, agent or other Contract Worker of the Company Entities is in default or breach in any material respect of any term of any Contract relating in any way to the protection, ownership, Development, use or transfer of Intellectual Property as a result of their performance of their duties for the Company Entities.
(k) To the Knowledge of the Company, each current and former employee of the Company Entities who works or worked in connection with any part of the business of the Company Entities, and each current and former Contract Worker who provides or provided services to the Company Entities, in each case, that was or is involved in the Development of any material Intellectual Property for or on behalf of the Company Entities has executed a valid and binding written agreement expressly assigning on an irrevocable basis to the Company Entities all right, title and interest in and to all such material Intellectual Property Developed during the term of such employee’s employment or such Contract Worker’s work for the Company Entities and has waived all moral and similar rights therein to the extent applicable and legally permissible (such agreements, collectively, the “IP Assignment Agreements”). Except (i) for Open Source Software components utilized therein or (ii) as set forth on Section 6.12(j) of the Company Disclosure Schedules, Development of material Owned Intellectual Property was undertaken by either (i) current or former employees who work or worked for the Company or the applicable Company Entity within the scope of their employment; or (ii) current or former Contract Workers of the Company Entities who provide or provided services to the Company Entities within the scope of their engagement.
(l) The Company Entities have (i) complied in all material respects with all applicable Laws and use restrictions and other requirements of any license, consent, permission, or other Contract governing the use or provision of AI Technology in connection with the operation of the business of the Company Entities and (ii) to the Knowledge of the Company, not used any Generative AI Tools in a manner that could reasonably be expected to adversely affect the ownership, validity, enforceability, registrability, or patentability of any material Owned Intellectual Property in any material respect.
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(m) No Company Source Code material to the business of the Company Entities has been delivered, licensed or made available to any escrow agent, or other Person who was not, as of the time thereof, an employee, independent contractor, consultant or service provider of any of the Company Entities and subject to a written, non-disclosure agreement that protects the confidentiality thereof, and the Company Entities’ proprietary interests thereto, or a professional or ethical obligation of confidentiality, and the Company Entities have no duty or obligation (whether present, contingent or otherwise) to deliver, license or make available any such material Company Source Code to any escrow agent or other Person. Without limiting the foregoing, to the Knowledge of the Company, neither the execution nor delivery by the Company of this Agreement or any Ancillary Document to which it is a party, nor the consummation by the Company of the Transactions, or compliance by the Company with any of the provisions hereof and thereof, will result in a release from escrow or other delivery to a third party of any such material Company Source Code.
6.13 Taxes and Returns.
(a) (i) Each of the Company Entities has filed all material Tax Returns as required by Law, which Tax Returns are true, correct and complete in all material respects; (ii) each of the Company Entities has paid and remitted all material Taxes, other than Taxes being contested in good faith and for which adequate reserves have been established; (iii) none of the Company Entities is currently engaged in any material audit, administrative or judicial proceeding with respect to material Taxes, nor has any of the Company Entities waived or extended any statute of limitations applicable to the assessment of material Taxes; (iv) none of the Company Entities has received any written notice from a Governmental Authority of a proposed deficiency of any material amount of Taxes; (v) each of the Company Entities has withheld or collected from each payment made to its employees all material Taxes required to be withheld or collected therefrom and has paid the same to the proper tax authority; (vi) none of the Company Entities (a) has received a material written notice from a taxing authority that it has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized or incorporated, or (b) has received a material written notice from a jurisdiction where it does not file Tax Returns that it is subject to Tax or required to file Tax Returns in that jurisdiction; (vii) none of the Company Entities has engaged in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4; (viii) there are no Liens on the assets of any Company Entity related to material Taxes, other than Permitted Liens; (ix) within the past two (2) years, no Company Entity has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code; and (x) none of the Company Entities has material liability for the Taxes of any Person other than a Company Entity (a) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), (b) as a transferee or successor or (c) by contract (except, in each case, for liabilities pursuant to commercial contracts not primarily relating to Taxes).
(b) None of the Company Entities has taken, or agreed to take, any action not contemplated by this Agreement and/or any Ancillary Documents that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment. To the Knowledge of the Company, there are no facts or circumstances that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment. The Company is and has been since its formation treated as a corporation for U.S. federal income tax purposes and Section 6.13(b) of the Company Disclosure Schedule sets forth the characterization of each other Company Entity for U.S. federal income tax purposes.
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6.14 Real Property. Except as set forth under the applicable subsection of Section 6.13 of the Company Disclosure Schedules:
(a) None of the Company Entities own, or has ever owned, any real property.
(b) No Company Entity is in default under any material Real Property Leases, and there is no material default by any lessor under the Real Property Leases. Except as set forth on Section 6.14(b) of the Company Disclosure Schedules, there are no material disputes or forbearance programs in effect as to any such Real Property Lease.
(c) All buildings, structures, improvements, fixtures, building systems and equipment included in the Leased Real Property are in reasonable operating condition and repair in all material respects.
(d) In all material respects, (i) each Company Entity has a valid and enforceable leasehold interest under each Real Property Lease, (ii) each Real Property Lease is in full force and effect and constitutes a valid and binding obligation of the applicable Company Entity that is the lessee, or lessor, enforceable against such Company Entity in accordance with its terms.
(e) To the Knowledge of the Company, there are no pending condemnation, eminent domain, or any other taking by public authority with or without payment of consideration therefor or similar actions with respect to any of the Leased Real Properties. No notice of such a proposed condemnation has been received by any Company Entity.
(f) Each Company Entity has the right to conduct its business in each Leased Real Property for the remaining term of the applicable Real Property Lease.
6.15 Personal Property. Except as would not, individually or in the aggregate, be expected to have a Company Material Adverse Effect, (i) each of the Company Entities has good and marketable title to its properties, assets and rights (other than Intellectual Property), and has good title to all its leasehold interests, in each case, free and clear of any Lien, other than Permitted Liens, (ii) with respect to the properties, assets and rights it leases, each of the Company Entities is in compliance with such leases in all respects and, to the Knowledge of the Company, holds a valid leasehold interest free of any Liens, other than Permitted Liens, (iii) the properties, assets and rights owned, leased or licensed by the Company Entities (other than Intellectual Property) constitute all the properties, assets and rights used in connection with the businesses of the Company Entities and (iv) such properties, assets and rights constitute all the properties, assets and rights necessary for the Company Entities to continue to conduct their respective businesses following the Company Closing as they are currently being conducted.
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6.16 Employee Matters.
(a) Except as would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) in the past three (3) years, there has been no “mass layoff,” “employment loss,” or “plant closing” as defined by the Worker Adjustment Retraining and Notification Act of 1988, as amended (the “WARN Act” ), or any similar state, provincial, local or foreign Law, and none of the Company Entities has incurred any liability under the WARN Act, or any similar state, provincial, local or foreign Law, and (ii) during the ninety (90) day period preceding the date of this Agreement, no employee has suffered an “employment loss” as defined in the WARN Act, or any similar state, provincial, local or foreign Law with respect to any of the Company Entities.
(b) None of the Company Entities is now, nor ever has been, subject to a union, works council, or other collective group organizing effort, or party to, bound by, or negotiated or subject to (and none of their assets or properties is bound by or subject to) any Contract with any trade or labor union, employees’ association, works council or other collective group and, to the Knowledge of the Company, no labor union, works council, or other collective group has requested or has sought to represent any of the employees or Contract Workers of any of the Company Entities. In the past three (3) years, there has not been, nor has there been any threat of, any strike, lockout, material work stoppage, slowdown, unfair labor practice charge, grievance, complaint or other labor dispute involving any of the Company Entities pending, or to the Knowledge of the Company, threatened, that has had or would be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, nor, to the Knowledge of the Company, is there any labor organization activity involving the employees or Contract Workers of any of the Company Entities.
(c) With respect to all current and former Persons who have performed services for or on behalf of any of the Company Entities, (i) each of the Company Entities is in compliance, and during the past four (4) years has complied in all material respects with all applicable Laws and Contracts related to employment, including pay equity, background checks, discrimination, retaliation, reasonable accommodation, termination or discharge, payment of wages, gratuity, overtime pay, payroll documents and wage statements, immigration, health and safety, workers’ compensation, disability, unemployment compensation, plant closings and layoffs, restrictive covenants, labor relations and collective bargaining, overtime requirements, classification of employees, independent contractors and contingent workers (including for Tax purposes and for purposes of determining eligibility to participate in any Company Benefit Plan), hours of work, leaves of absence, equal opportunity, sexual and other harassment, whistleblower protections, immigration, occupational health and safety, workers’ compensation, and the withholding and payment of all applicable Taxes, and (ii) there are no arrears in the payments of wages, salaries, commissions, bonuses, fees, gratuity unemployment insurance premiums or other similar compensation or obligations due with respect to any service performed for it or amounts required to be reimbursed to such employees or Contract Workers.
(d) The Company Entities have for the past four (4) years properly classified and treated, in each case in all material respects, for all purposes (including for Tax purposes, for Fair Labor Standards Act (“FLSA”) exemption purposes and state, provincial, local and foreign wage and hour Laws (including with respect to the classification of employees located in India as workmen and non-workmen), and for purposes of determining eligibility to participate in any Company Benefit Plan) all current and former employees, officers, directors, Contract Workers, or independent contractors who have performed services for or on behalf of any of the Company Entities and have properly withheld and paid all applicable Taxes and made all required filings in connection with services provided by such Person to the applicable Company Entity in accordance with such classifications.
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(e) Except as set forth on Section 6.16(e) of the Company Disclosure Schedules, currently and during the past three (3) years, there is no and there have not been any material Actions, or material internal complaints, claims, disputes, grievances, or controversies pending or, to the Knowledge of the Company, threatened involving any of the Company Entities, employee, Contract Worker or group of employees with respect to labor and employment matters. Except as set forth on Section 6.16(e) of the Company Disclosure Schedules, the Company Entities are not, and within the last three (3) years have not been, subject to any material notification, request, or Order by any Governmental Authority or private settlement Contract in respect of any labor or employment matters, including any Actions or charges of (i) discrimination or retaliation (including discrimination, harassment or retaliation based upon sex, age, marital status, race, national origin, sexual orientation, disability, veteran, or other protected status), (ii) unfair labor practices, (iii) violations of health and safety Laws, (iv) workplace injuries or (v) whistleblower retaliation against the Company, in each case, that (y) pertain to any current or former employee, applicant or Contract Worker and (z) have been threatened by such employee, applicant or Contract Worker or are pending before the Equal Employment Opportunity Commission, the National Labor Relations Board, the U.S. Department of Labor, the U.S. Occupational Health and Safety Administration, the Workers Compensation Appeals Board, or any other Governmental Authority in any country.
(f) In the past three (3) years, to the Knowledge of the Company, no allegations of sexual harassment or misconduct have been reported internally to or threatened against the Company Entities or against any employee or Contract Worker that would result in a material liability to any Company Entity. To the Knowledge of the Company, there are no facts that would reasonably be expected to give rise to a claim of sexual harassment or misconduct, or other unlawful harassment or unlawful discrimination or retaliation against or involving the Company Entities or any employee or Contract Worker, in each case, that would result in a material liability to any Company Entity.
6.17 Company Benefit Plans.
(a) Section 6.17(a) of the Company Disclosure Schedules sets forth a complete list, as of the date of this Agreement, of each material Company Benefit Plan (whether written or unwritten). No Company Benefit Plan covers individuals other than current or former employees, officers, independent contractors or directors (or spouses, beneficiaries or dependents thereof) of any of the Company Entities. None of the Company Entities has communicated to present or former employees of any of the Company Entities, or formally adopted or authorized, any additional material Company Benefit Plan or any material change in or termination of any existing material Company Benefit Plan. With respect to each material Company Benefit Plan, the Company has delivered or made available to SPAC, to the extent applicable, true, complete and correct copies of (A) the plan document (or a written summary of any unwritten Company Benefit Plan), including all amendments thereto (B) trust agreements, insurance policies or other funding vehicles, third-party administrator agreements, and all amendments to any of these, (C) the most recent summary plan description, including any summary of material modifications, (D) the three most recent annual reports (Form 5500 series) filed with the IRS with respect to such Company Benefit Plan, (E) the three most recent actuarial reports or other financial statements relating to such Company Benefit Plan, and (F) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan and any pending request for such a determination letter.
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(b) (i) Each Company Benefit Plan has been operated and administered in compliance in all material respects with its terms and all applicable Laws, including ERISA and the Code and all other applicable Laws, including automatic enrollment obligations under the UK Pensions Act 2008, and (ii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, to the Knowledge of the Company, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan.
(c) All contributions and premium payments required to have been paid under or with respect to any Company Benefit Plan have been timely paid in accordance in all material respects with the terms of such Company Benefit Plan, and, in all material respects, with the terms of applicable Law.
(d) Except as set forth in Section 6.17(d) of the Company Disclosure Schedules, no Company Benefit Plan provides health, life insurance or other welfare benefits to retired or other terminated employees, officers, independent contractors, or directors of any of the Company Entities (or any spouse, beneficiary or dependent thereof), other than “COBRA” continuation coverage required by Section 4980B of the Code or Sections 601-608 of ERISA or similar state Law.
(e) No event has occurred and no condition exists with respect to any Company Benefit Plan or any other employee benefit plan, agreement, arrangement, program, policy or practice currently or previously sponsored, maintained or contributed to by any of the Company Entities which could subject any Company Benefit Plan, any of the Company Entities, PubCo, SPAC or any of their employees, agents, directors or Affiliates, directly or indirectly (through an indemnification agreement or otherwise), to a material liability for a breach of fiduciary duty, a non-exempt “prohibited transaction,” within the meaning of Section 406 of ERISA or Section 4975 of the Code, a Tax, penalty or fine under Section 502 or 4071 of ERISA or Subtitle D, Chapter 43 of the Code or any other excise Tax, penalty or fine under ERISA or the Code, or which could result in the imposition of a Lien on the assets of any of the Company Entities.
(f) None of the Company Entities nor any of their respective ERISA Affiliates have sponsored or contributed to, been required to contribute to, or had any actual or contingent liability under (i) a pension plan that is subject to Title IV of ERISA or (ii) a multiemployer pension plan (as defined in Section 3(37) of ERISA, whether or not subject to ERISA), in each case, at any time. None of the Company Entities nor any ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA.
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(g) Except as set forth in Section 6.17(f) of the Company Disclosure Schedules or as would not result in a material liability to the Company, none of the Company Entities has ever maintained, established, sponsored, participated in, or contributed to, any pension plan or similar Company Benefit Plan that has been adopted or maintained by any of the Company Entities, or with respect to which any of the Company Entities will or may have any material liability, for the benefit of any of the employees or Contract Workers who perform services outside the U.S. for any of the Company Entities. No non-U.S. Company Benefit Plan is a defined benefit pension plan, and none of the Company Entities has any material liability, contingent or otherwise, with respect to any such plan, including any unfunded or underfunded (or uninsured or underinsured, where applicable) liabilities or obligations. No current or former employee, Contract Worker, director or officer of any of the Company Entities whose employment has transferred to any Company Entity outside of the U.S. under legislation or regulations providing for the automatic transfer of employment by operation of law (including the Transfer of Undertakings (Protection of Employment) Regulations 1981 or the EC Acquired Rights Directive no. 2001/23) has any right, or option to claim, from any of the Company Entities, material benefits on enhanced terms (whether under pension schemes from their current or former employer or otherwise) in connection with early retirement, redundancy or the termination of employment.
(h) (i) With respect to each Company Benefit Plan, no material Actions (other than routine claims for benefits in the Ordinary Course) are pending or, to the Knowledge of the Company, threatened in writing, and, to the Knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such material Actions, and (ii) no Company Benefit Plan is currently under investigation or audit by any Governmental Authority for material violations or noncompliance and, to the Knowledge of the Company, no such investigation or audit is contemplated or under consideration.
(i) No event has occurred and no condition exists with respect to any employee benefit plan, agreement, arrangement, program, policy or practice currently or previously sponsored, maintained or contributed to by any Person who is or was an ERISA Affiliate of any of the Company Entities (other than the Company or one of the Company Subsidiaries) which could subject any of the Company Entities, PubCo, SPAC or any of their respective employees, agents, directors, or Affiliates, directly or indirectly (through an indemnification agreement or otherwise), to any material Liability, including Liability under Section 412, 430, 4971 or 4980B of the Code or Title IV of ERISA, or which could result in the imposition of a Lien on the assets of any of the Company Entities.
(j) (i) Except as set forth in Section 6.17(j) of the Company Disclosure Schedules, the execution of this Agreement and the consummation of the Transactions will not, either alone or in combination with another event (such as termination following the consummation of the Transactions, and regardless of whether that other event has or will occur), (i) entitle any current or former director, employee, officer or other service provider of any of the Company Entities to any retention, change of control or severance pay or any other compensation or benefit payable by any of the Company Entities, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any director, employee, Contract Worker officer or other individual service provider by any of the Company Entities, or (iii) result in any payment being considered an “excess parachute payment” within the meaning of Section 280G of the Code to any “disqualified individual” within the meaning of Section 280G of the Code.
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(k) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” subject to Section 409A of the Code or that is otherwise subject to Section 457A of the Code has been maintained and administered, in all material respects, in accordance with its terms and in operational and documentary compliance, in all material respects, with Section 409A of the Code and Section 457A of the Code, as applicable, and all regulations and other applicable regulatory guidance (including notices and rulings) thereunder, as well as any other similarly applicable Laws in each jurisdiction applicable to the Company Entities.
(l) None of the Company Entities has any obligation to gross up, indemnify or otherwise reimburse any current or former employee, officer, independent contractor, or director of any of the Company Entities for any Taxes, interest or penalties incurred in connection with any Company Benefit Plan (including any Taxes, interest or penalties incurred pursuant to Section 409A or 4999 of the Code) or any other similarly applicable Law in each jurisdiction applicable to the Company Entities.
6.18 Environmental Matters. Except as would not, individually or in the aggregate, be expected to have a Company Material Adverse Effect:
(a) Each Company Entity is, and since January 1, 2022, has been, in compliance in all respects with all applicable Environmental Laws, including obtaining, maintaining in good standing, and complying in all respects with all Permits required under Environmental Laws for its business and operations (“Environmental Permits”), and no Action is pending or, to the Knowledge of the Company, threatened that would reasonably be expected to result in the revocation, modification, or termination of any such Environmental Permit.
(b) No Company Entity is subject to, or has received written notice of an investigation that would lead to, any outstanding Order or Contract with any Governmental Authority in respect of any (i) Environmental Laws, (ii) Remedial Action or (iii) Release of a Hazardous Material, in each case, that has given rise or would reasonably be expected to give rise to any Liability under Environmental Laws of any Company Entity.
(c) No Company Entity has assumed, contractually or by operation of Law, any outstanding Liabilities or obligations under any Environmental Laws of any other Person.
(d) No Action is pending, or to the Knowledge of the Company, threatened against any Company Entity or any assets of a Company Entity alleging that a Company Entity is in violation in any respect of any Environmental Law or Environmental Permit or that a Company Entity has any Liability under any Environmental Law, and to the Knowledge of the Company, no fact, circumstance or condition exists that would reasonably be expected to give rise to any such Action.
(e) (i) No Company Entity has manufactured, used, treated, stored, disposed of, arranged for or permitted the transportation or disposal of, generated, handled or Released any Hazardous Material, or owned, leased or operated any property or facility, in a manner that has given or would reasonably be expected to give rise to any Liability or obligation of any Company Entity under applicable Environmental Laws and (ii) to the Knowledge of the Company, no fact, circumstance, or condition exists in respect of any Company Entity or any property currently or formerly owned, operated, or leased by any Company Entity or any property to which a Company Entity arranged for the disposal or treatment of Hazardous Materials that could reasonably be expected to result in a Company Entity incurring any Liability or obligation under applicable Environmental Laws.
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(f) To the Knowledge of the Company, there is not located at any of the properties of a Company Entity any (i) underground storage tanks, (ii) asbestos-containing material, (iii) equipment containing polychlorinated biphenyls or (iv) per- and polyfluoroalkyl substances, in each case, that could reasonably be expected to result in a Company Entity incurring any Liability or obligation under applicable Environmental Laws.
(g) The Company has made available to SPAC all environmental assessments and reports in its, or any of the Company Entities’, possession or control relating to the operations of the Company Entities, or the condition of their respective properties and assets, and their compliance with Environmental Laws and Environmental Permits.
6.19 Transactions with Related Persons. No Company Stockholder nor any officer or director of a Company Entity or any of their respective Affiliates, nor any immediate family member of any of the foregoing (each of the foregoing, a “Related Person” ) is presently, or since January 1, 2022, has been, a party to any transaction with a Company Entity, including any Contract (a) providing for the furnishing of services by (other than as officers, directors or employees of such Company Entity), (b) providing for the rental of real property or Personal Property from, or (c) otherwise requiring payments to (other than for services or expenses as directors, officers or employees of such Company Entity in the Ordinary Course) any Related Person or any Person in which any Related Person has a position as an officer, manager, director, trustee or partner or in which any Related Person has any direct or indirect ownership interest (other than the ownership of securities representing no more than five (5%) percent of the outstanding voting power or economic interest of a publicly traded company), in each case, other than any Ancillary Document, the Existing Company Governance Agreements or any Contract pursuant to which a Company Stockholder subscribed for or purchased Equity Interests in the Company. Except as contemplated by or provided for in any Ancillary Document, the Existing Company Governance Agreements or any Contract pursuant to which a Company Stockholder subscribed for or purchased Equity Interests in the Company, no Company Entity has outstanding any Contract or other arrangement or commitment with any Related Person, and no Related Person owns any real property or Personal Property, or right, tangible or intangible (including Intellectual Property) which is used in the business of any Company Entity. Except as contemplated by or provided for in any Ancillary Document, the assets of the Company Entities do not include any material receivable or other material obligation from a Related Person, and the Liabilities of the Company Entities do not include any material payable or other material obligation or commitment to any Related Person.
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6.20 Insurance.
(a) Section 6.20(a) of the Company Disclosure Schedules lists all material insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by a Company Entity relating to a Company Entity or its business, properties, assets, directors, officers and employees, copies of which have been provided to SPAC. Each of the Company Entities has in full force and effect all material policies or binders of property, fire and casualty, product liability, workers’ compensation, professional liability, cybersecurity, trade credit and other forms of insurance held by, or for the benefit of any of the Company Entities as cover such risks and are in such amounts as are customarily carried by Persons conducting a business similar to the Company Entities. True, correct and complete copies of such insurance policies as in effect as of the date of this Agreement have been made available to SPAC. All premiums due and payable under all such insurance policies have been timely paid in all material respects, and the Company Entities are otherwise in material compliance with the terms of such insurance policies. To the Knowledge of the Company, and except as would not, individually or in the aggregate, be material to the Company Entities, taken as a whole, each such insurance policy (i) is valid, binding, enforceable and in full force and effect and (ii) will continue to be valid, binding, enforceable, and in full force and effect on identical terms following the Company Closing (except, in each case, as such enforcement may be limited by the Enforceability Exceptions). No Company Entity has any self-insurance or co-insurance programs. Since January 1, 2022, to the Knowledge of the Company, no Company Entity has received any notice from, or on behalf of, any insurance carrier relating to or involving any material adverse change or any material change other than in the Ordinary Course, in the conditions of insurance, any refusal to issue a material insurance policy or non-renewal of any such policy.
(b) Since January 1, 2022, no Company Entity has made any insurance claim and each Company Entity has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to be material to the Company Entities, taken as a whole. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse of time) give rise to or serve as a basis for the denial of any such insurance claim. Since January 1, 2022, no Company Entity has made any material claim against an insurance policy as to which the insurer is denying coverage.
6.21 Data Protection and Cybersecurity.
(a) To the Knowledge of the Company, the IT Systems (i) perform in material conformance with their documentation, (ii) are free from any material defects, and (iii) except as would not reasonably be expected to be, individually or in the aggregate, material to the Company Entities, do not contain any virus, software routine or hardware component designed to permit unauthorized access or to disable or otherwise harm any computer, systems or Software or any software routine designed to disable a computer program automatically with the passage of time or under the positive control of a Person other than an authorized licensee or owner of the Software. To the Knowledge of the Company, the IT Systems are in good repair and operating condition in all material respects (ordinary wear and tear excepted) and are adequate and suitable (including with respect to working condition, performance and capacity) in all material respects for the purposes for which they are being used or held for use.
(b) To the Knowledge of the Company, except as set forth on Section 6.21(b) of the Company Disclosure Schedules, since January 1, 2022, no material Computer Security Incident has occurred involving any of the Company Entities or any of their assets, rights or properties. The Company Entities implement (and have implemented), maintain and comply with commercially reasonable technologies, policies, programs and procedures, including a written Information Security Program. Except as would not reasonably be expected to result in a Company Material Adverse Effect, the Company Entities implement and have implemented commercially reasonable business continuity, backup and disaster recovery, and security plans.
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(c) Since January 1, 2022, the Company Entities have not received any written or, to the Company’s Knowledge, oral notices, allegations or complaints from any Governmental Authority or any other Person with respect to any Computer Security Incidents or allegations that any of the Company Entities’ Processing of Personal Information violates any Privacy Laws or the Company Entities’ privacy policies regarding the Processing of Personal Information by or on behalf of the Company Entities (“Privacy Policies” ), in each case, in any material respect, nor have they received any written or, to the Company’s Knowledge, oral claims for material compensation under Privacy Laws from data subjects or any other Person. The Company Entities have, since January 1, 2022, complied in all material respects with the terms of any Privacy Laws and Contracts by which any Company Entities are bound relating to data protection, privacy or security or the Processing of Personal Information, including the Privacy Policies (“Data Processing Contracts”).
(d) No Actions are pending or, to the Knowledge of the Company, threatened against any of the Company Entities relating to the Processing of Personal Information. Except as would not reasonably be expected to result in a Company Material Adverse Effect, the Company Entities have all necessary Data Processing Contracts and other agreements in place with all service providers, vendors and other Persons whose relationship with the Company Entities involves the relevant service provider, vendor or other Person Processing any Personal Information on behalf of the Company Entities and such agreements comply with Privacy Laws applicable to the Company Entities.
6.22 Digital Asset Platform and Operations. Since January 1, 2022: (a) the Company has performed reasonable due diligence on all material third-party service providers engaged by the Company in connection with its Digital Asset-related business activities and operations, and reasonably concluded that such providers have the ability and capacity to undertake the provision of the service effectively in all material respects; (b) the Company Entities have taken commercially reasonable steps to protect and ensure the validity, enforceability, integrity and functionality of Smart Contracts used in connection with the Digital Assets; and (c) the Company Entities (together with the relevant issuers of such Digital Assets, as applicable) have in all material respects accurately disclosed to customers the economic principles of all Digital Assets and all material risks associated therewith. The Company Entities have not received any written complaints from any Governmental Authority or any other Person challenging the validity, enforceability, integrity or functionality of any Company Smart Contracts. Section 6.22 of the Company Disclosure Schedules sets forth a true, complete and accurate list of all Company Smart Contracts.
6.23 Books and Records. The minute books of each of the Company Entities contain complete and accurate records in all material respects of all meetings and other corporate actions of each of the Company Stockholders, the Company Board or the Subsidiaries’ shareholders or board of directors (or similar governing body) and all committees, if any, appointed by the Company Board or the Subsidiaries’ board of directors (or similar governing body), as applicable.
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6.24 Certain Business Practices.
(a) None of the Company Entities, or their respective Affiliates, nor any of their respective directors, officers, employees, agents, distributors, resellers, or other third parties have in any material respect, directly or indirectly, in the past six (6) years:
(i) violated any applicable Anti-Corruption Laws;
(ii) offered, paid, promised to pay, or authorized the payment of, received, or solicited anything of value under circumstances such that all or a portion of such thing of value would be offered, given, or promised, directly or indirectly, to (A) any Government Official in order to influence any act or decision of that Government Official, induce that Government Official to use her or his or its influence with a government or instrumentality thereof, or otherwise secure any improper advantage; or (B) any other Person or entity in any manner that would constitute commercial bribery, a secret commission, unlawful contributions, gifts, entertainment, or other expenses relating to political activity or otherwise, or an illegal kickback (as such term may be defined in applicable Laws), or would otherwise violate applicable Anti-Corruption Laws;
(iii) offered, paid, promised to pay, or authorized the payment of any money, or offer, gift, promise to give or authorized the giving of anything of value to any customer, employee of any Governmental Authority or other Person who is or may be in a position to help or hinder the Company Entities or any of their Affiliates (or assist the Company Entities or any of their Affiliates in connection with any actual or proposed transaction);
(iv) conducted or initiated any, or is aware of any pending or threatened investigation by Governmental Authorities, or made a voluntary, directed, or involuntary disclosure to any Governmental Authority or similar agency with respect to any alleged act or omission arising under or relating to any noncompliance by the Company Entities or any of their Affiliates, their respective directors, officers, employees, agents, distributors, resellers, or other third parties with, any applicable Anti-Corruption Laws; or
(v) been involved in or is subject to any current, pending, or threatened Actions for violations of Anti-Corruption Laws, or received any notice, request, or citation for any actual or potential noncompliance with any Anti-Corruption Laws.
(b) Each of the Company Entities and their Affiliates:
(i) conduct risk assessments that are designed to understand the nature and extent of their exposure to risks of breaches of Anti-Corruption Laws;
(ii) instituted and implemented, and maintains in effect, policies and procedures that are designed to detect, prevent and remedy violations of Anti-Corruption Laws (including due diligence and third party screening tools); and
(iii) have maintained compliance programs and systems of internal controls (including accounting systems, purchasing systems and billing systems) designed to help ensure compliance with any Anti-Corruption Laws.
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(c) None of the Company Entities, their Affiliates, their respective directors, officers, employees, agents, distributors, resellers, or other third parties have received any written notice that it is subject to any material Action involving or otherwise relating to any alleged or actual violation of Anti-Corruption Laws.
(d) To the Knowledge of the Company, no direct or indirect beneficial owner or holder of shares of Company Stock or their Affiliates is a Government Official.
6.25 Anti-Money Laundering. The operations of each of the Company Entities are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Anti-Money Laundering Laws, in each case, to the extent applicable to each of the Company Entities, and no material Action by or before any Governmental Authority involving any of the Company Entities with respect to Anti-Money Laundering Laws is pending or, to the Knowledge of the Company, threatened.
6.26 Sanctions. None of any of the Company Entities nor any of their respective Affiliates, directors, officers, employees (acting in such capacities) or, to the Knowledge of the Company, agents (acting in such capacity) (a) is or has been a Sanctions Restricted Person or subject to debarment or any list-based designations under applicable Trade Laws; (b) has engaged in, or is currently engaged in, (i) any dealings or transactions (including directly or indirectly using any funds or loaning, contributing to or otherwise making available such funds to any Company Subsidiary, joint venture partner or other Person in connection with any sales or operations in or to any Sanctions Restricted Person or for the purposes of financing the activities of any Sanctions Restricted Person) with, in relation to or for the benefit of, or is or has been otherwise involved in any business with, any Sanctions Restricted Person (including any Person who no longer constitutes a Sanctions Restricted Person but at the time of such dealing or transaction was a Sanctions Restricted Person) or (ii) any dealing that could reasonably be expected to result in any Company Entity becoming a Sanctioned Restricted Person; (c) is in violation of or has at any time violated, any applicable Sanctions; (d) has received notice from any Sanctions Authority related to or concerning any actual, suspected or potential violation of, or non-compliance with, any Sanctions, nor, to the Knowledge of the Company, are there any facts or circumstances reasonably likely to give rise to any such actual, suspected or potential violation or non-compliance; (e) has submitted any voluntary or mandatory self-report or self-disclosure in respect of any actual or potential noncompliance with Sanctions, and no such self-report or self-disclosure is currently contemplated; and (f) is or has been engaged in, subject to or party to any Sanctions-related Action, and no Sanctions-related Action has been threatened against the Company Entities. Each of the Company Entities have implemented and maintain in effect policies and procedures (including third-party screening tools) designed to ensure compliance by the Company Entities with applicable Sanctions and Trade Laws.
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6.27 Trade Compliance. The Company Entities, and to the Knowledge of the Company, their respective Representatives in their capacity as such, have, in the past six (6) years, been in compliance with, in all material respects, all applicable Trade Laws and, except as set forth in Section 6.27 of the Company Disclosure Schedules, none of the Company Entities has (a) received written notice of, any actual, alleged or potential violation of any Trade Law or (b) been a party to or the subject of any pending (or to the Knowledge of the Company, threatened) Action by or before any Governmental Authority (including receipt of any subpoena) related to any actual, alleged or potential violation of any Trade Law; nor, to the Knowledge of the Company, does a basis for any such claim exist. Each of the Company Entities has, in all material respects, in the past six (6) years, (i) obtained and acted in compliance with all Permits and agreements and all other orders required or issued under applicable Trade Laws; (ii) made, filed, or caused to be filed, all notices, registrations, declarations and filings with any Governmental Authority required under applicable Trade Laws; and (iii) met the requirements of any general or specific licenses, license exceptions, and license exemptions, as required under applicable Trade Laws in connection with the import, transshipment, export, reexport, release, storage, Development, production, testing, maintenance, brokering, or transfer of products, services, software, technology, technical data or other know-how.
6.28 Investment Company Act. No Company Entity is an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of a Person subject to registration and regulation as an “investment company,” in each case, within the meaning of the Investment Company Act.
6.29 Private Placement.
(a) As of the date of this Agreement, other than the PIPE Subscription Agreements, there are no other agreements, side letters or arrangements between the Company and any PIPE Investor relating to any PIPE Subscription Agreement that could materially and adversely affect the obligation of such PIPE Investors to contribute to SPAC the applicable portion of the PIPE amount set forth in the PIPE Subscription Agreement of such PIPE Investors. As of the date of this Agreement, assuming the due authorization, execution and delivery by each other party thereto (other than PubCo), all of the PIPE Subscription Agreements are in full force and effect and are legal, valid and binding obligations of the Company, enforceable in accordance with its terms, except as limited by the Enforceability Exceptions. As of the date of this Agreement, to the Knowledge of the Company, no PIPE Subscription Agreement has been withdrawn or terminated, amended or modified in writing in any respect. As of the date of this Agreement, the Company is not and, with the giving of notice, the lapse of time or both, would not be in default under any PIPE Subscription Agreements.
(b) No fees, consideration or other discounts are payable or have been agreed to by the Company (including, from and after the Closing) to any PIPE Investor in respect of the PIPE, except as set forth in the PIPE Subscription Agreements.
(c) As of the date of this Agreement, other than the PIPE Subscription Agreements, there are no agreements, side letters, or arrangements between a Company Entity, on the one hand, and any actual or prospective investor, on the other hand, relating to any PIPE Investment.
6.30 Takeover Statutes and Charter Provisions. The Company Board has taken all action necessary so that the restrictions on a “business combination” contained under the DGCL (or any other applicable Laws) will not apply to this Agreement and the other Transactions. As of the date of this Agreement, no “fair price,” “moratorium,” “control share acquisition” or other antitakeover statute or similar domestic or foreign Law applies with respect to any of the Company Entities in connection with this Agreement or the Transactions. As of the date of this Agreement, there is no stockholder rights plan, “poison pill” or similar antitakeover agreement or plan in effect to which any of the Company Entities is subject, party or otherwise bound.
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6.31 Finders and Brokers. Except as set forth in Section 6.31 of the Company Disclosure Schedules, none of the Company Entities or any of their respective Affiliates has incurred, or will incur, directly or indirectly, as a result of any action taken by the Company Entities, any Liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or any of the Transactions.
6.32 Information Supplied. The information supplied or to be supplied by Company expressly for inclusion or incorporation by reference in the Proxy/Registration Statement or any current report on Form 8-K or report on Form 10-K or 10-Q, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority (including the SEC), in each case, with respect to the Transactions, shall not: (a) in the case of the Proxy/Registration Statement, on the effective date of the Proxy/Registration Statement, (b) in the case of the Proxy/Registration Statement or any current report on Form 8-K, or any report on Form 10-K or 10-Q, when filed, made available, mailed or distributed, as the case may be, and (c) in the case of the Proxy/Registration Statement, at the time of the Extraordinary General Meeting and the SPAC Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. All documents that the Company is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the SPAC, or any of its Affiliates.
6.33 No Other Representations. Except for the representations and warranties expressly made by Company in this Article VI (as modified by the Company Disclosure Schedules) or as expressly set forth in any Ancillary Document, neither Company nor any other Person on its behalf makes any express or implied representation or warranty with respect to Company or its business, operations, assets or Liabilities, or the Transactions, and Company hereby expressly disclaims any other representations or warranties, whether implied or made by Company or any of its Representatives. The Company acknowledges that, except for the representations and warranties expressly made by SPAC in Article IV or by PubCo in Article V, none of SPAC, PubCo or SPAC Merger Sub are making or have made, communicated or furnished (orally or in writing) any representation, warranty, statement or information to Company (including any opinion, information or advice that may have been or may be provided to Company or its Representatives by any Representative of SPAC, PubCo or SPAC Merger Sub). The Company specifically disclaims that it is relying upon or has relied upon any such other representations and warranties that may have been made by any Person and acknowledges and agrees that SPAC, PubCo, and SPAC Merger Sub have specifically disclaimed any such other representations and warranties. Notwithstanding the foregoing provisions of this Section 6.33, nothing in this Section 6.33 shall limit SPAC’s remedies with respect to Fraud Claims in connection with, or arising out of this Agreement, the Ancillary Documents or the Transactions.
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Article VII
COVENANTS
7.1 Access and Information.
(a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 9.1 or the Closing (the “Interim Period”), subject to Section 7.15, each of Company, PubCo and SPAC Merger Sub shall give, and shall cause its Representatives to give, SPAC and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information of or pertaining to PubCo, the Company Entities or SPAC Merger Sub, as SPAC or its Representatives may reasonably request regarding PubCo, the Company Entities or SPAC Merger Sub and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects and cause each of the Representatives of the Company Entities, PubCo and SPAC Merger Sub to reasonably cooperate with SPAC and its Representatives in their investigation; provided, however, that SPAC and its Representatives, in each case, shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of PubCo, the Company Entities or SPAC Merger Sub.
(b) During the Interim Period, subject to Section 7.15, SPAC shall give, and shall cause its Representatives to give, the Company and PubCo and their respective Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information of or pertaining to SPAC or Company Merger Sub, as the Company or PubCo or their respective Representatives may reasonably request regarding SPAC and Company Merger Sub and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects and cause each of their respective Representatives to reasonably cooperate with the Company and PubCo and their respective Representatives in their investigation; provided, however, that the Company and PubCo and their respective Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of SPAC.
7.2 Conduct of Business of the Company Entities, PubCo, and SPAC Merger Sub.
(a) Unless SPAC shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except (i) as expressly permitted or required by this Agreement or the Ancillary Documents (including in connection with any PIPE Investment), (ii) as required by applicable Law; (iii) as set forth on Section 7.2(a) of the Company Disclosure Schedules, or (iv) for the incurrence of Company Expenses the Company shall, and shall cause each of the other Company Entities, PubCo and SPAC Merger Sub to, operate its business in the Ordinary Course.
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(b) Without limiting the generality of Section 7.2(a) and except as expressly permitted or required by the terms of this Agreement or any Ancillary Document or as set forth on Schedule 7.2(b) of the Company Disclosure Schedules, or as required in connection with the Transactions or by applicable Law, during the Interim Period, without the prior written consent of SPAC (such consent not to be unreasonably withheld, conditioned or delayed other than with respect to those actions set forth in clauses (iii) and (xi)(F) in this Section 7.2(b), with respect to which SPAC’s consent may be withheld, conditioned or delayed in SPAC’s discretion), the Company shall not, and shall cause the other Company Entities, PubCo and SPAC Merger Sub not to:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents other than for administrative or de minimis changes;
(ii) except for the issuance of Company Common Stock upon the exercise of outstanding Company Options or as a result of the Conversion, (A) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities (B) grant any options, warrants, convertible equity instruments or other equity-based awards that relate to the equity of any Company Entity, PubCo or SPAC Merger Sub, including such awards that may be cash-settled upon vesting, or (C) amend, modify or waive any of the terms or rights set forth in any Company Equity Awards, including any amendment, modification or reduction of the exercise, conversion or warrant price set forth therein;
(iii) make or declare any dividend or distribution to its shareholders or members, as applicable, of any Company Entity or PubCo or SPAC Merger Sub, or make any other distributions in respect of any of such Person’s capital stock or equity interests, except (A) dividends and distributions by a wholly-owned Subsidiary of a Company Entity to such Company Entity or another wholly-owned Subsidiary of such Company Entity, and (B) repurchases of awards under the Company Benefit Plan in the Ordinary Course in connection with any termination of employment or other services;
(iv) split, combine, recapitalize or reclassify (or otherwise amend any terms of) any of its shares or other Equity Interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its Equity Interests (except for any such transaction by a wholly-owned Subsidiary of a Company Entity that remains a wholly-owned Subsidiary of such Company Entity after consummation of such transaction), or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(v) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), other than Indebtedness under the Company’s existing revolving debt facility documents, the principal amount of which does not exceed $10,000,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the Ordinary Course), or guarantee or endorse any Indebtedness, Liability or obligation of any Person;
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(vi) purchase, repurchase, redeem or otherwise acquire any issued and outstanding Equity Interests of any Company Entity or PubCo or SPAC Merger Sub, except for (A) transactions between a Company Entity and any wholly-owned Subsidiary of such Company Entity and (B) repurchases of awards under the Company Benefit Plan in the Ordinary Course in connection with any termination of employment or other services;
(vii) sell, assign, lease, license, transfer, convey, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights, except for transactions solely among the Company Entities;
(viii) acquire any ownership interest in any real property;
(ix) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(x) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all or a material portion of the equity or assets of, any corporation, partnership, association, joint venture or other business organization or division thereof with a fair market value in excess of $5,000,000 in any individual transaction (or series of related transactions) or $25,000,000 in the aggregate;
(xi) except (with respect to clauses (A)-(E)) to the extent consistent with the Ordinary Course actions of the Company in the last twelve months prior to the date of this Agreement, or as required by applicable Law or expressly required under the terms of any Company Benefit Plan as of the date of this Agreement, (A) grant any bonuses, whether monetary or otherwise, or increase any wages, salary, severance, gratuity, pension or other compensation or benefits in respect of its employees, officers, directors, managers, or Contract Workers, (B) except as expressly contemplated pursuant to Section 7.2(b)(xi)(B) of the Company Disclosure Schedules, hire any employee or Contract Worker, except, in the Ordinary Course for employees or Contractor Workers with an annual base salary not to exceed $250,000, (C) terminate any employee or Contractor Worker entitled by Contract, policy, or practice to any severance payments or benefits (other than as required by applicable Law), (D) materially change the terms of employment or terminate, any officer, executive, or management-level employees, (E) conduct any group termination, reduction in force, plant closing, or mass layoff of employees, or (F) accelerate the vesting or payment of any compensation or benefit for any employee, officer, manager, or Contract;
(xii) except for the Company Written Consent and related approvals of the Transactions, enter into any agreement, understanding or arrangement with respect to the voting of equity securities of Company, PubCo or SPAC Merger Sub;
(xiii) adopt a plan of, or otherwise enter into or effect a, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Company Entity or PubCo or SPAC Merger Sub, merge or consolidate with any Person or be acquired by any Person, or file for bankruptcy in respect of any Company Entity or PubCo or SPAC Merger Sub;
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(xiv) waive, release, settle, compromise or otherwise resolve any Action, except in the Ordinary Course or where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $500,000 in the aggregate;
(xv) limit the right of any Company Entity to engage in any line of business or in any geographic area, to Develop, market or sell products or services, or to compete with any Person or grant any exclusive rights to any Person;
(xvi) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any material transaction with any Related Person (other than compensation and benefits and advancement of expenses to employees in the Ordinary Course);
(xvii) make or rescind any material election relating to Taxes, settle any Action relating to material Taxes, file any material amended Tax Return or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in the ordinary course of business consistent with past practice;
(xviii) except in the Ordinary Course, (i) sell, exclusively license, transfer or assign to any Person (or enter into any Contract to sell, license, transfer or assign to any Person) any material Owned Intellectual Property; (B) abandon, dispose of, permit to lapse or fail to preserve any registered or applied-for material Owned Intellectual Property (other than statutory expirations) (C) disclose any material Company Source Code to any Person (other than providing access to Company Source Code to current employees, Contract Workers and service providers of the Company Entities involved in the Development of the Company Services or Company Software or otherwise on a need to know basis in connection with the operation of the business of the Company Entities); or (D) disclose any material trade secrets included in the Company Intellectual Property to any Person who has not entered into a written confidentiality agreement or is not otherwise subject to confidentiality obligations;
(xix) (A) except as expressly contemplated pursuant to Section 7.2(b)(xix)(A) of the Company Disclosure Schedules, enter into any Contract that would, if entered into prior to the date of this Agreement, be a Company Material Contract of the type described in Section 6.11; (B) enter into any transaction or Contract with a Company Stockholder or any of their respective family members or other related Persons that would require disclosure of transactions therewith under Item 404 of Regulation S-K promulgated by the SEC; (C) except in the Ordinary Course, materially modify, materially amend, or waive, release or assign any material rights or claims under any Company Material Contract of the type referred to in clause (A) or (B) above; or (D) extend or terminate any Company Material Contract of the type referred to in clause (A) or (B) above (other than renewals or extensions in the Ordinary Course);
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(xx) acquire, apply, register or file for any new Permit, or amend any Permit, except, in each case, where such Permit would not materially delay the Transactions or materially and adversely affect the business of the Company; or
(xxi) authorize or agree to do any of the foregoing actions.
7.3 Conduct of Business of SPAC.
(a) Unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as expressly contemplated, permitted or required by this Agreement or any Ancillary Document or as set forth on Schedule 7.3(a) of the SPAC Disclosure Schedules, or as required in connection with the Transactions or applicable Law, SPAC shall and shall cause Company Merger Sub to conduct their businesses, in all material respects, in the Ordinary Course.
(b) Without limiting the generality of Section 7.3(a) and except as contemplated by the terms of this Agreement or any Ancillary Document or as set forth on Schedule 7.3(b) of the SPAC Disclosure Schedules, or as required by the Transactions or applicable Law, during the Interim Period, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), SPAC shall not, and shall cause Company Merger Sub to not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents other than for administrative or de minimis changes;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its Equity Interests, or other securities, including any securities convertible into or exchangeable for any of its Equity Interests or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) subdivide, consolidate, capitalise or reclassify any of its shares or other Equity Interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares or other Equity Interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay, repay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), fees or expenses in excess of $1,000,000 individually or $10,000,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person;
(v) make or rescind any material election relating to Taxes, settle any Action relating to material Taxes, file any material amended Tax Return, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in the ordinary course of business consistent with past practice;
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(vi) amend or otherwise modify, terminate, waive or assign or delegate (as applicable) any material right or obligation under any SPAC Material Contract (other than amendments or other modifications, terminations, waivers, assignments or delegations of or with respect to Contracts with Related Persons otherwise governed by Section 7.3(b)(v)) or enter into any new Contract that would be a SPAC Material Contract;
(vii) other than drawings on the SPAC Loans (or any other outstanding promissory notes owed to Sponsor or any other Affiliates of SPAC) or as expressly required by the Sponsor Support Agreement, enter into, renew, amend, waive or terminate (other than terminations in accordance with their terms) any Contracts, arrangements or transactions with any Related Person, including any Ancillary Document to which SPAC or any Related Person is a party;
(viii) fail to maintain its books, accounts and records in all material respects in the Ordinary Course;
(ix) establish any Subsidiary or enter into any new line of business;
(x) revalue any of its material assets or make any change in accounting methods, principles or practices, except to the extent required to comply with GAAP, and after consulting SPAC’s outside auditors;
(xi) waive, release, assign, settle or compromise any Action (including any Action relating to this Agreement or the Transactions), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, SPAC) not in excess of $500,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the SPAC Financials;
(xii) acquire, including by merger, consolidation, acquisition of Equity Interests or assets, or any other form of business combination, any corporation, company, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the Ordinary Course;
(xiii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than with respect to the SPAC Merger);
(xiv) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $100,000 individually or $500,000 in the aggregate (excluding the incurrence of any SPAC Expenses) other than pursuant to the terms of a Contract (a) in existence as of the date of this Agreement and disclosed to the Company (including in the SEC Reports) or (b) entered into in the Ordinary Course or in accordance with the terms of this Section 7.3(b)(xiv) during the Interim Period;
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(xv) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights; or
(xvi) authorize or agree to do any of the foregoing actions.
7.4 Annual and Interim Financial Statements.
(a) The Company will use its commercially reasonable efforts to, as promptly as practicable after the date of this Agreement, but in no event later than (i) thirty (30) days after the date of this Agreement, deliver to SPAC the audited and/ or reviewed financial statements of Company and PubCo (including, in each case, any related notes thereto), that are required for the initial filing of the Proxy/Registration Statement pursuant to the Securities Act and the rules and regulations promulgated thereunder, and (ii) forty-five (45) days after the date of this Agreement, deliver to the SPAC the KPMG Audited 2024 Financials. All such financial statements shall fairly present the financial position and results of operations of Company and PubCo, as applicable, as of the dates or for the periods indicated, in accordance with GAAP. The financial statements, if required to be audited, shall be audited in accordance with PCAOB auditing standards by Wolf & Company, P.C. and/or KPMG LLP.
(b) During the Interim Period, as soon as reasonably practicable following the end of each three-month quarterly period of each fiscal year (other than the last three-month period), and in any event no later than forty five (45) days thereafter, the Company and PubCo shall deliver to SPAC the unaudited consolidated financial statements of Company and PubCo, as applicable, consisting of the consolidated balance sheet of Company and PubCo, as applicable as of the end of such three-month period (and most recent year end), and the related unaudited consolidated income statement, changes in shareholder equity and statement of cash flows for the year to date period of such fiscal year or such fiscal quarter (subject to normal and recurring year-end adjustments and the absence of footnotes), which unaudited financial statements shall (i) be reviewed by a PCAOB-qualified auditor in accordance with PCAOB standards and procedures for conducting such reviews, (ii) fairly present the financial position and results of operations of the Company and PubCo as of the dates and for the periods indicated, in accordance with GAAP, and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant.
(c) During the Interim Period, as soon as reasonably practicable following the end of each fiscal year, and in any event no later than ninety (90) days thereafter, the Company and PubCo shall deliver to SPAC the audited consolidated financial statements of the Company and PubCo, consisting of the consolidated audited balance sheet of the Company or PubCo, as applicable, as of the end of such fiscal year (and prior fiscal year), and the related audited consolidated income statement, changes in shareholder equity and statement of cash flows for the fiscal year then ended (and prior two fiscal years). Such audited financial statements shall be (i) audited in accordance with PCAOB auditing standards by KPMG LLP or another PCAOB qualified auditor reasonably acceptable to SPAC, (ii) fairly present the financial position and results of operations of Company and PubCo, as applicable, as of the dates and for the periods indicated, in accordance with GAAP, and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant.
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7.5 Interim Period Control. Nothing contained in this Agreement shall give to any Party, directly or indirectly, the right to control SPAC, PubCo, the Company, SPAC Merger Sub or Company Merger Sub or their respective Subsidiaries prior to the Closing Date. Prior to the Closing Date, each of SPAC, PubCo, the Company, SPAC Merger Sub and Company Merger Sub shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its respective operations, as required by Law.
7.6 SPAC Public Filings. During the Interim Period, SPAC will (i) keep current and timely file all of the public filings required to be filed by it with the SEC under the Exchange Act and the Securities Act and otherwise comply in all material respects with applicable securities Laws and shall use its commercially reasonable efforts prior to the SPAC Closing to maintain the listing of the SPAC Class A Ordinary Shares on Nasdaq.
7.7 Stock Exchange Listing. Each of SPAC, the Company and PubCo will use its commercially reasonable efforts to cause (a) PubCo’s initial listing application(s) with NYSE or Nasdaq (as applicable) in connection with the Transactions to have been approved, (b) PubCo to satisfy all applicable initial listing requirements of NYSE or Nasdaq (as applicable) and (c) the PubCo Common Stock issuable in accordance with this Agreement to be approved for listing on NYSE or Nasdaq (as applicable), subject to official notice of issuance, in each case, prior to the SPAC Merger Effective Time.
7.8 Taxes.
(a) Following the Closing, PubCo shall use reasonable best efforts to provide former shareholders of SPAC with any information reasonably required to file IRS Form 8621 (including any information necessary to make a qualified electing fund election) and/or IRS Form 5471 with respect to the period ending on or prior to the SPAC Merger and to make elections under Treasury Regulation Section 1.367(b)-3(c)(3). Publishing such information on PubCo's publicly-available website shall be considered to satisfy PubCo's obligation to provide such information to former shareholders of SPAC under this Section 7.8(a).
(b) Each Party shall use (and shall cause its Affiliates to use) its reasonable best efforts to cause the Transactions to qualify for the Intended Tax Treatment. Neither Party shall take (and each Party shall cause its Affiliates not to take) any action (other than an action expressly contemplated or required under this Agreement), which action would reasonably be expected to prevent or impede the Transactions from qualifying in whole or part for the Intended Tax Treatment. Each Party shall use its reasonable best efforts to cause its officers to deliver to the relevant tax counsel of a Party customary tax representation letters with respect to the qualification of the Transactions for the Intended Tax Treatment and customary related matters, in form and substance reasonably satisfactory to such tax counsel, at such time (or times) as such tax counsel shall reasonably request, which may include (i) the date of the declaration of effectiveness of the Proxy/Registration Statement by the SEC, (ii) on such other date (or dates) as determined reasonably necessary by such tax counsel in connection with the preparation and filing of the Proxy/Registration Statement, (iii) at Closing and (iv) on such other dates as determined reasonably necessary or appropriate by such tax counsel. Each Party shall use its reasonable best efforts to provide such other information as reasonably requested by the tax counsels for purposes of rendering any opinion with respect to the qualification of the Transactions for the Intended Tax Treatment and customary related matters.
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7.9 No Solicitation.
(a) Company Non-Solicitation. From the date of this Agreement until the earlier of the Company Merger Effective Time and the termination of this Agreement in accordance with Section 9.1, (i) the Company shall, and shall cause the Company Entities, PubCo and SPAC Merger Sub and its and their respective officers and directors to, immediately cease, and shall instruct and cause its and their respective other Representatives to immediately cease, all existing discussions, negotiations and communications with any Persons with respect to any Company Acquisition Proposal, (ii) the Company shall not, and shall cause the Company Entities, PubCo, and SPAC Merger Sub and its and their respective officers and directors not to, and shall instruct and cause its other respective Representatives not to, directly or indirectly, (1) initiate, seek, solicit, knowingly facilitate or knowingly encourage (including by way of furnishing any nonpublic information), whether publicly or otherwise, any inquiries with respect to, or the making. or submission of, a Company Acquisition Proposal, (2) enter into or engage in any negotiations or discussions with, or provide any nonpublic information to, or afford access to the business, properties, assets, books or records of any of the Company Entities, PubCo or SPAC Merger Sub to, any Person (other than SPAC or any of its Representatives) relating to or for the purpose of encouraging or facilitating any Company Acquisition Proposal (other than to state that the terms of this Agreement prohibit such discussions), (3) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of Equity Interests of any Company Entity or PubCo or SPAC Merger Sub, (4) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Company Acquisition Proposal, or any proposal or offer that could reasonably be expected to lead to a Company Acquisition Proposal, or (5) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives to take any such action, (iii) each Company Entity and each of PubCo and SPAC Merger Sub shall not provide any third party and shall on the date of this Agreement, terminate access of any third party who has made or indicated an interest in making a Company Acquisition Proposal to any data room (virtual or actual) containing any nonpublic information of any Company Entity and (iv) within two (2) Business Days of the date of this Agreement, the Company shall demand the return or destruction of all confidential, non-public information and materials that have been provided to third parties that have entered into confidentiality agreements relating to a possible Company Acquisition Proposal with any Company Entity, PubCo or SPAC Merger Sub.
(b) SPAC Non-Solicitation. From the date of this Agreement until the earlier of the SPAC Merger Effective Time and the termination of this Agreement in accordance with Section 9.1, (i) SPAC shall, and shall cause Company Merger Sub and its and their respective officers and directors to, immediately cease, and shall instruct and cause its other Representatives to immediately cease, all existing discussions, negotiations and communications with any Persons with respect to a SPAC Acquisition Proposal, and (ii) SPAC shall not, and shall cause Company Merger Sub and its and their respective officers and directors not to, and shall instruct and cause its other respective Representatives not to, directly or indirectly, (1) initiate, seek, solicit, knowingly facilitate or knowingly encourage (including by way of furnishing any nonpublic information), whether publicly or otherwise, any inquiries with respect to, or the making or submission of a SPAC Acquisition Proposal, (2) enter into or engage in any negotiations or discussions with, or provide any nonpublic information to, or afford access to the business, properties, assets, books or records of SPAC or Company Merger Sub to, any Person (other than the Company Entities, PubCo, SPAC Merger Sub, or any of their respective Representatives) relating to or for the purpose of encouraging or facilitating any SPAC Acquisition Proposal (other than to state that the terms of this Agreement prohibit such discussion), (3) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of SPAC or Company Merger Sub, (4) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any SPAC Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a SPAC Acquisition Proposal, or (5) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives to take any such action. Notwithstanding anything to the contrary contained herein, nothing in this Agreement (including this Section 7.9) shall limit or restrict the ability of any Representative of SPAC or Company Merger Sub to take any action or engage in any activity in respect of, or on behalf of, any Person (including any current or future special purpose acquisition company) other than SPAC or Company Merger Sub.
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7.10 No Trading. Each of Company, PubCo, and SPAC Merger Sub acknowledge and agree that it is aware, and that their respective Affiliates are aware (and each of their respective Representatives is aware or, upon receipt of any material nonpublic information of SPAC, will be advised) of the restrictions imposed by U.S. federal securities Laws and the rules and regulations of the SEC and Nasdaq promulgated thereunder or otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Company, PubCo and SPAC Merger Sub each hereby agrees that, while it is in possession of such material nonpublic information, it shall not purchase or sell any securities of SPAC (other than pursuant to the Transactions), communicate such information to any third party, take any other action with respect to SPAC in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
7.11 Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice to the other Parties if such Party or its Affiliates (or with respect to the Company, any Company Stockholder): (a) receives any notice or other communication in writing from any third party (including any Governmental Authority) alleging that the Consent of such third party is or may be required in connection with the Transactions; (b) discovers any fact or circumstance that, or becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would cause or would reasonably be expected to cause or result in any of the conditions set forth in Article VIII not being satisfied or the satisfaction of those conditions being materially delayed; or (c) becomes aware of the commencement or threat, in writing, of any Action against such Party or any of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such Party, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with respect to the consummation of the Transactions. No such notices referred to in this Section 7.11 shall constitute an acknowledgment or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
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7.12 Regulatory Approvals.
(a) Subject to the terms and conditions of this Agreement, each of SPAC, PubCo and the Company shall use its commercially reasonable efforts, and shall cooperate fully with such other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to expeditiously, and in any event, prior to the Outside Date, consummate the Transactions and to comply as promptly as practicable with all requirements of Governmental Authorities applicable to the Transactions (including the receipt of all applicable regulatory Consents of Governmental Authorities set forth and described on Section 7.12(a) of the Company Disclosure Schedules (the “Regulatory Approvals”)), including using its commercially reasonable efforts to (i) prepare and promptly file all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtain all Permits, Consents, approvals, authorizations, registrations, waivers, qualifications and orders of, and the expiration or termination of waiting periods by, Governmental Authorities to satisfy the consummation of the Transactions and to fulfill the conditions to the Mergers and the SPAC Closing and the Company Closing and (iii) execute and deliver any additional instruments necessary to consummate the Transactions. Nothing in this Agreement, including this Section 7.12(a), obligates SPAC, PubCo, the Company or any of their respective Affiliates to proffer, negotiate, agree to, or effect, whether temporarily, indefinitely, or permanently (i) the divestiture, license, sale, holding separate, or other disposition of any assets, properties, entities, businesses or operations, or (ii) the imposition of any conditions, burdens, limitations, obligations or other restraints on any assets, properties, entities, businesses or operations.
(b) In furtherance and not in limitation of Section 7.11, to the extent required under the HSR Act or any other Antitrust Law, each of SPAC, PubCo and the Company agrees to make any required filing or application under Antitrust Laws, as applicable, including preparing and making an appropriate filing pursuant to the HSR Act, with respect to the Transactions, as promptly as practicable, to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the granting of approval or consent by the Governmental Authority as soon as practicable. The Company, on the one hand, and SPAC, on the other, shall each be responsible for and pay one-half of the filing fees payable to the Governmental Authorities in connection with the Transactions. Each of SPAC, PubCo and the Company shall, in connection with its commercially reasonable efforts to obtain all requisite approvals and authorizations for the Transactions under any Antitrust Law, use its commercially reasonable efforts to: (i) cooperate in all respects with each other of such Parties or their respective Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private Person, (ii) keep such other Parties reasonably informed of any material communication received by such Party or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) permit a Representative of such other Parties and their respective outside counsel to review any material communication given by it to, and consult with each other in advance of any material meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative or Representatives of such other Parties the opportunity to attend and participate in such meetings and conferences, (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences, each attending Party shall keep such Party promptly and reasonably apprised with respect thereto and (v) use commercially reasonable efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the Transactions, articulating any regulatory, competitive or national security related argument, and responding to requests or objections made by any Governmental Authority; provided, however, that no Party shall be required to provide information to the extent that (w) any applicable Law requires it or its Affiliates to restrict or prohibit access to such information, (x) in the reasonable judgment of such Party, the information is subject to confidentiality obligations to a third party, (y) in the reasonable judgment of such Party, the information is commercially sensitive and disclosure of such information would have a material impact on the business, results of operations or financial condition of such Party or such information is otherwise confidential information regarding Affiliates or ultimate beneficial owners of such Party, or (z) disclosure of any such information would be likely to jeopardize reasonable confidentiality interests or result in the loss or waiver of the attorney-client, work product or other applicable privilege; and provided, further, that in furnishing information to the other Parties, a Party may redact information, or limit its disclosure to outside counsel only, to the extent reasonably necessary to address clauses (w) through (z) above.
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(c) If any objections are asserted with respect to the Transactions under any applicable Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the Transactions as violative of any applicable Law or which would otherwise prevent, materially impede or materially delay the consummation of the Transactions, each of SPAC, PubCo and the Company shall use its commercially reasonable efforts to resolve any such objections or Actions so as to timely permit consummation of the Transactions including in order to resolve such objections or Actions which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions. In the event any Action is instituted (or threatened to be instituted) by a Governmental Authority or private Person challenging the Transactions, each of SPAC, PubCo and the Company shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective commercially reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions.
(d) Prior to the SPAC Closing, and the Company Closing, as applicable, each of SPAC, PubCo and the Company shall use its commercially reasonable efforts to obtain any Consents of Governmental Authorities or other third parties as may be necessary for the consummation by such Party or its Affiliates of the Transactions or required as a result of the execution or performance of, or consummation of the Transactions by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such commercially reasonable efforts.
7.13 Further Assurances. The Parties shall further cooperate with each other and use their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on their part under this Agreement and applicable Laws to consummate the Transactions as soon as reasonably practicable, including preparing and filing as soon as practicable all documentation to effect all necessary notices, reports and other filings.
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7.14 The Registration Statement.
(a) Proxy/Registration Statement. As promptly as practicable after the date of this Agreement, SPAC, the Company and PubCo shall jointly prepare, and, as promptly as practicable after completion of the Company’s audited financial statements described in Section 7.4, PubCo shall file with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Proxy/Registration Statement”) in connection with the registration under the Securities Act of the shares of PubCo Common Stock to be issued under this Agreement that are eligible to be registered, which Proxy/Registration Statement will also contain a proxy statement of SPAC (as amended or supplemented, including any prospectus contained therein, the “Proxy Statement”) for the purpose of soliciting proxies or votes from SPAC Shareholders for the matters to be acted upon at the Extraordinary General Meeting and providing SPAC Shareholders their Redemption Rights in conjunction with the shareholder vote on the SPAC Shareholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from SPAC Shareholders to vote, at an extraordinary general meeting of SPAC Shareholders to be called and held for such purpose (including any adjournment or postponement thereof, the “ExtraordinaryGeneral Meeting”), in favor of resolutions approving (i) by way of ordinary resolution, the adoption and approval of this Agreement and the other Transactions and, by way of special resolution, the adoption of the SPAC Plan of Merger and the SPAC Merger by SPAC Shareholders in accordance with the SPAC Memorandum, the Cayman Act and the rules and regulations of the SEC and Nasdaq (including the adoption and approval of any other proposals as are required to implement the foregoing), (ii) the adoption and approval of any other proposals as the SEC may indicate are necessary in its comments to the Proxy/Registration Statement or correspondence related thereto, (iii) such other matters as the Company and SPAC shall hereafter mutually determine to be necessary or appropriate in order to effect the Transactions (the approvals described in foregoing clauses (i) through (iii), collectively, the “SPAC Shareholder Approval Matters”), and (iv) as an ordinary resolution, the adjournment of the Extraordinary General Meeting, if necessary or desirable in the reasonable determination of SPAC.
(b) SPAC, acting through the SPAC Board (or a committee thereof), shall, subject to Section 7.14(f), (i) make the SPAC Recommendation and include such SPAC Recommendation in the Proxy Statement, (ii) cause the Proxy Statement to be mailed to SPAC Shareholders as of the applicable record date as promptly as practicable following the date upon which the Proxy/Registration Statement becomes effective in accordance with the SPAC Memorandum and (iii) use its commercially reasonable efforts to solicit from its shareholders proxies or votes in favor of the approval of the Shareholder Approval Matters. In connection with the Proxy/Registration Statement, SPAC and PubCo will file with the SEC financial and other information about the Transactions in accordance with applicable Law, the SPAC Memorandum, the Cayman Act and the rules and regulations of the SEC and Nasdaq.
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(c) SPAC, the Company and PubCo shall take any and all reasonable and necessary actions required to satisfy the requirements of the SPAC Memorandum, the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy/Registration Statement, the Extraordinary General Meeting and the Redemption Rights. Each of SPAC, PubCo and the Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Company, PubCo, SPAC and their respective Representatives in connection with the drafting of the public filings with respect to the Transactions, including the Proxy/Registration Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy/Registration Statement (and other related materials) if and to the extent that such information has become false or misleading in any material respect or as otherwise required by applicable Laws. SPAC, the Company and PubCo shall amend or supplement the Proxy/Registration Statement and PubCo shall file the Proxy/Registration Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to SPAC Shareholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the SPAC Memorandum. No filing of, or amendment or supplement to the Proxy/Registration Statement will be made by SPAC, PubCo or the Company without the approval of the other of such Parties (such approval not to be unreasonably withheld, conditioned or delayed).
(d) Each of SPAC, PubCo and the Company shall, as promptly as practicable after receipt thereof, supply each other such Party or Parties with copies of all material written correspondence between it or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, or, if not in writing, a written summary of such material communication, with respect to the Proxy/Registration Statement or the Transactions. No response to any comments from the SEC or its staff relating to the Proxy/Registration Statement or the Transactions will be made by PubCo, the Company or SPAC without the prior consent of such other Parties (such consent not to be unreasonably withheld, conditioned or delayed), and without providing such other Parties a reasonable opportunity to review and comment thereon. Notwithstanding the foregoing, SPAC, the Company and PubCo, with the assistance of the other Parties, shall promptly respond to any SEC comments on the Proxy/Registration Statement and shall otherwise use their commercially reasonable efforts to cause the Proxy/Registration Statement to “clear” comments from the SEC and become effective.
(e) As soon as practicable (and in any event within three (3) Business Days) following the Proxy/Registration Statement “clearing” comments from the SEC and becoming effective, SPAC shall distribute the Proxy/Registration Statement to SPAC Shareholders in accordance with the SPAC Memorandum.
(f) Subject to the provisions of this Section 7.14(f), SPAC shall call the Extraordinary General Meeting in accordance with the SPAC Memorandum for a date that is no later than thirty (30) days following the effectiveness of the Proxy/Registration Statement or such other date as agreed between SPAC and Company.
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(i) Notwithstanding anything to the contrary contained in this Agreement, the SPAC Board may, at any time prior to, but not after, obtaining the Required Shareholder Approval, change, withdraw, withhold, qualify or modify the SPAC Recommendation (a “Modification in Recommendation” ) in response to an Intervening Event (an “Intervening Event Change in Recommendation” ) if the SPAC Board determines in good faith, based on the advice of its legal counsel, that the failure to take such action would be a breach of the fiduciary duties of the SPAC Board under applicable Law; provided that: (A) the Company shall have received written notice from SPAC of SPAC’s intention to make an Intervening Event Change in Recommendation at least five (5) Business Days prior to the taking of such action by SPAC (the “Intervening Event Notice Period” ), which notice shall specify the applicable Intervening Event in reasonable detail (including the facts and circumstances providing the basis for the determination by the SPAC Board to effect such Intervening Event Change in Recommendation), (B) during the Intervening Event Notice Period and prior to making an Intervening Event Change in Recommendation, if requested by the Company, SPAC and its Representatives shall have negotiated in good faith with the Company and its Representatives regarding any revisions or adjustments proposed by the Company to the terms and conditions of this Agreement as would enable the SPAC Board to proceed with its recommendation of this Agreement and the Transactions and not make such Intervening Event Change in Recommendation, (C) the SPAC and its Representatives shall have provided to the Company and its Representatives all applicable information with respect to such Intervening Event reasonably requested by the Company to permit the Company to propose revisions to the terms of this Agreement and (D) if the Company requested negotiations in accordance with the foregoing sub-clause (B), the SPAC Board may make an Intervening Event Change in Recommendation only if the SPAC Board, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that the Company shall have, prior to the expiration of the five (5) Business Day period, offered in writing in a manner that would form a binding Contract if accepted by SPAC (and the other applicable Parties), continues to determine in good faith, based on the advice of legal counsel, that failure to make an Intervening Event Change in Recommendation would be a breach of its fiduciary duties to the SPAC Shareholders under applicable Law. An “Intervening Event” shall mean any material and negative event after the date of this Agreement that (i) was not known and was not reasonably foreseeable to the SPAC Board as of the date of this Agreement (or the consequences or magnitude of which were not reasonably foreseeable to the SPAC Board as of the date of this Agreement), which becomes known to the SPAC Board prior to the Extraordinary General Meeting, and (ii) does not relate to and excludes, whether alone or in combination, (A) any Acquisition Proposal (in each case, solely with respect to SPAC), (B) any actions taken pursuant to the terms of this Agreement or any Ancillary Document, including obtaining all Consents required to be obtained from any Governmental Authority as required herein, (C) any change in the price or trading volume of SPAC Class A Ordinary Shares, and (D) any Action filed or threatened against SPAC or any member of the SPAC Board arising out of or related to the Transactions by any Person (provided that the exceptions in clauses (C) and (D) shall not prevent or otherwise affect a determination that any Event underlying such change or Action (or referred to in such Action) has resulted in or contributed to an Intervening Event). For the avoidance of doubt, an Intervening Event Change in Recommendation shall constitute a Modification in Recommendation.
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(ii) Notwithstanding anything to the contrary contained in this Agreement, during an Intervening Event Notice Period, the obligations of SPAC or the SPAC Board to make filings with the SEC with respect to the proposals contemplated herein, to give notice for or to convene a meeting, or to make a recommendation, shall be tolled to the extent reasonably necessary until such time as SPAC has filed an update to the Proxy/Registration Statement with the SEC (which SPAC shall file as promptly as practicable after the Intervening Event Change in Recommendation), and in the event a filing and/or notice for a general meeting was made prior to the Intervening Event Notice Period, SPAC shall be permitted to adjourn or postpone such general meeting and to amend such filing as necessary in order to provide sufficient time for the SPAC Shareholders to consider any revised recommendation.
(iii) To the fullest extent permitted by applicable Law, (A) SPAC’s obligations to establish a record date for, duly call, give notice of, convene and hold the Extraordinary General Meeting shall not be affected by any Modification in Recommendation, (B) SPAC agrees to establish a record date for, duly call, give notice of, convene and hold the Extraordinary General Meeting and submit the SPAC Shareholder Approval Matters for approval by the SPAC Shareholders and (C) SPAC agrees that if the Required Shareholder Approval shall not have been obtained at any such Extraordinary General Meeting, then SPAC shall promptly continue to take all such reasonably necessary actions, including the actions required by this Section 7.14, and hold additional Extraordinary General Meetings in order to obtain the Required Shareholder Approval. SPAC may adjourn or postpone the Extraordinary General Meeting (including, for the avoidance of doubt on the date for which the Extraordinary General Meeting is scheduled) (x) to solicit additional proxies for the purpose of obtaining the Required Shareholder Approval, (y) for the absence of a quorum and/or (z) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that SPAC has determined in good faith after consultation with legal counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the SPAC Shareholders prior to the Extraordinary General Meeting.
(g) SPAC and PubCo shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the SPAC Memorandum and this Agreement in the preparation, filing and distribution of the Proxy/Registration Statement, any solicitation of proxies thereunder, the calling and holding of the Extraordinary General Meeting and the Redemption Rights.
(h) Company Written Consent. Concurrently with the execution of this Agreement, the Company shall have delivered to SPAC the duly-executed Company Written Consent.
7.15 Public Announcements.
(a) The Parties agree that during the Interim Period, no public release, filing or announcement concerning this Agreement or the Ancillary Documents or the Transactions shall be issued by any Party or any of their Affiliates without the prior written consent (not be unreasonably withheld, conditioned or delayed) of SPAC, PubCo and the Company, except as such release, filing or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party shall use commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange for any required filing with respect to, such release, filing or announcement in advance of such issuance; provided that nothing shall prevent the Parties from issuing any press releases or making any public announcements about the Transactions containing information that has already been made public by the Parties.
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(b) The Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement, issue a press release announcing the execution of this Agreement (the “Signing Press Release”). SPAC shall timely file a current report on Form 8-K (which, for the avoidance of doubt, may be bifurcated into two separate filings) (jointly and severally, the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by Federal Securities Laws, which the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing. The Parties shall mutually agree upon and, as promptly as practicable after the Closing, issue a press release announcing the consummation of the Transactions (the “Closing Press Release”). Promptly after the issuance of the Closing Press Release, PubCo shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Federal Securities Laws which the Sponsor and the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing, the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a Party to any Governmental Authority or other third party in connection with the Transactions, each Party shall, upon request by any other Party, furnish the Parties with all information concerning themselves, their respective directors, officers and equity holders, and such other matters as may be reasonably necessary or advisable in connection with the Transactions, or any other report, statement, filing, notice or application made by or on behalf of a Party to any third party and/ or any Governmental Authority in connection with the Transactions.
(c) Notwithstanding the foregoing, the restrictions set forth in this Section 7.15 shall not apply to any release, statement, announcement, or other disclosure made with respect to (i) a Modification in Recommendation issued or made in compliance with Section 7.14; or (ii) any other disclosures issued or made in compliance with Section 7.14. Furthermore, nothing contained in this Section 7.15 shall prevent SPAC, PubCo or the Company from furnishing customary or other reasonable information concerning the Transactions to their investors and prospective investors that is substantively consistent with public statements previously consented to by the other Parties in accordance with this Section 7.15.
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7.16 Confidential Information.
(a) The Company, PubCo, and SPAC Merger Sub hereby agree that during the Interim Period and, in the event this Agreement is terminated in accordance with Article IX, for a period of two (2) years after such termination, they shall, and shall cause their respective Representatives to (i) treat and hold in strict confidence any Confidential SPAC Information that is provided to such Person or its Representatives, and will not use for any purpose (except in connection with the consummation of the Transactions, performing their obligations hereunder or thereunder or enforcing their rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Confidential SPAC Information without SPAC’s prior written consent, and (ii) in the event that the Company, PubCo, SPAC Merger Sub or any of their respective Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article IX, for a period of two (2) years after such termination, becomes legally compelled to disclose any Confidential SPAC Information, (A) provide SPAC, to the extent legally permitted, with as prompt as practicable written notice of such requirement so that SPAC may seek, at SPAC’s sole expense, a protective Order or other remedy or waive compliance with this Section 7.16(a), and (B) in the event that such protective Order or other remedy is not obtained, or SPAC waives compliance with this Section 7.16(a), furnish only that portion of such Confidential SPAC Information which is legally required to be provided as advised by legal counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Confidential SPAC Information. In the event that this Agreement is terminated and the Transactions are not consummated, the Company, PubCo and SPAC Merger Sub shall, and shall cause their respective Representatives to, promptly deliver to SPAC or destroy (at the Company’s election) any and all copies (in whatever form or medium) of Confidential SPAC Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Company, PubCo, SPAC Merger Sub and their respective Representatives (x) shall be entitled to retain any records required in accordance with such Party’s or such Representative’s (as applicable) bona fide record retention policies and (y) shall not be obligated to delete any Confidential SPAC Information maintained in such Party’s or such Representative’s (as applicable) normal back up media, including such Confidential SPAC Information that is contained in an archived computer system backup that was made in accordance with its security or disaster recovery procedures. Notwithstanding the foregoing, PubCo and its Representatives shall be permitted to disclose any and all Confidential SPAC Information to the extent required by the Federal Securities Laws
(b) SPAC hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article IX, for a period of two (2) years after such termination, it shall, and shall cause its Representatives to (i) treat and hold in strict confidence any Confidential Company Information that is provided to SPAC or its Representatives, and will not use for any purpose (except in connection with the consummation of the Transactions, performing its obligations hereunder or thereunder or enforcing its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Confidential Company Information without the Company’s prior written consent, and (ii) in the event that SPAC or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article IX, for a period of two (2) years after such termination, becomes legally compelled to disclose any Confidential Company Information, (A) provide the Company to the extent legally permitted with as prompt as practicable written notice of such requirement so that the Company may seek, at the Company’s sole expense, a protective Order or other remedy or waive compliance with this Section 7.16(b), and (B) in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with this Section 7.16(b), furnish only that portion of such Confidential Company Information which is legally required to be provided as advised by legal counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Confidential Company Information. In the event that this Agreement is terminated and the Transactions are not consummated, SPAC shall, and shall cause its Representatives to, promptly deliver to the Company or destroy (at SPAC’s election) any and all copies (in whatever form or medium) of Confidential Company Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that SPAC and its Representatives (x) shall be entitled to retain any records required in accordance with SPAC’s or such Representative’s (as applicable) bona fide record retention policies and (y) shall not be obligated to delete any Confidential Company Information maintained in such SPAC’s or such Representative’s (as applicable) normal back up media, including such Confidential Company Information that is contained in an archived computer system backup that was made in accordance with its security or disaster recovery procedures. Notwithstanding the foregoing, SPAC and its Representatives shall be permitted to disclose any and all Confidential Company Information to the extent required by the Federal Securities Laws.
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7.17 Post-Closing PubCo Board of Directors and Officers. The Parties shall take all necessary action, including causing the directors of PubCo to resign, so that effective as of the Closing, (i) PubCo’s board of directors (the “Post-Closing PubCo Board”) will consist of individuals designated by the Company prior to the Closing, and (ii) the persons listed in Annex A hereto under the heading “Officers” and such other persons as are designated by the Company (the “Post Closing PubCo Officers”) are elected or appointed, as applicable, to such position of officers of PubCo as mutually agreed, to serve in such positions, in each case until successors are duly appointed and qualified in accordance with the PubCo Organizational Documents and applicable Law.
7.18 Indemnification of Directors and Officers; Tail Insurance.
(a) The Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or former directors and officers of SPAC, each Company Entity, PubCo, Company Merger Sub or SPAC Merger Sub and each Person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of the applicable Party (the “D&O IndemnifiedPersons”) as provided in their respective Organizational Documents or under any indemnification, employment or other similar agreements between any D&O Indemnified Person, on the one hand, and SPAC, any Company Entity, PubCo Company Merger Sub or SPAC Merger Sub, on the other hand, in each case as in effect on the date of this Agreement, shall survive the SPAC Closing and the Company Closing and continue in full force and effect in accordance with their respective terms to the extent permitted by applicable Law. For a period of six (6) years after the SPAC Effective Time and the Company Merger Effective Time, PubCo shall cause the Organizational Documents of PubCo, SPAC Merger Sub and each Company Entity to contain provisions no less favorable with respect to exculpation and indemnification of and advancement of expenses to D&O Indemnified Persons than are set forth as of the date of this Agreement in the Organizational Documents of the applicable Person, to the extent permitted by applicable Law. The provisions of this Section 7.18(a) shall (i) survive the SPAC Closing and the Company Closing indefinitely, (ii) are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Persons and their respective heirs and representatives and (iii) shall be binding, jointly and severally, on PubCo and all its successors and assigns. In the event that PubCo or any of its successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation 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, PubCo shall ensure that proper provision shall be made so that the successors and assigns of PubCo shall succeed to the obligations set forth in this Section 7.18(a). In addition to the foregoing, only to the extent not covered by the existing directors’ and officers’ insurance of SPAC or, from and after the Effective Time, the SPAC D&O Tail Insurance, and further only to the extent not covered (or excluded) by the indemnity and exculpatory provisions contained in the SPAC Memorandum, PubCo hereby agrees to indemnify, defend and hold harmless the current directors of SPAC (and their heirs and legal representatives), to the fullest extent permitted by applicable Law, from, against and in respect of any and all losses, Liabilities, damages, penalties, amounts paid in settlement, costs and expenses (including reasonable expenses of investigation and court costs and reasonable attorneys’ fees and expenses) paid, suffered or incurred by, or imposed upon, any such director that are based upon, arise out of or result from, in whole or in part, directly or indirectly, any shareholder Action relating to the board’s failure to make a Modification in Recommendation in response to an adverse and material event involving SPAC and occurring after the date of this Agreement, which becomes known to the SPAC Board after the date of this Agreement, and prior to the Extraordinary General Meeting.
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(b) For the benefit of SPAC’s directors and officers, SPAC shall be permitted, prior to the SPAC Effective Time, to obtain the premium for a “tail” insurance policy (at an aggregate cost that is borne and shall be fully paid by PubCo pursuant to Section 1.1(c)) that provides coverage for up to a six (6)-year period from and after the SPAC Effective Time for events occurring prior to the SPAC Effective Time (the “SPAC D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than SPAC’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage, except that in no event shall PubCo be required to pay an aggregate premium for such insurance in excess of three hundred percent (300%) of the aggregate annual premium currently payable by SPAC with respect to such current policy; provided, that, if the aggregate premium of such insurance coverage exceeds such amount, SPAC shall be obligated to obtain a “tail” insurance policy with the greatest coverage available for a cost not exceeding such amount from insurance carriers with the same or better credit rating as SPAC’s current insurance provider. PubCo and its Subsidiaries. If obtained, PubCo and SPAC Merger Sub shall, for a period of six (6) years after the SPAC Effective Time, maintain the SPAC D&O Tail Insurance in full force and effect, and continue to honor the obligations thereunder, and PubCo and SPAC Merger Sub shall timely pay or cause to be paid all premiums with respect to the SPAC D&O Tail Insurance.
(c) For the benefit of the Company’s directors and officers, the Company shall be permitted, prior to the Company Merger Effective Time, to obtain and fully pay the premium for a “tail” insurance policy (at an aggregate cost that is borne by the Company or PubCo) that provides coverage for up to a six (6)-year period from and after the Company Merger Effective Time for events occurring prior to the Company Merger Effective Time (the “Company D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than the Company’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage except that in no event shall PubCo or the Company pay an aggregate premium for such insurance in excess of three hundred percent (300%) of the aggregate annual premium currently payable by the Company with respect to such current policy; provided, that, if the aggregate premium of such insurance coverage exceeds such amount, the Company shall be obligated to obtain a “tail” insurance policy with the greatest coverage available for a cost not exceeding such amount from insurance carriers with the same or better credit rating as the Company’s current insurance provider. PubCo and its Subsidiaries. If obtained, PubCo and the Company shall, for a period of six (6) years after the Company Merger Effective Time, maintain the Company D&O Tail Insurance in full force and effect, and continue to honor the obligations thereunder, and PubCo and the Company shall timely pay or cause to be paid all premiums with respect to the Company D&O Tail Insurance.
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7.19 Transaction Expenses; Trust Account Proceeds.
(a) No later than two (2) Business Days prior to the SPAC Closing, SPAC shall deliver to the Company a statement setting forth SPAC’s good faith calculation of (i) the aggregate amount of cash proceeds that will be required to satisfy any exercise of Redemption Rights, (ii) the estimated amount of SPAC’s cash on hand, including in the Trust Account, as of the SPAC Closing, (iii) the estimated amount of unpaid SPAC Expenses as of the SPAC Closing and (iv) the number of SPAC Shares to be outstanding as of immediately prior to the SPAC Effective Time. Following its delivery, SPAC shall reasonably cooperate with and provide the Company and its Representatives all information reasonably requested by the Company or any of its Representatives related to such statement. For the avoidance of doubt, nothing contained herein shall affect SPAC’s right to be reimbursed (and any invoices to SPAC to be paid) for any SPAC Expenses, including those incurred after the delivery of the foregoing statement or any component thereof.
(b) No later than two (2) Business Days prior to the Company Closing, the Company shall deliver to SPAC a statement setting forth the Company’s good faith calculation of (i) the estimated amount of unpaid Company Expenses as of the Company Closing, (ii) the number of Fully-Diluted Company Shares, (iii) the Equity Value, (iv) the Company Exchange Ratio, (v) the Allocation Schedule, and (vi) the aggregate consideration payable to each Company Stockholder on an individual basis pursuant to Section 2.8 and Section 2.9 (to the extent not already included in the Allocation Schedule), including, in each case of clauses (i) through (vi), the underlying calculations with respect to the individual components thereof. Following its delivery, the Company shall reasonably cooperate with and provide SPAC and its Representatives all information reasonably requested by SPAC or any of its Representatives related to such statement.
(c) The Parties agree that, simultaneously with or as promptly as practicable after the SPAC Closing, the funds held by the SPAC Surviving Subsidiary either in or outside of the Trust Account, after taking into account payments by SPAC for the Redemption Rights and any proceeds received by PubCo or SPAC from any PIPE Investments shall be used to pay or reimburse (i) first, the accrued SPAC Expenses, including SPAC’s business combination marketing fee, all costs, fees and expenses related to the SPAC D&O Tail Insurance and any legal fees, without double-counting with any accrued SPAC Expenses that have already been paid prior to the SPAC Closing and (ii) second, any loans owed by SPAC to Sponsor for SPAC Expenses and other costs and expenses incurred by or on behalf of SPAC. Such amounts, as well as any fees, costs and expenses that are required or permitted to be paid by the issuance of shares of PubCo Common Stock or SPAC Class A Ordinary Shares prior to the SPAC Effective Time, will be paid or issued, as applicable, at the SPAC Closing. Any remaining cash will be used for working capital and general corporate purposes of the Company Entities, or for any other use as directed by PubCo.
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7.20 Delisting and Deregistration. The Parties shall take all actions necessary or reasonably requested by another Party to cause the SPAC Class A Ordinary Shares to be delisted from Nasdaq (or be succeeded by the shares of PubCo Common Stock) and to terminate the SPAC’s registration with the SEC pursuant to Sections 12(b), 12(g) and 15(d) of the Exchange Act (or be succeeded by PubCo) as of the Closing Date.
7.21 PubCo Organizational Documents. At or prior to the Closing, the Parties shall cause PubCo’s Organizational Documents to be in substantially the form of (i) the Certificate of Incorporation attached as Exhibit E and (ii) the Bylaws attached as Exhibit F.
7.22 New Registration Rights Agreement. By no later than the SPAC Closing, (a) SPAC and Sponsor shall terminate the Founder Registration Rights Agreement pursuant to a termination agreement in a form reasonably acceptable to the Company; and (b) PubCo, certain Company Stockholders and Sponsor shall enter into the New Registration Rights Agreement, in each case, effective as of the Company Closing.
7.23 Lock-up Agreements. By no later than the SPAC Closing, PubCo, SPAC and each of the Company Stockholders shall enter into a Lock-up Agreement effective as of the Company Closing (or shall be required to enter into a Lock-up Agreement as a condition to receive the Per Share Company Merger Consideration as set forth in Section 2.11(l)).
7.24 PIPE Investment. Each of SPAC, the Company and PubCo shall use commercially reasonable efforts to take all actions and do all things necessary, proper or advisable to consummate the transactions contemplated by the PIPE Subscription Agreements on the terms and conditions described therein, including maintaining in effect the PIPE Subscription Agreements, and exercising its respective right to specifically enforce the PIPE Subscription Agreements pursuant to the terms thereof.
7.25 PubCo Employee Plans. On or prior to the SPAC Merger Effective Time, PubCo shall approve and adopt (subject to approval by the shareholders of PubCo prior to the SPAC Merger Effective Time) (i) an omnibus incentive equity plan (the “PubCo Equity Incentive Plan”), to be effective in connection with, and subject to the consummation of, the Company Closing, and (ii) an employee stock purchase plan (the “PubCo ESPP” ), to be effective in connection with, and subject to the consummation of, the Company Closing, the terms of which shall be customary for a new public company (other than the Agreed Terms, as defined below), and shall be subject to the prior written consent of SPAC, not to be unreasonably withheld, conditioned or delayed. The number of shares of PubCo Common Stock initially reserved for issuance in the aggregate under the PubCo Equity Incentive Plan and PubCo ESPP, will be within a range of six to ten percent (6-10%) of the total number of the shares of PubCo Common Stock outstanding immediately following the Closing, and there will be an evergreen provision of within a range of three to five percent (3-5%) (collectively, the “Agreed Terms”). Following the date hereof, the Company shall provide SPAC with a draft of the PubCo Equity Incentive Plan and a draft of the PubCo ESPP for SPAC’s review and comment.
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7.26 Stockholder Litigation. The Company and PubCo shall as promptly as practicable advise SPAC, and SPAC shall promptly advise the Company, as the case may be, of any Action commenced (or to the Knowledge of the Company or the Knowledge of SPAC (as applicable), threatened) on or after the date of this Agreement against such party, any of its Subsidiaries or any of its directors by any Company Stockholder or SPAC Shareholder relating to this Agreement, the Mergers or any of the other Transactions (any such Action, “Stockholder Litigation” ), and such party shall keep the other party reasonably informed regarding any such Stockholder Litigation. The Company and PubCo shall give SPAC the opportunity to participate (subject to a customary joint defense agreement) in the defense or settlement of any such Stockholder Litigation brought against the Company or PubCo, any of their respective Subsidiaries or any of their respective directors, and no such settlement shall be agreed to without SPAC’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). SPAC shall give the Company the opportunity to participate (subject to a customary joint defense agreement) in the defense or settlement of any such Stockholder Litigation brought against SPAC, any of its Subsidiaries or any of its directors, and no such settlement shall be agreed to without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
7.27 Tokenization. Subject to applicable securities laws and regulations, during the Interim Period, SPAC shall consider in good faith the potential for tokenizing its securities and may explore opportunities, structures, and regulatory frameworks (in each case, at the Company’s sole cost and expense) that would permit such tokenization, provided that any such exploration shall not delay, hinder, or condition the consummation of the Transactions contemplated by this Agreement.
Article VIII
CLOSING CONDITIONS
8.1 Conditions to Each Party’s Obligations. The obligations of each Party to consummate the Transactions shall be subject to the satisfaction or written waiver (where permissible) by the Company and SPAC of the following conditions:
(a) Required Shareholder Approval. The SPAC Shareholder Approval Matters that are submitted to the vote of the SPAC Shareholders at the Extraordinary General Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote of the SPAC Shareholders at the Extraordinary General Meeting in accordance with the SPAC Memorandum, applicable Law and the Proxy Statement (the “Required ShareholderApproval”).
(b) No Law or Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Order (whether temporary, preliminary or permanent) that is then in effect and which has the effect of making the Transactions illegal or which otherwise prevents or prohibits consummation of the Transactions.
(c) Registration Statement. The Proxy/Registration Statement shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC which remains in effect with respect to the Proxy/Registration Statement, and no proceeding seeking such a stop order shall have been threatened or initiated by the SEC and not withdrawn.
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(d) Antitrust /Regulatory Clearance. All waiting periods (and any extensions thereof) under the HSR Act applicable to the Transactions shall have expired or early termination shall have been granted.
(e) Exchange Listing. PubCo’s listing application with Nasdaq or NYSE (as applicable) in connection with the Transaction shall have been conditionally approved and, immediately following the Closing, PubCo shall satisfy any applicable initial and continuing listing requirements of Nasdaq or NYSE (as applicable) and PubCo shall not have received any notice of non-compliance therewith, and the shares of PubCo Common Stock, including shares issued in connection with the Per Share Merger Consideration, shall have been approved for listing on Nasdaq or NYSE (as applicable).
8.2 Conditions to Obligations of Company, PubCo, and SPAC Merger Sub. In addition to the conditions specified in Section 8.1, the obligations of Company, PubCo and SPAC Merger Sub to consummate the Transactions are subject to the satisfaction or written waiver by the Company (where permissible) of the following conditions:
(a) Representations and Warranties.
(i) The SPAC Fundamental Representations (other than Sections 4.5(a) and 4.5(d) ) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date).
(ii) The representations and warranties of SPAC contained in Sections 4.5(a) and 4.5(d) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date).
(iii) The representations and warranties of SPAC contained in this Agreement (other than the SPAC Fundamental Representations) shall be true and correct as of the date of this Agreement and as of the Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date), except for, in each case, inaccuracies or omissions that (without giving effect to any limitation as to “materiality,” “SPAC Material Adverse Effect” or “material adverse effect” or another similar materiality qualification set forth therein) individually or in the aggregate, have not had, and would not reasonably be expected to have a SPAC Material Adverse Effect.
(b) Agreements and Covenants. SPAC shall have performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
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(c) No SPAC Material Adverse Effect. There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a SPAC Material Adverse Effect.
(d) Minimum Cash Amount. The Total Cash Proceeds Amount shall be no less than the Minimum Cash Amount.
8.3 Conditions to Obligations of SPAC. In addition to the conditions specified in Section 8.1, the obligations of SPAC to consummate the Transactions are subject to the satisfaction or written waiver by SPAC (where permissible) of the following conditions:
(a) Representations and Warranties.
(i) The Company Fundamental Representations (other than Section 6.3(a) and (b) (other than the representations and warranties in clause (iii) therein)), and PubCo Fundamental Representations (other than Section 5.5(a)) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date).
(ii) The representations and warranties of the Company and PubCo contained in Section 6.3(a) and (b) (other than the representations and warranties in clause (iii) therein) and Section 5.5(a) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date).
(iii) The representations and warranties of the Company and PubCo contained in this Agreement (other than the Company Fundamental Representations and PubCo Fundamental Representations) shall be true and correct as of the date of this Agreement and as of the Closing Date as though then made, (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date), except for, in each case, inaccuracies or omissions that (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or another similar materiality qualification set forth therein), individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
(b) Agreements and Covenants. Each of Company, PubCo and SPAC Merger Sub shall have performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) Required Company Stockholder Approval. The Company Written Consent shall have been obtained and a complete copy delivered to SPAC on the date of this Agreement, and such Company Written Consent shall remain in full force and effect.
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(d) No Company Material Adverse Effect. There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(e) Lock-Up Agreement. At the Closing, the Company shall have delivered to SPAC a Lock-Up Agreement, duly executed by a number of sufficient Company Stockholders to meet the Company Approval Requirement, it being understood that each Company Stockholder shall be required to enter into a Lock-Up Agreement as condition to receive the Per Share Company Merger Consideration as set forth in Section 2.11(l).
8.4 Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was caused by the failure of such Party or its Affiliates (or with respect to Company, PubCo or SPAC Merger Sub) to comply with or perform any of its covenants or obligations set forth in this Agreement.
Article IX
TERMINATION
9.1 Termination. This Agreement may be terminated and the Transactions may be abandoned at any time prior to the SPAC Closing as follows:
(a) by mutual written consent of SPAC and the Company;
(b) by written notice by SPAC or the Company if any of the conditions to the Closing set forth in Article VIII have not been satisfied or waived by the date that is nine (9) months from the date of this Agreement (the “Outside Date”); provided, however, that in the event any of the financial statements to be delivered to SPAC pursuant to Section 7.4 are not delivered to SPAC within the applicable timeframe set forth in Section 7.4, (i) SPAC shall have the right (by written notice to the Company) to extend the Outside Date by up to a period equal to the number of calendar days from the date such applicable financial statements were required to be delivered in accordance with the timeline in Section 7.4 until the date such applicable financial statements are actually delivered, and, (ii) if SPAC does not extend the Outside Date in accordance with clause (i) above, subject to the Company’s compliance with its obligation to use commercially reasonable efforts under Section 7.4, the Company shall have the right (by written notice to SPAC) to extend the Outside Date by up to thirty days with respect to any such delay in its delivery of such financial statements (and, in the event SPAC or the Company elects to extend the Outside Date pursuant to this proviso, the term “Outside Date” as used in this Agreement shall refer to such date as extended in accordance with this proviso); and provided, further, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the principal cause of, the failure of a condition to the Closing set forth in Article VIII on or before the Outside Date;
(c) by written notice by either SPAC or the Company to the other Party if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transactions, and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply with any provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental Authority;
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(d) by written notice by the Company to SPAC, if (i) there has been a breach by SPAC of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of SPAC shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 8.2(a) or Section 8.2(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided to SPAC by the Company or (B) five (5) Business Days prior to the Outside Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 9.1(d) if at such time the Company or PubCo is in material uncured breach of this Agreement;
(e) by written notice by the Company to SPAC within ten (10) Business Days after there has been a Modification in Recommendation;
(f) by written notice from SPAC to the Company if the Company Written Consent is at any time following the date of this Agreement terminated, rendered invalid or otherwise no longer in full force and effect;
(g) by written notice by SPAC to the Company, if (i) there has been a breach by Company or PubCo of any of their respective representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 8.3(a) or Section 8.3(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided to the Company by SPAC or (B) five (5) Business Days prior to the Outside Date; provided, that SPAC shall not have the right to terminate this Agreement pursuant to this Section 9.1(e) if at such time SPAC is in material uncured breach of this Agreement; or
(h) without prejudice to the SPAC’s obligations under Section 7.14(f)(i), by written notice by either SPAC or the Company to the other if the Extraordinary General Meeting is held (including any adjournments or postponements thereof) and has concluded, SPAC Shareholders have duly voted, and the Required Shareholder Approval was not obtained.
9.2 Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 9.1 and pursuant to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination, including the provision of Section 9.1 under which such termination is made. In the event of the valid termination of this Agreement pursuant to Section 9.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (a) Sections 7.15, 7.16, 10.1, Article XI and this Section 9.2 shall survive the termination of this Agreement, and (b) nothing herein shall relieve any Party from Liability for any willful and material breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (a) and (b) above, subject to Section 10.1). Without limiting the foregoing, and except as provided in Section 11.6 and this Section 9.2 (but subject to Section 10.1, and subject to the right (which shall not be impaired prior to the valid termination of this Agreement) to seek injunctions, specific performance or other equitable relief in accordance with Section 11.7), the Parties’ sole right prior to the Closing with respect to any breach of any representation, warranty, covenant or other agreement contained in this Agreement by another Party or with respect to the Transactions shall be the right, if applicable, to terminate this Agreement pursuant to Section 9.1.
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Article X
WAIVERS AND RELEASES
10.1 Waiver of Claims Against Trust. Each of the Company, PubCo and SPAC Merger Sub hereby represents and warrants that it has read the IPO Prospectus and understands that SPAC has established the Trust Account containing the proceeds of the IPO, from certain private placements occurring simultaneously with the IPO and from certain loans agreed to be made by Sponsor (including interest accrued from time to time thereon) for the benefit of the holders of the SPAC Class A Ordinary Shares issued and sold in the IPO (the “Public Shareholders”) and that, except as otherwise described in the IPO Prospectus, SPAC may disburse monies from the Trust Account only: (a) to the Public Shareholders in the event they elect to redeem their SPAC Class A Ordinary Shares in connection with the consummation of its initial Business Combination or in connection with an amendment to the SPAC Memorandum to extend SPAC’s deadline to consummate a Business Combination, (b) to the Public Shareholders if SPAC fails to consummate a Business Combination within twenty four (24) months after the closing of the IPO, subject to further extension by amendment to the SPAC Memorandum, (c) with respect to any interest earned on the amounts held in the Trust Account, as necessary to pay any income taxes, and (d) to SPAC after or concurrently with the consummation of a Business Combination. For and in consideration of SPAC entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company, PubCo and SPAC Merger Sub hereby agree on behalf of themselves and their Affiliates, notwithstanding anything to the contrary in this Agreement, that none of the Company, PubCo, SPAC Merger Sub nor any of their respective Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “ReleasedClaims”). The Company, PubCo and SPAC Merger Sub on behalf of themselves and their respective Affiliates hereby irrevocably waive any Released Claims that any such Party or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, contracts or agreements hereunder and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of this Agreement or any other agreement with SPAC or its Affiliates). Each of the Company, PubCo and SPAC Merger Sub agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by SPAC to induce SPAC to enter in this Agreement, and each of the Company, PubCo and SPAC Merger Sub further intends and understands such waiver to be valid, binding and enforceable against such Party and each of its Affiliates under applicable Law. To the extent the Company, PubCo, SPAC Merger Sub, Company Merger Sub or any of their respective Affiliates commences any Action or proceeding based upon, in connection with, relating to or arising out of any matter relating to this Agreement or the Transactions, which proceeding seeks, in whole or in part, monetary relief against the Trust Account, each such Party hereby acknowledge and agree that such Party’s and its Affiliates’ sole remedy with respect to monetary relief shall be against funds held outside of the Trust Account and that such claim shall not permit such Party or any of its Affiliates (or any Person claiming on any of their behalf or in lieu of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Nothing in this Section 10.1 shall amend, limit, alter, change, supersede or otherwise modify the right of the Company, PubCo or SPAC Merger Sub 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 SPAC, 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). This Section 10.1 shall survive termination of this Agreement for any reason.
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Article XI
MISCELLANEOUS
11.1 Survival. Except as otherwise contemplated by Section 9.2, (a) the representations and warranties of the Parties contained in this Agreement (or in any certificate or instrument delivered by or on behalf of the Parties pursuant to this Agreement) shall not survive the SPAC Closing and the Company Closing, and from and after the SPAC Closing and the Company Closing, the Parties and their respective Representatives shall not have any further obligations, nor shall any claim be asserted or Action be brought against any of the Parties or their respective Representatives with respect thereto and (b) the covenants and agreements made by the Parties in this Agreement or in any certificate or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such covenants or agreements, shall not survive the SPAC Closing and the Company Closing, except for those covenants and agreements contained herein and therein that by their terms apply or are to be performed in whole or in part after the SPAC Closing and the Company Closing (which such covenants shall survive the SPAC Closing and the Company Closing and continue until fully performed in accordance with their terms), including, for the avoidance of doubt, Section 2.14, Section 7.18, Section 10.1 and this Article XI.
11.2 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery (a) in person, (b) by email (without receiving notice of non-receipt or other “bounce-back”), (c) by reputable, nationally recognized overnight courier service or (d) by registered or certified mail, pre-paid and return receipt requested; provided, however, that notice given pursuant to clauses (c) and (d) above shall not be effective unless a duplicate copy of such notice is also given in person or by email (without receiving notice of non-receipt or other “bounce-back”); in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
| If to SPAC at or prior to the SPAC Closing, to: | with a copy (which will not constitute notice) to: | ||
|---|---|---|---|
| Cantor Equity Partners II, Inc.<br><br> <br>110 East 59^th^ Street<br><br> <br>New York, NY 10022 | Hughes Hubbard & Reed LLP<br><br>One Battery Park Plaza, 12^th^ Floor<br><br>New York, New York 10004, USA | ||
| Attn: | Chief Executive Officer | Attn: | Michael Traube, Esq. |
| Email: | [***] | Javad Husain, Esq. | |
| Email: | michael.traube@hugheshubbard.com | ||
| javad.husain@hugheshubbard.com |
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| If to Sponsor at or after the SPAC Closing, to: | with a copy (which will not constitute notice) to: | ||
|---|---|---|---|
| Cantor<br> EP Holdings II, LLC<br><br> <br>110<br> East 59^th^ Street<br><br> <br>New<br> York, NY 10022 | Hughes Hubbard & Reed LLP<br><br> One Battery Park Plaza, 12^th^ Floor<br><br> New York, New York 10004, USA | ||
| Attn: | Chief Executive Officer | Attn: | Michael Traube, Esq. |
| Email: | [***] | Javad Husain, Esq. | |
| Email: | michael.traube@hugheshubbard.com | ||
| javad.husain@hugheshubbard.com | |||
| If to the Company, PubCo, or SPAC Merger Sub, to: | with a copy (which will not constitute notice) to: | ||
| --- | --- | --- | --- |
| c/o Securitize, Inc.<br><br>78 SW 7^th^ Steet | Davis Polk & Wardwell LLP<br><br>450 Lexington Avenue, New York, 10017 | ||
| Miami, FL 33130 | Attn: | Lee Hochbaum | |
| Attn: | Carlos Domingo | Email: | lee.hochbaum@davispolk.com |
| Email: | [***] |
11.3 Binding Effect; Assignment. Subject to Section 11.4, this Agreement and all of the provisions hereof shall be binding upon and inure solely to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of SPAC, PubCo, and the Company. Any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning Party of its obligations hereunder.
11.4 Third Parties. Nothing contained in this Agreement or in any Ancillary Document shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party or party thereto or a successor or permitted assign of such a Party; provided, however, that (a) in the event that the SPAC Closing and the Company Closing occur, the D&O Indemnified Persons are intended third-party beneficiaries of Section 7.18(a), (b) the past, present or future directors, officers, agents, employees, equityholders or other Representatives, Affiliates, successors or assignees of any Party, are intended third-party beneficiaries of, and may enforce, Section 11.15, (c) the Nonparty Affiliates are intended third-party beneficiaries of the rights set forth in Section 11.13, and (d) the Sponsor is an intended third-party beneficiary of any provision of this Agreement that confers any right or privilege to Sponsor (including pursuant to Section 11.9, Section 11.11 and Section 11.14),
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11.5 Fees and Expenses. Subject to Section 10.1, all Expenses incurred in connection with this Agreement and the Transactions shall be paid by the Party incurring such Expenses, provided that, if the Closing shall occur, PubCo shall reimburse or pay or cause to be reimbursed or paid, at or promptly following Closing, by wire transfer of immediately available funds, all Expenses. For the avoidance of doubt, any payments to be made (or to cause to be made) by PubCo pursuant to this Section 11.5 shall be paid upon consummation of the Transactions and release of proceeds from the Trust Account.
11.6 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) Subject to Section 11.6(b) and the proviso in the parenthetical to this sentence, this Agreement and all claims or causes of Action based upon, arising out of, or related to this Agreement or the Transactions shall be governed by, construed and enforced in accordance with the Laws of the State of Delaware, without regard to the conflict of Laws principles or rules thereof to the extent such principles or rules would require or permit the application of Laws of another jurisdiction (provided, however, that notwithstanding the foregoing, the effects of the SPAC Merger shall be governed by the Laws of the Cayman Islands with respect to determining the effects of the filing of the SPAC Plan of Merger and other documents under the Cayman Act with the Cayman Registrar pursuant to Section 2.1).
(b) Any Action based upon, arising out of or related to this Agreement or the Transactions must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware and the Parties will endeavor to have such Action assigned to the Delaware Complex Commercial Litigation Division thereof), or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each Party irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Action, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Action shall be heard and determined only in any such court, and (iv) agrees not to bring any Action arising out of or relating to this Agreement or the Transactions in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence Actions 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 11.7.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS.
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11.7 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the Transactions are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and the non-breaching Parties may not have an adequate remedy at law, and agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
11.8 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable by any court of competent jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
11.9 Amendment. Subject to the provisions of applicable Law, this Agreement may be amended, supplemented or modified only by execution of a written instrument signed by each of the Parties; provided, however, that (a) with respect to any amendment modification, supplement or waiver adversely affecting (i) the SPAC D&O Tail Insurance or the D&O Indemnified Parties covered by such policy, (ii) any rights of the SPAC or Sponsor under Section 11.14 or (iii) any other express rights of the Sponsor hereunder, such action shall only be effected by execution of a written instrument signed by PubCo and Sponsor, and (b) with respect to any amendment, modification, supplement or waiver affecting any terms or conditions of or to the issuance of Company Earnout Shares from the terms and conditions set forth on the date of this Agreement in a manner that allows for the issuance of any Company Earnout Shares that would not be issuable under the terms and conditions of this Agreement as of the date of this Agreement, such action shall only be taken upon the affirmative written consent of the independent directors of the board of directors of PubCo.
11.10 Entire Agreement. This Agreement and the documents or instruments referred to herein, including any Exhibits, Annexes and Schedules, which Exhibits, Annexes and Schedules are incorporated herein by reference, together with the Ancillary Documents, embody the entire agreement and understanding of the Parties in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the Parties with respect to the subject matter contained herein.
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11.11 Waiver. Each Party may in its sole discretion (a) extend the time for the performance of any obligation or other act of any other non-Affiliated Party, (b) waive any inaccuracy in the representations and warranties by any other non-Affiliated Party contained herein or in any document delivered pursuant hereto and (c) waive compliance by such other non-Affiliated Party with any covenant or condition contained herein, subject to the proviso to Section 11.9 above. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
11.12 Counterparts. This Agreement may be executed and delivered (including by facsimile, email or other electronic means or transmission) in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Copies of executed counterparts of this Agreement transmitted by electronic transmission (including by email or in .pdf format) or facsimile as well as electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered original executed counterparts of this Agreement.
11.13 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, the Parties acknowledge and agree that all claims, obligations, liabilities, or causes of Action (whether in contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to this Agreement or the Ancillary Documents, or the negotiation, execution, or performance or non-performance of this Agreement or the Ancillary Documents (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or the Ancillary Documents), may be made only against (and such representations and warranties are those solely of) the Persons that are expressly identified as Parties hereunder or Persons party to the applicable Ancillary Document (the “Contracting Parties”) except as set forth in this Section 11.13. In no event shall any Contracting Party have any shared or vicarious liability for the Actions or omissions of any other Person. No Person who is not a Contracting Party, including any current, former or future director, officer, employee, incorporator, member, partner, manager, shareholder, affiliate, agent, financing source, attorney or Representative or assignee of any Contracting Party, or any current, former or future director, officer, employee, incorporator, member, partner, manager, shareholder, affiliate, agent, financing source, attorney or Representative or assignee of any of the foregoing (collectively, the “Nonparty Affiliates”), shall have any Liability (whether in contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) for any obligations or Liabilities arising under, out of, in connection with, or related in any manner to this Agreement or the other Ancillary Documents or for any claim based on, in respect of, or by reason of this Agreement or the other Ancillary Documents or their negotiation, execution, performance, or breach; and each Party waives and releases all such Liabilities and Actions against any such Nonparty Affiliates. Notwithstanding anything to the contrary herein, none of the Contracting Parties or any Nonparty Affiliate shall be responsible or liable for any multiple, consequential, indirect, special, statutory, exemplary or punitive damages (in each case, other than in connection with damages awarded in a third-party claim) which may be alleged as a result of this Agreement, the Ancillary Documents or any other agreement referenced herein or therein or the Transactions, or the termination or abandonment of any of the foregoing. The Parties acknowledge and agree that the Nonparty Affiliates are intended third-party beneficiaries of this Section 11.13.
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11.14 Legal Representation. The Parties agree that, notwithstanding the fact that Hughes Hubbard & Reed LLP (“HHR”) may have, prior to the SPAC Closing, jointly represented SPAC, Company Merger Sub and Sponsor in connection with this Agreement, the Ancillary Documents and the Transactions, and has also represented SPAC, Sponsor and their respective Affiliates in connection with matters other than the Transactions, HHR will be permitted in the future, after the SPAC Closing, to represent Sponsor or its Affiliates in connection with matters in which such Persons are adverse to PubCo, SPAC or any of their respective Affiliates, including any disputes arising out of, or related to, this Agreement. The Company, PubCo and SPAC Merger Sub, who are or have the right to be represented by independent counsel in connection with the Transactions contemplated by this Agreement, hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with HHR’s future representation of one or more of the Sponsor or its Affiliates in which the interests of such Person are adverse to the interests of PubCo, SPAC and the Company, or any of their respective Affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by HHR of Sponsor, SPAC or any of their respective Affiliates. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, Sponsor shall be deemed the client of HHR with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications in any form or format whatsoever between or among any of HHR, SPAC or Sponsor, or any of their respective Representatives, that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by PubCo or SPAC; provided, further, that nothing contained herein shall be deemed to be a waiver by PubCo, SPAC or any of their respective Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party. The Company agrees on behalf of itself and SPAC, PubCo and the Company Entities that after the SPAC Closing, (a) to the extent that SPAC or, after the SPAC Closing, PubCo or the Company Entities receives or takes physical possession of any SPAC Deal Communications, (i) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.14, and (ii) neither SPAC, PubCo nor the Company Entities after the SPAC Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (b) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Company Entity waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Company Entities after the SPAC Closing has the right to waive the attorney-client or other privilege and (c) not to seek to obtain the SPAC Deal Communications from HHR so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
11.15 Cumulative Remedies. The rights, powers, privileges and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers, privileges or remedies provided by Law except as otherwise expressly provided.
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IN WITNESS WHEREOF, each Party has caused this Business Combination Agreement to be signed and delivered by its respective duly authorized signatory as of the date first written above.
| CANTOR EQUITY PARTNERS II, INC. | |
|---|---|
| as SPAC | |
| By: | /s/ Brandon Lutnick |
| --- | --- |
| Name: | Brandon Lutnick |
| Title: | Chief Executive Officer |
| Securitize, Inc. | |
| --- | |
| as the Company | |
| By: | /s/ Carlos Domingo |
| --- | --- |
| Name: | Carlos Domingo |
| Title: | Chief Executive Officer |
| SECURITIZE HOLDINGS, INC. | |
| --- | |
| as PubCo | |
| By: | /s/ Carlos Domingo |
| --- | --- |
| Name: | Carlos Domingo |
| Title: | President & Chief Executive Officer |
| PINECREST MERGER SUB | |
| --- | |
| as SPAC Merger Sub | |
| By: | /s/ Carlos Domingo |
| --- | --- |
| Name: | Carlos Domingo |
| Title: | Director |
| SENNA MERGER SUB, INC. | |
| --- | |
| as Company Merger Sub | |
| By: | /s/ Brandon Lutnick |
| --- | --- |
| Name: | Brandon Lutnick |
| Title: | Chief Executive Officer |
Annex A
Officers
Chief Executive Officer: Carlos Domingo
Exhibit 10.1
EXECUTION VERSION
SHAREHOLDER SUPPORT AGREEMENT
This SHAREHOLDER SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of October 27, 2025 by and among the persons identified on Schedule I hereto (each, a “Shareholder” and collectively the “Shareholders”), Cantor Equity Partners II, Inc., a Cayman Islands exempted company (“SPAC”), Securitize Holdings, Inc., a Delaware corporation (“PubCo”), and Securitize, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not defined herein have the meanings assigned to them in that certain Business Combination Agreement, dated as of October 27, 2025 (as amended from time to time, the “BCA”), by and among SPAC, the Company, PubCo, Senna Merger Sub, Inc., a Delaware corporation and wholly-owned Subsidiary of SPAC (“Company Merger Sub”), and Pinecrest Merger Sub, a Cayman Islands exempted company and wholly-owned Subsidiary of PubCo (“SPAC Merger Sub”).
RECITALS
WHEREAS, each Shareholder owns the number and type (class or Series) of shares of Company Stock and Company Convertible Securities (or other Company Equity Awards) set forth opposite the name of such Shareholder on Schedule I (collectively, together with all other securities of the Company that such Shareholder purchases or otherwise acquires beneficial or record ownership of or becomes entitled to vote during the Restricted Period (as defined below), including by reason of any share split, share dividend, distribution, reclassification, recapitalization, conversion or other transaction, or pursuant to the exercise of options or warrants to purchase such shares or rights or the conversion of any Company Convertible Securities or other Equity Interests of the Company, the “Shareholder Shares”);
WHEREAS, the Company Board has approved this Agreement and the execution, delivery and performance thereof by the parties hereto;
WHEREAS, concurrently with the execution and delivery of this Agreement, SPAC, the Company, PubCo, Company Merger Sub and SPAC Merger Sub are entering into the BCA, which provides for, among other things, the merger of SPAC with and into SPAC Merger Sub (the “SPAC Merger”) (with SPAC Merger Sub surviving such merger as a wholly-owned subsidiary of PubCo), and the merger of Company Merger Sub with and into the Company (the “Company Merger,” and together with the SPAC Merger, the “Mergers”) (with the Company surviving such merger as a wholly-owned subsidiary of PubCo), in each case, upon the terms and subject to the conditions set forth therein;
WHEREAS, obtaining the Company Written Consent is a condition precedent to the consummation of the Mergers;
WHEREAS, as a condition and inducement to SPAC’s willingness to enter into the BCA, SPAC has required each Shareholder to enter into this Agreement and a Lock-Up Agreement entered into concurrently herewith (the “Lock-Up Agreement”).
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto agree as follows:
Section 1 Covenantsof the Shareholders.
(a) During the period beginning on the date of this Agreement and ending on the earlier of (i) the Company Closing, (ii) at such time, if any, as the BCA is validly terminated in accordance with its terms prior to the Company Closing, and (iii) at such time, if any, as the BCA is amended such that it has a material and adverse economic impact on such Shareholder, including but not limited to the induction of any liability on such Shareholder (such period, the “Restricted Period,” and the earlier of clause (i), (ii), and (iii) the “Expiration Time”), each Shareholder, severally and not jointly, hereby agrees:
(i) (A) at any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the shareholders of the Company, however called, and in any action by written resolution of the shareholders of the Company, at which the BCA and other related agreements (or any amended version thereof) or such other related actions, are submitted for the consideration of the shareholders of the Company, to vote, or to cause the voting of, the Shareholder Shares in favor of: (1) the approval and adoption of the BCA; and (2) the Mergers and the other Transactions, including the Ancillary Documents and all other agreements related to the Company Merger to which the Company or any other Company Entity is a party or to which PubCo or SPAC Merger Sub is a party; and (B) promptly, but in no event later than the date required under the BCA, to execute and deliver the Company Written Consent; and
(ii) (A) at each such meeting, and at any adjournment or postponement thereof, and in any such action by written consent, to vote, or to cause the voting of, the Shareholder Shares against (other than pursuant to, or in furtherance of, the Mergers and the other Transactions): (1) any action, proposal, transaction or agreement that is intended or that would reasonably be expected to frustrate the purposes of, impede, hinder, interfere with, prevent or delay the consummation of, or otherwise adversely affect, the Mergers, or any of the other Transactions, the BCA or any of the other agreements related to the Mergers (including the Ancillary Documents to which the Company or any other Company Entity is a party or to which PubCo or SPAC Merger Sub is a party) including: (aa) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving any Company Entity, PubCo or SPAC Merger Sub, in each case other than the Mergers and the other Transactions; (bb) a reorganization, recapitalization or liquidation of any Company Entity, PubCo or SPAC Merger Sub, in each case other than the Mergers; or (cc) any amendment or other change to the Organizational Documents of any Company Entity, PubCo or SPAC Merger Sub (other than as expressly contemplated in or permitted by the BCA or the Ancillary Documents), except if approved in writing by SPAC; (2) any Company Acquisition Proposal; (3) any action, proposal, transaction or agreement that would reasonably be expected to result in a breach of any covenant, agreement, representation or warranty of the Company contained in the BCA or of such Shareholder contained in this Agreement; or (4) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article VIII of the BCA not being fulfilled; and (B) not to approve or otherwise consent to any matter referred to in any of sub-clauses (1) through (6) of the preceding clause (A) by written consent or written resolution.
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(b) During the Restricted Period, each Shareholder shall not, and, except with respect to BLK SMI, LLC (“BLK”), shall direct such Shareholder’s Affiliates not to, directly or indirectly, (1) initiate, seek, solicit, knowingly facilitate or knowingly encourage (including by way of furnishing any nonpublic information), whether publicly or otherwise, any inquiries with respect to, or the making. or submission of, a Company Acquisition Proposal, (2) enter into or engage in any negotiations or discussions with, or provide any nonpublic information to, or afford access to the business, properties, assets, books or records of any Company Entity, PubCo or SPAC Merger Sub to, any Person (other than SPAC or any of its Representatives) relating to or for the purpose of encouraging or facilitating any Company Acquisition Proposal (other than to state that the terms of this Agreement prohibit such discussions), (3) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity interests of any Company Entity, PubCo or SPAC Merger Sub, (4) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Company Acquisition Proposal, or any proposal or offer that could reasonably be expected to lead to a Company Acquisition Proposal, or (5) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives to take any such action.
(c) For the avoidance of doubt, in the event that (i) any Shareholder Shares are issued to any Shareholder after the date of this Agreement pursuant to any share dividend, share split, recapitalization, reclassification, combination or exchange of Shareholder Shares of, on or affecting the Shareholder Shares owned by such Shareholder or otherwise, (ii) such Shareholder purchases or otherwise acquires beneficial ownership of any Shareholder Shares after the date of this Agreement, or (iii) such Shareholder acquires the right to vote or share in the voting of any Shareholder Shares after the date of this Agreement (such Shareholder Shares or other equity securities of the Company, collectively the “New Securities”), then such New Securities acquired or purchased by such Shareholder shall constitute Shareholder Shares and shall be subject to the terms of this Agreement (including with respect to the voting and proxy requirements set forth in Section 1(a) and Section 2, respectively) to the same extent as if they constituted Shareholder Shares owned by such Shareholder as of the date of this Agreement.
(d) During the Restricted Period, without the prior written consent of SPAC (not to be unreasonably withheld, delayed or conditioned), such Shareholder shall not modify or amend any Contract between or among such Shareholder, anyone related by blood, marriage or adoption to such Shareholder or, except with respect to BLK, any Affiliate of such Shareholder (other than the Company or any other Company Entity), in each case in his or her capacity as a shareholder of the Company, on the one hand, and the Company or any other Company Entity, on the other hand, including, for the avoidance of doubt, the Voting Agreement, the Investors’ Rights Agreement and the Right of First Refusal and Co-Sale Agreement (the “Existing Company Governance Agreements”), provided that, for the avoidance of doubt, the Existing Company Governance Agreements shall be terminated substantially contemporaneously with, and subject to the consummation of, the Mergers, but excluding, for the avoidance of doubt, any rights and obligations such Shareholder may have that relate to any commercial agreements with the Company or any Surviving Rights (as defined below).
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(e) Subject to and conditioned upon the Company Closing, each Shareholder hereby agrees that each of the following to which such Shareholder is a party shall terminate (provided that all Terminating Rights (as defined below) between any Company Entity and any other holder of Shareholder Shares shall also terminate at such time), effective immediately prior to the Company Closing: (i) the Existing Company Governance Agreements; (ii) any subscription or other purchase agreements relating to Shareholder Shares; and (iii) if applicable to any Shareholder, any rights under any agreement (including any side letter (other than as expressly set forth below)) providing for redemption rights, put rights, purchase rights, information rights or other similar rights not generally available to shareholders of the Company (clauses (i) through (iii), collectively, the “Terminating Rights”) between Shareholder and the Company, but excluding, for the avoidance of doubt, any rights and obligations such Shareholder may have that relate to any non-disclosure agreements, noncompetition agreements, employment agreements, offer letters, restrictive covenants, consulting agreements, indemnification agreements, invention assignment agreements, commercial agreements (and any side letters thereto), letter agreements or agreements providing the Company rights in intellectual property by and between such Shareholder and any Company Entity, which shall survive in accordance with their terms (collectively, “Surviving Rights”).
Section 2 IrrevocableProxy. Each Shareholder, other than BLK, hereby revokes any proxies that such Shareholder has heretofore granted with respect to such Shareholder’s Shareholder Shares (excluding any proxies granted under the Company’s Organizational Documents or the Existing Company Governance Documents), hereby irrevocably constitutes and appoints the Company as attorney-in-fact and proxy for the purposes of complying with the obligations hereunder in accordance with the Laws of the State of Delaware for and on such Shareholder’s behalf, for and in such Shareholder’s name, place and stead, in the event that such Shareholder fails to comply in any material respect with his, her or its obligations hereunder in a timely manner, to vote the Shareholder Shares of such Shareholder and grant all written consents thereto (including with respect to the Company Written Consent), in each case, in accordance with the provisions of Sections 1(a)(i) and (ii) and represent and otherwise act for such Shareholder in the same manner and with the same effect as if such Shareholder were personally present at any meeting held for the purpose of voting on the foregoing. The foregoing proxy is coupled with an interest, is irrevocable (and, with respect to any Shareholder that is an individual, as such shall survive and not be affected by the death, incapacity, mental illness or insanity of the Shareholder) until the end of the Restricted Period and shall not be terminated by operation of Law or upon the occurrence of any other event other than following a termination of this Agreement pursuant to Section 9.1. Each Shareholder authorizes such attorney-in-fact and proxy to substitute any other Person to act hereunder, to revoke any substitution and to file this proxy and any substitution or revocation with the Secretary of the Company. Each Shareholder, other than BLK, hereby affirms that the irrevocable proxy set forth in this Section 2 is given in connection with the execution by the Company of the BCA and that such irrevocable proxy is given to secure the obligations of such Shareholder under Section 1. The irrevocable proxy set forth in this Section 2 is executed and intended to be irrevocable. Each Shareholder, other than BLK, agrees not to grant any proxy that conflicts or is inconsistent with the proxy granted to the Company in this Agreement. For the avoidance of doubt, this Section 2 shall not apply to BLK in any respects.
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Section 3 Representationsand Warranties of the Shareholders. Each Shareholder represents and warrants to SPAC, severally solely as to such Shareholder and not jointly, as follows:
3.1 Authorization. If such Shareholder is an individual, such Shareholder has all requisite capacity to execute and deliver this Agreement, to perform such Shareholder’s obligations hereunder and to consummate the transactions contemplated hereby. If such Shareholder is not an individual, such Shareholder (a) is a corporation, partnership, limited liability company, trust or other entity duly organized, validly existing and in good standing (with respect to jurisdictions which recognize such concept) under the Laws of its jurisdiction of incorporation or organization, (b) has all requisite power and authority to execute and deliver this Agreement, to perform such Shareholder’s obligations hereunder and to consummate the transactions contemplated hereby, and (c) the execution, delivery and performance of this Agreement by such Shareholder and the consummation by such Shareholder of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such Shareholder and no other proceedings on the part of any such Shareholder or such Shareholder’s equityholders are necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby except as have been obtained prior to the date of this Agreement. This Agreement has been duly and validly executed and delivered by such Shareholder and, assuming the due execution and delivery by SPAC, the Company and PubCo, constitutes the legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms, except as may be limited by the Enforceability Exceptions.
3.2 Consents and Approvals; No Violations.
(a) The execution, delivery and performance of this Agreement by such Shareholder and the consummation by such Shareholder of the transactions contemplated hereby do not and will not require any filing or registration with, notification to, or authorization, permit, license, declaration, Order, consent or approval of, or other action by or in respect of, any Governmental Authority, Nasdaq or the NYSE on the part of such Shareholder.
(b) The execution, delivery and performance by such Shareholder of this Agreement and the consummation by such Shareholder of the transactions contemplated by this Agreement do not and will not (i) conflict with or violate any provision of the Organizational Documents of such Shareholder if such Shareholder is not an individual, (ii) conflict with or violate, in any respect, any Law applicable to such Shareholder or by which any property or asset of such Shareholder is bound, (iii) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any benefit under, or result in the triggering of any payments (including any right of acceleration of any royalties, fees, profit participations or other payments to any Person) pursuant to, any of the terms, conditions or provisions of any Contract to which such Shareholder is a party or by which any of such Shareholder’s properties or assets are bound or any Order or Law applicable to such Shareholder or such Shareholder’s properties or assets, or (iv) result in the creation of a Lien on any property or asset of such Shareholder, except in the case of clauses (ii), (iii) and (iv) above as would not reasonably be expected, either individually or in the aggregate, to impair in any material respect the ability of such Shareholder to timely perform its obligations hereunder or consummate the transactions contemplated hereby. If such Shareholder is a married individual and is subject to community property Laws, such Shareholder’s spouse has consented to this Agreement by having executed a spousal consent in the form attached hereto as Exhibit A.
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3.3 Ownership of Shareholder Shares. Such Shareholder (a) is the sole record and beneficial owner of all of the Shareholder Shares listed opposite the name of such Shareholder on Schedule I, free and clear of all Liens (other than Liens as created by this Agreement or the Company’s Organizational Documents or the Existing Company Governance Documents or arising under applicable securities Laws), (b) has the sole voting power with respect to such Shareholder Shares and (c) has not entered into any voting agreement (other than this Agreement and the Existing Company Governance Documents) with or granted any Person any proxy (revocable or irrevocable) with respect to such Shareholder Shares (other than this Agreement). Except as set forth on Schedule I, neither such Shareholder nor any family member of such Shareholder (if such Shareholder is an individual) nor any of the Affiliates of such Shareholder or of such family member of such Shareholder (or any trusts for the benefit of any of the foregoing) owns, of record or beneficially, or has the right to acquire any securities of the Company. As of the time of any meeting of the shareholders of the Company referred to in Section 1(a)(i) and with respect to any written resolution of the shareholders of the Company referred to in clause (B) of each of Section 1(a)(i) or (ii), such Shareholder (or such Shareholder’s Permitted Transferee (as defined below) who has entered into a Joinder Agreement (as defined below)) will be the sole record and beneficial owner of all of the Shareholder Shares listed next to the name of such Shareholder on Schedule I, free and clear of all Liens (other than Liens arising under applicable securities Laws), except with respect to any Shareholder Shares transferred pursuant to a Permitted Transfer (as defined hereinafter) to a Permitted Transferee who has entered into a Joinder Agreement.
3.4 Contracts with the Company. Except for (a) the Contracts described in Section 1(e)(i)-(iii), (b) any Contract listed in Section 6.11(a) of the Company Disclosure Letter and (c) any Contract pursuant to which such Shareholder purchased or received any Shareholder Shares or Company Options which was shared with SPAC in the Company’s virtual data room for the Mergers and the Transactions, neither such Shareholder nor any family member of such Shareholder (if such Shareholder is an individual) nor any of the Affiliates of such Shareholder or of such family member of such Shareholder is a party to any Contract with any Company Entity, PubCo or SPAC Merger Sub.
3.5 Independent Advice. Such Shareholder has received a copy of and has reviewed the BCA, the Lock-Up Agreement and the other documentation relating to the Mergers and the Transactions (including any other Ancillary Documents to which any Company Entity, PubCo or Company Merger Sub is a party) and has had an opportunity to discuss such agreements and this Agreement with legal, financial and tax advisors of his, her or its own choosing, and has had the opportunity to review such information regarding the Company as such Shareholder deems relevant or appropriate.
Section 4 No Transfers.
(a) Each Shareholder hereby agrees not to, during the Restricted Period, Transfer (as defined below), or cause to be Transferred, any Shareholder Shares or Company Options owned of record or beneficially by such Shareholder, or any voting rights with respect thereto (“SubjectSecurities”), or enter into any Contract with respect to conducting any such Transfer. Each Shareholder hereby authorizes SPAC to direct the Company to impose stop, transfer or similar orders to prevent the Transfer of any Subject Securities on the books of the Company in violation of this Agreement. Any Transfer or attempted Transfer of any Subject Securities in violation of any provision of this Agreement shall be void ab initio and of no force or effect.
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(b) “Transfer” means (i) any direct or indirect sale, tender pursuant to a tender or exchange offer, assignment, encumbrance, disposition, pledge, hypothecation, gift or other transfer (by operation of law or otherwise), either voluntary or involuntary, of any share capital, options or warrants or any interest (including any beneficial ownership interest) in any share capital, options or warrants (including the right or power to vote any share capital) or (ii) in respect of any share capital, options or warrants or interest (including any beneficial ownership interest) in any share capital, options or warrants to directly or indirectly enter into any swap, derivative or other agreement, transaction or series of transactions, in each case, referred to in this clause (ii) that has an exercise or conversion privilege or a settlement or payment mechanism determined with reference to, or derived from the value of, such share capital, options or warrants and that hedges or transfers, in whole or in part, directly or indirectly, the economic consequences of such share capital, options or warrants or interest (including any beneficial ownership interest) in such share capital, options or warrants whether any such transaction, swap, derivative or series of transactions is to be settled by delivery of securities, in cash or otherwise. A “Transfer” shall not include the transfer of Subject Securities by a Shareholder to such Shareholder’s estate, such Shareholder’s immediate family, to a trust for the benefit of such Shareholder’s family, upon the death of such Shareholder or to an Affiliate of such Shareholder (each such transferee a “Permitted Transferee” and each such transfer, a “Permitted Transfer”). As a condition to any Permitted Transfer, the applicable Permitted Transferee shall be required to become a party to this Agreement and the Lock-Up Agreement (if applicable to such Shareholder) by signing a joinder agreement hereto and thereto in form and substance reasonably satisfactory to SPAC (each a “Joinder”). References to “the parties hereto” and similar references shall be deemed to include any later party signing a Joinder.
(c) Each Shareholder hereby agrees not to, and not to permit any Person under such Shareholder’s control to deposit any of such Shareholder’s Shareholder Shares in a voting trust or subject any of the Shareholder Shares owned beneficially or of record by such Shareholder to any arrangement with respect to the voting of such Shareholder Shares other than agreements entered into with SPAC.
Section 5 Waiver andRelease of Claims. Each Shareholder covenants and agrees, severally with respect to such Shareholder only and not with respect to any other Shareholder, as follows:
(a) Subject to and conditioned upon the Company Closing, effective as of the Company Closing (and subject to the limitations set forth in paragraph (c) below), each Shareholder, on behalf of such Shareholder and, except with respect to BLK, his, her or its Affiliates and his, her or its respective successors, assigns, representatives, administrators, executors and agents, and any other Person claiming by, through or under any of the foregoing, does hereby unconditionally and irrevocably release, waive and forever discharge the Company and each other Company Entity, PubCo, SPAC, Company Merger Sub, SPAC Merger Sub and Cantor EP Holdings II, LLC, and each of their respective past and present directors, officers, employees, agents, predecessors, successors, assigns, and Subsidiaries, from any and all past or present claims, demands, damages, judgments, causes of action and liabilities of any nature whatsoever, whether or not known, suspected or claimed, arising directly or indirectly from any act, omission, event or transaction occurring (or any circumstances existing) at or prior to the Company Closing (each a “Claim” and, collectively, the “Claims”), including any and all Claims arising out of or relating to (i) such Shareholder’s capacity as a current or former shareholder, officer or director, manager, employee or agent of the Company or any of its predecessors or Affiliates (or his, her or its capacity as a current or former trustee, director, officer, manager, employee or agent of any other entity in which capacity he, she or it is or was serving at the request of the Company or any other Company Entity, PubCo, SPAC Merger Sub or Company Merger Sub), or (ii) any Contract with the Company or any other Company Entity, PubCo, SPAC Merger Sub or Company Merger Sub) entered into or established prior to the Company Closing, including any voting agreement, investors’ rights agreement, right of first refusal and co-sale agreement, management rights letter, or similar shareholders agreements or side letters, or equity purchase agreements, but excluding, for the avoidance of doubt, any Claims such Shareholder may have that relate to any commercial agreements with the Company or any Surviving Rights; provided, however, that the release, waiver and discharge by Shareholder’s Affiliates is limited to Claims that arise from the Transactions.
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(b) Each Shareholder acknowledges that he, she or it may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law that may apply to potential claims which he, she or it is releasing hereunder, but he, she or it affirms that, except as is otherwise specifically provided herein, it is his, her or its intention to fully, finally and forever settle and release any and all Claims. In furtherance of this intention, each of the Shareholders acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Law. Each Shareholder knowingly and voluntarily waives and releases any and all rights and benefits that he, she or it may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous Law of any other jurisdiction), which reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Each Shareholder understands that Section 1542, or a comparable Law of another jurisdiction, gives such Shareholder the right not to release existing claims of which the Shareholder is not aware, unless the Shareholder voluntarily chooses to waive this right. Having been so apprised, each Shareholder nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable Law, and elects to assume all risks for claims that exist, existed or may hereafter exist in his, her or its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 5, in each case, effective at the Company Closing. Each Shareholder acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 5 and that, without such waiver, SPAC would not have agreed to the terms of this Agreement.
(c) Notwithstanding the foregoing provisions of this Section 5 or anything to the contrary set forth herein, no Shareholder releases or discharges, and each Shareholder expressly does not release or discharge, any Claims: (i) that arise under or are based upon the terms of any of the following (as they may be amended from time to time in accordance with their terms and the terms of the BCA): this Agreement, the BCA, any of the Ancillary Documents, any letter of transmittal or any other document, certificate or Contract executed or delivered in connection with the BCA; or (ii) for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any indemnification agreement or Organizational Documents of the Company or any other Company Entity with respect to such Shareholder, any of his, her or its Affiliates or their respective designated members of the boards of directors of the Company or any other Company Entities, in each case of this clause (ii) subject to the survival periods and other terms and conditions set forth in Section 7.18(a) of the BCA in respect of rights to exculpation, indemnification, and advancement of expenses.
-8-
(d) Notwithstanding the foregoing provisions of this Section 5, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto.
Section 6 FurtherAssurances. Each Shareholder hereby agrees that he, she or it shall, from time to time, (a) execute and deliver, or cause to be executed and delivered, such Ancillary Documents as may be necessary to satisfy any condition to the SPAC Closing or the Company Closing, as applicable, under the BCA, in substantially the form previously provided to such Shareholder as of the date of this Agreement, and (b) undertake to (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments, (ii) consent to the termination or amendment of such other agreement, including the Existing Company Governance Agreements (other than with respect to the Surviving Rights) and (iii) take, or cause to be taken, such actions, and do, or cause to be done, and assist and cooperate with the other parties in doing such things, in each case, as are reasonably necessary for the purpose of effectively carrying out the Transactions.
Section 7 Other Covenants.
7.1 Binding Effect of the BCA. Each Shareholder hereby agrees to be bound by and comply with Sections 7.15 (Public Announcements), 7.16 (Confidential Information) and 7.9 (No Solicitation) of the BCA (and any relevant definitions contained in any such Sections of the BCA) as if such Shareholder was an original signatory to the BCA with respect to such provisions to the same extent as such provisions apply to the Company.
7.2 Disclosure. Each Shareholder hereby authorizes PubCo and SPAC to publish and disclose in any announcement or disclosure, in each case, required by the SEC, Nasdaq or NYSE, as applicable (including all documents and schedules filed with the SEC in connection with the foregoing, including the Proxy/Registration Statement), such Shareholder’s identity and ownership of the Shareholder Shares and the nature of such Shareholder’s commitments and agreements under this Agreement, the BCA, the Ancillary Documents and any other agreements to the extent such disclosure is required by applicable securities Laws, the SEC, Nasdaq or NYSE, as applicable; provided that the content of any such disclosure shall require the prior written consent of such Shareholder (not to be unreasonably withheld, delayed or conditioned); provided, further, that nothing contained herein shall prevent PubCo or SPAC from making any public announcements or disclosures with respect to such Shareholder containing information that has already been made public by the parties in compliance with this Section 7.2.
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Section 8 Waiverof Objectors’ Rights. Each Shareholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived, any rights to seek appraisal, rights of objection or any similar rights in connection with the BCA, the Mergers and the Transactions, including under Section 262 of the DGCL and any other similar statute in connection with the Company Merger and the BCA that such Shareholder may have with respect to the Shareholder Shares owned beneficially or of record by such Shareholder.
Section 9 General.
9.1 Termination. This Agreement shall terminate at the Expiration Time, and upon such termination, this Agreement shall be null and void and of no effect whatsoever, and the parties hereto shall have no obligations under this Agreement; provided, however, that no termination of this Agreement shall relieve or release a party from any obligations or liabilities for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such party, in either case, prior to termination of this Agreement. Notwithstanding the foregoing, Section 1(e), Section 5, Section 6 and this Section 9 and any corresponding definitions thereto shall survive any termination of this Agreement resulting from the consummation of the Company Closing.
9.2 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery (a) in person, (b) by email (without receiving notice of non-receipt or other “bounce-back”), (c) by reputable, nationally recognized overnight courier service, or (d) by registered or certified mail, pre-paid and return receipt requested; provided, however, that notice given pursuant to clauses (c) and (d) above shall not be effective unless a duplicate copy of such notice is also given in person or by email (without receiving notice of non-receipt or other “bounce-back”); in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
If to SPAC:
Cantor Equity Partners II, Inc.
110 East 59th Street
New York, NY 10022
Attn: Chief Executive Officer
Email: [***]
with a copy to (which will not constitute notice) to:
Hughes Hubbard & Reed LLP
One Battery Park Plaza, 12^th^ Floor
New York, New York 10004
Attn: Michael Traube, Esq.
Javad Husain, Esq.
Email: michael.traube@hugheshubbard.com
javad.husain@hugheshubbard.com
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If to PubCo or the Company:
c/o Securitize, Inc.
78 SW 7th Steet
Miami, FL 33130
Attn: Carlos Domingo
Email: [***]
with a copy to (which shall not constitute notice):
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, 10017
Attn: Lee Hochbaum
Email: lee.hochbaum@davispolk.com
If to the Shareholders:
To the address for such Shareholder as set forth set forth on Schedule I.
9.3 Binding Effect; Assignment. Subject to Section 9.4, this Agreement and all of the provisions hereunder shall be binding upon and inure solely to the benefit of the parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of SPAC, PubCo and the Company. Any Assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning party of its obligations hereunder.
9.4 Third Parties. Nothing contained in this Agreement shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a party hereto or a successor or permitted assign of such a party; provided, however, that the Persons released pursuant to Section 5(a) that are not parties hereto are intended third-party beneficiaries thereof and shall have enforcement rights in respect of such section.
9.5 Costs and Expenses. Subject to Section 11.5 of the BCA, each party hereto will pay his, her or its own costs and expenses (including legal, accounting and other fees) relating to the negotiation, execution, delivery and performance of this Agreement.
9.6 Waiver of Claims Against Trust; Governing Law; Jurisdiction; Specific Performance. Sections 10.1, 11.6 and 11.7 of the BCA shall apply to this Agreement mutatis mutandis.
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9.7 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable by any court of competent jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
9.8 Amendment. This Agreement may be amended, supplemented or modified only with the written consent of SPAC, the Company, PubCo and Shareholders holding a majority in interest of the Shareholder Shares held by all Shareholders.
9.9 Waiver. The observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the party against whom enforcement of such waiver is sought. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
9.10 Entire Agreement. This Agreement (together with the other Ancillary Documents, the BCA and each of the other documents and the instruments referred to herein, to the extent incorporated herein) embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the parties with respect to the subject matter contained herein.
9.11 Cumulative Remedies. The rights, powers, privileges and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers, privileges or remedies provided by Law except as otherwise expressly provided. Nothing in this Section 9.11 shall have the effect of excluding or limiting any liability for or remedy in respect of a Fraud Claim.
9.12 No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the parties hereto. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Without in any way limiting the rights or obligations of any party hereto under this Agreement, prior to the Company Closing, (a) no party shall have the power by virtue of this Agreement to control the activities and operations of any other; and (b) except as otherwise set forth in Section 2, no party shall have any power or authority by virtue of this Agreement to bind or commit any other party. No party shall hold itself out as having any authority or relationship in contravention of this Section 9.12.
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9.13 Capacity as Shareholder. Each Shareholder signs this Agreement solely in his, her or its capacity as a shareholder of the Company, and not in his, her or its capacity as a director (including “director by deputization”), officer or employee of the Company, if applicable. Nothing herein shall be construed to (a) restrict, limit, prohibit or affect any actions or inactions by such Shareholder or any Representative of such Shareholder, as applicable, serving in the capacity of a director or officer of the Company, acting in such Person’s capacity as a director or officer of the Company (it being understood and agreed that the BCA contains provisions that govern the actions or inactions by the directors and officers of the Company with respect to the Transactions) or (b) prohibit, limit or restrict the exercise of any fiduciary duties as director or officer of the Company that is otherwise permitted by, and done in compliance with, the terms of the BCA (and in each case of clauses (a) and (b), without limiting such Shareholder’s obligations hereunder in his, her or its capacity as a Shareholder).
9.14 Headings; Interpretation. The headings and subheadings 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. In this Agreement, unless the context otherwise requires: (i) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) the term “including” (and with correlative meaning “include”) shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “hereof,” “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; (iv) the term “or” means “and/or”; (v) the word “extent” in the phrase “to the extent” means the degree to which a subject or thing extends, and such phrase shall not simply mean “if”; and (vi) references to “written” or “in writing” include in electronic form. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
9.15 Counterparts. This Agreement may be executed and delivered (including by facsimile, email or other electronic means or transmission) in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Copies of executed counterparts of this Agreement transmitted by electronic transmission (including by email or in .pdf format) or facsimile as well as electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered original executed counterparts of this Agreement.
9.16 No Recourse. Notwithstanding anything herein to the contrary, the obligations of the Shareholders hereunder are several and not joint, and no Shareholder shall be responsible for the actions or inactions of any other Shareholder. Neither the Company nor any other Company Entity, nor PubCo, SPAC Merger Sub or Company Merger Sub, nor any of the past, present or future Company Stockholders (other than the Shareholders party hereto), nor any director, officer, employee, member, partner, shareholder or other owner (whether direct or indirect), Affiliate, agent, attorney or representative of any Company Stockholder, shall have any obligation or liability for the obligations or liabilities of any Shareholder under this Agreement. Without limiting the foregoing, this Agreement may only be enforced against the persons or entities that have executed and delivered a counterpart to this Agreement.
[The next page is the signature page]
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IN WITNESS WHEREOF, the parties hereto have executed this Shareholder Support Agreement as of the date first written above.
| SPAC: | |
|---|---|
| CANTOR EQUITY PARTNERS II, INC. | |
| By: | /s/ Brandon Lutnick |
| Name: Brandon Lutnick | |
| Title: Chief Executive Officer |
[Signature Page to Shareholder Support Agreement]
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IN WITNESS WHEREOF, the parties hereto have executed this Shareholder Support Agreement as of the date first written above.
| PUBCO: | |
|---|---|
| SECURITIZE HOLDINGS, INC. | |
| By: | /s/ Carlos Domingo |
| Name: Carlos Domingo | |
| Title: President & Chief Executive Officer | |
| COMPANY: | |
| SECURITIZE, INC. | |
| By: | /s/ Carlos Domingo |
| Name: Carlos Domingo | |
| Title: Chief Executive Officer |
[Signature Page to Shareholder Support Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Shareholder Support Agreement as of the date first written above.
| /s/ Carlos Domingo |
|---|
| Carlos Domingo |
| /s/ James H. Finn |
| James H. Finn |
| /s/ Tal Elyashiv |
| Tal Elyashiv |
| /s/ Shay Finkelstein |
| Shay Finkelstein |
| /s/ David Garcia |
| BORDERLESS SECURITIZE B LLC |
| Name: David Garcia |
| Title: Director |
| /s/ David Garcia |
| BORDERLESS SECURITIZE B PLUS LLC |
| Name: David Garcia |
| Title: Director |
| /s/ David Garcia |
| ALGO CAPITAL MASTER FUND LP |
| Name: David Garcia |
| Title: Managing Partner |
| /s/ W. Bradford Stephens |
| BLOCKCHAIN CAPITAL IV, LP |
| By: Blockchain Capital W GP, LLC |
| Its: General Partner |
| Name: W. Bradford Stephens |
| Title: Managing Partner |
| /s/ W. Bradford Stephens |
| BLOCKCHAIN CAPITAL PARALLEL IV, LP |
| By: Blockchain Capital IV GP, LLC |
| Its: General Partner |
| Name: W. Bradford Stephens |
| Title: Managing Partner |
[Signature Page to Shareholder Support Agreement]
| /s/ W. Bradford Stephens | |
|---|---|
| BLOCKCHAIN III DIGITAL LIQUID VENTURE FUND, LP | |
| By: BC DLVF III GP, LLC | |
| Its: General Partner | |
| Name: W. Bradford Stephens | |
| Title: Managing Partner | |
| /s/ Matthew Le Merle | |
| FIFTH ERA COINVESTORS LLC – SECURITIZE 1 | |
| Name: Matthew Le Merle | |
| Title: Director | |
| /s/ Matthew Le Merle | |
| FIFTH ERA COINVESTORS LLC – SECURITIZE 2 | |
| Name: Matthew Le Merle | |
| Title: Director | |
| /s/ Matthew Le Merle | |
| FIFTH ERA COINVESTORS LLC – SECURITIZE 3 | |
| Name: Matthew Le Merle | |
| Title: Director | |
| GB-VI Growth Fund Investment Limited Partnership | |
| --- | |
| By: Global Brain Corporation, its general partner | |
| By: | /s/ Yasuhiko Yurimoto |
| --- | --- |
| Name: Yasuhiko Yurimoto | |
| Title: President & CEO | |
| Email: [***] | |
| /s/ Anthony Gravanis | |
| --- | |
| KENETIC HOLDINGS LIMITED | |
| Name: Anthony Gravanis | |
| Title: Kenetics Holdings Limited | |
| /s/ Manual Silva Martinez | |
| MOURO CAPITAL I LP | |
| Name: Manual Silva Martinez |
[Signature Page to Shareholder Support Agreement]
| /s/ Christopher Gottschalk |
|---|
| MOURO CAPITAL I LP |
| Name: Christopher Gottschalk |
| /s/ Pedro Teixeira |
| NHTV SIERRA HOLDINGS LLC |
| Name: Pedro Teixeira |
| Title: MD |
| /s/ Niels Ankerstjerne Sloth |
| COPENHAGEN VC FUND I K/S |
| Name: Niels Ankerstjerne Sloth |
| Title: Director |
| /s/ Roberto Aitkenhead |
| COPENHAGEN VC FUND I K/S |
| Name: Roberto Aitkenhead |
| Title: Director |
| /s/ Niels Ankerstjerne Sloth |
| COPENHAGEN VC FUND II K/S |
| Name: Niels Ankerstjerne Sloth |
| Title: Director |
| /s/ Roberto Aitkenhead |
| COPENHAGEN VC FUND II K/S |
| Name: Roberto Aitkenhead |
| Title: Director |
| /s/ Kyoungmin Ryu |
| H FOUNDATION PTE. LTD. |
| Name: Kyoungmin Ryu |
| Title: President |
| /s/ Yungkeun Lee |
| STANDARD CHARTERED BANK KOREA LIMITED AS TRUSTEE FOR HANWHA LIFESTYLE PRIVE FUND 2 |
| Name: Yungkeun Lee |
| Title: Head of Trustee |
[Signature Page to Shareholder Support Agreement]
| SFV ● GB L.P. | ||
|---|---|---|
| By: Global Brain Corporation, its general partner | ||
| By: | /s/ Yasuhiko Yurimoto | |
| --- | --- | --- |
| Name: | Yasuhiko Yurimoto | |
| Title: | President & CEO | |
| Email: | [***] | |
| KDDI Open Innovation Fund III L.P. | ||
| --- | --- | --- |
| By: Global Brain Corporation, its general partner | ||
| By: | /s/Yasuhiko Yurimoto | |
| Name: | Yasuhiko Yurimoto | |
| Title: | President & CEO | |
| Email: | [***] | |
| 31 VENTURES Global Innovation Fund L.P. | ||
| --- | --- | --- |
| By: Global Brain Corporation, its general partner | ||
| By: | /s/ Yasuhiko Yurimoto | |
| Name: | Yasuhiko Yurimoto | |
| Title: | President & CEO | |
| Email: | [***] | |
| 31VENTURES Global Innovation Fund II L.P. | ||
| --- | --- | --- |
| By: Global Brain Corporation, its general partner | ||
| By: | /s/ Yasuhiko Yurimoto | |
| Name: | Yasuhiko Yurimoto | |
| Title: | President & CEO | |
| Email: | [***] | |
| Global Brain Corporation | ||
| --- | --- | --- |
| By: | /s/ Yasuhiko Yurimoto | |
| Name: | Yasuhiko Yurimoto | |
| Title: | President & CEO | |
| Email: | [***] |
[Signature Page to Shareholder Support Agreement]
| /s/ Connor Hartley |
|---|
| BLK SMI, LLC |
| By: BlackRock Financial Management, Inc. |
| Its: Sole Member |
| Name: Connor Hartley |
| Title: Managing Director |
| /s/ Matthew Hinerfeld |
| J DIGITAL 6 LLC |
| Name: Matthew Hinerfeld |
| Title: Authorized Signatory |
| /s/ Matthew Le Merle |
| ASP-BCI SECURITIZE (BVI) LTD |
| Name: Matthew Le Merle |
| Title: Managing Partner |
| /s/ James H. Finn |
| TINY VENTURES LLC |
| Name: James H. Finn |
| Title: President |
| /s/ Tal Elyashiv |
| SPICE VENTURE CAPITAL PTE. LTD. |
| Name: Tal Elyashiv |
| Title: Co-Founder and Managing Partner |
| /s/ Stephen Giannone |
| Stephen Giannone |
| /s/ Mikhail Davidyan |
| Mikhail Davidyan |
[Signature Page to Shareholder Support Agreement]
Schedule I
| Shareholder & Notice Address | Number Shares | Class or Series of Company Stock | Company Options | Company Convertible Securities | Other Equity Interests of any Company Entity | Beneficial or Record Ownership |
|---|
Exhibit A
Form of Spousal Consent
SHAREHOLDER SUPPORT AGREEMENT
AND LOCK-UP AGREEMENT SPOUSAL CONSENT
I ____________, spouse of ____________, have read and approve the foregoing Shareholder Support Agreement, dated as of the date hereof, by and among my spouse, Cantor Equity Partners II, Inc., Securitize Holdings, Inc., [____] and the other Shareholders (as defined therein) party thereto and that certain Lock-Up Agreement, dated as of the date hereof, by and [between my spouse and Securitize Holdings, Inc. (collectively, the “Agreements”). In consideration of the terms and conditions as set forth in the Agreements, I hereby appoint my spouse as my attorney-in-fact with respect to the exercise of any rights and obligations under the Agreements, and agree to be bound by the provisions of the Agreements insofar as I may have any rights or obligations in or under the Agreements under the community property laws or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreements.
| Date __________________________________ |
|---|
| Signature of Spouse ______________________ |
| Printed Name of Spouse____________________ |
| WITNESSED BY: |
| --- |
| Date _______________________________________ |
| Signature ___________________________________ |
| Printed Name ________________________________ |
Exhibit 10.2
EXECUTION VERSION
SPONSOR SUPPORT AGREEMENT
This SPONSOR SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of October 27, 2025, by and among Cantor EP Holdings II, LLC, a Delaware limited liability company (“Sponsor”), Cantor Equity Partners II, Inc., a Cayman Islands exempted company (“SPAC”), Securitize, Inc., a Delaware corporation (the “Company”), and Securitize Holdings, Inc., a Delaware corporation (“PubCo”). Capitalized terms used but not defined herein have the meanings assigned to them in the Business Combination Agreement by and among SPAC, the Company, PubCo, Senna Merger Sub, Inc. (“CompanyMerger Sub”) and Pinecrest Merger Sub (“SPAC Merger Sub”), dated as of October 27, 2025 (as may be amended from time to time, the “BCA”).
WHEREAS, as of the date of this Agreement, Sponsor owns 6,000,000 SPAC Class B Ordinary Shares (the “Founder Shares”) and 580,000 SPAC Class A Ordinary Shares (the “Private Placement Shares” and, together with the Founder Shares and any New Securities (as defined below) of which ownership of record or the power to vote is hereafter acquired by Sponsor prior to the termination of this Agreement, the “Sponsor Shares”);
WHEREAS, in connection with SPAC’s initial public offering (the “IPO”), SPAC, Sponsor and the then current officers and directors of SPAC entered into a letter agreement, dated as of May 1, 2025 (as amended, the “Insider Letter”), pursuant to which Sponsor agreed to certain voting requirements, transfer restrictions and waiver of redemption rights with respect to the SPAC Ordinary Shares owned by Sponsor;
WHEREAS, Article 17 of SPAC’s Amended and Restated Memorandum and Articles of Association (as may be amended from time to time, the “SPAC Memorandum”) provides, among other matters, that the SPAC Class B Ordinary Shares will automatically convert into SPAC Class A Ordinary Shares upon the consummation of an initial business combination, subject to adjustment if additional SPAC Class A Ordinary Shares or Equity-linked Securities (as defined in the SPAC Memorandum) are issued or deemed issued in excess of the amounts sold in the IPO (the “Anti-DilutionRight”), excluding certain exempted issuances;
WHEREAS, concurrently with the execution and delivery of this Agreement, SPAC, the Company, PubCo, Company Merger Sub and SPAC Merger Sub are entering into the BCA, pursuant to which, upon the consummation of the transactions contemplated thereby, among other matters (a) SPAC will merge with and into SPAC Merger Sub (with SPAC Merger Sub surviving such merger as a direct wholly-owned subsidiary of PubCo) (the “SPAC Merger”) and (b) no earlier than two (2) hours following the completion of the SPAC Merger, Company Merger Sub will merge with and into the Company (with the Company surviving such merger as a direct wholly-owned subsidiary of PubCo) (the “Company Merger” and, together with the SPAC Merger and the other transactions contemplated by the BCA and the Ancillary Documents, the “Transactions”), upon the terms and subject to the conditions set forth therein; and
WHEREAS, as a condition and inducement to the Company’s and PubCo’s willingness to enter into the BCA and to consummate the transactions contemplated thereby, the Company and PubCo have required that Sponsor enter into this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto agree as follows:
1. SponsorVoting Requirements.
(a) At any meeting of the SPAC Shareholders, however called, or at any adjournment or postponement thereof, or in any other circumstance in which the vote, consent or other approval of the SPAC Shareholders is sought, Sponsor shall (i) if a meeting is held, appear at each such meeting (in person or by proxy) or otherwise cause all of the Sponsor Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) covering, all of the Sponsor Shares:
(i) in favor of each SPAC Shareholder Approval Matter;
(ii) against any SPAC Acquisition Proposal;
(iii) against any merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by SPAC (other than the Transactions);
(iv) against any change in the business of SPAC; and
(v) against any proposal, action or agreement involving SPAC that would or would reasonably be expected to (i) impede, interfere with, delay, postpone, frustrate, prevent or nullify any provision of this Agreement, the BCA or any Ancillary Document, (ii) result in a breach in any material respect of any covenant, representation, warranty or any other obligation or agreement of SPAC under the BCA or any Ancillary Document, (iii) result in any of the conditions in respect of obligations of SPAC set forth in Article VIII of the BCA not being fulfilled, or (iv) change in any manner the capitalization of, including the voting rights of any class of share capital of, SPAC (other than in connection with the SPAC Shareholder Approval Matters).
(b) Without limiting the generality of the foregoing, except as contemplated by the Insider Letter, the BCA, any Ancillary Document or the Transactions, Sponsor hereby agrees from and after the date hereof:
(i) not to deposit any of the Sponsor Shares in a voting trust or subject any of the Sponsor Shares to any arrangement or agreement with respect to the voting of such Sponsor Shares unless specifically requested to do so by the Company and SPAC in writing in connection with the BCA, the Ancillary Documents or the Transactions;
(ii) not to make a “solicitation” of “proxies” or consents (as such terms are used in the rules of the SEC) of any equity interests of other shareholders of SPAC against the SPAC Shareholder Approval Matters or for any SPAC Acquisition Proposal in connection with any vote of the shareholders of SPAC; and
(iii) not to commence or participate in any claim, derivative or otherwise, against the Company, SPAC or any of their respective Affiliates (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (B) alleging a breach of any fiduciary duty of the board of directors of SPAC in connection with this Agreement, the SPAC Shareholder Approval Matters, the BCA or the Transactions.
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2. Enforcementof Insider Letter. During the Interim Period, for the benefit of the Company and PubCo, (a) Sponsor agrees that it shall fully comply with, and perform all of its obligations, covenants and agreements set forth in, the Insider Letter, including not redeeming its Sponsor Shares in connection with the Transactions and complying with the transfer restrictions with respect to the Founder Shares (subject to Section 9 of this Agreement) and Private Placement Shares, (b) SPAC agrees to enforce the Insider Letter in accordance with its terms (subject to Section 9 of this Agreement), and (c) each of Sponsor and SPAC agree not to amend, modify or waive any provision of the Insider Letter without the prior written consent of the Company and PubCo (not to be unreasonably withheld, delayed or conditioned).
3. NewShares. In the event that, during the Interim Period, (a) any SPAC Ordinary Shares or other equity securities of SPAC are issued to Sponsor in respect of the Founder Shares or the Private Placement Shares pursuant to the Anti-Dilution Right or any share dividend, share split, recapitalization, reclassification, combination or exchange of SPAC Ordinary Shares owned by Sponsor or otherwise, then such SPAC Ordinary Shares or other equity securities acquired or purchased by Sponsor shall be subject to the terms of this Agreement to the same extent as if they constituted Founder Shares or Private Placement Shares, as applicable, or (b) Sponsor (i) purchases or otherwise acquires beneficial ownership of any SPAC Ordinary Shares or other equity securities of SPAC, or (ii) acquires the right to vote any SPAC Ordinary Shares or other equity securities of SPAC (such SPAC Ordinary Shares or other equity securities of SPAC referred to in clauses (b)(i) and (ii), collectively the “New Securities”), then such New Securities acquired or purchased by Sponsor shall be subject to the terms set forth in Sections 1 and 2 to the same extent as if they constituted the Sponsor Shares.
4. Waiverof Anti-Dilution Protection**.** Sponsor, as the holder of all of the issued and outstanding SPAC Class B Ordinary Shares, solely in connection with and only for the purpose of the proposed Transactions, and subject to and conditioned upon the SPAC Closing and the Company Closing occurring, hereby, automatically and without any further actions by Sponsor, waives, to the fullest extent permitted by law, the Anti-Dilution Right, and agrees that the SPAC Class B Ordinary Shares (following the forfeiture and cancellation pursuant to Section 5) will convert into SPAC Class A Ordinary Shares only at the Initial Conversion Ratio (as defined in the SPAC Memorandum to be 1:1) in connection with the Transactions. This waiver shall be void and of no force and effect if the BCA is validly terminated in accordance with its terms immediately following such valid termination. All other terms related to the SPAC Class B Ordinary Shares shall remain in full force and effect, except as modified as set forth directly above or as contemplated by the BCA or the Ancillary Documents in connection with the consummation of the Transactions, which modification shall be effective only upon the consummation of the Transactions.
5. Forfeiture**.**
(a) Prior to the conversion of the SPAC Class B Ordinary Shares into SPAC Class A Ordinary Shares in accordance with the BCA, and solely in connection with and only for the purpose of the proposed Transactions, Sponsor shall, subject to and conditioned upon the SPAC Closing and the Company Closing occurring, automatically and irrevocably surrender and forfeit, for no consideration, as a contribution to capital to SPAC, the Sponsor Forfeiture Shares (as defined below). The Sponsor Forfeiture Shares shall be automatically and immediately cancelled by SPAC (and SPAC shall direct SPAC’s transfer agent, or such other intermediaries as appropriate, to take any and all such actions incident thereto). SPAC and Sponsor shall take such actions as are necessary to cause the Sponsor Forfeiture Shares to be retired and canceled, after which such Sponsor Forfeiture Shares shall no longer be issued and outstanding.
(b) For purposes of this Section 5 and this Agreement, the following capitalized terms shall have the following meanings:
“Adjusted RedemptionPercentage” means a fraction equal to (a) the sum of (i) the number of SPAC Class A Ordinary Shares redeemed by SPAC Shareholders exercising Redemption Rights in connection with the Business Combination (pursuant to and in accordance with the SPAC Memorandum), multiplied by $10.00, minus (ii) the PIPE Excess Proceeds, divided by (b) $240,000,0000.
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“PIPE Excess Proceeds” means (a) the aggregate amount of cash proceeds (prior to payment of any fees or expenses) from the PIPE Investments (which such amount shall include any proceeds deemed to be received in the PIPE in an amount equal to the product of (i) the sum of any Open-Market Purchase Shares and Currently Owned Shares in respect of which any PIPE Investors have elected to exercise their Reduction Right (as each such capitalized term is defined in the PIPE Subscription Agreements), to the extent permitted by, and in accordance with the terms and conditions of, the PIPE Subscription Agreements, multiplied by (ii) $10.00 per share), minus (b) $100,000,000.
“Sponsor ClosingShares” means a number of SPAC Class B Ordinary Shares equal to (a) 6,000,000 minus (b) the Sponsor Forfeiture Shares.
“Sponsor ForfeitureAdditional Shares” means (a) in the event the Adjusted Redemption Percentage is greater than ninety percent (90%), a number of SPAC Class B Ordinary Shares equal to (i) (A) 6,000,000 minus (B) the Sponsor Forfeiture Base Shares, multiplied by (ii) seven and one-half percent (7.5%) and (b) in the event the Adjusted Redemption Percentage is less than or equal to ninety percent (90%), a number of SPAC Class B Ordinary Shares equal to zero (0).
“Sponsor ForfeitureBase Shares” means a number of SPAC Class B Ordinary Shares equal to (a) 1,800,000 multiplied by (b) the Adjusted Redemption Percentage.
“Sponsor ForfeitureShares” means a number of SPAC Class B Ordinary Shares equal to (a) the Sponsor Forfeiture Base Shares plus (b) the Sponsor Forfeiture Additional Shares (in each case, if any).
6. Waiverand Release of Claims**.** Sponsor covenants and agrees as follows:
(a) Subject to and conditioned upon the SPAC Closing and the Company Closing, effective as of the SPAC Closing (and subject to the limitations set forth in paragraph (c) below), Sponsor, on behalf of itself and its Affiliates and its and their respective successors, assigns, representatives, administrators, executors and agents, and any other Person claiming by, through or under any of the foregoing (each a “ReleasingParty” and, collectively, the “Releasing Parties” provided, for the avoidance of doubt, that SPAC shall not be deemed a Releasing Party hereunder), does hereby unconditionally and irrevocably release, waive and forever discharge SPAC, the Company, PubCo, Company Merger Sub and each of its and their past and present directors, officers, employees, agents, predecessors, successors, assigns, and Subsidiaries, from any and all past or present claims, demands, damages, debts, judgments, causes of action and liabilities of any nature whatsoever, whether or not known, suspected or claimed, arising directly or indirectly from any act, omission, event or transaction occurring (or any circumstances existing) at or prior to the SPAC Closing (each a “Claim” and, collectively, the “Claims”); provided, however, that the release, waiver and discharge by Sponsor’s Affiliates is limited to Claims that arise from the Transactions.
(b) Sponsor acknowledges that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to the subject matter of this Agreement, and that it may hereafter come to have a different understanding of the Law that may apply to potential Claims which it is releasing hereunder, but it affirms that, except as is otherwise specifically provided herein, it is its intention to fully, finally and forever settle and release any and all Claims. In furtherance of this intention, Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Law. Sponsor knowingly and voluntarily waives and releases any and all rights and benefits that Sponsor may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous Law of any other jurisdiction), which reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
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Sponsor understands that Section 1542, or a comparable Law of another jurisdiction, gives Sponsor the right not to release existing claims of which Sponsor is not aware, unless Sponsor voluntarily chooses to waive this right. Having been so apprised, Sponsor nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable Law, and elects to assume all risks for claims that exist, existed or may hereafter exist in his, her or its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 6, in each case, effective at the SPAC Closing. Sponsor acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 6 and that, without such waiver, the Company would not have agreed to the terms of this Agreement.
(c) Notwithstanding the foregoing provisions of this Section 6 or anything to the contrary set forth herein, the Releasing Parties do not release or discharge, and each Releasing Party expressly does not release or discharge, any Claims that arise under or are based upon the terms of any of the following (as they may be amended from time to time in accordance with their terms and the terms of the BCA): (i) this Agreement, (ii) any Ancillary Document to which Sponsor is a party, (iii) any letter of transmittal to which Sponsor is a party, (iv) any other document, certificate or Contract executed or delivered in connection with the BCA to which Sponsor is a party, (v) the New Registration Rights Agreement, (vi) any rights a Releasing Party has to indemnification from SPAC arising out of the Transactions, (vii) the Insider Letter, (viii) the Business Combination Marketing Agreement, dated May 1, 2025, by and between Cantor Fitzgerald & Co. (“CF&Co.”) and SPAC, (ix) the Underwriting Agreement, dated May 1, 2025 by and between CF&Co. and SPAC, (x) the Expense Advancement Agreement, dated as of May 1, 2025 by and between SPAC and Sponsor, the Sponsor Loan, the Sponsor Note, and any other promissory notes and/or expense advance agreements entered into by and between SPAC and Sponsor prior to the SPAC Closing without violation of the terms of the BCA, (xi) the letter agreement, dated as of October 10, 2025, by and between CF&Co. and SPAC, (xii) the letter agreement, dated as of September 25, 2025, by and among CF&Co., SPAC, the Company and Citigroup Global Markets Inc., (xiii) any subscription agreements entered into in connection with any PIPE Investment to which a Releasing Party may be a party, (xiv) any agreement entered into with respect to services provided by CF&Co. pursuant to any PIPE Investments (if any) to which a Releasing Party may be a party, or (xv) the SPAC Memorandum or any indemnity agreement of any director or officer of SPAC with SPAC with or for the benefit of a Releasing Party with respect to any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any indemnification agreement or Organizational Documents of the Sponsor.
(d) Notwithstanding the foregoing provisions of this Section 6, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto. Notwithstanding anything to the contrary contained herein, Sponsor (and each of its Affiliates other than SPAC), and SPAC shall be deemed not to be Affiliates of each other for purposes of this Section 6.
7. SPACLoan Conversion**.** The parties hereby agree that, subject to and conditioned upon the SPAC Closing and the Company Closing, the aggregate of all amounts outstanding and due to Sponsor from SPAC as of the SPAC Closing under the SPAC Loans as set forth on the statement delivered by SPAC prior to the SPAC Closing pursuant to Section 7.19(a) of the BCA (the “SPAC Pre-Closing Statement”) shall be repaid in either cash or SPAC Class A Ordinary Shares at $10.00 per share as determined by Sponsor in the SPAC Pre-Closing Statement.
8. SponsorEarnout.
(a) Sponsor hereby agrees that, upon and subject to the SPAC Closing and the Company Closing, it will not Transfer (as such term is defined in the Insider Letter) the Sponsor Earnout Shares (as defined below) that Sponsor receives in the SPAC Merger in exchange for certain of its Sponsor Closing Shares (the Sponsor Earnout Shares, together with any equity securities paid as dividends or distributions with respect to such shares of PubCo Common Stock or into which such shares of PubCo Common Stock are exchanged or converted, in either case, after the SPAC Closing, the “Earnout Shares”), unless, until and to the extent that a Release Event (as defined below) has occurred with respect to such Earnout Shares; provided, that Sponsor may, subject to the terms and on the conditions set forth in Section 14(i), Transfer all or any portion of the Earnout Shares to any Person that qualifies as a permitted transferee under Section 6(c) of the Insider Letter (each, a “Permitted Transferee”) so long as, prior to and as a condition to the effectiveness of any such Transfer, such Person executes and delivers to SPAC, the Company and PubCo a joinder to this Agreement in the form attached hereto as Annex A; and provided, further, that the measurement period for determining whether a Release Event (as defined below) has occurred shall not begin until the ninetieth (90^th^) day following the Closing Date (such day, the “MeasurementPeriod Start Date”). As used in this Agreement, the term “Sponsor Earnout Shares” means the number of shares of PubCo Common Stock received by Sponsor in the SPAC Merger equal to (i) (A) the number of Sponsor Closing Shares plus (B) the number of Sponsor Forfeiture Additional Shares (if any) multiplied by (ii) (A) in the event the Adjusted Redemption Percentage is less than or equal to ninety percent (90%), a percentage equal to thirty percent (30%), and (B) in the event the Adjusted Redemption Percentage is greater than ninety percent (90%), a percentage equal to twenty-two and one-half percent (22.5%).
(b) In the event that a Release Event has not occurred on or prior to the date which is five (5) years following the SPAC Closing Date (the “TerminationDate” and, the period from the Measurement Period Start Date until and including the Termination Date, the “EarnoutPeriod”) with respect to all of the Earnout Shares, Sponsor hereby agrees to the cancellation of any of its Earnout Shares that have not been subject to a Release Event. In order to effectuate such cancellation in the event that a Release Event has not been achieved by the Termination Date, Sponsor shall promptly deliver its Earnout Shares that have not been subject to a Release Event to PubCo in certificated or book-entry form (at the election of Sponsor) for cancellation by PubCo.
(c) The share certificates representing the Earnout Shares shall contain a legend relating to transfer restrictions imposed by this Section 8 and the risk of cancellation associated with the Earnout Shares. PubCo will cause its transfer agent to remove such legend as promptly as practicable, but in any event within three (3) Business Days, after the written request by Sponsor following a Release Event with respect to such Earnout Shares. Until and unless the Earnout Shares are released to PubCo for cancellation, Sponsor will have full ownership rights to the Earnout Shares, including the right to vote such shares and to receive dividends and distributions paid in cash thereon; provided, however, that Earnout Shares are deemed to include all distributions payable thereon in stock or other non-cash property (“Non-CashDividends”), and such Non-Cash Dividends (to the extent attributable to Earnout Shares that are cancelled pursuant to this Section 8) shall be forfeited by Sponsor in accordance with the terms governing cancellation of Earnout Shares in this Section 8.
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(d) Pursuant to, and in accordance with this Agreement, the Earnout Shares shall vest and no longer be subject to cancellation as follows (each, as applicable to the relevant Earnout Shares, a “Release Event”):
(i) one-third (1/3) of the Earnout Shares will vest and no longer be subject to cancellation if the volume weighted average price of a share of Pubco Common Stock (or of any common or ordinary equity security that is the successor to such share of PubCo Common Stock (together with the Pubco Common Stock, the “Public Common Stock”)) on the principal exchange on which such securities are then listed or quoted is at or above $12.50 (the “First Price Threshold”) for any twenty (20) Trading Days (which need not be consecutive) over a thirty (30) Trading Day period at any time during the Earnout Period (as reported on Bloomberg);
(ii) one-third (1/3) of the Earnout Shares will vest and no longer be subject to cancellation if the volume weighted average price of a share of Public Common Stock on the principal exchange on which such securities are then listed or quoted is at or above $15.00 (the “SecondPrice Threshold”) for twenty (20) Trading Days (which need not be consecutive) over a thirty (30) Trading Day period at any time during the Earnout Period (as reported on Bloomberg);
(iii) one-third (1/3) of the Earnout Shares will vest and no longer be subject to cancellation if the volume weighted average price of a share of Public Common Stock on the principal exchange on which such securities are then listed or quoted is at or above $17.50 (the “Third PriceThreshold” and, together with the First Price Threshold and the Second Price Threshold, the “Price Thresholds”) for twenty (20) Trading Days (which need not be consecutive) over a thirty (30) Trading Day period at any time during the Earnout Period (as reported on Bloomberg); and
(iv) if any of the Price Thresholds shall be achieved on or prior to the Termination Date, then within three (3) Business Days following the achievement of each applicable Price Threshold, PubCo shall cause its transfer agent to, upon receipt of written notice from Sponsor and PubCo, certifying that the applicable Price Threshold have been achieved, release the Earnout Shares to Sponsor;
(v) for the avoidance of doubt, in the event a Release Event has occurred on or prior to the Termination Date, but the shares of Public Common Stock to be released in accordance with such Release Event pursuant to Sections 8(d)(i), 8(d)(ii) and/or 8(d)(iii) have not yet been released by the transfer agent by the end of the Termination Period, the Earnout Shares to be released in connection with the occurrence of such Release Event shall be released to Sponsor pursuant to Section 8(d)(iv) even if such issuance occurs after the end of the Earnout Period; and
(vi) if an Early Release Event occurs prior to the Termination Date, then all of the Earnout Shares that have not yet vested will vest and no longer be subject to forfeiture or the transfer restrictions in this Section 8, effective immediately prior to the consummation of such Early Release Event.
For the avoidance of doubt, the time period in respect of which any Price Threshold is calculated may run concurrently with (and/or may overlap any portion of such period with) the time periods in respect of which any other Price Thresholds are calculated (and need not run consecutively), so that multiple tranches of Earn-Out Shares may vest (and become no longer subject to cancellation) concurrently with respect to the same time period (or with respect to any such overlap between multiple time periods) in connection with the satisfaction of the Second Price Threshold or Third Price Threshold.
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(e) For purposes of this Section 8, an “Early Release Event” means any of the following: (1) if PubCo is merged, consolidated or reorganized with or into another Person except for any such merger or consolidation in which the shares of Public Common Stock outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, a majority, by voting power, of the capital stock of the surviving or resulting corporation (or of a parent company thereof); (2) PubCo sells, leases, assigns, transfers, licenses or otherwise disposes of, in one or a series of related transactions, all or substantially all of the assets of PubCo and its Subsidiaries, taken as a whole, or the sale or disposition (whether by merger or otherwise) of one or more Subsidiaries of PubCo if substantially all of the assets of PubCo and its Subsidiaries taken as a whole are held by such Subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly-owned subsidiary of PubCo; (3) if PubCo shall engage in a “going private” transaction pursuant to Rule 13e-3 under the Exchange Act or otherwise ceases to be subject to reporting obligations under Sections 13 or 15(d) of the Exchange Act; or (4) if PubCo Common Stock or other Public Common Stock shall cease to be listed on a national securities exchange; and (B) “Trading Day” means any day on which the shares of Public Common Stock are actually traded on the principal exchange on which such securities are then listed or quoted.
(f) The Price Thresholds and the applicable number of Earnout Shares released for each applicable Release Event shall be subject to equitable adjustment for share splits, share dividends, reorganizations, combinations, recapitalizations and similar transactions affecting the Public Common Stock after the SPAC Closing and the Company Closing, as applicable. For avoidance of doubt, share dividends include the fair market value of any securities or other assets paid or payable by PubCo or any successor public company to holders of Public Common Stock.
9. Lock-Up.
(a) Sponsor hereby agrees that, upon and subject to the SPAC Closing, it shall not Transfer any shares of PubCo Common Stock issued to Sponsor at the SPAC Closing into which the Founder Shares are converted pursuant to Sections 2.7(a)(i) and 2.7(a)(ii) of the BCA (the “Lock-UpShares”) until the earlier of: (i) the date that is one hundred and eighty (180) days from the SPAC Effective Time and (ii) with respect to all or a portion of the Lock-Up Shares (as applicable), on such earlier date of release as may be permitted in accordance with Section 9(c) below (the period beginning on the SPAC Closing Date and ending upon the earlier of clause (i) and (ii) being, the “Lock-Up Period”).
(b) Notwithstanding the foregoing Section 9(a), Sponsor may Transfer the Lock-Up Shares to a Permitted Transferee prior to expiry of the Lock-Up Period, provided such transferee agrees in writing to be bound by the terms of this Section 9.
(c) A certain number of Lock-Up Shares shall be released for Transfer and no longer subject to the Transfer restrictions set forth in Section 9(a), in each case as set forth below (provided that with respect to the determination of whether any Release Threshold has been met, the thirty (30) Trading Day period used in any such determination may not commence until ninety (90) days after the SPAC Closing (the period from the ninetieth (90^th^) day after the SPAC Closing to the end of the Lock-Up Period, the “Lock-Up TradingMeasurement Period”):
(i) one-third (1/3) of the Lock-Up Shares will be released for Transfer immediately if the volume weighted average price of a share of Public Common Stock on the principal exchange on which such securities are then listed or quoted (as reported on Bloomberg) is at or above $12.50 (the “First Lock-Up Release Threshold”) for any twenty (20) Trading Days (which need not be consecutive) over a thirty (30) Trading Day period at any time during the Lock-Up Trading Measurement Period;
(ii) one-third (1/3) of the Lock-Up Shares will be released for Transfer immediately if the volume weighted average price of a share of Public Common Stock on the principal exchange on which such securities are then listed or quoted (as reported on Bloomberg) is at or above $15.00 (the “Second Lock-Up Release Threshold”) for twenty (20) Trading Days (which need not be consecutive) over a thirty (30) Trading Day period at any time during the Lock-Up Trading Measurement Period;
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(iii) one-third (1/3) of the Lock-Up Shares will be released for Transfer immediately if the volume weighted average price of a share of Public Common Stock on the principal exchange on which such securities are then listed or quoted (as reported on Bloomberg) is at or above $17.50 (the “Third Lock-Up Release Threshold” and, together with the First Lock-Up Release Threshold and the Second Lock-Up Release Threshold, the "Release Thresholds") for twenty (20) Trading Days (which need not be consecutive) over a thirty (30) Trading Day period at any time during the Lock-Up Trading Measurement Period; and
(iv) if an Early Release Event occurs during the Lock-Up Period, then all of the Lock-Up Shares that have not been released for Transfer shall be released for Transfer immediately and no longer be subject to the Transfer restrictions in this Section 9, effective immediately prior to the consummation of such Early Release Event (and, for the avoidance of doubt, in such case the Lock-Up Period shall expire on the date of such Early Release Event).
For the avoidance of doubt, the time period in respect of which any Release Threshold is calculated may run concurrently with (and/or may overlap any portion of such period with) the time periods in respect of which any other Release Thresholds are calculated (and need not run consecutively), so that multiple tranches of Lock-Up Shares may be released for Transfer (and become no longer subject to the Transfer restrictions) concurrently with respect to the same period (or with respect to any such overlap between multiple time periods) in connection with the satisfaction of the Second Lock-Up Release Threshold or Third Lock-Up Release Threshold.
(d) The share certificates (if any are issued) representing the Lock-Up Shares shall be stamped or otherwise imprinted with, and each book-entry account evidencing any Lock-Up Shares must bear, a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER, DIVIDENDS AND OTHER RIGHTS SET FORTH IN SECTION 9 OF THE SPONSOR SUPPORT AGREEMENT, DATED AS OF OCTOBER 27, 2025, BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN, AS AMENDED FROM TIME TO TIME. A COPY OF SUCH SPONSOR SUPPORT AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(e) PubCo will cause its transfer agent to remove such legend as promptly as practicable, but in any event within three (3) Business Days, following the expiration of the Lock-Up Period (with respect to all or any portion of Lock-Up Shares, as applicable).
(f) This Section 9 shall supersede Section 6 of the Insider Letter, which Section 6 of the Insider Letter (other than Section 6(b) with respect to the Private Placement Shares) shall be of no further force or effect upon the beginning of the Lock-up Period.
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10. Representationsand Warranties of Sponsor. Except as set forth in the SEC Reports or in any Schedule 13D, or any amendment thereto, filed by Sponsor with the SEC that are available prior to the date of this Agreement on the SEC’s website through EDGAR ((it being acknowledged that nothing disclosed in such SEC Reports or Schedule 13D (or any amendment thereto) will be deemed to modify or qualify the representations and warranties set forth in Sections 10(a), (c) and (f)), Sponsor represents and warrants to the Company and to PubCo, as follows:
(a) Authorization. Sponsor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement by Sponsor and the consummation by Sponsor of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Sponsor and no other proceedings on the part of Sponsor or Sponsor’s equityholders are necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby except as have been obtained prior to the date of this Agreement. This Agreement has been duly and validly executed and delivered by Sponsor, and assuming the due execution and delivery by the Company, PubCo and SPAC, constitutes the legal, valid and binding obligation of Sponsor, enforceable against Sponsor in accordance with its terms, subject to the Enforceability Exceptions.
(b) Consents and Approvals; No Violations.
(i) The execution, delivery and performance of this Agreement by Sponsor and the consummation by Sponsor of the transactions contemplated hereby do not and will not require any filing or registration with, notification to, or authorization, permit, license, declaration, Order, Consent of, or other action by or in respect of, any Governmental Authority or Nasdaq on the part of Sponsor.
(ii) The execution, delivery and performance by Sponsor of this Agreement and the consummation by Sponsor of the transactions contemplated by this Agreement do not and will not (A) conflict with or violate any provision of the Organizational Documents of Sponsor, (B) conflict with or violate any Law applicable to Sponsor or by which any property or asset of Sponsor is bound, (C) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any benefit under, or result in the triggering of any payments pursuant to, any of the terms, conditions or provisions of any Contract to which Sponsor is a party or by which any of Sponsor’s properties or assets are bound or any Law applicable to Sponsor or Sponsor’s properties or assets, or (D) result in the creation of any Lien on any property or asset of Sponsor, except in the case of clauses (B), (C) and (D) above as would not reasonably be expected, either individually or in the aggregate, to impair in any material respect the ability of Sponsor to timely perform its obligations hereunder or consummate the transactions contemplated hereby.
(c) Ownership of Founder Shares and Private Placement Shares. As of the date of this Agreement, (i) Sponsor is the sole record and beneficial owner of the Founder Shares and the Private Placement Shares, free and clear of all Liens (other than Liens arising under applicable securities Laws, this Agreement and the Insider Letter), (ii) Sponsor has the sole voting power with respect to the Founder Shares and the Private Placement Shares, (iii) Sponsor has not entered into any voting agreement (other than this Agreement and the Insider Letter) with or granted any Person any proxy (revocable or irrevocable) with respect to the Founder Shares and the Private Placement Shares, (iv) there is no limitation on Sponsor’s ability to sell or otherwise dispose of the Founder Shares and the Private Placement Shares other than restrictions arising under applicable securities Laws, this Agreement and the Insider Letter, (v) the Founder Shares and the Private Placement Shares are the only equity securities in SPAC owned of record by Sponsor and (vi) Sponsor does not hold or own any rights to acquire (directly or indirectly) any Equity Interests of SPAC or any Equity Interests convertible into, or which can be exchanged for, Equity Interests of SPAC, other than as set forth in this Agreement or the Sponsor Loan, the Sponsor Note or as described in the SEC Reports.
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(d) Contracts with SPAC. Except for the Contracts described in Section 6(c) or otherwise disclosed in the SPAC Disclosure Schedules, none of Sponsor or any of the Affiliates of Sponsor is a party to, or has any rights with respect to or arising from, any Contract with SPAC. For the purposes of this Agreement, “Knowledge” of Sponsor shall have the meaning ascribed thereto in clause (c) of such definition under the BCA, applied to Sponsor as if it had been a Party thereunder, mutatis mutandis.
(e) Litigation. There is no Action pending, or, to the Knowledge of Sponsor, threatened Action against Sponsor, or, to the Knowledge of Sponsor, any of its directors, managers, officers or employees (in their capacity as such) or otherwise affecting Sponsor or its assets, including any condemnation or similar proceeding, nor is any Order outstanding against or involving Sponsor, whether at law or in equity, before or by any Governmental Authority, which would reasonably be expected to (i) have a Material Adverse Effect (as defined below) on Sponsor or (ii) impair in any material respect the ability of Sponsor to timely perform its obligations hereunder or consummate the transactions contemplated hereby. There is no unsatisfied judgment or open injunction binding upon Sponsor that would, individually or in the aggregate, reasonably be expected to (i) have a Material Adverse Effect on Sponsor or (ii) impair in any material respect the ability of Sponsor to timely perform its obligations hereunder or consummate the transactions contemplated hereby. There is no Action that Sponsor has pending against any other Person. Sponsor is not subject to any Governmental Orders of any Governmental Authority, nor are any such Governmental Orders pending. For the purposes of this Agreement, a “Material Adverse Effect” shall mean a SPAC Material Adverse Effect as applied to Sponsor, this Agreement and the Transactions contemplated hereby, mutatis mutandis.
(f) Finders and Brokers. Except as set forth on Section 4.15 of the SPAC Disclosure Schedules, no broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission from Sponsor, SPAC, the Company or PubCo, or any of their respective Affiliates, in connection with the Transactions based upon arrangements made by or on behalf of Sponsor, SPAC or any of their respective Affiliates.
(g) Acknowledgment. Sponsor understands and acknowledges that each of SPAC, the Company and PubCo is entering into the BCA in reliance upon Sponsor’s execution and delivery of this Agreement.
11. FurtherAssurances. Sponsor hereby agrees that it shall, from time to time, (a) execute and deliver, or cause to be executed and delivered, such Ancillary Documents as may be necessary to satisfy any condition to the SPAC Closing under the BCA, in substantially the form previously provided to Sponsor as of the date of this Agreement, and (b) undertake commercially reasonable efforts to (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments, and (ii) take, or cause to be taken, such actions, and do, or cause to be done, and assist and cooperate with the other parties in doing such things, in each case, as are reasonably necessary for the purpose of effectively carrying out the Transactions.
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12. OtherCovenants.
(a) Binding Effect of the BCA. Sponsor hereby acknowledges that it has read the BCA and this Agreement and has had the opportunity to consult with its tax and legal advisors. Sponsor hereby agrees (i) to be bound by and comply with Sections 7.9 (No Solicitation), 7.15 (Public Announcements) and 7.16 (Confidential Information) of the BCA (and any relevant definitions contained in any such Sections of the BCA) as if Sponsor was an original signatory to the BCA with respect to such provisions to the same extent as such provisions apply to SPAC, and (ii) that Sponsor shall provide to (A) SPAC and its Representatives any information regarding Sponsor or the Sponsor Shares that is reasonably requested by SPAC or its Representatives and is required in order for SPAC to comply with Sections 7.6 (SPACPublic Filings), 7.12 (Regulatory Approvals), 7.13 (Further Assurances) and 7.14 (The Registration Statement) of the BCA (and any relevant definitions contained in any such Sections of the BCA) and (B) to Pubco and its Representatives any information regarding Sponsor or the Sponsor Shares that is reasonably requested by Pubco or its Representatives and is required in order for Pubco to comply with Section 7.14 (The Registration Statement) of the BCA (and any relevant definitions contained in any such Sections of the BCA).
(b) Disclosure. Sponsor hereby authorizes PubCo and SPAC to publish and disclose in any announcement or disclosure, in each case, required by the SEC, Nasdaq or any other Qualified Stock Exchange, as applicable (including all documents and schedules filed with the SEC in connection with the foregoing, including the Proxy/Registration Statement), Sponsor’s identity and ownership of the SPAC Ordinary Shares and the nature of Sponsor’s commitments and agreements under this Agreement, the BCA, the Ancillary Documents and any other agreements to the extent such disclosure is required by applicable securities Laws, the SEC, Nasdaq or any other Qualified Stock Exchange, as applicable; provided that the content of any such disclosure shall require the prior written consent of Sponsor (not to be unreasonably withheld, delayed or conditioned).
13. Waiverof Dissenters’ Rights. Sponsor hereby irrevocably and unconditionally waives, and agrees to cause to be waived and not to exercise or assert, any dissenters’ rights under Section 238 of the Cayman Act and any other similar statute in connection with the SPAC Merger, the BCA and the Transactions.
14. General.
(a) Termination. This Agreement shall terminate on the earlier to occur of (i) the mutual written agreement signed by each of the parties hereto, (ii) the SPAC Closing; provided that all provisions of this Agreement relating to the Earnout Shares shall continue until such time that none of the Earnout Shares remain subject to the terms and conditions of Section 8 and all the provisions relating to the Lock-Up Shares shall continue until such time that none of the Lock-Up Shares remain subject to the terms and conditions of Section 9, or (iii) at such time, if any, as the BCA is terminated in accordance with its terms prior to the SPAC Closing (the earliest of (i), (ii) and (iii), the “Expiration Time”), and upon such termination this Agreement shall be null and void and of no effect whatsoever, and the parties hereto shall have no obligations under this Agreement; provided, however, that no termination of this Agreement shall relieve or release a party from any obligations or liabilities for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such party, in either case, prior to termination of this Agreement. Notwithstanding the foregoing, Sections 2, 4, 5, 6, 11 and this Section 14 shall survive any termination of this Agreement pursuant to clause (ii) of the immediately preceding sentence in accordance with their terms.
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(b) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery (a) in person, (b) by email (without receiving notice of non-receipt or other “bounce-back”), (c) by reputable, nationally recognized overnight courier service or (d) by registered or certified mail, pre-paid and return receipt requested; provided, however, that notice given pursuant to clauses (c) and (d) above shall not be effective unless a duplicate copy of such notice is also given in person or by email (without receiving notice of non-receipt or other “bounce-back”); in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
| if to SPAC (prior to the SPAC Closing), to it at: | |
|---|---|
| Cantor Equity Partners II, Inc. | |
| 110 East 59th Street | |
| New York, NY 10022 | |
| Attention: | Chief Executive Officer |
| Email: | [***] |
| if to Sponsor, to it at: | |
| Cantor EP Holdings II, LLC | |
| 110 East 59th Street | |
| New York, NY 10022 | |
| Attention: | Chief Executive Officer |
| Email: | [***] |
| if to the Company, PubCo or, after the SPAC Closing, SPAC, to it at: | |
| c/o Securitize, Inc. | |
| 78 SW 7th Steet | |
| Miami, FL 33130 | |
| Attention: | Carlos Domingo |
| Email: | [***] |
(c) Entire Agreement. This Agreement (together with the other Ancillary Documents, the BCA and each of the other documents and the instruments referred to herein, to the extent incorporated herein) embody the entire agreement and understanding of the parties in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the parties to this Agreement with respect to the subject matter contained herein.
(d) Waiver of Claims Against Trust; Governing Law; Jurisdiction; Specific Performance. Sections 10.1, 11.6 and 11.7 of the BCA shall apply to this Agreement mutatis mutandis.
(e) Remedies. The rights, powers, privileges and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers, privileges or remedies provided by Law except as otherwise expressly provided. Nothing in this Section 14(e) shall have the effect of excluding or limiting any liability for or remedy in respect of a Fraud Claim.
(f) Amendment. Subject to the provisions of applicable Law, this Agreement may be amended, supplemented or modified only (a) prior to the SPAC Closing, by execution of a written instrument signed by each of PubCo, the Company, SPAC, SPAC Merger Sub and Company Merger Sub and (b) after the SPAC Closing, by execution of a written instrument signed by PubCo and Sponsor.
(g) Waiver. The observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the party against whom enforcement of such waiver is sought. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
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(h) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable by any court of competent jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(i) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure solely to the benefit of the parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise (a) prior to the SPAC Closing without the prior written consent of SPAC, PubCo, and the Company and (b) after the SPAC Closing without the prior written consent of Sponsor. Any assignment without such consent shall be null and void; provided, that in the event that Sponsor transfers any of the Founder Shares or the Private Placement Shares to any Permitted Transferee, Sponsor shall, by providing notice to SPAC and the Company prior to such transfer, transfer its rights and obligations under this Agreement with respect to such Founder Shares and/or Private Placement Shares to such Permitted Transferee so long as such Permitted Transferee (other than a Permitted Transferee pursuant to Section 6(c)(vi) of the Insider Letter) agrees in writing to be bound by the terms and conditions of this Agreement. Any purported assignment in violation of this Section 14(h) shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on the undersigned and their respective successors and permitted assigns.
(j) Costs and Expenses. Subject to Section 11.5 of the BCA, each party hereto will pay its own costs and expenses (including legal, accounting and other fees) relating to the negotiation, execution, delivery and performance of this Agreement.
(k) No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the parties hereto. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Without in any way limiting the rights or obligations of any party hereto under this Agreement, prior to the SPAC Closing, (i) no party shall have the power by virtue of this Agreement to control the activities and operations of any other and (ii) no party shall have any power or authority by virtue of this Agreement to bind or commit any other party. No party shall hold itself out as having any authority or relationship in contravention of this Section 14(k).
(l) Capacity as Shareholder. Sponsor signs this Agreement solely in its capacity as a shareholder of SPAC, and not in its capacity as a director (including “director by deputization”), officer or employee of SPAC, if applicable. Nothing herein shall be construed to (i) restrict, limit, prohibit or affect any actions or inactions by Sponsor or any representative of Sponsor, as applicable, serving in the capacity of a director or officer of SPAC, acting in such Person’s capacity as a director or officer of SPAC (it being understood and agreed that the BCA contains provisions that govern the actions or inactions by the directors and officers of SPAC with respect to the Transactions) or (ii) prohibit, limit or restrict the exercise of any fiduciary duties as director or officer of SPAC that is otherwise permitted by, and done in compliance with, the terms of the BCA (and in each case of clauses (i) and (ii), without limiting Sponsor’s obligations hereunder in its capacity as a shareholder of SPAC).
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(m) Affiliates. In this Agreement, the term “Affiliates,” when used with respect to a particular Person, means any other Person directly or indirectly controlling, controlled by or under common control with such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made, whether through one or more intermediaries or otherwise, and the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise. Notwithstanding the foregoing, (i) Affiliates of Sponsor shall only include Cantor Fitzgerald & Co. and Persons directly or indirectly controlled by Cantor Fitzgerald & Co., and Sponsor and SPAC (and each of their respective Affiliates) shall be deemed not to be Affiliates of each other for purposes of this Agreement and (ii) no private investment fund (or similar vehicle) or business development company, or any other investment account, fund, vehicle or other client advised or sub-advised by Sponsor or by Sponsor’s Affiliates or any portfolio companies thereof shall be deemed to be an Affiliate of Sponsor, except to the extent any such Person is expressly requested or directed by Sponsor to take any action which would constitute a breach of this Agreement if taken by Sponsor, and such Person actually takes such prohibited action (it being understood and agreed that this Agreement shall not otherwise apply to, or be binding on, any Persons described in this clause (ii)).
(n) No Recourse. Neither SPAC nor any of the past, present or future SPAC Shareholders (other than Sponsor or any Permitted Transferee thereof), nor any director, officer, employee, member, partner, shareholder or other owner (whether direct or indirect), Affiliate, agent, attorney or representative of Sponsor, shall have any obligation or liability for the obligations or liabilities of Sponsor under this Agreement. Without limiting the foregoing, this Agreement may only be enforced against the persons or entities that have executed and delivered a counterpart to this Agreement.
(o) Headings; Interpretation. The headings and subheadings 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. In this Agreement, unless the context otherwise requires: (i) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) the term “including” (and with correlative meaning “include”) shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “hereof,” “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; (iv) the term “or” means “and/or”; (v) the word “extent” in the phrase “to the extent” means the degree to which a subject or thing extends, and such phrase shall not simply mean “if”; and (vi) references to “written” or “in writing” include in electronic form. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. All references in this Agreement to shares of the SPAC being forfeited shall take effect as surrenders for no consideration of such shares as a matter of Cayman Islands law.
(p) Counterparts. This Agreement may be executed in two or more counterparts, and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document, but all of which together shall constitute one and the same instrument. Copies of executed counterparts of this Agreement transmitted by electronic transmission (including by email or in .pdf format) or facsimile as well as electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered original executed counterparts of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Sponsor Support Agreement as of the date first written above.
| SPONSOR: | |
|---|---|
| CANTOR EP HOLDINGS II, LLC | |
| By: | /s/ Brandon Lutnick |
| Name: | Brandon Lutnick |
| Title: | Chief Executive Officer |
| SPAC: | |
| CANTOR EQUITY PARTNERS II, INC. | |
| By: | /s/ Brandon Lutnick |
| Name: | Brandon Lutnick |
| Title: | Chief Executive Officer |
[Signature Page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Sponsor Support Agreement as of the date first written above.
| COMPANY: | |
|---|---|
| SECURITIZE, INC. | |
| By: | /s/ Carlos Domingo |
| Name: | Carlos Domingo |
| Title: | Chief Executive Officer |
| PUBCO: | |
| SECURITIZE HOLDINGS, INC. | |
| By: | /s/ Carlos Domingo |
| Name: | Carlos Domingo |
| Title: | President & Chief Executive Officer |
[Signature Page to Sponsor Support Agreement]
Annex A
Form of Joinder Agreement
This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “JoiningParty”) in accordance with the Sponsor Support Agreement, dated as of [ ], 2025 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), by and among Cantor EP Holdings II, LLC, a Delaware limited liability company (“Sponsor”), Cantor Equity Partners II, Inc., a Cayman Islands exempted company (“SPAC”), Securitize, Inc., a Delaware corporation (the “Company”), and Securitize Holdings, Inc., a Delaware corporation (“PubCo”). Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Agreement.
The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to Section 8 of the Agreement as if it were the “Sponsor” thereunder as of the date hereof and shall have all of the rights and obligations of Sponsor with respect to Section 8 of the Agreement as if it had executed the Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this Joinder Agreement as of the date written below.
| Date: | ||
|---|---|---|
| By: | ||
| Name: | ||
| Title: | ||
| Address for Notices: | ||
| With copies to: |
[Annex A to Sponsor Support Agreement]
Exhibit 10.3
FINAL FORM
Form of Lock-Up Agreement
THIS LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of [●], 2026 by and between Securitize Holdings, Inc., a Delaware corporation (“Pubco”), and the undersigned (“Holder”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement (as defined below).
WHEREAS, the Company, Cantor Equity Partners II, Inc., a Cayman Islands exempted company (“SPAC”), Senna Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of SPAC (“Company Merger Sub”) and Pinecrest Merger Sub, a Cayman Islands exempted company wholly-owned subsidiary of the Company, have entered into a Business Combination Agreement, dated as of October 27, 2025 (as amended from time to time on or prior to the date hereof, the “Business Combination Agreement”) pursuant to which, among other things: (i) SPAC will merge with and into SPAC Merger Sub, with SPAC Merger Sub continuing as the surviving company and a direct wholly owned Subsidiary of Pubco (the “SPAC Merger”) and (ii) Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation and a direct wholly owned subsidiary of Pubco (the “Company Merger”, and together with the SPAC Merger, the “Mergers”);
WHEREAS, following the closing of the Mergers (the “Closing”), the Holder will be a holder of shares of Pubco Common Stock, par value $0.0001 (“Pubco Stock”), in the amount as set forth underneath Holder’s name on the signature page hereto; and
WHEREAS, pursuant to the Business Combination Agreement and the transactions contemplated thereby and the Ancillary Documents, and in view of the valuable consideration to be received by Holder thereunder, the receipt and sufficiency of which is hereby acknowledged, the parties hereto desire to set forth herein certain understandings between such parties with respect to restrictions on transfer of any shares of Pubco Stock held by Holder immediately after the Closing and any other securities convertible into or exercisable or exchangeable for Pubco Stock held by Holder immediately after the Closing (collectively, the “Restricted Securities”).
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:
| 1. | Lock-Up Provisions. |
|---|
(a) Holder hereby agrees not to, without the prior written consent of Pubco, during the period commencing from the Closing Date and ending on the earlier of (i) the date that is one hundred and eighty (180) days from the Closing Date and (ii) with respect to all or a portion of the Restricted Securities (as applicable), on such earlier date of release as may be permitted in accordance with Section 1(b) below (the period beginning on the Closing Date and ending upon the earlier of clause (i) and (ii) being, the “Lock-Up Period”): (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidation with respect to or decrease a call equivalent position within the meaning of Section 16 of the Securities and Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any Restricted Securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Restricted Securities, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) publicly announce the intention to effect any transaction specified in clause (i) or (ii) (any of the foregoing described in clauses (i), (ii) or (iii), a “Prohibited Transfer”). The foregoing sentence shall not apply to the transfer of any or all of the Restricted Securities owned by Holder (each, a “Permitted Transfer”): (I) in the case of an entity, transfers (A) to another entity that is an Affiliate of the Holder, (B) as part of a distribution to members, partners or stockholders of Holder and (C) to officers or directors of Holder, any Affiliate or family member of any of Holder’s officers or directors, or to any members, officers, directors or employees of Holder or any of its Affiliates; (II) in the case of an individual, transfers by gift to members of the individual’s immediate family or to a trust, the beneficiary of which is a member of one of the individual’s immediate family, an Affiliate of such person; (III) transfers to a charitable organization; (IV) in the case of an individual, transfers by virtue of laws of descent and distribution upon death of the individual; (V) in the case of an individual, transfers pursuant to a qualified domestic relations order; (VI) in the case of an entity, transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; (VII) transfers to satisfy any U.S. federal, state, or local income tax obligations of Holder (or its direct or indirect owners) to the extent necessary to cover any tax liability as a direct result of the Transactions; (VIII) transactions relating to Pubco Stock acquired in open market transactions after the Closing, provided, that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the Lock-Up Period; (IX) the exercise of any options to purchase Pubco Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options permit exercises on a cashless basis), but for the avoidance of doubt, any Pubco Stock received upon exercise of options, shall remain subject to the restrictions of this Agreement during the Lock-Up Period; (X) Transfers to Pubco to satisfy tax withholding obligations pursuant to Pubco’s equity incentive plans or arrangements; (XI) the establishment, at any time after the Closing, by a Holder of a trading plan providing for the sale of Pubco Stock that meets the requirements of Rule 10b5-1(c) under the Exchange Act (a “Trading Plan”); provided, however, that no sales of Restricted Securities shall be made by such Holder pursuant to such Trading Plan during the Lock-Up Period and no public announcement or filing is voluntarily made regarding such plan during the Lock-Up Period; [or] (XII) transfers made in connection with a liquidation, merger, share exchange or other similar transaction that results in all of Pubco’s stockholders having the right to exchange their Pubco Stock for cash, securities or other property subsequent to the Closing Date; [or (XIII) a pledge of a number of shares of Pubco Stock with a market value equal to no more than [$10.0 million] (calculated based on the [[volume weighted average/closing price] of a share of Pubco Stock on the principal exchange on which such securities are then listed or quoted (as reported on Bloomberg) as of or for the period required under the applicable lending agreement] in a transaction as collateral to secure his obligations in respect of the advance of cash to payoff the [CEO Promissory Note (including any amendments)] on the Closing Date between Holder (or his Affiliates), on the one hand, and a third party, on the other hand, for the benefit of such Holder and/or his Affiliates; provided, however, that during the Lock-Up Period such third party shall not be permitted to foreclose upon such Pubco Stock or otherwise be entitled to enforce its rights or remedies with respect to the Pubco Stock, including, without limitation, the right to vote, transfer or take title to or ownership of such Pubco Stock]^1^; provided*,* however, that it shall be a condition to any Permitted Transfer pursuant to clauses (I) through (VII) above that the transferee (a “RestrictedPermitted Transferee”) executes and delivers to Pubco an agreement stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to Holder, and there shall be no further transfer of such Restricted Securities except in accordance with this Agreement. Holder further agrees to execute such agreements as may be reasonably requested by Pubco that are consistent with the foregoing or that are necessary to give further effect thereto. The restrictions set forth herein shall not restrict Holder from making a request for inclusion of its Restricted Securities in any registration statement pursuant to any registration rights agreement between Pubco and the Holder, provided that no public filing or public disclosure relating to such sale of securities is made during the Lock-Up Period.
| ^1^ | To be included for C. Domingo lock up only. |
|---|
2
| (b) | A number of Restricted Securities shall be released and no longer subject to the transfer restrictions set forth in Section 1(a),<br>in each case in the amounts and as otherwise set forth below (provided that with respect to the determination of whether any Release Threshold<br>has been met, the thirty (30) Trading Day period used in any such determination may not commence until ninety (90) days after the Closing<br>Date (the period from the ninetieth (90th) day after the Closing Date to the end of the Lock-Up Period, the “Lock-Up TradingMeasurement Period”): |
|---|---|
| (i) | one-third (1/3) of the Restricted Securities held by a Holder will be released for transfer immediately if the volume weighted average<br>price of a share of Pubco Stock on the principal exchange on which such securities are then listed or quoted (as reported on Bloomberg)<br>is at or above $15.00 (the “First Lock-Up Release Threshold”) for any twenty (20) Trading Days (which need not<br>be consecutive) over a thirty (30) Trading Day period at any time during the Lock-Up Trading Measurement Period; |
| --- | --- |
| (ii) | one-third (1/3) of the Restricted Securities held by a Holder will be released for transfer immediately if the volume weighted average<br>price of a share of Pubco Stock on the principal exchange on which such securities are then listed or quoted (as reported on Bloomberg)<br>is at or above $17.50 (the “Second Lock-Up Release Threshold”) for twenty (20) Trading Days (which need not<br>be consecutive) over a thirty (30) Trading Day period at any time during the Lock-Up Trading Measurement Period; |
| --- | --- |
| (iii) | one-third (1/3) of the Restricted Securities held by a Holder will be released for transfer immediately if the volume weighted average<br>price of a share of Pubco Stock on the principal exchange on which such securities are then listed or quoted (as reported on Bloomberg)<br>is at or above $20.00 (the “Third Lock-Up Release Threshold” and, together with the First Lock-Up Release Threshold<br>and the Second Lock-Up Release Threshold, the “Release Thresholds”) for twenty (20) Trading Days (which need not<br>be consecutive) over a thirty (30) Trading Day period at any time during the Lock-Up Trading Measurement Period; and |
| --- | --- |
| (iv) | if an Early Release Event occurs during the Lock-Up Period, then all of the Restricted Securities that have not been released for<br>transfer shall be released for transfer immediately and no longer be subject to the transfer restrictions in Section 1(a), effective<br>immediately prior to the consummation of such Early Release Event (and, for the avoidance of doubt, in such case the Lock-Up Period shall<br>expire on the date of such Early Release Event). An “Early Release Event” means, any of the following: (1) if<br>Pubco is merged, consolidated or reorganized with or into another Person, except for any such merger or consolidation in which the shares<br>of Pubco Stock outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged<br>for shares of capital stock that represent, immediately following such merger or consolidation, a majority, by voting power, of the capital<br>stock of the surviving or resulting corporation (or of a parent company thereof); (2) Pubco sells, leases, assigns, transfers, licenses<br>or otherwise disposes of, in one or a series of related transactions, all or substantially all of the assets of Pubco and its Subsidiaries,<br>taken as a whole, or the sale or disposition (whether by merger or otherwise) of one or more Subsidiaries of Pubco if substantially all<br>of the assets of Pubco and its Subsidiaries taken as a whole are held by such Subsidiaries, except where such sale, lease, transfer, exclusive<br>license or other disposition is to a wholly-owned subsidiary of Pubco; (3) if Pubco shall engage in a “going private” transaction<br>pursuant to Rule 13e-3 under the Exchange Act or otherwise ceases to be subject to reporting obligations under Sections 13 or 15(d) of<br>the Exchange Act; or (4) if Pubco Stock (or any common or ordinary equity security that is the successor to such share of Pubco Stock)<br>shall cease to be listed on a national securities exchange. |
| --- | --- |
For the avoidance of doubt, the time period in respect of which any Release Threshold is calculated may run concurrently with (and/or may overlap any portion of such period with) the time periods in respect of which any other Release Thresholds are calculated (and need not run consecutively), so that multiple tranches of Restricted Securities may be released for transfer (and become no longer subject to the Transfer restrictions) concurrently with respect to the same period (or with respect to any such overlap between multiple time periods) in connection with the satisfaction of the Second Lock-Up Release Threshold or Third Lock-Up Release Threshold.
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| (c) | If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall<br>be null and void ab initio, and Pubco shall refuse to recognize any such purported transferee of the Restricted Securities as one<br>of its equity holders for any purpose. In order to enforce this Section 1, Pubco may impose stop-transfer instructions with respect<br>to the Restricted Securities of Holder (and each Restricted Permitted Transferee and assigns thereof) until the end of the Lock-Up Period. |
|---|---|
| (d) | During the Lock-Up Period, each certificate evidencing any Restricted Securities shall be stamped or otherwise imprinted with a legend<br>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 LOCK-UP AGREEMENT, DATED AS OF [●], 2026, BY AND BETWEEN THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN, AS AMENDED. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
| (e) | For the avoidance of any doubt, Holder shall retain all of its rights as a stockholder of Pubco during the Lock-Up Period, including<br>the right to vote any Restricted Securities. |
|---|---|
| 2. | Miscellaneous. |
| --- | --- |
| (a) | Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit<br>of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal<br>to Holder and may not be transferred or delegated by Holder at any time without the prior written consent of Pubco in accordance with<br>Section 2(g), except in accordance with the procedures set forth for transfers of Restricted Securities to Restricted Permitted<br>Transferees in Section 1(a), and any such purported transfer shall be null and void. Pubco may freely assign any or all of its<br>rights under this Agreement, other than the Sponsor’s rights under Section 2(g) in whole or in part, to any successor entity<br>(whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder. |
| --- | --- |
| (b) | Third Parties. Except for the rights of the Sponsor (or its assignee) as provided in Section 2(g), nothing contained<br>in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall<br>create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a party hereto or thereto<br>or a successor or permitted assign of such a party. |
| --- | --- |
| (c) | Governing Law; Jurisdiction; Specific Performance. Sections 11.6 and 11.7 of the Business Combination Agreement shall apply<br>to this Agreement mutatis mutandis. |
| --- | --- |
| (d) | Interpretation. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing<br>or interpreting this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall<br>include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural<br>and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the<br>generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without<br>limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import<br>in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision<br>of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation<br>and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement<br>shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring<br>any party by virtue of the authorship of any provision of this Agreement. |
| --- | --- |
4
| (e) | Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have<br>been duly given when delivered (i) in person, (ii) by electronic means (including email), with affirmative confirmation of receipt, (iii)<br>one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days<br>after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party<br>at the following addresses (or at such other address for a party as shall be specified by like notice): |
|---|---|
| If to Pubco, to: | With<br> copies to (which shall not constitute notice): |
| --- | --- |
| c/o<br> Securitize, Inc. <br><br>78 SW 7th Street<br><br> Miami, FL 33130 <br><br>Attn: Carlos Domingo<br><br> Email: [***] | Davis<br> Polk & Wardwell LLP<br> 450 Lexington Ave<br><br> New York, NY 10017<br> Attention: Joseph A. Hall; Derek Dostal; Daniel P.<br><br> Gibbons<br><br> Email:<br> joseph.hall@davispolk.com;<br><br> derek.dostal@davispolk.com; <br><br>dan.gibbons@davispolk.com |
| If<br> to the Sponsor, to: | With<br> copies to (which shall not constitute notice): |
| --- | --- |
| Cantor<br> EP Holdings II, LLC <br><br>110 East 59th Street<br><br> New York, NY 10022<br> Email: [***] | Hughes<br> Hubbard & Reed LLP <br><br>One Battery Park Plaza, 12^th^ Floor New York, NY 10004 <br><br>Attn: Michael Traube, Javad Husain <br><br>Email:<br> michael.traube@hugheshubbard.com,<br><br> javad.husain@hugheshubbard.com |
| If to Holder, to: the address set forth below Holder’s name on the signature page to this Agreement. | |
| --- | |
| (f) | Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived<br>(either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of Pubco (in accordance<br>with Section 2(g)) and Holder. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof.<br>No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be<br>or construed as a further or continuing waiver of any such term, condition, or provision. |
| --- | --- |
| (g) | Authorization on Behalf of Pubco. The parties acknowledge and agree that notwithstanding anything to the contrary contained<br>in this Agreement, from and after the Closing, any and all determinations, actions or other authorizations under this Agreement on behalf<br>of Pubco with respect to the approval of, or consent to, a Prohibited Transfer during the Lock-Up Period or any amendment or waiver of<br>the Lock-Up Period, including any waivers or amendments of this Agreement or the provisions hereof that have the effect of amending or<br>waiving any of the foregoing terms, shall be made, taken and authorized by, or as directed by Cantor EP Holdings II, LLC, a Delaware limited<br>liability company (the “Sponsor”); provided that the Sponsor may, without being required to<br>obtain the consent of any party hereto, assign all of its rights under this Agreement to any Affiliate of the Sponsor to whom the Sponsor’s<br>shares of Pubco Stock are transferred after the Closing in compliance with any applicable contractual or legal requirements. Without limiting<br>the foregoing, in the event that Holder or Holder’s Affiliate serves as a director, officer, employee or other authorized agent<br>of Pubco or any of its current or future Affiliates, Holder and/or Holder’s Affiliate shall have no authority, express or implied,<br>to act or make any determination on behalf of Pubco or any of its current or future Affiliates in connection with this Agreement or any<br>dispute or Action with respect hereto. The Sponsor is an express third party beneficiary under this Agreement and is entitled to enforce<br>its rights hereunder. When considering any request for a consent to a Prohibited Transfer, if there is sufficient liquidity in PubCo Shares<br>and the price of PubCo Shares exceeds the Per Share Price under the PIPE Subscription Agreements, the Sponsor agrees that it will not<br>withhold consent solely for the purposes of negotiating its affiliate’s economics or participation as a potential underwriter in<br>such transaction. |
| --- | --- |
5
| (h) | Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a court of competent<br>jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the<br>same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way<br>be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other<br>jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties<br>will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may<br>be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision. |
|---|---|
| (i) | Entire Agreement. This Agreement, together with the Business Combination Agreement to the extent referred to herein, constitutes<br>the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or<br>oral agreement relating to the subject matter hereof existing between the parties is expressly canceled; provided, that,<br>for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement<br>or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of Pubco<br>or any of the rights, remedies or obligations of Holder under any other agreement between Holder and Pubco or any certificate or instrument<br>executed by Holder in favor of Pubco, and nothing in any other agreement, certificate or instrument shall limit any of the rights, remedies<br>or obligations of Pubco or any of the rights, remedies or obligations of Holder under this Agreement. |
| --- | --- |
| (j) | Further Assurances. From time to time, at another party’s reasonable request and without further consideration (but at<br>the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all<br>such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement. |
| --- | --- |
| (k) | Counterparts. This Agreement may be executed and delivered (including by electronic signature or by email in portable document<br>form) in two or more counterparts and by the different parties hereto in separate counterparts, each of which when executed shall be deemed<br>to be an original, but all of which taken together shall constitute one and the same agreement. |
| --- | --- |
[Remainder of Page Intentionally Left Blank;Signature Pages Follow]
6
IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
| Pubco: | |
|---|---|
| Securitize Holdings, Inc. | |
| By: | |
| Name: | Carlos Domingo |
| Title: | Chief Executive Officer |
{Additional Signature on the Following Page}
7
IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
| Holder: |
|---|
| Name of Holder: |
| By: |
| --- |
| Name: |
| Title: |
Number and Type of Pubco Stock [or Company Units] Owned:
| Pubco Common Stock: |
|---|
Address for Notice:
| Address: |
|---|
| Facsimile No.: |
| --- |
| Telephone No.: |
| Email: |
8
Exhibit 10.4
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
SECURITIZE HOLDINGS, INC,
CANTOR EQUITY PARTNERS II, INC.
and
THE STOCKHOLDERS THAT ARE SIGNATORIES HERETO
Dated as of [ ], 2026
Tableof Contents
| Page | ||
|---|---|---|
| Section 1. | Certain Definitions | 2 |
| Section 2. | Registration Rights. | 6 |
| 2.1. | Demand Registrations. | 6 |
| 2.2. | Piggyback Registrations. | 11 |
| 2.3. | Allocation of Securities Included in Registration Statement. | 12 |
| 2.4. | Registration Procedures | 14 |
| 2.5. | Registration Expenses. | 20 |
| 2.6. | Certain Limitations on Registration Rights | 21 |
| 2.7. | Limitations on Sale or Distribution of Other Securities | 21 |
| 2.8. | No Required Sale | 21 |
| 2.9. | Indemnification. | 22 |
| 2.10. | No Inconsistent Agreements | 26 |
| Section 3. | Underwritten Offerings. | 26 |
| 3.1. | Requested Underwritten Offerings | 26 |
| 3.2. | Piggyback Underwritten Offerings | 26 |
| Section 4. | General. | 26 |
| 4.1. | Adjustments Affecting Registrable Securities | 26 |
| 4.2. | Rule 144 | 27 |
| 4.3. | Nominees for Beneficial Owners | 27 |
| 4.4. | Amendments and Waivers | 27 |
| 4.5. | Notices | 28 |
| 4.6. | Successors and Assigns | 28 |
| 4.7. | Termination. | 29 |
| 4.8. | Entire Agreement | 29 |
| 4.9. | Governing Law; Jurisdiction; Waiver of Jury Trial. | 29 |
| 4.10. | Interpretation; Construction. | 30 |
| 4.11. | Counterparts | 30 |
| 4.12. | Severability | 30 |
| 4.13. | Specific Enforcement | 30 |
| 4.14. | Further Assurances | 31 |
| 4.15. | Confidentiality | 31 |
| 4.16. | Opt-Out Requests | 31 |
| 4.17. | Original Registration Rights Agreement | 31 |
| Exhibit A | Joinder Agreement | |
| --- | --- |
-i-
AMENDED AND RESTATED REGISTRATIONRIGHTS AGREEMENT, dated as of [ ], 2026 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is made and entered into by and among (i) Securitize Holdings, Inc., a Delaware corporation (the “PubCo”), (ii) Cantor Equity Partners II, Inc., a Cayman Islands exempted company (the “SPAC”), (iii) Cantor EP Holdings II, LLC, a Delaware limited liability company (the “Sponsor”), (iv) each of the undersigned holders listed on the signature pages hereto under the heading “Other Holders” (such persons, the “Other Holders” and together with the Sponsor and their respective Permitted Transferees holding Registrable Securities, and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 4.6 of this Agreement, each a “Holder” and collectively the “Holders”). Capitalized terms used and not otherwise defined herein shall have the same meanings set forth in the Merger Agreement (as defined below).
RECITALS:
WHEREAS, on May 1, 2025 (i) the SPAC and the Sponsor entered into that certain Registration Rights Agreement, dated as of May 1, 2025 (the “Original Registration Rights Agreement”), and (ii) the SPAC, the Sponsor and the then current directors and executive officers of the SPAC entered into that certain letter agreement (the “Insider Letter”);
WHEREAS, on October 27, 2025, PubCo, the SPAC, Senna Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of SPAC (“Company Merger Sub”), Securitize, Inc., a Delaware corporation (the “Company”) and Pinecrest Merger Sub, a Cayman Islands exempted company wholly-owned subsidiary of PubCo, have entered into a Business Combination Agreement (as amended from time to time on or prior to the date hereof, the “Merger Agreement”),
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions thereof, among other things, upon consummation of the transactions contemplated by the Merger Agreement: (i) SPAC will merge with and into SPAC Merger Sub, with SPAC Merger Sub continuing as the surviving company and a direct wholly owned Subsidiary of PubCo (the “SPAC Merger”) and SPAC shareholders receiving one share of Common Stock for each SPAC Class A ordinary share held by such shareholder, (ii) Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation and a direct wholly owned subsidiary of PubCo (the “Company Merger, and together with the SPAC Merger, the “Mergers”), and the Company shareholders receiving shares of Common Stock in exchange for their Company shares in accordance with the terms of the Merger Agreement, and (iii) PubCo will become a public traded company;
WHEREAS, on or prior to the date hereof, each of the Other Holders has entered into a Lock-Up Agreement with PubCo;
WHEREAS, pursuant to Section 5.5 of the Original Registration Rights Agreement, the provisions, covenants, and conditions set forth therein may be amended or modified upon the written consent of SPAC and the holders of at least a majority in interest of the Registrable Securities (as defined in the Original Registration Rights Agreement) at the time in question, and the Sponsor is holder of at least a majority in interest of the Registrable Securities (as defined in the Original Registration Rights Agreement) as of the date hereof; and
1
WHEREAS, SPAC and the Sponsor desire to amend and restate the Original Registration Rights Agreement in its entirety and enter into this Agreement, pursuant to which PubCo shall grant the Holders certain registration rights with respect to certain securities of PubCo as set forth in this Agreement and terminate the Original Registration Rights 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:
Section 1. Certain Definitions. As used herein, the following terms shall have the following meanings:
“Additional Piggyback Rights” has the meaning ascribed to such term in Section 2.3(a).
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with, such Person. For the purposes of this definition “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such specified Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, neither PubCo nor any Person controlled by PubCo shall be deemed to be an Affiliate of any Holder.
“Agreement” has the meaning ascribed to such term in the Preamble.
“Automatic shelf registration statement” has the meaning ascribed to such term in Section 2.4.
“Board” means the Board of Directors of PubCo.
“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.
“Claims” has the meaning ascribed to such term in Section 2.9(a).
“Common Stock” means all shares of common stock of PubCo, par value $0.0001 per share, whether now existing or hereafter authorized, and any class of common stock of PubCo and any and all securities of any kind whatsoever which may be issued after the date hereof in respect of, or in exchange for, such shares of common stock of PubCo pursuant to a merger, consolidation, stock split, stock dividend or recapitalization of PubCo or otherwise.
“Common Stock Equivalents” means all options, warrants and other securities convertible into, or exchangeable or exercisable for (at any time or upon the occurrence of any event or contingency and without regard to any vesting or other conditions to which such securities may be subject), shares of Common Stock (including any note or debt security convertible into or exchangeable for shares of Common Stock).
2
“Company” has the meaning ascribed to such term in the Preamble.
“Company Merger Sub” has the meaning ascribed to such term in the Recitals.
“Confidential Information” has the meaning ascribed to such term in Section 4.15.
“Demand Exercise Notice” has the meaning ascribed to such term in Section 2.1(b)(i).
“Demand Registration” has the meaning ascribed to such term in Section 2.1(b)(i).
“Demand Registration Period” has the meaning ascribed to such term in Section 2.1(b)(i).
“Demand Registration Request” has the meaning ascribed to such term in Section 2.1(b)(i).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC issued under such Act, as they may from time to time be in effect.
“Expenses” means any and all fees and expenses incident to PubCo’s performance of or compliance with Section 2, regardless of whether or not such registration is effected, or withdrawn, including: (i) SEC, stock exchange, FINRA and all other registration and filing fees and all listing fees and fees with respect to the inclusion of securities on the Nasdaq or on any other U.S. or non-U.S. securities market on which the Registrable Securities are listed or quoted, (ii) fees and expenses of compliance with state securities or “blue sky” laws of any state or jurisdiction of the United States or compliance with the securities laws of foreign jurisdictions and in connection with the preparation of a “blue sky” survey, including reasonable fees and expenses of outside “blue sky” counsel and securities counsel in foreign jurisdictions, (iii) word processing, printing and copying expenses, (iv) messenger and delivery expenses, (v) expenses incurred in connection with any road show, (vi) fees and disbursements of counsel for PubCo, (vii) with respect to each registration or underwritten offering, the reasonable fees and disbursements of one counsel for the Initiating Holder and one counsel for all other Participating Holder(s) collectively (selected by the holders of a majority of the Registrable Securities held by such other Participating Holder(s)), together in each case with any local counsel, provided that expenses payable by PubCo pursuant to this clause (vii) shall not exceed (1) $300,000 for the first registration pursuant to this Agreement and (2) $200,000 for each subsequent registration, (viii) fees and disbursements of all independent public accountants (including the expenses of any opinion and/or audit/review and/or “comfort” letter and updates thereof) and fees and expenses of other Persons, including special experts, retained by PubCo, (ix) fees and expenses payable to a Qualified Independent Underwriter (but expressly excluding any underwriting discounts and commissions), (x) fees and expenses of any transfer agent or custodian, (xi) any other fees and disbursements of underwriters, if any, customarily paid by issuers or sellers of securities, including reasonable fees and expenses of counsel for the underwriters in connection with any filing with or review by FINRA (but expressly excluding any underwriting discounts and commissions) and (xii) rating agency fees and expenses.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Holders” has the meaning ascribed to such term in the Preamble.
“Insider Letter” has the meaning ascribed to such term in the Recitals hereto.
3
“Initiating Holders” means the Holders initiating a demand request.
“Joinder Agreement” means a writing in the form set forth in Exhibit A hereto whereby a new Holder of Registrable Securities becomes a party to, and agrees to be bound, to the same extent as its transferor, as applicable, by the terms of this Agreement.
“Lock-Up Agreement” has the meaning ascribed to such term in the Recitals hereto.
“Majority Participating Holders” means Participating Holders holding more than 50% of the Registrable Securities proposed to be included in any offering of Registrable Securities by such Participating Holders pursuant to Section 2.1 or Section 2.2.
“Manager” means the lead managing underwriter of an underwritten offering.
“Merger Agreement” has the meaning ascribed to such term in the Recitals.
“Mergers” has the meaning ascribed to such term in the Recitals.
“Minimum Threshold” means $100.0 million.
“Opt-Out Request” has the meaning ascribed to such term in Section 4.16.
“Other PubCo Shareholders” means all holders of Common Stock and Common Stock Equivalents of PubCo as of closing of the Mergers other than (i) the Holders that are parties hereto and (ii) those holders of Common Stock as a result of the closing of that certain “PIPE” investment under subscription agreements entered into on or around October 27, 2025.
“Participating Holders” means all Holders of Registrable Securities which are proposed to be included in any offering of Registrable Securities pursuant to Section 2.1 or Section 2.2.
“Permitted Transferees” shall mean (a) prior to the expiration of any applicable lock-up period, any person or entity to whom a Holder is permitted to transfer their Registrable Securities prior to the expiration of the applicable lock-up period pursuant to, as applicable, the Insider Letter, the Sponsor Support Agreement, the Lock-Up Agreement or any other applicable agreement between such Holder, on the one hand, and PubCo or SPAC, on the other hand, and (b) after the expiration of any applicable lock-up period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities.
“Person” means any individual, firm, corporation, company, limited liability company, partnership, trust, joint stock company, business trust, incorporated or unincorporated association, joint venture, governmental authority or other legal entity of any nature whatsoever.
“Piggyback Notice” has the meaning ascribed to such term in Section 2.2(a).
“Piggyback Shares” has the meaning ascribed to such term in Section 2.3(a)(ii).
“Postponement Period” has the meaning ascribed to such term in Section 2.1(c).
“PubCo” has the meaning ascribed to such term in the Preamble.
4
“Qualified Independent Underwriter” means a “qualified independent underwriter” within the meaning of FINRA Rule 5121.
“Registrable Securities” means (a) any shares of Common Stock held by the Holders at any time (including those held as a result of, or issuable upon, the conversion or exercise of Common Stock Equivalents) or any other equity security (including warrants to purchase shares of Common Stock), whether now owned or acquired by the Holders at a later time, (b) any shares of Common Stock or any other equity security (including warrants to purchase shares of Common Stock) issued or issuable, directly or indirectly, in exchange for or with respect to the Common Stock or any other equity security (including warrants to purchase shares of Common Stock) referenced in clause (a) above by way of stock dividend, stock split or combination of shares or in connection with a reclassification, recapitalization, merger, share exchange, consolidation or other reorganization and (c) any securities issued in replacement of or exchange for any securities described in clause (a) or (b) above. For purposes of this Agreement, a Person will be deemed to be a holder of Registrable Securities whenever such Person has the right to acquire, directly or indirectly, such Registrable Securities (including upon conversion, exercise or exchange of any equity interests but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected, and such Person shall not be required to convert, exercise or exchange such equity interests (or otherwise acquire such Registrable Securities) to participate in any registered offering hereunder until the closing of such offering. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (A) a registration statement with respect to the sale of such securities shall have been declared effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (B) such securities shall have been disposed of in compliance with the requirements of Rule 144 (without limitation as to volume or manner of sale), (C) such securities have been sold in a public offering of securities or (D) such securities have ceased to be outstanding.
“Rule 144” have the meaning ascribed to such term in Section 4.2.
“SEC” means the U.S. Securities and Exchange Commission or such other federal agency which at such time administers the Securities Act.
“Section 2.3(a) Sale Number” has the meaning ascribed to such term in Section 2.3(a).
“Section 2.3(b) Sale Number” has the meaning ascribed to such term in Section 2.3(b).
“Section 2.3(c) Sale Number” has the meaning ascribed to such term in Section 2.3(c).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC issued under such Act, as they may from time to time be in effect.
“Shelf Registrable Securities” has the meaning ascribed to such term in Section 2.1(a)(ii).
“Shelf Registration Statement” has the meaning ascribed to such term in Section 2.1(a)(i).
“Shelf Underwriting” has the meaning ascribed to such term in Section 2.1(a)(ii).
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“Shelf Underwriting Initiating Holders” has the meaning ascribed to such term in Section 2.1(a)(ii).
“Shelf Underwriting Notice” has the meaning ascribed to such term in Section 2.1(a)(ii).
“Shelf Underwriting Request” has the meaning ascribed to such term in Section 2.1(a)(ii).
“SPAC Merger Sub” has the meaning ascribed to such term in the Recitals.
“Sponsor” has the meaning ascribed to such term in the Preamble.
“Sponsor Holders” shall mean the Sponsor and its Permitted Transferees who hold Registrable Securities.
“Sponsor Support Agreement” shall mean that certain Sponsor Support Agreement, dated as of October 27, 2025, by and among the Sponsor, SPAC, the Company and PubCo.
“Subsidiary” means any direct or indirect subsidiary of PubCo and/or the Company on the date hereof and any direct or indirect subsidiary of PubCo and/or the Company organized or acquired after the date hereof.
“Underwritten Block Trade” has the meaning ascribed to such term in Section 2.1(a)(ii).
“Valid Business Reason” has the meaning ascribed to such term in Section 2.1(c).
“WKSI” means a “well-known seasoned issuer” (as defined in Rule 405 of the Securities Act).
Section 2. Registration Rights.
2.1. Demand Registrations.
(a) (i) As soon as practicable but no later than thirty (30) calendar days following the closing of the Mergers (the “Filing Date”), PubCo shall prepare and file with the SEC a shelf registration statement under Rule 415 of the Securities Act (such registration statement, a “Shelf Registration Statement”) covering the resale of all the Registrable Securities and all the Common Stock and Common Stock Equivalents of PubCo held by the Other PubCo Shareholders (in each case, determined as of two business days prior to such filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf Registration Statement declared effective as soon as practicable after the filing thereof and no later than the earlier of (x) the ninetieth (90th) calendar day following the Filing Date if the Commission notifies PubCo that it will “review” the Shelf Registration Statement and (y) the third (3^rd^) business day after the date PubCo is notified in writing by the SEC that such Shelf Registration Statement will not be “reviewed” or will not be subject to further review. Such Shelf Registration Statement shall provide for the resale of the Registrable Securities and Common Stock and Common Stock Equivalents of PubCo included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder or Other PubCo Shareholders named therein. PubCo shall maintain the Shelf Registration Statement in accordance with the terms hereof, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf Registration Statement continuously effective, available for use to permit all Holders and Other PubCo Shareholders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as ~~(i)~~(i) there are no longer any Registrable Securities and (ii) no Other PubCo Shareholders hold any Common Stock or Common Stock Equivalents of PubCo held by such Other PubCo Shareholders on the date hereof. In the event PubCo files a Shelf Registration Statement on Form S-1, PubCo shall use its commercially reasonable efforts to convert such Shelf Registration Statement to a Shelf Registration Statement on Form S-3 as soon as practicable after PubCo is eligible to use Form S-3.
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(ii) Subject to Section 2.1(c) and the provisions below with respect to the Minimum Threshold, following the expiration of any applicable lock-up period (or other contractual limitation on the ability to sell shares), each Holder (or Holders) shall have the right at any time and from time to time to elect to sell all or any part of its Registrable Securities pursuant to an underwritten offering pursuant to the Shelf Registration Statement by delivering a written request therefor to PubCo specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof. The Holder or Holders shall make such election by delivering to PubCo a written request (a “Shelf Underwriting Request”) for such underwritten offering specifying the number of Registrable Securities that the Holder or Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). With respect to any Shelf Underwriting Request, the Holder or Holders making such demand shall be referred to as the “Shelf Underwriting Initiating Holders”. As promptly as practicable, but no later than two (2) Business Days after receipt of a Shelf Underwriting Request, PubCo shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to the Holders of record of other Registrable Securities registered on such Shelf Registration Statement (“Shelf Registrable Securities”). PubCo, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities of the Shelf Underwriting Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to PubCo for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within five (5) days after the receipt of the Shelf Underwriting Notice. PubCo shall, as expeditiously as possible (and in any event within fifteen (15) Business Days after the receipt of a Shelf Underwriting Request), but subject to Section 2.1(b), use its reasonable best efforts to effect such Shelf Underwriting. PubCo shall, at the request of any Shelf Underwriting Initiating Holder or any other Holder of Registrable Securities registered on such Shelf Registration Statement, file any prospectus supplement or, if the applicable Shelf Registration Statement is an automatic shelf registration statement, any post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the Shelf Underwriting Initiating Holders or any other Holder of Shelf Registrable Securities to effect such Shelf Underwriting. Notwithstanding anything to the contrary in this Section 2.1(a)(ii), each Shelf Underwriting initiated by Shelf Underwriting Initiating Holders that do not include the Sponsor must include, in the aggregate, Registrable Securities having an aggregate market value of at least the Minimum Threshold (based on the Registrable Securities included in such Shelf Underwriting by all Participating Holders) and each Shelf Underwriting initiated by the Sponsor must include, in the aggregate, (i) Registrable Securities having an aggregate market value of at least $25 million or (ii) the majority of Registrable Securities held by the Sponsor Group. In connection with any Shelf Underwriting (including an Underwritten Block Trade), PubCo shall have the right to designate the Manager and each other managing underwriter in connection with any such Shelf Underwriting or Underwritten Block Trade, subject to Shelf Underwriting Initiating Holders’ reasonable approval. If the Shelf Underwriting involves Registrable Securities having an aggregate market value in excess of $50 mililon, PubCo will use its reasonable efforts to make available senior executives of PubCo to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering. Notwithstanding the foregoing, if a Shelf Underwriting Initiating Holder wishes to engage in an underwritten block trade or similar transaction or other transaction with a 2-day or less marketing period (collectively, “Underwritten Block Trade”) off of a Shelf Registration Statement, then notwithstanding the foregoing time periods, such Shelf Underwriting Initiating Holder only needs to notify PubCo of the Underwritten Block Trade two (2) Business Days prior to the day such offering is to commence and the Holders of record of other Registrable Securities shall not be entitled to notice of such Underwritten Block Trade and shall not be entitled to participate in such Underwritten Block Trade.
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(b) (i) At any time after the first anniversary of the Closing Date that a Shelf Registration Statement as required by Section 2.1(a) is not available for use by the Holders (a “Demand Registration Period”) other than pursuant to Section 2.1~~(c)~~(c), subject to this Section 2.1(b) and Sections 2.1(c) and 2.3) and the provisions below with respect to the Minimum Threshold, at any time and from time to time during such Demand Registration Period, each Initiating Holder (or Initiating Holders) shall have the right to require PubCo to effect one or more registration statements under the Securities Act covering all or any part of its Registrable Securities by delivering a written request therefor to PubCo specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof. Any such request by any Initiating Holder or Initiating Holders pursuant to this Section 2.1(b)(i) is referred to herein as a “Demand Registration Request,” and the registration so requested is referred to herein as a “Demand Registration”. Subject to Section 2.1(c), the Initiating Holders shall be entitled to request (and PubCo shall be required to effect) an unlimited number of Demand Registrations. PubCo shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to each of the Holders of record of Registrable Securities in accordance with Section 2.2, and, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to PubCo for inclusion in such registration pursuant to Section 2.2. Notwithstanding anything to the contrary in this Section 2.1(b)(i), each Demand Registration initiated by Initiating Holders that do not include the Sponsor must include, in the aggregate, Registrable Securities having an aggregate market value of at least the Minimum Threshold (based on the Registrable Securities included in such Demand Registration by all Holders participating in such Demand Registration). In connection with any Demand Registration, PubCo shall have the right to designate the Manager and each other managing underwriter in connection with any underwritten offering pursuant to such registration, subject to the Initiating Holders’ reasonable approval; provided that in each case, each such underwriter is reasonably satisfactory to PubCo, which approval shall not be unreasonably withheld or delayed.
(ii) PubCo shall, as expeditiously as possible, but subject to Section 2.1(c), use its reasonable best efforts to (x) file or confidentially submit with the SEC (no later than (A) sixty (60) days from PubCo’s receipt of the applicable Demand Registration Request if the Demand Registration is on Form S-1 or similar long-form registration and or (B) thirty (30) days from PubCo’s receipt of the applicable Demand Registration Request if the Demand Registration is on Form S-3 or any similar short-form registration), (y) cause to be declared effective as soon as reasonably practicable such registration statement under the Securities Act that includes the Registrable Securities which PubCo has been so requested to register for distribution in accordance with the intended method of distribution, and (z) if requested by the Initiating Holders, obtain acceleration of the effective date of the registration statement relating to such registration.
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(c) Notwithstanding anything to the contrary in Section 2.1(a) or Section 2.1(b), the Shelf Underwriting and Demand Registration rights granted in Section 2.1(a) and Section 2.1(b) are subject to the following limitations: (i) PubCo shall not be required to cause a registration statement filed pursuant to Section 2.1(b) to be declared effective within a period of ninety (90) days after the effective date of any other registration statement of PubCo filed pursuant to the Securities Act (other than a Form S-4, Form S-8 or a comparable form or an equivalent registration form then in effect); (ii) PubCo shall not be required to effect more than two (2) Demand Registrations on Form S-1 or any similar long-form registration statement at the request of the Holders in the aggregate; (iii) if the Board, in its good faith judgment, determines that any registration of Registrable Securities or Shelf Underwriting should not be made or continued because it would materially and adversely interfere with any existing or potential financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving PubCo or any of its subsidiaries or would otherwise result in the public disclosure of information that the Board in good faith has a bona fide business purpose for keeping confidential (a “Valid Business Reason”), then (x) PubCo may postpone filing or confidentially submitting a registration statement relating to a Demand Registration Request or a prospectus supplement relating to a Shelf Underwriting Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than forty-five (45) days after the date the Board determines a Valid Business Reason exists or (y) if a registration statement has been filed or confidentially submitted relating to a Demand Registration Request or a prospectus supplement has been filed relating to a Shelf Underwriting Request, PubCo may, to the extent determined in the good faith judgment of the Board to be reasonably necessary to avoid interference with any of the transactions described above, suspend use of or, if required by the SEC, cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than forty-five (45) days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iv), the “Postponement Period”). PubCo shall give written notice to the Initiating Holders or Shelf Underwriting Initiating Holders and any other Holders that have requested registration pursuant to Section 2.2 of its determination to postpone or suspend use of or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or suspension or withdrawal no longer exists, in each case, promptly after the occurrence thereof; provided, however, that PubCo shall not be entitled to more than two (2) Postponement Periods during any twelve (12) month period.
Each Holder of Registrable Securities agrees that, upon receipt of any notice from PubCo that PubCo has determined to suspend use of, withdraw, terminate or postpone amending or supplementing any registration statement pursuant to clause (c)(iii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If PubCo shall have suspended use of, withdrawn or terminated a registration statement filed under Section 2.1(b)(i) (whether pursuant to clause (c)(iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), PubCo shall not be considered to have effected a Demand Registration for the purposes of this Agreement and such request shall not count as a Demand Registration Request under this Agreement until PubCo shall have permitted use of such suspended registration statement or filed a new registration statement covering the Registrable Securities covered by the withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If PubCo shall give any notice of suspension, withdrawal or postponement of a registration statement, PubCo shall, not later than five (5) Business Days after the Valid Business Reason that caused such suspension, withdrawal or postponement no longer exists (but, with respect to a suspension, withdrawal or postponement pursuant to clause (c)(iii) above, in no event later than forty-five (45) days after the date of the suspension, postponement or withdrawal), as applicable, permit use of such suspended registration statement or use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders or Shelf Underwriting Initiating Holders shall have withdrawn such request, in which case PubCo shall not be considered to have effected a Demand Registration for the purposes of this Agreement and such request shall not count as a Demand Registration Request under this Agreement), and following such permission or such effectiveness such registration shall no longer be deemed to be suspended, withdrawn or postponed pursuant to clause (iv) of Section 2.1(c) above.
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(d) No Demand Registration shall be deemed to have occurred for purposes of Section 2.1(b) (i) if the registration statement relating thereto (x) does not become effective, (y) is not maintained effective for a period of at least one hundred eighty (180) days after the effective date thereof or such shorter period during which all Registrable Securities included in such Registration Statement have actually been sold (provided, however, that such period shall be extended for a period of time equal to the period any Holder of Registrable Securities refrains from selling any securities included in such Registration Statement at the request of PubCo or an underwriter of PubCo), or (z) is subject to a stop order, injunction, or similar order or requirement of the SEC during such period, (ii) for each Initiating Holder, if less than seventy five percent (75%) of the Registrable Securities requested by such Initiating Holder to be included in such Demand Registration are not so included pursuant to Section 2.3, (iii) if the method of disposition is a firm commitment underwritten public offering and less than seventy five percent (75%) of the applicable Registrable Securities have not been sold pursuant thereto (excluding any Registrable Securities included for sale in the underwriters’ overallotment option) or (iv) if the conditions to closing specified in any underwriting agreement, purchase agreement or similar agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a default or breach thereunder by such Initiating Holder(s) or its Affiliates or are otherwise waived by such Initiating Holder(s)).
(e) Any Initiating Holder may withdraw or revoke a Demand Registration Request delivered by such Initiating Holder at any time prior to the effectiveness of such Demand Registration by giving written notice to PubCo of such withdrawal or revocation and such Demand Registration shall have no further force or effect and such request shall not count as a Demand Registration Request under this Agreement.
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2.2. Piggyback Registrations.
(a) If PubCo proposes or is required to register any of its equity securities for its own account or for the account of any other shareholder under the Securities Act (other than pursuant to registrations on Form S-4 or Form S-8 or any similar successor forms thereto), PubCo shall give written notice (the “Piggyback Notice”) of its intention to do so to each of the Holders of record of Registrable Securities, at least five (5) Business Days prior to the filing of any registration statement under the Securities Act. Notwithstanding the foregoing, PubCo may delay any Piggyback Notice until after filing a registration statement, so long as all recipients of such notice have the same amount of time to determine whether to participate in an offering as they would have had if such notice had not been so delayed. Upon the written request of any such Holder, made within five (5) days following the receipt of any such Piggyback Notice (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof), PubCo shall, subject to Sections 2.2(c), 2.3 and 2.6 hereof, use its reasonable best efforts to cause all such Registrable Securities, the Holders of which have so requested the registration thereof, to be registered under the Securities Act with the securities which PubCo at the time proposes to register to permit the sale or other disposition by the Holders (in accordance with the intended method of distribution thereof) of the Registrable Securities to be so registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the registration statement filed by PubCo or the prospectus related thereto. There is no limitation on the number of such piggyback registrations which PubCo is obligated to effect pursuant to the preceding sentence. No registration of Registrable Securities effected under this Section 2.2(a) shall relieve PubCo of its obligations to effect Demand Registrations under Section 2.1 hereof. For the avoidance of doubt, this Section 2.2 shall not apply to any Underwritten Block Trade.
(b) Other than in connection with a Demand Registration or a Shelf Underwriting, at any time after giving a Piggyback Notice and prior to the effective date of the registration statement filed in connection with such registration, if PubCo shall determine for any reason not to register or to delay registration of such equity securities, PubCo may, at its election, give written notice of such determination to all Holders of record of Registrable Securities and (x) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such abandoned registration, without prejudice, however, to the rights of Holders under Section 2.1, and (y) in the case of a determination to delay such registration of its equity securities, shall be permitted to delay the registration of such Registrable Securities for the same period as the delay in registering such other equity securities.
(c) Any Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any registration statement pursuant to this Section 2.2 by giving written notice to PubCo of its request to withdraw; provided, however, that such request must be made in writing prior to the earlier of the execution by such Holder of the underwriting agreement or the execution by such Holder of the custody agreement with respect to such registration or as otherwise required by the underwriters.
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2.3. Allocation of Securities Included in Registration Statement.
(a) If any requested registration or offering made pursuant to Section 2.1 (including a Shelf Underwriting) involves an underwritten offering and the Manager of such offering shall advise PubCo in good faith that, in its view, the number of securities requested to be included in such underwritten offering by the Holders of Registrable Securities, PubCo or any other Persons exercising contractual registration rights (“Additional Piggyback Rights”) exceeds the largest number of securities (the “Section 2.3(a) Sale Number”) that can be sold in an orderly manner in such underwritten offering within a price range acceptable to the Initiating Holders and the Majority Participating Holders, PubCo shall include in such underwritten offering:
(i) first, all Registrable Securities requested to be included in such underwritten offering by the Holders thereof (including pursuant to the exercise of piggyback rights pursuant to Section 2.2); provided, however, that if the number of such Registrable Securities exceeds the Section 2.3(a) Sale Number, the number of such Registrable Securities (not to exceed the Section 2.3(a) Sale Number) to be included in such underwritten offering shall be allocated on a pro rata basis among all Holders (including each Initiating Holder) requesting that Registrable Securities be included in such underwritten offering (including pursuant to the exercise of piggyback rights pursuant to Section 2.2), based on the number of Registrable Securities then owned by each such Holder requesting inclusion in relation to the aggregate number of Registrable Securities owned by all Holders requesting inclusion; and
(ii) second, to the extent that the number of Registrable Securities to be included pursuant to clause (i) of this Section 2.3(a) is less than the Section 2.3(a) Sale Number, any securities that PubCo proposes to register for its own account, up to the Section 2.3(a) Sale Number; and (iii) third, to the extent that the number of securities to be included pursuant to clauses (i) and (ii) of this Section 2.3(a) is less than the Section 2.3(a) Sale Number, the remaining securities to be included in such underwritten offering shall be allocated on a pro rata basis among all Persons other than Holders requesting that securities be included in such underwritten offering pursuant to the exercise of Additional Piggyback Rights (“Piggyback Shares”), based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.3(a) Sale Number.
(b) If any registration or offering made pursuant to Section 2.2 involves an underwritten primary offering on behalf of PubCo and the Manager shall advise PubCo that, in its view, the number of securities requested to be included in such underwritten offering by the Holders of Registrable Securities, PubCo or any other Persons exercising Additional Piggyback Rights exceeds the largest number of securities (the “Section 2.3(b) Sale Number”) that can be sold in an orderly manner in such underwritten offering within a price range acceptable to PubCo, PubCo shall include in such underwritten offering:
(i) first, all equity securities that PubCo proposes to register for its own account; and
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(ii) second, to the extent that the number of securities to be included pursuant to clause (i) of this Section 2.3(b) is less than the Section 2.3(b) Sale Number, the remaining Registrable Securities to be included in such underwritten offering shall be allocated on a pro rata basis among all Holders requesting that Registrable Securities be included in such underwritten offering pursuant to the exercise of piggyback rights pursuant to Section 2.2(a), based on the aggregate number of Registrable Securities then owned by each such Holder requesting inclusion in relation to the aggregate number of Registrable Securities owned by all Holders requesting inclusion, up to the Section 2.3(b) Sale Number; and (iii) third, to the extent that the number of securities to be included pursuant to clauses (i) and (ii) of this Section 2.3(b) is less than the Section 2.3(b) Sale Number, the remaining securities to be included in such underwritten offering shall be allocated on a pro rata basis among all Persons requesting that Piggyback Shares be included in such underwritten offering pursuant to the exercise of Additional Piggyback Rights, based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.3(b) Sale Number.
(c) If any registration pursuant to Section 2.2 involves an underwritten offering that was initially requested by any Person(s) (other than a Holder) to whom PubCo has granted registration rights which are not inconsistent with the rights granted in, and do not otherwise conflict with the terms of, this Agreement and the Manager shall advise PubCo that, in its view, the number of securities requested to be included in such underwritten offering exceeds the largest number of securities (the “Section 2.3(c) Sale Number”) that can be sold in an orderly manner in such underwritten offering within a price range acceptable to PubCo, PubCo shall include in such underwritten offering:
(i) first, the shares requested to be included in such underwritten offering shall be allocated on a pro rata basis among such Person(s) requesting the registration and all Holders requesting that Registrable Securities be included in such underwritten offering pursuant to the exercise of piggyback rights pursuant to Section 2.2(a), based on the aggregate number of securities or Registrable Securities, as applicable, then owned by each of the foregoing requesting inclusion in relation to the aggregate number of securities or Registrable Securities, as applicable, owned by all such Persons and Holders requesting inclusion, up to the Section 2.3(c) Sale Number; and
(ii) second, to the extent that the number of securities to be included pursuant to clause (i) of this Section 2.3(c) is less than the Section 2.3(c) Sale Number, the remaining securities to be included in such underwritten offering shall be allocated on a pro rata basis among all Persons requesting that Piggyback Shares be included in such underwritten offering pursuant to the exercise of Additional Piggyback Rights, based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.3(c) Sale Number; and (iii) third, to the extent that the number of securities to be included pursuant to clauses (i) and (ii) of this Section 2.3(c) is less than the Section 2.3(c) Sale Number, any equity securities that PubCo proposes to register for its own account, up to the Section 2.3(c) Sale Number.
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(d) If, as a result of the proration provisions set forth in clauses (a), (b) or (c) of this Section 2.3, any Holder shall not be entitled to include all Registrable Securities in an underwritten offering that such Holder has requested be included, such Holder may elect to withdraw such Holder’s request to include Registrable Securities in the registration to which such underwritten offering relates or may reduce the number requested to be included; provided, however, that (x) such request must be made in writing prior to the earlier of such Holder’s execution of the underwriting agreement or such Holder’s execution of the custody agreement with respect to such registration and (y) such withdrawal or reduction shall be irrevocable and, after making such withdrawal or reduction, such Holder shall no longer have any right to include Registrable Securities in the registration as to which such withdrawal or reduction was made to the extent of the Registrable Securities so withdrawn or reduced.
2.4. Registration Procedures. If and whenever PubCo is required by the provisions of this Agreement to effect or cause the registration of and/or participate in any offering or sale of any Registrable Securities under the Securities Act as provided in this Agreement (or use reasonable best efforts to accomplish the same), PubCo shall, as expeditiously as possible:
(a) prepare and file all filings with the SEC and FINRA as soon as practicable required for the consummation of the offering, including preparing and filing with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by PubCo (except as provided for in a Demand Registration Request) and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and PubCo shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as required by this Agreement (provided, however, that as far in advance as reasonably practicable before filing a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, PubCo will furnish to the Holders participating in the planned offering and to the Manager, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to their reasonable review and reasonable comment and PubCo shall not file any registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to which the Initiating Holders, the Majority Participating Holders or the underwriters, if any, shall reasonably object); provided, however, that, notwithstanding the foregoing, in no event shall PubCo be required to file any document with the SEC which in the view of PubCo or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(b) (i) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith and such free writing prospectuses and Exchange Act reports as may be necessary to keep such registration statement continuously effective for such period as required by this Agreement and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement, and any prospectus so supplemented to be filed pursuant to Rule 424 under the Securities Act, in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of PubCo’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
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(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (PubCo hereby consenting to the use in accordance with all applicable laws of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall PubCo be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any: (i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any free writing prospectus has been filed with the SEC and, with respect to the registration statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by PubCo of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which PubCo becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed at the time of sale to any purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects (unless otherwise qualified by materiality in which case such representations and warranties shall cease to be true and correct in all respects); and, if the notification relates to an event described in clause (v), unless PubCo has declared that a Postponement Period exists, PubCo shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
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(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders (including by way of filings with the SEC), as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of PubCo’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) (A) use its reasonable best efforts to cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by PubCo are then listed, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (B) if no similar securities are then so listed, use its reasonable best efforts to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a New York Stock Exchange “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure New York Stock Exchange authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by PubCo as the issuer of such Registrable Securities in order to facilitate the managing underwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to PubCo, including all corporate governance requirements;
(h) cause its senior management, officers and employees to participate in, and to otherwise facilitate and cooperate with the preparation of the registration statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions, due diligence sessions and rating agency presentations) taking into account PubCo’s reasonable business needs;
(i) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement and, in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
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(j) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Initiating Holder or the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that PubCo make for the benefit of such Holders the representations, warranties and covenants of PubCo which are being made to and for the benefit of such underwriters);
(k) use its reasonable best efforts (i) to obtain opinions from PubCo’s counsel, including local and/or regulatory counsel, and a “comfort” letter and updates thereof from the independent public accountants who have certified the financial statements of PubCo (and/or any other financial statements) included or incorporated by reference in such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “comfort” letters (including, in the case of such “comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinions and letters shall be dated the dates such opinions and “comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and (ii) furnish to each Participating Holder and to each underwriter, if any, a copy of such opinions and letters addressed to such underwriter;
(l) deliver promptly to counsel for the Majority Participating Holders and to each managing underwriter, if any, copies of all correspondence between the SEC and PubCo, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt of such confidentiality agreements as PubCo may reasonably request, make reasonably available for inspection by counsel for the Majority Participating Holders, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by the Majority Participating Holders or any such underwriter, during regular business hours, all pertinent financial and other records, pertinent corporate documents and properties of PubCo, and cause all of PubCo’s officers, directors and employees to supply all information reasonably requested by any such counsel for the Majority Participating Holders, counsel for an underwriter, attorney, accountant or agent in connection with such registration statement;
(m) use its reasonable best efforts to prevent the issuance or obtain the prompt withdrawal of any order suspending the effectiveness of the registration statement, or the prompt lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(n) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(o) use its reasonable best efforts to make available its senior management for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account PubCo’s reasonable business needs and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
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(p) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing or confidential submission of such registration statement), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for the Majority Participating Holders and to each managing underwriter, if any, and make PubCo’s representatives reasonably available for discussion of such document and make such changes in such document concerning the information regarding the Participating Holders contained therein prior to the filing thereof as counsel for the Majority Participating Holders or underwriters may reasonably request (provided, however, that, notwithstanding the foregoing, in no event shall PubCo be required to file or confidentially submit any document with the SEC which in the view of PubCo or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(q) furnish to counsel for the Majority Participating Holders and to each managing underwriter, without charge, upon request, at least one conformed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), any other prospectus and prospectus supplement filed under Rule 424 under the Securities Act and all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection therewith;
(r) cooperate with the Participating Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least two (2) Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof (and, in the case of Registrable Securities registered on a Shelf Registration Statement, at the request of any Holder, prepare and deliver certificates representing such Registrable Securities not bearing any restrictive legends and deliver or cause to be delivered an opinion or instructions to the transfer agent in order to allow such Registrable Securities to be sold from time to time);
(s) include in any prospectus or prospectus supplement if requested by any managing underwriter updated financial or business information for PubCo’s most recent period or current quarterly period (including estimated results or ranges of results) if required for purposes of marketing the offering in the view of the managing underwriter;
(t) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition is applicable to PubCo, PubCo will use its reasonable best efforts to make any such prohibition inapplicable;
(u) use its reasonable best efforts to cause the Registrable Securities covered by the applicable registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Participating Holders or the underwriters, if any, to consummate the disposition of such Registrable Securities;
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(v) take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities;
(w) take all reasonable action to ensure that any free writing prospectus utilized in connection with any registration covered by Section 2.1 or 2.2 complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, prospectus supplement and related documents, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(x) in connection with any underwritten offering, if at any time the information conveyed to a purchaser at the time of sale includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, promptly file with the SEC such amendments or supplements to such information as may be necessary so that the statements as so amended or supplemented will not, in the light of the circumstances, be misleading;
(y) to the extent required by the rules and regulations of FINRA, retain a Qualified Independent Underwriter acceptable to the managing underwriter; and
(z) use reasonable best efforts, in good faith,to cooperate with the managing underwriters, Participating Holders, any indemnitee of PubCo and their respective counsel in connection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA, Nasdaq, or any other national securities exchange on which the shares of Common Stock are listed.
To the extent PubCo is a WKSI at the time any Demand Registration Request is submitted to PubCo, PubCo shall file an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) (an “automatic shelf registration statement”) on Form S-3 which covers those Registrable Securities which are requested to be registered. PubCo shall not take any action that would result in it not remaining a WKSI or would result in it becoming an ineligible issuer (as defined in Rule 405 under the Securities Act) during the period during which such automatic shelf registration statement is required to remain effective. If PubCo does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement is filed, PubCo agrees to pay such fee at such time or times as the Registrable Securities are to be sold in compliance with the SEC rules. If the automatic shelf registration statement has been outstanding for at least three (3) years, at or prior to the end of the third year PubCo shall refile a new automatic shelf registration statement covering the Registrable Securities. If at any time when PubCo is required to re-evaluate its WKSI status PubCo determines that it is not a WKSI, PubCo shall use its reasonable best efforts to refile the shelf registration statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the period which such registration statement is required to be kept effective.
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If PubCo files any shelf registration statement for the benefit of the holders of any of its securities other than the Holders, and the Holders do not request that their Registrable Securities be included in such Shelf Registration Statement, PubCo agrees that it shall include in such registration statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such shelf registration statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
PubCo may require as a condition precedent to PubCo’s obligations under this Section 2.4 that each Participating Holder as to which any registration is being effected (i) furnish PubCo such information regarding such seller and the distribution of such securities as PubCo may from time to time reasonably request (including as required under state securities laws), provided that such information is necessary for PubCo to consummate such registration and shall be used only in connection with such registration and (ii) provide any underwriters participating in the distribution of such securities such information as the underwriters may request and execute and deliver any agreements, certificates or other documents as the underwriters may request.
Each Holder of Registrable Securities agrees that upon receipt of any notice from PubCo of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 2.4, such Holder will discontinue such Holder’s disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 2.4 and, if so directed by PubCo, will deliver to PubCo (at PubCo’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. In the event PubCo shall give any such notice, the applicable period mentioned in paragraph (b) of this Section 2.4 shall be extended by the number of days during such period from and including the date of the giving of such notice to and including the date when each Participating Holder covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 2.4.
PubCo agrees not to file or make any amendment to any registration statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus, or any free writing prospectus, which amendment refers to any Holder covered thereby by name, or otherwise identifies such Holder, without the consent of such Holder, such consent not to be unreasonably withheld or delayed, unless such disclosure is required by law, in which case PubCo shall provide written notice to such Holders no less than five (5) Business Days prior to the filing.
2.5. Registration Expenses.
(a) PubCo shall pay all Expenses with respect to any registration or offering of Registrable Securities pursuant to Section 2, whether or not a registration statement becomes effective or the offering is consummated.
(b) Notwithstanding the foregoing, (x) the provisions of this Section 2.5 shall be deemed amended to the extent necessary to cause these expense provisions to comply with state “blue sky” laws of each state in which the offering is made and (y) in connection with any underwritten offering hereunder, each Participating Holder shall pay all underwriting discounts and commissions and any transfer taxes, if any, attributable to the sale of such Registrable Securities, pro rata with respect to payments of discounts and commissions in accordance with the number of shares sold in the offering by such Participating Holder.
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2.6. Certain Limitations on Registration Rights. In the case of any registration under Section 2.1 involving an underwritten offering, or, in the case of a registration under Section 2.2, if PubCo has determined to enter into an underwriting agreement in connection therewith, all securities to be included in such underwritten offering shall be subject to such underwriting agreement and no Person may participate in such underwritten offering unless such Person (i) agrees to sell such Person’s securities on the basis provided therein and completes and executes all reasonable questionnaires, and other customary documents (including custody agreements, powers of attorney, indemnities, lock-up agreements) which must be executed in connection therewith; provided, however, that all such documents shall be consistent with the provisions hereof and (ii) provides such other information to PubCo or the underwriter as may be necessary to register such Person’s securities.
2.7. Limitations on Sale or Distribution of Other Securities.
(a) Each Holder that is a director or officer of PubCo agrees, to the extent requested by the Manager of any underwritten public offering pursuant to a registration or offering effected pursuant to Section 2.1 (including any Shelf Underwriting pursuant to Section 2.1) or Section 2.2 (including any offering effected by PubCo for its own account ), not to sell, transfer or otherwise dispose of, including any sale pursuant to Rule 144, any Common Stock or Common Stock Equivalents (other than as part of such underwritten public offering) during the time period reasonably requested by the Manager, not to exceed the period from seven days prior to the pricing date of such offering until ninety (90) days after the pricing date of such offering or such shorter period as agreed by the Manager, PubCo or any executive officer or director of PubCo.
(b) PubCo hereby agrees that, in connection with an offering pursuant to Section 2.1 (including any Shelf Underwriting pursuant to Section 2.1(e)) or 2.2, PubCo shall not sell, transfer, or otherwise dispose of, any Common Stock or Common Stock Equivalent (other than as part of such underwritten public offering, a registration on Form S-4 or Form S-8 or any successor or similar form which is (x) then in effect or (y) shall become effective upon the conversion, exchange or exercise of any then outstanding Common Stock Equivalent), until a period from seven days prior to the pricing date of such offering until ninety (90) days after the pricing date of such offering or such shorter period as the Manager, PubCo or any executive officer or director of PubCo shall agree to and PubCo shall so provide in any registration rights agreements hereafter entered into with respect to any of its securities.
2.8. No Required Sale. Nothing in this Agreement shall be deemed to create an independent obligation on the part of any Holder to sell any Registrable Securities pursuant to any effective registration statement. A Holder is not required to include any of its Registrable Securities in any registration statement, is not required to sell any of its Registrable Securities which are included in any effective registration statement, and may sell any of its Registrable Securities in any manner in compliance with applicable law (subject to applicable lock-up restrictions) even if such shares are already included on an effective registration statement.
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Procedures
2.9. Indemnification.
(a) In the event of any registration or offer and sale of any securities of PubCo under the Securities Act pursuant to this Section 2, PubCo will (without limitation as to time), and hereby agrees to, and hereby does, indemnify and hold harmless, to the fullest extent permitted by law, each Participating Holder, its directors, officers, employees, stockholders, members, general and limited partners, agents, affiliates, representatives, successors and assigns (and the directors, officers, employees, stockholders, members, general and limited partners, agents, affiliates, representatives, successors and assigns thereof), each other Person who participates as a seller (and its directors, officers, employees, stockholders, members, general and limited partners, agents, affiliates, representatives, successors and assigns), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, agent, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such seller or any such underwriter or Qualified Independent Underwriter and each director, officer, employee, stockholder, managing director, agent, affiliate, representative, successor, assign or partner of such controlling Person, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with PubCo’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of, are based upon, relate to or are in connection with (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement under which such securities were registered under the Securities Act or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any free writing prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) any untrue statement or alleged untrue statement of a material fact in the information conveyed by PubCo or any underwriter to any purchaser at the time of the sale to such purchaser, or the omission or alleged omission to state therein a material fact required to be stated therein, or (iv) any violation by PubCo of any federal, state or common law rule or regulation applicable to PubCo and relating to any action required of or inaction by PubCo in connection with any such offering of Registrable Securities, and PubCo will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that PubCo shall not be liable to any such indemnified party in any such case to the extent such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in such registration statement or amendment thereof or supplement thereto or in any such prospectus or any preliminary, final or summary prospectus or free writing prospectus in reliance upon and in conformity with written information furnished to PubCo by or on behalf of such indemnified party specifically for use therein. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such seller.
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(b) Each Participating Holder (and, if PubCo requires as a condition to including any Registrable Securities in any registration statement filed in accordance with Section 2.1 or 2.2, any underwriter and Qualified Independent Underwriter, if any) shall, severally and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in paragraph (a) of this Section 2.9) to the extent permitted by law PubCo, its officers and its directors, each Person controlling PubCo within the meaning of the Securities Act and all other prospective sellers and their directors, officers, stockholders, fiduciaries, managing directors, agents, affiliates, representatives, successors, assigns or general and limited partners and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such registration statement, any preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto, or any free writing prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to PubCo or its representatives by or on behalf of such Participating Holder or underwriter or Qualified Independent Underwriter, if any, specifically for use therein, and each such Participating Holder, underwriter or Qualified Independent Underwriter, if any, shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that the aggregate amount which any such Participating Holder shall be required to pay pursuant to this Section 2.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than the amount of the net proceeds received by such Participating Holder upon the sale of the Registrable Securities pursuant to the registration statement giving rise to such Claim; provided, further, that such Participating Holder shall not be liable in any such case to the extent that prior to the filing or confidential submission of any such registration statement or prospectus or amendment thereof or supplement thereto, or any free writing prospectus utilized in connection therewith, such Participating Holder has furnished in writing to PubCo information expressly for use in such registration statement or prospectus or any amendment thereof or supplement thereto or free writing prospectus which corrected or made not misleading information previously furnished to PubCo. PubCo and each Participating Holder hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Participating Holders to the contrary, for all purposes of this Agreement, the only information furnished or to be furnished to PubCo for use in any such registration statement, preliminary, final or summary prospectus or amendment or supplement thereto, or any free writing prospectus, are statements specifically relating to (i) the beneficial ownership of shares of Common Stock by such Participating Holder and its Affiliates as disclosed in the section of such document entitled “Selling Stockholders” or “Principal and Selling Stockholders” and (ii) the name and address of such Participating Holder. If any additional information about such Holder or the plan of distribution (other than for an underwritten offering) is required by law to be disclosed in any such document, then such Holder shall not unreasonably withhold its agreement referred to in the immediately preceding sentence. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such Holder.
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(c) Indemnification similar to that specified in the preceding paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications) shall be given by PubCo and each Participating Holder with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws.
(d) Any Person entitled to indemnification under this Agreement shall notify promptly the indemnifying party in writing of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 2.9, but the failure of any indemnified party to provide such notice shall not relieve the indemnifying party of its obligations under the preceding paragraphs of this Section 2.9, except to the extent the indemnifying party is materially and actually prejudiced thereby and shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under this Section 2.9. In case any action or proceeding is brought against an indemnified party and such indemnified party shall have notified the indemnifying party of the commencement thereof (as required above), the indemnifying party shall be entitled to participate therein and, unless in the reasonable opinion of outside counsel to the indemnified party a conflict of interest between such indemnified and indemnifying parties exists in respect of such Claim, to assume the defense thereof jointly with any other indemnifying party similarly notified, to the extent that it chooses, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party that it so chooses, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within twenty (20) days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; or (ii) if such indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal or equitable defenses available to such indemnified party which are not available to the indemnifying party or which may conflict with or be different from those available to another indemnified party with respect to such Claim; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in any such case, the indemnified party shall have the right to assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction, except to the extent any indemnified party or parties reasonably shall have made a conclusion described in clause (ii) or (iii) above) and the indemnifying party shall be liable for any expenses therefor. No indemnifying party shall be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with such consent or if there be a final judgment for the plaintiff, such indemnifying party agrees to indemnify each indemnified party from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (A) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (B) does not include a statement as to or an admission of fault or culpability, by or on behalf of any indemnified party.
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(e) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold harmless an indemnified party under Sections 2.9(a), (b) or (c), then each applicable indemnifying party shall contribute to the amount paid or payable to such indemnified party as a result of any Claim in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such Claim. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if any contribution pursuant to this Section 2.9(e) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 2.9(e). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 2.9(e) to the contrary, no indemnifying party (other than PubCo) shall be required pursuant to this Section 2.9(e) to contribute any amount greater than the amount of the net proceeds received by such indemnifying party from the sale of Registrable Securities pursuant to the registration statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 2.9(b) and (c). In addition, no Holder of Registrable Securities or any Affiliate thereof shall be required to pay any amount under this Section 2.9(e) unless such Person or entity would have been required to pay an amount pursuant to Section 2.9(b) if it had been applicable in accordance with its terms.
(f) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section 2.9 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred.
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2.10. No Inconsistent Agreements. PubCo shall not hereafter enter into any agreement with respect to its securities that is inconsistent in any material respects with the rights granted to the Holders in this Agreement.
Section 3. Underwritten Offerings.
3.1. Requested Underwritten Offerings. If requested by the underwriters for any underwritten offering pursuant to a registration requested under Section 2.1, PubCo shall enter into a customary underwriting agreement with the underwriters. Such underwriting agreement shall (i) be satisfactory in form and substance to the Initiating Holders and the Majority Participating Holders, (ii) contain terms not inconsistent with the provisions of this Agreement and (iii) contain such representations and warranties by, and such other agreements on the part of, PubCo and such other terms as are generally prevailing in agreements of that type, including indemnities and contribution agreements on substantially the same terms as those contained herein or as otherwise customary for the lead underwriter. Every Participating Holder shall be a party to such underwriting agreement. Each Participating Holder shall not be required to make any representations or warranties to or agreements with PubCo or the underwriters other than customary representations of a selling shareholder, including representations, warranties or agreements regarding its ownership of and title to the Registrable Securities, any written information specifically provided by such Participating Holder for inclusion in the registration statement and its intended method of distribution; and any liability of such Participating Holder to any underwriter or other Person under such underwriting agreement for indemnity, contribution or otherwise shall in no case be greater than the amount of the net proceeds received by such Participating Holder upon the sale of Registrable Securities pursuant to such registration statement and in no event shall relate to anything other than information about such Holder specifically provided by such Holder for use in the registration statement and prospectus.
3.2. Piggyback Underwritten Offerings. In the case of a registration pursuant to Section 2.2, if PubCo shall have determined to enter into an underwriting agreement in connection therewith, all of the Participating Holders’ Registrable Securities to be included in such registration shall be subject to such underwriting agreement. Each such Participating Holder shall not be required to make any representations or warranties to or agreements with PubCo or the underwriters other than customary representations of a selling shareholder, including representations, warranties or agreements regarding its ownership of and title to the Registrable Securities, any written information specifically provided by such Participating Holder for inclusion in the registration statement and its intended method of distribution; and any liability of such Participating Holder to any underwriter or other Person under such underwriting agreement shall in no case be greater than the amount of the net proceeds received by such Participating Holder upon the sale of Registrable Securities pursuant to such registration statement and in no event shall relate to anything other than information about such Holder specifically provided by such Holder for use in the registration statement and prospectus.
Section 4. General.
4.1. Adjustments Affecting Registrable Securities. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Registrable Securities, to any and all shares of capital stock of PubCo, any successor or assign of PubCo (whether by merger, share exchange, consolidation, sale of assets or otherwise) or any Subsidiary or parent company of PubCo which may be issued in respect of, in exchange for or in substitution of, Registrable Securities and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof.
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4.2. Rule 144. PubCo covenants that (i) so long as it remains subject to the reporting provisions of the Exchange Act, it will timely file the reports required to be filed by it under the Securities Act or the Exchange Act (including, but not limited to, the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1)(i) of Rule 144 under the Securities Act, as such Rule may be amended (“Rule 144”)) or, if PubCo is not required to file such reports, it will, upon the request of any Holder, make publicly available other information so long as necessary to permit sales by such Holder under Rule 144, or any similar rules or regulations hereafter adopted by the SEC, and (ii) it will 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 Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, or any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder of Registrable Securities, PubCo will promptly deliver to such Holder a written statement as to whether it has complied with such requirements.
4.3. Nominees for Beneficial Owners. If Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its option, be treated as the Holder of such Registrable Securities for purposes of any request or other action by any Holder or Holders of Registrable Securities pursuant to this Agreement (or any determination of any number or percentage of shares constituting Registrable Securities held by any Holder or Holders of Registrable Securities contemplated by this Agreement); provided, however, that PubCo shall have received evidence reasonably satisfactory to it of such beneficial ownership.
4.4. Amendments and Waivers. Upon the written consent of PubCo and Holders of at least a majority in interest of the Registrable Securities held by all Other Holders 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 either the Sponsor Holders as a group or the Other Holders as a group (regardless, in each case, whether the Sponsor Holders or Other Holders, respectively, are adversely affected (as a group) to the same extent) shall require the consent of at least (x) a majority-in-interest of the Registrable Securities held by such Sponsor Holders or (y) each Other Holder, as applicable, at the time in question so affected; provided, further, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder or group of affiliated Holders, solely in its capacity as a holder of the shares of capital stock of PubCo, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder or group of affiliated Holders so affected. No course of dealing between any Holder or PubCo and any other party hereto or any failure or delay on the part of a Holder or PubCo in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or PubCo. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
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4.5. Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) if personally delivered, on the date of delivery, (ii) if delivered by express courier service of national standing (with charges prepaid), on the Business Day following the date of delivery to such courier service, (iii) if deposited in the United States mail, first-class postage prepaid, on the fifth (5th) Business Day following the date of such deposit, (iv) if delivered by facsimile transmission, upon confirmation of successful transmission, (x) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party on a Business Day, and (y) on the next Business Day following the date of transmission, if such transmission is completed after 5:00 p.m., local time of the recipient party, or is transmitted on a day that is not a Business Day, or (v) if via e-mail communication, on the date of delivery. All notices, demands and other communications hereunder shall be delivered as set forth below and to any subsequent holder of Stock subject to this Agreement at such address as indicated by PubCo’s records, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
if to PubCo, to:
c/o Securitize, Inc.
78 SW 7th Steet
Miami, FL 33130
Attn: Carlos Domingo
Email: [***]
with a copy to (which shall not constitute notice):
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, 10017
Attn: Lee Hochbaum
Email: lee.hochbaum@davispolk.com
if to any Holder, to the address set forth opposite the name of such Holder on the signature pages hereto or such other address indicated in the records of PubCo.
4.6. Successors and Assigns; Third-Party Beneficiaries. Except as otherwise provided herein and except for the Other PubCo Shareholders (which are third-party beneficiaries of Secton 2.1(a) of this Agreement), this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and the respective successors, permitted assigns, heirs and personal representatives of the parties hereto, whether so expressed or not (including any Permitted Transferees). This Agreement may not be assigned by PubCo without the prior written consent of the Holders. No Holder shall have the right to assign all or part of its or his rights and obligations under this Agreement to any Person, other than to a Permitted Transferee of such Holder, without the consent of PubCo and unless such Person duly executes and delivers to PubCo a Joinder Agreement. Upon any such assignment, such assignee shall have and be able to exercise and enforce all rights of the assigning Holder which are assigned to it and, to the extent such rights are assigned, any reference to the assigning Holder shall be treated as a reference to the assignee. If any Holder shall acquire additional Registrable Securities, such Registrable Securities shall be subject to all of the terms, and entitled to all the benefits, of this Agreement. Additional Persons may become parties to this Agreement as Holders with the consent of PubCo (not to be unreasonably withheld or delayed), by executing and delivering to PubCo the Joinder Agreement. Prior to the expiration of an applicable lock-up period, 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 executes and delivers to PubCo the Joinder Agreement.
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4.7. Termination.
(a) The obligations of PubCo and a Holder under this Agreement, in each case solely with respect to such Holder, will terminate upon the earlier of:
(i) the date on which such Holder no longer holds any Registrable Securities; or
(ii) for any Holder other than the Sponsor, the later of (A) the date on which such Holder no longer beneficially owns at least 1% of the then outstanding Common Stock or Common Stock Equivalents, and such Holder (notwithstanding any beneficial ownership of Common Stock or Common Stock Equivalents by such Holder) is not an Affiliate of PubCo and (B) the date on which such the Holder is eligible to sell its Registrable Securities pursuant to Rule 144 (without limitation as to volume or manner of sale).
(b) This Agreement shall terminate on the date that is ten (10) years from date hereof.
(c) Notwithstanding clauses (a) and (b) above, Section 2.5, Section 2.9, Section 4.9 and Section 4.13 shall survive termination of this Agreement.
4.8. Entire Agreement. This Agreement and the other documents referred to herein or delivered pursuant hereto which form part hereof constitute the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof.
4.9. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
(b) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement may be brought against any of the parties in the United States District Court for the Southern District of New York or any New York state court located in New York, New York, and each of the parties hereby consents to the exclusive jurisdiction of such court (and of the appropriate appellate courts) in any such suit, action or proceeding and waives any objection to venue laid therein. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
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4.10. Interpretation; Construction.
(a) The table of contents and headings in this Agreement are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”
(b) The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
4.11. Counterparts. This Agreement may be executed and delivered in any number of separate counterparts (including by facsimile or electronic mail), each of which shall be an original, but all of which together shall constitute one and the same agreement.
4.12. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
4.13. Specific Enforcement. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any party hereto and, accordingly, that this Agreement shall be specifically enforceable, in addition to any other remedy to which such injured party is entitled at law or in equity, and that any breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach or an award of specific performance is not an appropriate remedy for any reason at law or equity and agrees that a party’s rights would be materially and adversely affected if the obligations of the other parties under this Agreement were not carried out in accordance with the terms and conditions hereof. Each party further agrees that no party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtain any remedy referred to in this Section 4.13, and each party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
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4.14. Further Assurances. Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments, and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
4.15. Confidentiality. Each Holder agrees that any non-public information which they may receive relating to PubCo and its Subsidiaries (the “Confidential Information”) including notices of proposed offerings or any suspension thereof will be held strictly confidential and will not be disclosed by it to any Person without the express written permission of PubCo; provided, however, that the Confidential Information may be disclosed (i) in the event of any compulsory legal process or compliance with any applicable law, subpoena or other legal process, as required by an administrative requirement, order, decree or the rules of any relevant stock exchange or in connection with any filings that the Holder may be required to make with any regulatory authority; provided, however, that in the event of compulsory legal process, unless prohibited by applicable law or that process, each Holder agrees (A) to give PubCo prompt notice thereof and to cooperate with PubCo in securing a protective order in the event of compulsory disclosure and (B) that any disclosure made pursuant to public filings will be subject to the prior reasonable review of PubCo, (ii) to any foreign or domestic governmental or quasi-governmental regulatory authority, including any stock exchange or other self-regulatory organization having jurisdiction over such party, (iii) to each Holder’s or its Affiliate’s, officers, directors, employees, partners, accountants, lawyers and other professional advisors for use relating solely to management of the investment or administrative purposes with respect to such Holder and (iv) to a proposed transferee of securities of PubCo held by a Holder; provided, however, that the Holder informs the proposed transferee of the confidential nature of the information and the proposed transferee agrees in writing to comply with the restrictions in this Section 4.15 and delivers a copy of such writing to PubCo.
4.16. Opt-Out Requests. Each Holder shall have the right, at any time and from time to time (including after receiving information regarding any potential public offering), to elect to not receive any notice that PubCo or any other Holders otherwise are required to deliver pursuant to this Agreement by delivering to PubCo a written statement signed by such Holder that it does not want to receive any notices hereunder (an “Opt-Out Request”); in which case and notwithstanding anything to the contrary in this Agreement PubCo and other Holders shall not be required to, and shall not, deliver any notice or other information required to be provided to Holders hereunder to the extent that PubCo or such other Holders reasonably expect would result in a Holder acquiring material non-public information within the meaning of Regulation FD promulgated under the Exchange Act. An Opt-Out Request may state a date on which it expires or, if no such date is specified, shall remain in effect indefinitely. A Holder who previously has given PubCo an Opt-Out Request may revoke such request at any time, and there shall be no limit on the ability of a Holder to issue and revoke subsequent Opt-Out Requests; provided that each Holder shall use commercially reasonable efforts to minimize the administrative burden on PubCo arising in connection with any such Opt-Out Requests.
4.17. Original Registration Rights Agreement. The Sponsor hereby agrees that upon execution of this Agreement by the Sponsor, the Original Registration Rights Agreement shall be automatically terminated and superseded in its entirety by this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| PUBCO: | |
|---|---|
| Securitize Holdings, Inc., | |
| a Delaware corporation | |
| By: | |
| Name: | |
| Title: | |
| SPAC: | |
| Cantor Equity Partners II, Inc. | |
| a Cayman Islands exempted company | |
| By: | |
| Name: | |
| Title: |
[Signature Page to Amended and Registration Rights Agreement]
| HOLDERS | |
|---|---|
| Cantor EP Holdings II, LLC, <br><br>a Delaware<br>limited liability company | |
| By: | |
| Name: | |
| Title: | |
| OTHER HOLDERS | |
| [OTHER HOLDERS] |
[Signature Page to Amended and Registration Rights Agreement]
Exhibit A
JOINDER AGREEMENT
This Joinder Agreement (this “Joinder Agreement”) is made as of [ ], by [and among [ ] (the “Transferring Holder”) and] [ ] (the “New Holder”), in accordance with that certain Amended and Restated Registration Rights Agreement, dated as of [●], [●] (as amended from time to time, the “Agreement”), by and among [PubCo] ( “PubCo”) and the other Holders party thereto.
WHEREAS, the Agreement requires the New Holder to become a party to the Agreement by executing this Joinder Agreement, and upon the New Holder signing this Joinder Agreement, the Agreement will be deemed to be amended to include the New Holder as a Holder thereunder;
NOW, THEREFORE, in consideration of the foregoing, and of the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Party to the Agreement. By execution of this Joinder Agreement, as of the date hereof the New Holder is hereby made a party to the Agreement as a Holder. The New Holder hereby agrees to become a party to the Agreement and to be bound by, and subject to, all of the representations, covenants, terms and conditions of the Agreement in the same manner as if the New Holder were an original signatory to the Agreement. Execution and delivery of this Joinder Agreement by the New Holder shall also constitute execution and delivery by the New Holder of the Agreement, without further action of any party.
Section 2. Defined Terms. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement unless otherwise noted.
Section 3. Representations and Warranties of the New Holder.
3.1. Authorization. The New Holder has all requisite power and authority and has taken all action necessary in order to duly and validly approve the New Holder’s execution and delivery of, and performance of its obligations under, this Joinder Agreement. This Joinder Agreement has been duly executed and delivered by the New Holder and constitutes a legal, valid and binding agreement of the New Holder, enforceable against the New Holder in accordance with its terms.
3.2. No Conflict. The New Holder is not under any obligation or restriction, nor shall it assume any such obligation or restriction, that does or would materially interfere or conflict with the performance of its obligations under this Joinder Agreement.
Section 4. Further Assurances. The parties agree to execute and deliver any further instruments or perform any acts which are or may become necessary to effectuate the purposes of this Joinder Agreement.
Section 5. Governing Law. This Joinder Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
Section 6. Counterparts. This Joinder Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same amendatory instrument.
Section 7. Entire Agreement. This Joinder Agreement and the Agreement contain the entire understanding, whether oral or written, of the parties hereto with respect to the matters covered hereby. Any amendment or change in this Joinder Agreement shall not be valid unless made in writing and signed by each of the parties hereto.
[Signature pages follow]
Exhibit A-1
Exhibit A
IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned parties have executed this Joinder Agreement as of the date first above written.
| [TRANSFERRING HOLDER] | |
|---|---|
| [ _____]: | |
| By: | |
| Name: | |
| Title: | |
| NEW HOLDER | |
| [ _____]: | |
| By: | |
| Name: | |
| Title: | |
| Notice Address: [ ____________] | |
| [ _____] | |
| [ _____] | |
| Attn: [ _____] | |
| Facsimile: [____] | |
| Accepted and Agreed to as of<br> the date first written above: | |
| --- | --- |
| PUBCO: | |
| [PubCo] | |
| By: | |
| Name: | |
| Title: |
Exhibit A-2
Exhibit 10.5
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on October 27, 2025, by and among Cantor Equity Partners II, Inc., a Cayman Islands exempted company (”SPAC”), Securitize, Inc., a Delaware corporation (the “Company”), Securitize Holdings, Inc., a Delaware corporation (“Pubco”), and the undersigned subscriber (“Subscriber”).
WHEREAS, on or about the date hereof, (a) SPAC, (b) Pubco, (c) Pinecrest Merger Sub, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”), (d) the Company, (e) Senna Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of SPAC (“Company Merger Sub”), entered into a business combination agreement (as amended, modified, supplemented or waived from time to time, the “BCA”);
WHEREAS, pursuant to and in accordance with the BCA, (a) SPAC will merge with and into SPAC Merger Sub, with SPAC Merger Sub continuing as the surviving company (the “SPAC Merger”), and with SPAC shareholders receiving one share of common stock, par value $0.0001 per share, of Pubco (“Pubco Common Stock”) for each Class A ordinary share, par value $0.0001 per share, of SPAC (each a “SPAC Class A Ordinary Share”), held by such shareholder, in accordance with the terms of the BCA, (b) immediately following the SPAC Merger, SPAC Merger Sub shall distribute all of the issued and outstanding equity of Company Merger Sub to Pubco (the “Company Merger Sub Distribution”), and (c) following the Company Merger Sub Distribution, Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving company (the “Company Merger”), and together with the SPAC Merger, the “Mergers”, and together with the other transactions contemplated by the BCA, the “Transactions”), and with the shareholders of the Company receiving a certain number of shares of Pubco Common Stock for each share in the Company held by such shareholder in accordance with the terms of the BCA, and as a result of the Mergers, SPAC Merger Sub will become a wholly-owned subsidiary of Pubco, the Company will become a wholly-owned subsidiary of Pubco, and Pubco will become a publicly traded company, all upon the terms and subject to the conditions set forth in the BCA and in accordance with applicable law;
WHEREAS, in connection with the Transactions, Subscriber desires to subscribe for and purchase from SPAC, on the Closing Date (as defined below) and immediately prior to the consummation of the SPAC Merger, such number of SPAC Class A Ordinary Shares (the “Shares”) as is set forth on the signature page hereto (the “Subscribed Shares”) at a purchase price of $10.00 per Share (the “Per Share Price” and the aggregate of such Per Share Price for all Subscribed Shares being referred to herein as the “Purchase Price”), and SPAC desires to issue to Subscriber the Subscribed Shares in consideration of the payment of the Purchase Price by or on behalf of Subscriber to SPAC simultaneously with such purchase;
WHEREAS, on or about the date of this Subscription Agreement, SPAC, the Company and Pubco are entering into subscription agreements (the “Other Subscription Agreements” and, together with this Subscription Agreement, the “Subscription Agreements”) with certain other investors (the “Other Subscribers” and, together with Subscriber, the “Subscribers”), pursuant to which the Other Subscribers have agreed to purchase Shares on the Closing Date at the Per Share Price (the Shares of the Other Subscribers, the “Other Subscribed Shares”); and
WHEREAS, upon the consummation of the SPAC Merger, each Subscribed Share shall be converted automatically into one share of Pubco Common Stock.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
Section 1. Subscription. Subject to the terms and conditions hereof, Subscriber hereby irrevocably subscribes for and agrees to purchase from SPAC, and SPAC hereby agrees to issue and sell to Subscriber, upon payment of the Purchase Price by or on behalf of Subscriber to SPAC, the Subscribed Shares at the Closing (as defined below) (such subscription and issuance, the “Subscription”).
Section 2. Closing.
(a) The consummation of the Subscription contemplated hereby (the “Closing”) shall occur on the same date as the Transactions, immediately prior to the consummation of the SPAC Merger (the “Closing Date”).
(b) The Purchase Price shall be paid in cash in such amounts as indicated in Subscriber’s signature page of this Subscription Agreement.
(c) At least five (5) Business Days before the anticipated Closing Date, SPAC shall deliver written notice (via email) to the Subscriber (the “Closing Notice”) specifying (i) the anticipated Closing Date and (ii) the wire instructions for delivery of the Purchase Price to SPAC or its designee.
(d) No later than three (3) Business Days prior to the Closing Date, Subscriber shall deliver to SPAC such information as is reasonably requested in the Closing Notice in order for SPAC to issue the Subscribed Shares to Subscriber. No later than 4:00 p.m. (Eastern time) one (1) business day prior to the Closing Date, Subscriber shall deliver the Purchase Price in cash via wire transfer of United States dollars in immediately available funds to the account specified by SPAC in the Closing Notice, such funds to be held by SPAC in escrow until the Closing, provided, that if Subscriber is prohibited from delivering the Purchase Price prior to the Closing Date due to regulatory restrictions, Subscriber shall deliver the Purchase Price no later than 9:00 a.m. (Eastern time) on the Closing Date. Following receipt of the Purchase Price, SPAC shall deliver to Subscriber (i) at the Closing, the Subscribed Shares in book entry form, free and clear of any liens, encumbrances or other restrictions (other than those arising under state or federal securities laws), in the name of Subscriber, and (ii) as promptly as practicable after the Closing, SPAC shall deliver to each Subscriber evidence from SPAC’s transfer agent of the issuance to Subscriber of the Subscribed Shares (in book entry form) on and as of the Closing Date. As promptly as practicable after the completion of the Mergers, Pubco shall deliver to each Subscriber evidence from Pubco’s transfer agent of the exchange of the Subscribed Shares for an equivalent number of shares of Pubco Common Stock.
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(e) In the event that the consummation of the Transactions does not occur within two (2) Business Days after the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by SPAC, the Company, Pubco and Subscriber, SPAC shall promptly (but in no event later than three (3) Business Days after the anticipated Closing Date specified in the Closing Notice) return the funds so delivered by Subscriber to SPAC by wire transfer in immediately available funds to the account specified by Subscriber, and any book entries of Subscribed Shares shall be deemed cancelled. Notwithstanding such return or release (x) a failure to close on the anticipated Closing Date shall not, by itself, be deemed to be a failure of any of the conditions to Closing set forth in this Section 2 to be satisfied or waived on or prior to the Closing Date, and (y) unless and until this Subscription Agreement is terminated in accordance with Section 6, Subscriber shall remain obligated to redeliver funds to SPAC in escrow, as set forth in the Closing Notice, following SPAC’s delivery to Subscriber, the Company and Pubco of a new Closing Notice in accordance with this Section 2 and Subscriber, the Company, Pubco and SPAC shall remain obligated to consummate the Closing upon satisfaction of the conditions set forth in this Section 2 following SPAC’s delivery to Subscriber, the Company and Pubco of a new Closing Notice; provided that only one new Closing Notice may be issued. For the purposes of this Subscription Agreement, “Business Day” means a day, other than a Saturday, Sunday or other day on which commercial banks in New York City (New York) or Wilmington (Delaware) are not open for a full business day for the general transaction of business.
(f) The obligations of Subscriber, Pubco, the Company and SPAC to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable law, waiver by the parties hereto, of the conditions that, on the Closing Date:
(i) all conditions precedent to the closing of the Transactions set forth in Article IX (Closing Conditions) of the BCA shall have been satisfied or waived by the person with the authority to give such waiver (other than any such conditions which by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the Closing) (as determined solely by the parties to the BCA in accordance therewith); and
(ii) no governmental authority with competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation which is then in effect and has the effect of making the consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby and no such governmental authority shall have instituted or threatened in writing a proceeding seeking to impose such restraint or prohibition.
(g) The obligations of SPAC, the Company and Pubco to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction, or waiver by SPAC, the Company and Pubco, of the additional conditions that, on the Closing Date:
(i) all representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct in all material respects at and as of the Closing Date, as though made on and as of the Closing Date (other than (A) representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect (as defined below), which representations and warranties shall be true in all respects or (B) representations and warranties that speak as of a specified earlier date, which representations and warranties shall be true and correct in all material respects as of such specified date), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements of Subscriber contained in this Subscription Agreement as of the Closing Date, but without giving effect to consummation of the Transactions, or as of such earlier date, as applicable; and
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(ii) Subscriber shall have wired the Purchase Price in accordance with Section 2(b) and otherwise performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing.
(h) The obligations of Subscriber to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or waiver by Subscriber of the additional conditions that, on the Closing Date:
(i) all representations and warranties of SPAC, the Company and Pubco contained in this Subscription Agreement shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (other than (A) representations and warranties that are qualified as to materiality, SPAC Material Adverse Effect, Company Material Adverse Effect or Pubco Material Adverse Effect (each as defined below), which representations and warranties shall be true in all respects or (B) representations and warranties that speak as of a specified earlier date, which representations and warranties shall be true and correct in all material respects as of such specified date), and consummation of the Closing shall constitute a reaffirmation by SPAC, the Company and Pubco, as the case may be, of each of their representations, warranties and agreements contained in this Subscription Agreement as of the Closing Date, but without giving effect to consummation of the Transactions, or as of such earlier date, as applicable, except, in each case, where the failure of such representations and warranties to be true and correct (whether as of the Closing Date or such earlier date), taken as a whole, does not result in a SPAC Material Adverse Effect, Company Material Adverse Effect or Pubco Material Adverse Effect;
(ii) no Other Subscription Agreement (or other agreements or understandings (including side letters) entered into in connection therewith or in connection with the sale of the Other Subscribed Shares) shall have been amended, modified or waived in any manner that benefits any Other Subscriber unless the Subscriber shall have been offered in writing the same benefits (other than terms particular to the legal or regulatory requirements of such Other Subscriber or its affiliates or related persons);
(iii) no amendments, modifications or waivers to the terms of the BCA (as it exists on the date hereof as provided to Subscriber) shall have occurred, in each case, in a matter that would reasonably be expected to materially and adversely affect the economic benefits that Subscriber would reasonably expect to receive under this Subscription Agreement (unless Subscriber has provided its written consent thereto);
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(iv) all consents, waivers, authorizations or orders of, any notice required to be made to, and any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including the Stock Exchange (as defined below) and any stockholder approval required by applicable Stock Exchange rules and regulations) or other person in connection with the execution, delivery and performance of this Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares) required to be made in connection with the issuance and sale of the Subscribed Shares shall have been obtained or made, except where the failure to so obtain or make would not prevent SPAC, the Company and Pubco from consummating the transactions contemplated hereby, including the issuance and sale of the Subscribed Shares to the Subscriber;
(v) SPAC, the Company and Pubco shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by SPAC, the Company or Pubco, as applicable, at or prior to the Closing; and
(vi) there has not occurred any Material Adverse Effect (as defined in the BCA) since the date of this Subscription Agreement that is continuing, which the applicable parties to the BCA have not waived.
(i) Prior to or at the Closing, Subscriber shall deliver to SPAC, the Company and Pubco all such other information as is reasonably requested in order for SPAC to issue the Subscribed Shares to Subscriber, including, without limitation, the legal name of the person in whose name the Subscribed Shares are to be issued (or Subscriber’s nominee in accordance with its delivery instructions) and a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
Section 3. SPAC, Company and Pubco Representations and Warranties. Each of SPAC, solely with respect to the representations and warranties set forth below relating to SPAC, the Company, solely with respect to the representations and warranties set forth below relating to the Company, and Pubco, solely with respect to the representations and warranties set forth below relating to Pubco, represents and warrants, severally and not jointly, to Subscriber and the Placement Agents as of the date hereof and as of the Closing, that:
(a) SPAC (i) is validly existing and in good standing under the laws of its jurisdiction of incorporation, organization or formation, (ii) has the requisite corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations under this Subscription Agreement, and (iii) is duly licensed or qualified to conduct its business and, if applicable, is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a SPAC Material Adverse Effect. For purposes of this Subscription Agreement, a “SPAC Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to SPAC that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on SPAC’s ability to consummate the transactions contemplated by this Subscription Agreement.
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(a) The Company (i) is validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations under this Subscription Agreement, and (iii) is duly licensed or qualified and in good standing (to the extent applicable) in all jurisdictions in which its ownership of property or character of its activities is such as to require it to be so licensed or qualified, except, with respect to the foregoing clause (iii), where the failure to be so licensed or qualified has not and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. For purposes of this Subscription Agreement, a “Company Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Company that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the Company’s ability to consummate the transactions contemplated by this Subscription Agreement.
(b) Pubco (i) is validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite corporate power and authority to own, lease and operate its properties and to conduct its business as it is now being conducted, and (iii) is duly licensed or qualified and in good standing (to the extent applicable) in all jurisdictions in which its ownership of property or character of its activities is such as to require it to be so licensed or qualified, except, with respect to the foregoing clause (iii), where the failure to be so licensed or qualified has not and would not, individually or in the aggregate, reasonably be expected to have a Pubco Material Adverse Effect. For purposes of this Subscription Agreement, a “Pubco Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Pubco that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on Pubco’s ability to consummate the transactions contemplated by this Subscription Agreement.
(c) The issuance and sale of the Subscribed Shares, when issued pursuant to this Subscription Agreement (subject to the receipt of the Purchase Price in accordance with the terms of this Subscription Agreement and registration with SPAC’s transfer agent), will have been duly authorized by SPAC and, when issued and delivered to Subscriber (or its nominee in accordance with the Subscriber’s delivery instructions), will be validly issued, fully paid and free and clear of all liens or other restrictions (other than those arising under this Subscription Agreement or the BCA, the SPAC Organizational Documents (as defined below) or applicable securities laws), and will not have been issued in violation of, or subject to, any preemptive or similar rights created under the SPAC Organizational Documents (as in effect at such time of issuance) or under the Companies Act (As Revised) of the Cayman Islands.
(d) This Subscription Agreement has been duly authorized, validly executed and delivered by SPAC, the Company and Pubco, and assuming the due authorization, execution and delivery of the same by the Subscriber, this Subscription Agreement shall constitute the valid and legally binding obligation of SPAC, the Company and Pubco, enforceable against each of SPAC, the Company and Pubco in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies (collectively, the “Enforceability Exceptions”).
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(e) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4, the execution and delivery of this Subscription Agreement, the issuance of the Subscribed Shares hereunder, the compliance by SPAC with all of the provisions of this Subscription Agreement applicable to SPAC and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of SPAC pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which SPAC is a party or by which SPAC is bound or to which any of the property or assets of SPAC is subject, (ii) conflict with or violate any provision of, or result in the breach of, SPAC’s organizational documents (“SPAC Organizational Documents”), or (iii) conflict with or result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental authority with competent jurisdiction over SPAC or any of its properties except, in the case of clauses (i) and (iii), for such violations, conflicts, breaches, defaults or liens, charges or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a SPAC Material Adverse Effect.
(f) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4, the execution and delivery of this Subscription Agreement, the issuance of the Subscribed Shares hereunder, the compliance by Pubco with all of the provisions of this Subscription Agreement applicable to Pubco and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Pubco pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Pubco is a party or by which Pubco is bound or to which any of the property or assets of Pubco is subject, (ii) conflict with or violate any provision of, or result in the breach of, Pubco’s organizational documents, or (iii) conflict with or result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental authority with competent jurisdiction over Pubco or any of its properties except, in the case of clauses (i) and (iii), for such violations, conflicts, breaches, defaults or liens, charges or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Pubco Material Adverse Effect.
(g) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4, the execution and delivery of this Subscription Agreement, the issuance of the Subscribed Shares hereunder, the compliance by the Company with all of the provisions of this Subscription Agreement applicable to the Company and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) conflict with or violate any provision of, or result in the breach of, the Company’s organizational documents (“Company Organizational Documents”), or (iii) conflict with or result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental authority with competent jurisdiction over the Company or any of its properties, except, in the case of clauses (i) and (iii), for such violations, conflicts, breaches, defaults or liens, charges or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
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(h) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4, none of SPAC, the Company or Pubco is required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or governmental authority with competent jurisdiction, self-regulatory organization (including any stock exchange on which the Pubco Common Stock will be listed (the “Stock Exchange”)) or any other person in connection with the execution, delivery and performance of this Subscription Agreement, other than (i) filings required by applicable state securities laws, (ii) the filing of the Registration Statement (as defined below) pursuant to Section 5, (iii) filings required by the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules of the United States Securities and Exchange Commission (the “Commission”), including the registration statement on Form S-4 with respect to the Transactions and the proxy statement/prospectus included therein (the “Form S-4”), (iv) filings required by the Stock Exchange, including with respect to obtaining SPAC shareholder approval of the Transactions, (v) filings required to consummate the Transactions as provided under the BCA, (vi) filings in connection with or as a result of any publicly available written guidance, comments, requirements or requests of the Commission staff under the Securities Act (the “SEC Guidance”) and (vii) those the failure of which to obtain would not have a SPAC Material Adverse Effect, a Company Material Adverse Effect or a Pubco Material Adverse Effect, as applicable.
(i) Except for such matters as have not had and would not reasonably be expected to have a SPAC Material Adverse Effect, a Company Material Adverse Effect or a Pubco Material Adverse Effect, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator with competent jurisdiction pending, or, to the knowledge of SPAC, the Company or Pubco, threatened in writing against SPAC, the Company or Pubco or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator with competent jurisdiction outstanding against SPAC, the Company or Pubco, as applicable.
(j) Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 4, no registration under the Securities Act or any state securities (or Blue Sky) laws is required for the offer and sale of the Subscribed Shares by SPAC to Subscriber.
(k) None of SPAC, the Company, Pubco or any person acting on their behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Subscribed Shares. The Subscribed Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. None of SPAC, the Company, Pubco or any person acting on their behalf has, directly or indirectly, at any time within the past thirty (30) calendar days, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under Regulation D under the Securities Act in connection with the offer and sale by SPAC of the Subscribed Shares as contemplated hereby or the Other Subscribed Shares as contemplated by the Other Subscription Agreements or (ii) cause the offering of the Subscribed Shares pursuant to this Subscription Agreement or the Other Subscribed Shares pursuant to the Other Subscription Agreements to be integrated with prior offerings by SPAC, the Company or Pubco for purposes of the Securities Act. None of SPAC, the Company, Pubco or any person acting on their behalf (other than the Placement Agents (as defined below) and their respective persons acting on their behalf in such capacity, as to whom none of SPAC, the Company or Pubco makes any representation) has offered or sold or will offer or sell any securities, or has taken or will take any other action, which would reasonably be expected to subject the offer, issuance or sale of the Subscribed Shares or the Other Subscribed Shares, as contemplated hereby, to the registration provisions of the Securities Act.
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(l) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to SPAC, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) of the Securities Act is applicable.
(m) SPAC is in compliance in all material respects with, and has not received any written communication from a governmental authority with competent jurisdiction that alleges that SPAC is not in compliance in all material respects with, or is in default or violation of, the applicable provisions of (i) the Securities Act, the Exchange Act, and the rules and regulations thereunder, (ii) the rules and regulations of the Commission, and (iii) the rules of the Stock Exchange, except, in each case, where such non-compliance, default, or violation would not, individually or in the aggregate, reasonably be expected to have a SPAC Material Adverse Effect.
(n) Pubco is in compliance in all material respects with, and has not received any written communication from a governmental authority with competent jurisdiction that alleges that Pubco is not in compliance in all material respects with, or is in default or violation of, the applicable provisions of the Securities Act and the rules and regulations of the Commission, except, in each case, where such non-compliance, default, or violation would not, individually or in the aggregate, reasonably be expected to have a Pubco Material Adverse Effect. For the avoidance of doubt, this representation and warranty shall not apply to the extent any of the foregoing matters arise from or relate to the SEC Guidance.
(o) The Company is in compliance in all material respects with, and has not received any written communication from a governmental authority with competent jurisdiction that alleges that the Company is not in compliance in all material respects with, or is in default or violation of, the applicable provisions of (i) the Securities Act, the Exchange Act and the rules and regulations thereunder, and (ii) the rules and regulations of the Commission, in each case to the extent applicable to the Company, except, in each case, where such non-compliance, default or violation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
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(p) Upon consummation of the Transactions, the Pubco Common Stock will be registered pursuant to Section 12(b) of the Exchange Act and will be approved for listing on the Stock Exchange, subject to official notice of issuance.
(q) Other than compensation to be paid to Citigroup Global Markets Inc. and Cantor Fitzgerald & Co., as placement agents to SPAC and the Company (each, a “Placement Agent” and, collectively, the “Placement Agents”), no broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the sale of the Subscribed Shares to Subscriber.
(r) As of the date hereof, the authorized share capital of SPAC consists of 555,000,000 shares, consisting of (i) 500,000,000 SPAC Class A Ordinary Shares, (ii) 50,000,000 Class B ordinary shares, par value $0.0001 per share (the “SPAC Class B Ordinary Shares” and together with SPAC Class A Ordinary Shares, the “SPAC Ordinary Shares”), and (iii) 5,000,000 preference shares, par value $0.0001 per share (the “SPAC Preference Shares”). As of the date hereof and prior to giving effect to the Transactions: (i) 24,580,000 SPAC Class A Ordinary Shares were issued and outstanding; (ii) 6,000,000 SPAC Class B Ordinary Shares were issued and outstanding; and (iii) no SPAC Preference Shares were issued and outstanding. All issued and outstanding SPAC Ordinary Shares have been duly authorized and validly issued, are fully paid and non-assessable and are not subject to preemptive or similar rights. Other than Company Merger Sub, SPAC has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements or understandings to which SPAC is a party or by which it is bound relating to the voting of any SPAC Ordinary Shares or other equity interests in SPAC, other than as contemplated by the BCA or as described in the forms, reports, schedules, statements, registration statements, prospectuses, and other documents filed or furnished as of the date hereof by SPAC with the Commission under the Securities Act and/or the Exchange Act (collectively, and together with any amendments, restatements or supplements thereto, the “SEC Documents”). There are no securities or instruments issued by or to which SPAC is a party containing anti-dilution or similar provisions that will be triggered, and not fully waived by the holder of such securities or instruments pursuant to a written agreement or consent, by the issuance of the Subscribed Shares.
(s) The Other Subscription Agreements, including any side letters or similar agreements entered into with any Other Subscribers in connection with the Other Subscription Agreements, reflect the same Per Share Price and the same other material terms and conditions with respect to the purchase of Shares that are no more favorable to the Other Subscribers than the material terms of this Subscription Agreement are to the Subscriber (other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Shares).
(t) Neither SPAC nor Pubco is, and immediately after receipt of payment for the Subscribed Shares and Other Subscribed Shares and consummation of the Transactions, neither SPAC nor Pubco will be, an “investment company” within the meaning of the Investment Company Act.
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(u) None of SPAC, the Company, Pubco, or any of their respective controlled affiliates (i) is, or will be at or immediately after the Closing, a person of a country of concern, as such term is defined in 31 C.F.R. § 850.221 (a “Covered Person”), (ii) directly or indirectly holds, or will hold at or immediately after the Closing, a board seat on, a voting or equity interest in, or any contractual power to direct or cause the direction of the management or policies of, any Covered Person, or (iii) is engaged, or has plans to engage, or will be engaged at or immediately after the Closing, directly or indirectly, in a “covered activity,” as such term is defined in 31 C.F.R. § 850.208.
Section 4. Subscriber Representations and Warranties. Subscriber represents and warrants to SPAC, the Company, Pubco and the Placement Agents, as of the date hereof and as of the Closing, that:
(a) If Subscriber is a legal entity, Subscriber (i) has been duly formed and is validly existing and in good standing under the laws of its jurisdiction of formation or incorporation and (ii) has the requisite power and authority to enter into, and perform its obligations under, this Subscription Agreement. If Subscriber is an individual, Subscriber has the legal competence and capacity to enter into and perform its obligations under this Subscription Agreement.
(b) If Subscriber is a legal entity, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, Subscriber’s signature is genuine and the signatory has the legal competence and capacity to execute this Subscription Agreement. Assuming the due authorization, execution and delivery of the same by SPAC, the Company and Pubco, this Subscription Agreement shall constitute the valid and legally binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, subject to the Enforceability Exceptions.
(c) The execution, delivery and performance of this Subscription Agreement, the purchase of the Subscribed Shares hereunder, the compliance by Subscriber with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject; (ii) if Subscriber is a legal entity, the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental authority with competent jurisdiction over Subscriber or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Subscriber that, individually or in the aggregate, would reasonably be expected to materially impair or materially delay the Subscriber’s performance of its obligations under this Subscription Agreement, including the purchase of the Subscribed Shares.
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(d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities Act) satisfying the applicable requirements set forth on Annex A hereto and, in each case, an “institutional investor” (as defined in FINRA Rule 2111), (ii) if located or resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Article 2 of Regulation (EU) 2017/1129 (as amended, the “EU Prospectus Regulation”), (iii) if located or resident in the United Kingdom, is a “qualified investor” within the meaning of Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law in the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”) who is also (x) an investment professional falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended, the “Order”); (y) a high net worth entity falling within Article 49(2)(a) to (d) of the Order; or (z) a person to whom an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (as amended, the “FSMA”) in connection with the issue or sale of the Subscribed Shares may be lawfully communicated or caused to be communicated, (iv) is acquiring the Subscribed Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and Subscriber has sole investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (v) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws (and has provided SPAC, the Company and Pubco with the requested information on Annex A, following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. Subscriber acknowledges that the sale to the Subscriber of the Subscribed Shares is intended to be made in reliance on exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J).
(e) Subscriber acknowledges and agrees that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act and that the SPAC, the Company and Pubco are not required to register the Subscribed Shares except as set forth in Section 5. Subscriber acknowledges and agrees that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except pursuant to an applicable exemption from the registration requirements of the Securities Act and in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or account entries representing the Subscribed Shares shall contain a restrictive legend to such effect. Subscriber acknowledges and agrees that the Subscribed Shares will be subject to these securities law transfer restrictions, and as a result of these transfer restrictions, Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber acknowledges and agrees that, until the Subscribed Shares are registered on a Registration Statement, the Subscribed Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year following the filing of certain required information with the Commission after the Closing Date. Subscriber acknowledges and agrees that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares.
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(f) Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from SPAC. Subscriber further acknowledges that there have not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to Subscriber by SPAC, Pubco, the Company, the Placement Agents or any of their respective affiliates or any of such person’s or its or their respective affiliates’ control persons, officers, directors, partners, members, managing members, managers, agents, employees or other representatives, legal counsel, financial advisors, accountants or agents (collectively, “Representatives”), any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of SPAC, the Company or Pubco set forth in this Subscription Agreement, and Subscriber is not relying on any other purported representations, warranties, covenants, agreements or statements (including by omission), which are hereby disclaimed by Subscriber.
(g) In making its decision to purchase the Subscribed Shares, Subscriber has conducted an independent investigation and relied solely upon an independent investigation made by Subscriber and SPAC’s, the Company’s and Pubco’s respective representations in this Subscription Agreement. Subscriber has not relied on any statements or other information provided by or on behalf of SPAC, the Company or Pubco (including the Placement Agents) concerning SPAC, the Company, Pubco, the Subscribed Shares or the Subscription, and has been offered the opportunity to ask questions of SPAC, the Company and Pubco and has received answers thereto, including on the financial information, as Subscriber deemed necessary in connection with its decision to purchase the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has had access to, has received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to SPAC, the Company, Pubco and the Transactions, and Subscriber has made its own assessment and is satisfied concerning the relevant financial, tax and other economic considerations relevant to Subscriber’s investment in the Subscribed Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed SPAC’s filings with the Commission. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares, including but not limited to information concerning SPAC, Pubco, the Company, the BCA, and the Subscription. Subscriber acknowledges that certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber acknowledges that such information and projections were prepared without the participation of the Placement Agents and that the Placement Agents do not assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections.
(h) Subscriber acknowledges and agrees that none of SPAC, the Company, Pubco, the Placement Agents or any of their respective affiliates or any of such person’s or its or their respective affiliates’ Representatives has provided Subscriber with any advice with respect to the Subscribed Shares. None of SPAC, the Company, Pubco, the Placement Agents or any of their respective affiliates or Representatives has made or makes any representation or warranty, whether express or implied, of any kind or character as to SPAC, the Company, Pubco or the quality or value of the Subscribed Shares.
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(i) Subscriber acknowledges that (i) SPAC, the Company, Pubco and their respective Representatives hereafter may come into possession of, information regarding SPAC, the Company or Pubco that is material non-public information and is not known to Subscriber (“Excluded Information”), (ii) Subscriber has determined to enter into this Subscription Agreement to purchase the Subscribed Shares notwithstanding Subscriber’s lack of knowledge of the Excluded Information, and (iii) none of the Company, SPAC, Pubco, or any of the Placement Agents shall have liability to Subscriber, and Subscriber hereby waives and releases any claims Subscriber may have against the Company, SPAC, Pubco and/or the Placement Agents, to the maximum extent permitted by law, with respect to the nondisclosure of the Excluded Information, except to the extent arising from fraud, willful misconduct or intentional breach of this Subscription Agreement.
(j) Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber, on the one hand, and SPAC, the Company or Pubco (and their Representatives, including the Placement Agents), on the other, and the Subscribed Shares were offered to Subscriber solely by direct contact between Subscriber, on the one hand, and the Company, SPAC or Pubco (and their Representatives, including the Placement Agents), on the other, or their respective affiliates. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means, and none of the Company, SPAC or Pubco or their respective Representatives (including the Placement Agents) acted as investment advisor, broker or dealer to Subscriber. Subscriber acknowledges that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
(k) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares, including those set forth in the SEC Documents. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Subscribed Shares, and Subscriber has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c) and an institutional “accredited investor” as defined in Rule 501(a) under the Securities Act, (ii) is a sophisticated institutional investor, experienced in investing in business transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of Subscribed Shares. Subscriber acknowledges that the sale to Subscriber of the Subscribed Shares is intended to be made in reliance on (i) the exemption from filing under FINRA Rule 5123(b)(1)(A) and (ii) FINRA Rule 2111(b) regarding institutional customers.
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(l) Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists.
(m) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of this investment.
(n) Neither the Subscriber nor any of its affiliates, officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function is (i) a person (including individual or entity) that is the target or the subject of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by relevant governmental authorities with competent jurisdiction, including, but not limited to those administered by the U.S. government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) and the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, or the United Kingdom (including His Majesty’s Treasury of the United Kingdom) (collectively, “Sanctions”), (ii) a person or entity listed on the List of Specially Designated Nationals and Blocked Persons administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC, or any other Sanctions-related list of sanctioned persons maintained by OFAC, the Department of Commerce or the U.S. Department of State, the United Nations Security Council, the European Union, any EU member state, or the United Kingdom (collectively, “Sanctions Lists”), (iii) organized, incorporated, established, located, or resident in, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, or the so-called Luhansk People’s Republic regions of Ukraine, as well as the non-controlled regions of the oblasts of Zaporizhzhia and Kherson or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, or the United Kingdom; (iv) directly or indirectly owned or controlled (as ownership and control are defined and interpreted under applicable sanctions), or acting on behalf or at the direction of, any such person or persons described in any of the foregoing clauses (i) through (iv), except in each case as permitted under Sanctions laws; or (v) a non-U.S. institution that accepts currency for deposit and that has no physical presence in the jurisdiction in which it is incorporated or in which it is operating, as the case may be, and is unaffiliated with a regulated financial group that is subject to consolidated supervision (a “non-U.S. shell bank”) or providing banking services indirectly to a non-U.S. shell bank (collectively, (i) through (v), a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that Subscriber is permitted to do so under applicable law. Subscriber represents that (i) if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures to ensure compliance with its obligations under the BSA/PATRIOT Act, and (ii) to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with the anti-corruption and anti-money laundering-related laws administered and enforced by other governmental authorities with competent jurisdiction. Subscriber also represents that it maintains policies and procedures reasonably designed to ensure compliance with Sanctions. Subscriber further represents and warrants that, to its knowledge, (i) none of the funds held by Subscriber and used to purchase the Shares are or will be derived from transactions directly or indirectly with or for the benefit of any Prohibited Investor, (ii) such funds are from legitimate sources and do not constitute the proceeds of criminal conduct or criminal property, (iii) such funds do not originate from and have not been routed through an account maintained at a non-U.S. shell bank; and (iv) it maintains policies and procedures reasonably designed to ensure the funds held by Subscriber and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor or from or through a non-U.S. shell bank.
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(o) No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in SPAC as a result of the purchase and sale of Subscribed Shares hereunder, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over SPAC from and after the Closing as a result of the purchase and sale of Subscribed Shares hereunder.
(p) If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Company, SPAC, Pubco, the Placement Agents or any of their respective affiliates (the “Transaction Parties”) for investment advice or as the Plan’s fiduciary with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares and (ii) the acquisition and holding of the Subscribed Shares will not result in a non-exempt prohibited transaction under ERISA or section 4975 of the Code.
(q) Subscriber has or has commitments to have and, when required to deliver payment pursuant to Section 2, Subscriber will have sufficient funds to pay the Purchase Price pursuant to Section 2.
(r) Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Company, SPAC or Pubco, or any of their respective affiliates or Representatives, including the Placement Agents), other than the representations and warranties of SPAC, the Company and Pubco contained in Section 3, in making its investment or decision to invest in SPAC. Subscriber agrees that none of (i) any Other Subscriber pursuant to an Other Subscription Agreement or any other agreement related to the private placement of Shares (including the controlling persons, officers, directors, partners, agents or employees of any such Subscriber) nor (ii) the Placement Agents shall be liable (including, without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by such person or entity), whether in contract, tort or otherwise, or have any liability or obligation to Subscriber or any Other Subscriber, or any person claiming through Subscriber or any Other Subscriber, pursuant to this Subscription Agreement or related to the private placement of the Subscribed Shares, the negotiation hereof or the subject matter hereof, or the transactions contemplated hereby, for any action heretofore or hereafter taken or omitted to be taken by any of the foregoing in connection with the purchase of the Subscribed Shares. On behalf of the Subscriber and its affiliates, the Subscriber releases the Placement Agents in respect of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements related to the Private Placement. Subscriber agrees not to commence any litigation or bring any claim against the Placement Agents in any court or any other forum which relates to, may arise out of, or is in connection with, this offering of the Subscribed Shares. This undertaking is given freely and after obtaining independent legal advice.
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(s) No broker or finder is entitled to any brokerage or finder’s fee or commission to be paid by Subscriber solely in connection with the sale of the Subscribed Shares to Subscriber.
(t) At all times on or prior to the Closing Date, Subscriber shall have no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the Subscribed Shares, other than binding commitments it may have to transfer and/or pledge such Subscribed Shares upon Closing to a prime broker under and in accordance with its prime brokerage agreement with such broker.
(u) [Reserved]
(v) Subscriber is not currently (and at all times through the Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of equity securities of SPAC, the Company or Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any “group” consisting solely of the Subscriber and one or more of its affiliates.
(w) Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in SPAC, the Company or Pubco as a result of the purchase and sale of the Subscribed Shares.
(x) Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to SPAC, the Company and Pubco.
(y) In making its decision to purchase the Shares, Subscriber has relied solely upon independent investigation made by Subscriber and the representations and warranties of SPAC, the Company and Pubco set forth herein. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by the Placement Agents concerning SPAC, Pubco, the Company or the Shares or the offer and sale of the Shares except for the representations and warranties of SPAC, the Company and Pubco set forth herein. No disclosure or offering document has been prepared by the Placement Agents or their affiliates in connection with the offer and sale of the Shares. The Placement Agents and each of their respective members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to SPAC, Pubco, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by or on behalf of SPAC, the Company and Pubco. In connection with the issuance and purchase of the Shares the Placement Agents have not made any recommendations regarding an investment in SPAC, Pubco, the Company, the Shares or shares of Pubco Common Stock or acted as the Subscriber’s financial advisor or fiduciary.
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(z) Subscriber covenants that neither it, nor any affiliate acting on its behalf or pursuant to any understanding with it, has executed or will execute any purchases or sales of any securities of SPAC during the period that commenced at the time that Subscriber first learned of the transactions contemplated hereunder and ending at such time that the transactions contemplated by this Subscription Agreement are first publicly announced pursuant to the initial press release as described in Section 8(v). Subscriber covenants that until such time as the transactions contemplated by this Subscription Agreement are publicly disclosed by SPAC pursuant to the initial press release as described in Section 8(v), Subscriber will maintain the confidentiality of the existence and terms of the Subscription and the Transactions and the transactions contemplated hereby. Notwithstanding the foregoing and notwithstanding anything contained in this Subscription Agreement to the contrary, SPAC, the Company and Pubco expressly acknowledge and agree that Subscriber shall have no duty of confidentiality as set forth in this Section 4(z) to SPAC after the issuance of the initial press release as described in Section 8(v). Notwithstanding the foregoing, in the case that Subscriber is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of Subscriber’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of Subscriber’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Subscribed Shares covered by this Subscription Agreement.
(aa) Subscriber is aware that Cantor Fitzgerald & Co. (a) is an affiliate of the SPAC, (b) is acting as one of the Placement Agents, (c) is acting as financial advisor to the SPAC in connection with the Transactions, and (d) previously provided services to the SPAC pursuant to a business combination marketing agreement.
(bb) Subscriber is aware that Citigroup Global Markets Inc. is acting as one of the Placement Agents and Citigroup Global Markets Inc. is acting as financial advisor to the Company in connection with the Transactions.
(cc) Subscriber acknowledges and agrees that (a) the Placement Agents are acting solely as the Company’s and the SPAC’s placement agents in connection with the Transactions and are not acting as underwriters or in any other capacity and are not and shall not be construed as fiduciaries for the Subscriber, the Company, the SPAC or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made, and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions and (c) the Placement Agents will have no responsibility or liability with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the legality, validity or enforceability (with respect to any person) of any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company, the SPAC or the Transactions. Each Placement Agent is acting severally and not jointly and none of the Placement Agents is the agent, partner or representative of any other Placement Agent.
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(dd) Except for the representations and warranties contained in this Section 4, Subscriber makes no express or implied representation or warranty, and Subscriber hereby disclaims any such representation or warranty with respect to the execution and delivery of this Subscription Agreement and the consummation of the transactions contemplated herein.
Section 5. Registration of Subscribed Shares.
(a) Subject to Section 5(b), Pubco agrees that, as soon as practicable but in no event later than thirty (30) calendar days following the Closing Date, Pubco will file with the Commission (at Pubco’s sole cost and expense) a registration statement registering the resale of the Registrable Securities (such registration statement, the “Registration Statement”), and Pubco shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but in any event no later than ninety (90) calendar days after the Closing Date (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended by a maximum of ninety (90) calendar days if the Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided, further that Pubco shall request the Registration Statement declared effective promptly, and in any event within three (3) Business Days, after the date Pubco is notified (orally or in writing, whichever is earlier) by the staff of the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review; provided, further, that (i) if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business,(ii) if the Commission is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the same number of calendar days as the number of calendar days during which the Commission remains closed and (iii) in the event the Commission is closed for operations due to a government shutdown, Pubco will use commercially reasonable efforts to have the Registration Statement effective as soon as possible, including, without limitation, by considering the removal of the delaying amendment in consultation with outside counsel. Pubco will provide a draft of the Registration Statement to Subscriber at least two (2) Business Days in advance of the date of filing the Registration Statement with the Commission. Unless otherwise agreed to in writing by Subscriber prior to the filing of the Registration Statement, Subscriber shall not be identified as a statutory underwriter in the Registration Statement unless the Commission requests that Subscriber be identified as a statutory underwriter; provided, that if the Commission requests that Subscriber be identified as a statutory underwriter in the Registration Statement, Subscriber will have the opportunity to withdraw from the Registration Statement upon its prompt written request to Pubco. Notwithstanding the foregoing, if the Commission or its regulations prevent Pubco from including any or all of the Registrable Securities proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Registrable Securities by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Registrable Securities which is equal to the maximum number of Registrable Securities as is permitted by the Commission. In such event, the number of Registrable Securities shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional Registrable Securities under Rule 415 under the Securities Act, Pubco shall amend the Registration Statement or file one or more new Registration Statement(s) (with such amendment or new Registration Statement also being deemed to be a “Registration Statement” hereunder) to register such additional Registrable Securities and use commercially reasonable efforts to cause such amendment or Registration Statement(s) to become effective as promptly as practicable after the filing thereof, but in any event no later than thirty (30) calendar days after the filing of such Registration Statement (the “Additional Effectiveness Deadline”); provided, that the Additional Effectiveness Deadline shall be extended to ninety (90) calendar days after the filing of such Registration Statement, including any new Registration Statement or amended Registration Statement, if such Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided, further, that Pubco shall request that such Registration Statement be declared effective promptly, and in any event within three (3) Business Days, after the date Pubco is notified (orally or in writing, whichever is earlier) by the staff of the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review; provided, further, that (i) if such day falls on a Saturday, Sunday or other day that the Commission is closed for business, the Additional Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business, (ii) if the Commission is closed for operations due to a government shutdown, the Additional Effectiveness Deadline shall be extended by the same number of calendar days as the number of calendar days during which the Commission remains closed and (iii) in the event the Commission is closed for operations due to a government shutdown, Pubco will use commercially reasonable efforts to have the Registration Statement effective as soon as possible, including, without limitation, by considering the removal of the delaying amendment in consultation with outside counsel. Any failure by Pubco to file a Registration Statement by the Effectiveness Deadline or Additional Effectiveness Deadline shall not otherwise relieve Pubco of its obligations to file or effect a Registration Statement as set forth in this Section 5.
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(b) Pubco agrees that, except for such times as Pubco is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, Pubco will use its commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Subscriber, including to prepare and file any post-effective amendment to such Registration Statement or a supplement to the related prospectus such that the prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, until the earliest to occur of (i) the date on which Subscriber ceases to hold any Registrable Securities issued pursuant to this Subscription Agreement and (ii) the first date on which Subscriber can sell all of its Registrable Securities issued pursuant to this Subscription Agreement (or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold and without the requirement for Pubco to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (the earliest of clauses (i) and (ii), the “End Date”). Prior to the End Date, Pubco (i) will use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable; (ii) file all reports, and provide all customary and reasonable cooperation, necessary to enable Subscriber to resell Registrable Securities pursuant to the Registration Statement; and (iii) qualify the Registrable Securities for listing on the Stock Exchange and update or amend the Registration Statement as necessary to include Registrable Securities. Pubco will use its commercially reasonable efforts to (A) for so long as Subscriber holds Registrable Securities, make and keep public information available (as those terms are understood and defined in Rule 144) and file with the Commission in a timely manner all reports and other documents required of Pubco under the Exchange Act so long as Pubco remains subject to such requirements to enable Subscriber to resell the Registrable Securities pursuant to Rule 144, (B) at the reasonable request of Subscriber, deliver all the necessary documentation to cause Pubco’s transfer agent to remove all restrictive legends from any Registrable Securities being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of the Registrable Securities, and (C) cause its legal counsel to deliver to the transfer agent the necessary legal opinions required by the transfer agent, if any, in connection with the instruction under clause (B) upon the receipt of Subscriber representation letters and such other customary supporting documentation as requested by (and in a form reasonably acceptable to) such counsel. Subscriber agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Registrable Securities to Pubco (or its successor) as may be reasonably required to enable Pubco to make the determination described above.
(c) Pubco’s obligations to include the Registrable Securities in the Registration Statement are contingent upon Subscriber furnishing in writing to Pubco a completed selling stockholder questionnaire in customary form that contains such information regarding Subscriber, the securities of Pubco held by Subscriber and the intended method of disposition of the Registrable Securities as shall be reasonably requested by Pubco to effect the registration of the Registrable Securities, and Subscriber shall execute such documents in connection with such registration as Pubco may reasonably request that are customary of a selling stockholder in similar situations, including providing that Pubco shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement (i) during any customary blackout or similar period or as permitted hereunder and (ii) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of Pubco’s Annual Report on Form 10-K for its first completed fiscal year following the effective date of the Registration Statement; provided, that Pubco shall request such information from Subscriber, including the selling stockholder questionnaire, at least five (5) Business Days prior to the anticipated date of filing the Registration Statement with the Commission. In the case of the registration effected by Pubco pursuant to this Subscription Agreement, Pubco shall, upon reasonable request, inform Subscriber as to the status of such registration. Subscriber shall not be entitled to use the Registration Statement for an underwritten offering of Registrable Securities. Notwithstanding anything to the contrary contained herein, Pubco may from time to time require Subscriber not to sell under the Registration Statement or suspend the use or effectiveness of any such Registration Statement if (A) it determines in good faith that in order for the registration statement to not contain a material misstatement or omission, an amendment thereto would be needed, including as a result of any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information, (B) such filing or use would materially affect a bona fide business or financing transaction of Pubco or would require premature disclosure of information that would materially adversely affect Pubco, (C) in the good faith judgment of the majority of the members of Pubco’s board of directors, such filing or effectiveness or use of such Registration Statement would be seriously detrimental to Pubco, (D) the majority of the board determines to delay the filing or initial effectiveness of, or suspend use of, a Registration Statement and such delay or suspension arises out of, or is a result of, or is related to or is in connection with the SEC Guidance or future Commission guidance directed at special purpose acquisition companies or companies that have consummated a business combination with a special purpose acquisition company, or any related disclosure or related matters, (E) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of Pubco’s Annual Report on Form 10-K for its first completed fiscal year following the effective date of the Registration Statement, or (F) Subscriber agrees that (1) it will immediately discontinue offers and sales of the Registrable Securities under the Registration Statement until Subscriber receives copies of a supplemental or amended prospectus (which Pubco agrees to use commercially reasonable efforts to promptly prepare) that corrects the misstatement(s) or omission(s) referred to in Section 5(b)(A) and receives notice that any post-effective amendment has become effective or unless otherwise notified by Pubco that it may resume such offers and sales and (2) it will maintain the confidentiality of any information included in such written notice delivered by Pubco unless otherwise required by law, subpoena or regulatory request or requirement (each such circumstance, a “Suspension Event”); provided, that, (w) Pubco shall not so delay filing or so suspend the use of the Registration Statement for a period of more than forty-five (45) consecutive days or more than ninety (90) total calendar days in any consecutive three hundred sixty (360) day period, or more than two (2) times in any consecutive three hundred sixty (360) day period and (x) Pubco shall use commercially reasonable efforts to make such registration statement available for the sale by Subscriber of such securities as soon as practicable thereafter.
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(d) Upon receipt of any written notice from Pubco of the happening of (i) an issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose, which notice shall be given no later than three (3) Business Days from the date of such event, (ii) any Suspension Event during the period that the Registration Statement is effective, which notice shall be given no later than three (3) Business Days from the date of such Suspension Event, or (iii) if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, Subscriber agrees that (1) it will immediately discontinue offers and sales of the Registrable Securities under the Registration Statement until Subscriber receives copies of a supplemental or amended prospectus (which Pubco agrees to use commercially reasonable efforts to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by Pubco that it may resume such offers and sales and (2) it will maintain the confidentiality of any information included in such written notice delivered by Pubco unless otherwise required by law, subpoena or regulatory request or requirement. If so directed by Pubco, Subscriber will deliver to Pubco or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Registrable Securities in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Registrable Securities shall not apply (w) to the extent Subscriber is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide pre-existing document retention policy or (x) to copies stored electronically on archival servers as a result of automatic data back-up.
(e) For purposes of this Section 5 (i) “Registrable Securities” shall mean, as of any date of determination, the Registrable Securities and any other equity security issued or issuable with respect to the Registrable Securities by way of share split, dividend, distribution, recapitalization, merger, exchange, or replacement, and (ii) “Subscriber” shall include any person to which the rights under this Section 5 shall have been duly assigned.
(f) Pubco shall indemnify, defend and hold harmless Subscriber, (to the extent Subscriber is a seller under the Registration Statement), the officers, directors, members, managers, partners, agents and employees of Subscriber, each person who controls Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, managers, partners, agents and employees of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all out-of-pocket and reasonably documented losses, claims, damages, liabilities, costs (including reasonable and documented external attorneys’ fees) and expenses (collectively, “Losses”) arising out of or caused by or based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions are (1) based upon information regarding Subscriber furnished in writing to Pubco by or on behalf of Subscriber expressly for use therein or Subscriber has omitted a material fact from such information or (2) result from or in connection with any offers or sales effected by or on behalf of Subscriber in violation of Section 5(b). Notwithstanding the foregoing, Pubco’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Pubco. Pubco shall provide Subscriber with an update on any threatened or asserted proceedings arising from or in connection with the transactions contemplated by this Section 5 of which Pubco receives notice whether oral or in writing.
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(g) Subscriber shall, severally and not jointly with any Other Subscriber in the offering contemplated by this Subscription Agreement, indemnify, defend and hold harmless Pubco, its directors, officers, members, managers, partners, agents and employees, each person who controls Pubco (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, members, managers, partners, agents or employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses arising out of or based upon any untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based upon information regarding Subscriber furnished in writing to Pubco by or on behalf of Subscriber expressly for use therein. In no event shall the liability of Subscriber be greater in amount than the United States dollars amount of the net proceeds received by Subscriber upon the sale of the Registrable Securities giving rise to such indemnification obligation. Notwithstanding the forgoing, Subscriber’s indemnification obligation shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Subscriber (which consent shall not be unreasonably withheld or delayed).
(h) Any person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement), which settlement shall not include a statement or admission of fault and culpability on the part of such indemnified party, and which settlement shall include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(i) The indemnification provided for under this Subscription 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 or entity of such indemnified party and shall survive the transfer of the Registrable Securities pursuant to this Subscription Agreement.
(j) If the indemnification provided under this Section 5 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations; provided, however, that the liability of Subscriber shall be limited to the net proceeds received by such Subscriber from the sale of Registrable Securities giving rise to such indemnification obligation. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), or on behalf of such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses shall be deemed to include, subject to the limitations set forth in this Section 5, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(j) from any person or entity who was not guilty of such fraudulent misrepresentation. Notwithstanding anything to the contrary herein, in no event will any party be liable for punitive damages in connection with this Subscription Agreement or the transactions contemplated hereby.
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(k) At any time and from time to time in connection with a bona-fide sale of Subscribed Shares effected in compliance with the requirements of Rule 144 under the Securities Act or through any broker-dealer sale transactions described in the plan of distribution set forth within any prospectus and pursuant to the Registration Statement, Pubco shall use its commercially reasonable efforts, subject to the receipt of customary documentation required from the holder of the applicable Subscribed Shares and broker in connection therewith and compliance with applicable laws, (i) promptly instruct its transfer agent to remove any restrictive legends applicable to the Subscribed Shares being sold and (ii) in connection with any sale made pursuant to Rule 144, cause its legal counsel to deliver reasonably requested legal opinions, if any, to the transfer agent in connection with the instruction under subclause (i). Subscriber may request that Pubco remove any legend from the book entry position evidencing its Subscribed Shares following the earliest of such time as such Subscribed Shares (i) (x) are subject to or (y) have been or are about to be sold or transferred pursuant to an effective registration statement (including the Registration Statement), or (ii) have been sold pursuant to Rule 144. Pubco shall be responsible for the fees of its transfer agent, its legal counsel (including for purposes of giving the opinion referenced herein) and all DTC fees associated with such issuance and the Subscriber shall be responsible for its fees or costs associated with such removal of the legend (including its legal fees or costs of its legal counsel).
(l) With a view to making available to Subscriber the benefits of Rule 144 that permit Subscriber to sell securities of Pubco to the public without registration, Pubco agrees, for so long as Subscriber holds Subscribed Shares, to:
(i) use commercially reasonable efforts to make and keep publicly available, as those terms are understood and defined in Rule 144; and
(ii) use commercially reasonable efforts to file with the Commission in a timely manner all reports and other documents required of Pubco under the Exchange Act so long as Pubco remains subject to such requirements and the filing of such reports and other documents as may be required pursuant to the applicable provisions of Rule 144.
(m) Upon request, Pubco shall provide the Subscriber with contact information for the person responsible for Pubco’s account at the transfer agent to facilitate transfers made pursuant to this Section 5 and provide reasonable assistance to facilitate transfers. Pubco shall be responsible for the fees of its transfer agent and its legal counsel (including for purposes of giving the opinion referenced herein) associated with such issuance and the Subscriber shall be responsible for its fees or costs associated with such removal of the legend (including its legal fees or costs of its legal counsel).
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Section 6. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) such date and time as the BCA is terminated in accordance with its terms; (b) the mutual written agreement of the parties hereto to terminate this Subscription Agreement or (c) twelve (12) months after the date hereof; provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. SPAC, the Company or Pubco shall notify Subscriber of the termination of the BCA promptly after the termination thereof. Upon the termination hereof in accordance with this Section 6, any monies paid by Subscriber in connection herewith shall promptly (and in any event within two (2) Business Days) be returned in full to Subscriber by wire transfer of United States dollars in immediately available funds to the account specified by Subscriber, without any deduction for or on account of any tax withholding except as required by law, charges or set-off, whether or not the Transactions shall have been consummated.
Section 7. Trust Account Waiver. Subscriber hereby acknowledges that SPAC is a blank check company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. Subscriber further acknowledges that, as described in the final prospectus relating to SPAC’s initial public offering (“IPO”) filed with the Commission (File Nos. 333-285681 and 333-286916) on May 2, 2025 (the “Prospectus”), substantially all of SPAC’s assets consist of the cash proceeds of SPAC’s IPO and a private placement of its securities and substantially all of those proceeds (including interest accrued from time to time thereon) have been deposited into a trust account (the “Trust Account”) for the benefit of SPAC and its public shareholders. As described in the Prospectus, the funds held from time to time in the Trust Account may only be released upon certain conditions. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Subscriber hereby agrees (on its own behalf and on behalf of its related parties) that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind (“Claim”) to, or to any monies or other assets in, the Trust Account, and hereby irrevocably waives (on its own behalf and on behalf of its related parties) any Claim to, or to any monies or other assets in, the Trust Account that it may have now or in the future as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Subscriber Shares, in or to any monies held in the Trust Account (or any distributions therefrom directly or indirectly to SPAC’s public shareholders). In the event that Subscriber has any Claim against SPAC as a result of, or arising out of, this Subscription Agreement, the Other Subscription Agreements, the transactions contemplated hereby and thereby, or the Subscribed Shares, Subscriber agrees not to seek recourse against the Trust Account or any funds distributed therefrom (it being clarified that such waiver shall not apply following the Closing to the Trust Account funds that are released from the Trust Account to SPAC or Pubco in connection with the Transactions). Subscriber acknowledges and agrees that such irrevocable waiver is a material inducement to SPAC to enter into this Subscription Agreement, and further intends and understands such waiver to be valid, binding, and enforceable against Subscriber in accordance with applicable law. To the extent Subscriber commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to SPAC or its Representatives, which proceeding seeks, in whole or in part, monetary relief against SPAC or its Representatives, Subscriber hereby acknowledges and agrees that its sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit Subscriber (or any person claiming on Subscriber’s behalf or in lieu of Subscriber) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Nothing in this Section 7 shall be deemed to limit Subscriber’s right to distributions from the Trust Account in accordance with the SPAC Organizational Documents in respect of any redemptions by Subscriber in respect of SPAC Class A Ordinary Shares acquired by any means other than pursuant to this Subscription Agreement. Notwithstanding anything in this Subscription Agreement to the contrary, the provisions of this Section 7 shall survive termination of this Subscription Agreement.
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Section 8. Miscellaneous.
(a) Subscriber hereby acknowledges that it shall be solely responsible for and bear the cost of all transfer, stamp, issue, registration, documentary or other similar taxes, duties, fees or charges arising in any jurisdiction in connection with the Subscription contemplated in this Subscription Agreement as well as the execution of this Subscription Agreement.
(b) Notwithstanding any other provision of this Subscription Agreement, SPAC, Pubco and any of their Representatives, as applicable, shall be entitled to deduct and withhold from the Registrable Securities and any other amount payable pursuant to this Subscription Agreement (in connection with a future share split, dividend, distribution, recapitalization, merger, exchange, or replacement) any such taxes as may be required to be deducted and withheld from such amounts (and any other amounts treated as paid for applicable tax law) under the Internal Revenue Code of 1986, as amended, or any other applicable tax law (as determined in good faith by the party so deducting or withholding in its sole discretion). To the extent that any amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Subscription Agreement as having been paid to the person in respect of which such deduction and withholding was made.
(c) All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) when sent by electronic mail, with no mail undeliverable or other rejection notice, on the date of transmission to such recipient, if sent on a Business Day prior to 5:00 p.m. New York City time, or on the Business Day following the date of transmission, if sent on a day that is not a Business Day or after 5:00 p.m. New York City time on a Business Day, (iii) one (1) Business Day after being sent to the recipient via overnight mail by reputable overnight courier service (charges prepaid), or (iv) four (4) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and, in each case, addressed to the intended recipient at its address specified on the signature page hereof or to such electronic mail address or address as subsequently modified by written notice given in accordance with this Section 8(c). A courtesy electronic copy of any notice sent by methods (i), (iii), or (iv) above shall also be sent to the recipient via electronic mail if an electronic mail address is provided in the applicable signature page hereof or to an electronic mail address as subsequently modified by written notice given in accordance with this Section 8(c).
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(d) Subscriber acknowledges that SPAC, Pubco, the Company, the Placement Agents and others will rely on the acknowledgments, understandings, agreements, representations and warranties of Subscriber contained in this Subscription Agreement; provided, however, that the foregoing clause of this Section 8(d) shall not give SPAC, the Company or Pubco any rights other than those expressly set forth herein. Prior to the Closing, Subscriber agrees to promptly notify SPAC, the Company and Pubco if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of Subscriber set forth herein are no longer accurate in all material respects. SPAC, the Company and Pubco acknowledge that Subscriber and the Placement Agents will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, SPAC, the Company and Pubco agree to promptly notify Subscriber and the Placement Agents, if they become aware that any of the acknowledgments, understandings, agreements, representations and warranties of SPAC, the Company or Pubco, respectively, set forth herein are no longer accurate in all material respects.
(e) Each of SPAC, the Company, Pubco and Subscriber is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party as required by applicable law in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
(f) Each party hereto shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
(g) Neither this Subscription Agreement nor any rights that may accrue to Subscriber hereunder (other than the Subscribed Shares acquired hereunder and the rights set forth in Section 5) may be transferred or assigned by Subscriber. Neither this Subscription Agreement nor any rights that may accrue to SPAC, the Company or Pubco hereunder may be transferred or assigned by SPAC, the Company or Pubco without the prior written consent of Subscriber, other than in connection with the Transactions. Notwithstanding the foregoing, Subscriber may assign all or a portion of its rights and obligations under this Subscription Agreement to one or more of its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on behalf of Subscriber) upon written notice to SPAC, the Company and Pubco or, with SPAC’s, the Company’s and Pubco’s prior written consent, to another person; provided, that in the case of any such assignment, the assignee(s) shall become a Subscriber hereunder and have the rights and obligations and be deemed to make the representations and warranties of Subscriber provided for herein to the extent of such assignment and provided further that no such assignment shall relieve the assigning Subscriber of its obligations hereunder if any such assignee fails to perform such obligations, unless SPAC, the Company and Pubco have given their prior written consent to such relief. Any purported assignment or transfer in violation of this Section 8(g) shall be null and void.
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(h) All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
(i) SPAC, the Company and Pubco may request from Subscriber such additional information as SPAC, the Company or Pubco may reasonably determine to be necessary to evaluate the eligibility of Subscriber to acquire the Subscribed Shares and to register the Subscribed Shares for resale, and Subscriber shall promptly provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures; provided, that SPAC, the Company and Pubco agree to keep any such information provided by Subscriber confidential, except (A) as required by the federal securities laws, rules or regulations and (B) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations of the Stock Exchange. Subscriber acknowledges that SPAC and Pubco may file a form of this Subscription Agreement with the Commission as an exhibit to a current or periodic report of SPAC and/or Pubco, an annex to a proxy statement of SPAC and/or Pubco or as an exhibit to a registration statement of Pubco.
(j) This Subscription Agreement may not be amended, modified or waived except by an instrument in writing, signed by each of the parties hereto; provided that no provision of this Subscription Agreement that references the Placement Agents may be amended, modified, terminated or waived in any manner that is adverse to the Placement Agents without the prior written consent of each of the Placement Agents.
(k) This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.
(l) Except with respect to the Placement Agents (who are third-party beneficiaries of the representations and warranties and of the covenants that reference the Placement Agents set forth herein) or as otherwise provided herein, this Subscription Agreement is intended for the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns and, except with respect to the Placement Agents or as otherwise provided herein, is not for the benefit of, nor may any provision hereof be enforced by, any other person.
(m) The parties hereto acknowledge and agree that irreparable damage may occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached and that money or other legal remedies may not be an adequate remedy for such damage. It is accordingly agreed that the parties shall be entitled to seek equitable relief, including in the form of an injunction or injunctions to prevent breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. The parties hereto acknowledge and agree that SPAC, the Company and Pubco shall be entitled to seek specific enforcement of Subscriber’s obligations to fund the Subscription and the provisions of the Subscription Agreement, in each case, on the terms and subject to the conditions set forth herein. The parties hereto further acknowledge and agree to waive any requirement for the security or posting of any bond in connection with any such equitable remedy.
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(n) If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
(o) No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
(p) This Subscription Agreement may be executed and delivered in one or more counterparts (including by electronic mail, in .pdf or other matters electronic submission) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
(q) This Subscription Agreement, and all claims, causes of action (whether in contract, tort or statute) or other matters that may result from, arise out of, be in connection with or relate to this Subscription Agreement, or the negotiation, administration, performance, or enforcement of this Subscription Agreement, including any claim or cause of action resulting from, arising out of, in connection with, or relating to any representation or warranty made in or in connection with this Subscription Agreement, shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without giving effect to any choice or conflict of laws provision, rule, or principle (whether of the State of Delaware or any other jurisdiction) that would result in the application of the laws of any other jurisdiction.
(r) EACH PARTY HERETO ACKNOWLEDGESAND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO, BASED ON OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATEDHEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVESANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION (WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE)DIRECTLY OR INDIRECTLY ARISING OUT OF, BASED ON OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS. EACH PARTY ACKNOWLEDGESAND AGREES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHERPARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONSOF THIS WAIVER; (iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONGOTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8(r).
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(s) Each of the parties hereto (a) irrevocably consents to the service of the summons and complaint and any other process (whether inside or outside the territorial jurisdiction of the Chosen Courts (as defined below)) in any Action based on, arising out of or relating to this Subscription Agreement or the transactions contemplated hereby, for and on behalf of itself or any of its properties or assets, in accordance with this Section 8(s) or in such other manner as may be permitted by applicable law, and nothing in this Section 8(s) shall affect the right of any party to serve legal process in any other manner permitted by applicable law; (b) irrevocably and unconditionally consents and submits itself and its properties and assets in any Action to the exclusive general jurisdiction of the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any other state or federal court within the State of Delaware) (the “Chosen Courts”) in the event that any dispute or controversy based on, arising out of or relating to this Subscription Agreement or the transactions contemplated hereby; (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (d) agrees that any Action based on, arising out of or relating to this Subscription Agreement or the transactions contemplated hereby shall be brought, tried and determined only in the Chosen Courts; (e) waives any objection that it may now or hereafter have to the venue of any such Action in the Chosen Courts or that such Action was brought in an inconvenient court and agrees not to plead or claim the same; and (f) agrees that it shall not bring any Action based on, arising out of or relating to this Subscription Agreement or the transactions contemplated hereby in any court other than the Chosen Courts. Each of the parties hereto agrees that a final judgment in any Action in the Chosen Courts shall be conclusive and may be enforced in other jurisdictions, either within or outside of the U.S., by suit on the judgment or in any other manner provided by applicable law. A certified or exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of such award or judgment. With respect to any Action for which it has submitted to jurisdiction pursuant to this Section 8(s), each party irrevocably consents to service of process in the manner provided for the giving of notices pursuant to Section 8(c). Nothing in this Section 8(s) shall affect the right of any party to serve process in any other manner permitted by law. The foregoing consent to jurisdiction shall not (x) constitute submission to jurisdiction or general consent to service of process in the State of Delaware for any purpose except with respect to any Action based on, arising out of or relating to this Subscription Agreement or the transactions contemplated hereby or (y) be deemed to confer rights on any person other than the parties.
(t) For the purposes of this Subscription Agreement:
(i) “Action” shall mean any demand, claim, charge, action, suit, investigation, proceeding (whether at law or in equity), hearing, inquiry, audit, examination petition, complaint, notice of violation, arbitration or other litigation or similar proceeding, whether arbitral, civil, criminal, administrative, investigative or appellate proceeding, commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel; and
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(ii) “Governmental Authority” shall mean any (a) federal, state, provincial, local or other government (U.S. or non-U.S.), (b) any federal, state, provincial, local, or other governmental or supra-national entity, regulatory or administrative authority, taxing authority, agency, department, board, division, instrumentality or commission, educational agency, political party, body, or judicial or arbitral body, board, tribunal, or court (U.S. or non-U.S.), (c) any public international organization (e.g., the World Bank), (d) any industry self-regulatory authority or (e) any business, entity, or enterprise owned or controlled by any of the foregoing.
(u) This Subscription Agreement may only be enforced against, and any claim, action, suit or other legal proceeding based upon, arising out of, or related to this Subscription Agreement, or the negotiation, execution or performance of this Subscription Agreement, may only be brought against the entities that are expressly named as parties hereto; except with respect to the provisions of this Subscription Agreement for which the Placement Agents are express third party beneficiaries.
(v) SPAC shall (i) by 9:00 a.m., New York City time, on the first (1st) Business Day immediately following the date of this Subscription Agreement, issue a press release disclosing the material terms of the transactions contemplated hereby, and (ii) file with the Commission a Current Report on Form 8-K disclosing all material terms of this Subscription Agreement, the Other Subscription Agreements and the transactions contemplated hereby and thereby, and the Transactions, and including as exhibits thereto, the form of this Subscription Agreement and the Other Subscription Agreement, within the time required by the Exchange Act. From and after the issuance of such press release, SPAC represents to the Subscriber that it shall have publicly disclosed all material, non-public information regarding SPAC, the Company or Pubco delivered to the Subscriber by or on behalf of the SPAC, the Company, Pubco or any of their respective officers, directors, employees or agents (including the Placement Agents) in connection with the transactions contemplated by this Subscription Agreement. Prior to the Closing, Subscriber shall not issue any press release or make any other similar public statement with respect to the transactions contemplated hereby without the prior written consent of SPAC, the Company and Pubco (such consent not to be unreasonably withheld or delayed). Notwithstanding anything in this Subscription Agreement to the contrary, each of SPAC, the Company and Pubco (i) shall not publicly disclose the name of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any press release, without the prior written consent of Subscriber and (ii) shall not publicly disclose the name of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any filing with the Commission or any regulatory agency or trading market, without the prior written consent of Subscriber, except (A) as required by the federal securities laws, rules or regulations, including in connection with the filing of a Registration Statement pursuant to Section 5(a), and (B) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations of the Stock Exchange, in which case of clause (A) or (B), SPAC or Pubco, as applicable, shall provide Subscriber with prior written notice (including by e-mail) of such permitted disclosure, and shall reasonably consult with Subscriber regarding such disclosure. Subscriber will promptly provide any information reasonably requested by SPAC, the Company or Pubco for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the Commission). To the extent that any such information is publicly disclosed pursuant to the provisions hereunder, the parties agree that no further notice or consent is required for SPAC or Pubco to further disclose such information.
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(w) The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber or other investor under the Other Subscription Agreements. The decision of Subscriber to purchase Subscribed Shares pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber or any other investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of SPAC, the Company, Pubco or any of their respective affiliates or subsidiaries which may have been made or given by any Other Subscriber or investor, by any agent or employee of any Other Subscriber or investor, and neither Subscriber nor any of its agents or employees shall have any liability to any Other Subscriber or investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber, the Other Subscribers or other investors pursuant hereto or thereto shall be deemed to constitute Subscriber and any Other Subscribers or other investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and any Other Subscribers or other investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of Subscriber in connection with monitoring its investment in the Subscribed Shares or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber or investor to be joined as an additional party in any proceeding for such purpose.
(x) The headings herein are for convenience only, do not constitute a part of this Subscription Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Subscription Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rules of strict construction will be applied against any party. Unless the context otherwise requires, (i) all references to Sections or Annexes are to Sections or Annexes contained in or attached to this Subscription Agreement, (ii) each accounting term not otherwise defined in this Subscription Agreement has the meaning assigned to it in accordance with United States generally accepted accounting principles, (iii) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (iv) the use of the word “including” in this Subscription Agreement shall be by way of example rather than limitation, and (v) the word “or” shall not be exclusive (i.e., unless context requires otherwise “or” shall be interpreted to mean “and/or” rather than “either/or”).
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Section 9. Open-Market Purchases
9.01 In the event Subscriber elects to purchase SPAC Class A Ordinary Shares for its own account pursuant to open-market transactions at a price of less than the Redemption Price per share with third parties (the “Open-Market Purchase Shares”) after the date hereof and prior to the record date established for voting (the “Record Date”) at the extraordinary general meeting of shareholders of SPAC held to approve the Transactions (the “SPAC Shareholder Meeting”), and/or (ii) to the extent Subscriber elects to apply any SPAC Class A Ordinary Shares it beneficially owns as of the date of this Subscription Agreement (the “Currently Owned Shares”, with such number of Currently Owned Shares not to exceed the amount listed on the signature page hereto), the number of Subscribed Shares that Subscriber shall be obligated to purchase pursuant to this Subscription Agreement, may be reduced on a one-for-one basis, at Subscriber’s election, by up to the total number of Subscribed Shares subscribed for by Subscriber pursuant to the terms of this Subscription Agreement (the “Reduction Right”); in each case, subject to Subscriber agreeing, (i) with respect to the Open-Market Purchase Shares, to (A) not sell or otherwise transfer such Open-Market Purchase Shares prior to the consummation of the Transactions, (B) not vote any Open-Market Purchase Shares in favor of approving the Transactions and instead submit a proxy abstaining from voting thereon, and (C) to the extent it has the right to have any of its Open-Market Purchase Shares redeemed for cash in connection with the consummation of the Transactions, not exercise any such redemption rights (collectively, the “Open-Market Purchase Reduction Conditions”), and (ii) with respect to the Currently Owned Shares, to (A) not sell or otherwise transfer such Currently Owned Shares prior to the consummation of the Transactions, (B) vote all of its Currently Owned Shares in favor of approving the Transactions at the SPAC Shareholder Meeting, and (C) to the extent it has the right to have any of its Currently Owned Shares redeemed for cash in connection with the consummation of the Transactions, not exercise any such redemption rights (the “Currently Owned Shares Reduction Conditions”).
9.02 Subscriber shall, no later than one (1) Business Day after the Record Date, deliver a certificate (the “Certificate”) to SPAC, signed by Subscriber, certifying: (i) the number of Subscribed Shares for which Subscriber has elected to exercise its Reduction Right, including the number of Open-Market Purchase Shares and Currently Owned Shares so elected, and (ii)(x) with respect to any such Open-Market Purchase Shares, (1) the date of such Open-Market Purchase, (2) the price per share at which such Open-Market Purchase Shares were purchased by Subscriber, and (3) an affirmation that Subscriber has and will comply with the Open-Market Purchase Reduction Conditions, and (y) with respect to any such Currently Owned Shares, an affirmation that Subscriber has and will comply with the Currently Owned Shares Reduction Conditions. In the event that subsequent to exercising its Reduction Right, Subscriber desires to lower the number of Subscribed Shares subject to such reduction (i.e., increase the number of Subscribed Shares to be purchased pursuant to this Subscription Agreement), Subscriber may so amend the Certificate with the consent of SPAC. Notwithstanding anything to the contrary in the foregoing, no later than three (3) Business Days prior to the anticipated Closing Date as set forth in the Closing Notice, Subscriber shall reaffirm to the SPAC in writing that the certifications included in the Certificate are true and correct, and shall provide SPAC with such other information as it may reasonably request in order for SPAC to issue the Reduction Right Shares to Subscriber prior to the SPAC Merger including, without limitation, the legal name of the person in whose name the Reduction Right Shares are to be issued and a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
[Signature pages follow]
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IN WITNESS WHEREOF, SPAC, the Company and Pubco have accepted this Subscription Agreement as of the date first set forth above.
| CANTOR EQUITY PARTNERS II, INC. |
|---|
| By: |
| Name: |
| Title: |
Address for Notices:
110 East 59^th^ Street
New York, NY 10022
Email: [***]
Attention: Chief Executive Officer
with a copy (not to constitute notice) to:
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, NY 10004-1482
Email: Javad.Husain@hugheshubbard.com;
michael.traube@hugheshubbard.com
Attention: Javad Husain; Michael Traube
and
Cantor Fitzgerald & Co.
110 East 59th Street
New York, New York 10022
Email: [***]
Attention: General Counsel
[Signature Page to Subscription Agreement]
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| SECURITIZE, INC. | ||
|---|---|---|
| By: | ||
| Name: | Carlos Domingo | |
| Title: | Authorized Person |
Address for Notices:
c/o Securitize, Inc.
78 SW 7th Street
Miami, FL 33130
Attn: Carlos Domingo
Email: [***]
with a copy (not to constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: Joseph A. Hall; Derek Dostal; Daniel P. Gibbons
Email: joseph.hall@davispolk.com; derek.dostal@davispolk.com;
dan.gibbons@davispolk.com
[Signature Page to Subscription Agreement]
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| SECURITIZE HOLDINGS, INC. | ||
|---|---|---|
| By: | ||
| Name: | Carlos Domingo | |
| Title: | Authorized Person |
Address for Notices:
c/o Securitize, Inc.
78 SW 7th Street
Miami, FL 33130
Attn: Carlos Domingo
Email: [***]
with a copy (not to constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: Joseph A. Hall; Derek Dostal; Daniel P. Gibbons
Email: joseph.hall@davispolk.com; derek.dostal@davispolk.com;
dan.gibbons@davispolk.com
[Signature Page to Subscription Agreement]
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IN WITNESS WHEREOF, Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.
| Name of Subscriber: _____________________ |
|---|
| By: __________________________________ |
| Name: ________________________________ |
| Title: _________________________________ |
| Name in which Subscribed Shares are to be registered (if different): |
| ____________________________________ |
| Subscriber’s EIN: _______________________ |
| Entity Type (e.g., corporation, partnership, trust, etc.): ________________________________ |
| Business Address-Street: |
| ____________________________________ |
| City, State, Zip: ________________________ |
| Attn: ________________________________ |
| Telephone No.: ________________________ |
| Email for notices: _______________________ |
| Number of Shares subscribed for: ___________ |
| Aggregate Purchase Price: _______________ |
All values are in US Dollars.
[Signature Page to Subscription Agreement]
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ANNEX A
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
This Annex A should be completed and signed by Subscriber and constitutes a part of the Subscription Agreement.
| 1. | QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the box, if applicable) |
|---|
Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (a “QIB”)
We are subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, and each owner of such account is a QIB.
**OR**
| 2. | INSTITUTIONAL ACCREDITED INVESTOR STATUS (Please check the box, if applicable) |
|---|
Subscriber is an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act, and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an institutional “accredited investor.”
**AND**
| 3. | FINRA INSTITUTIONAL INVESTOR STATUS (Please check the box) |
|---|
Subscriber is a “institutional investor” (as defined in FINRA Rule 2111).
**AND**
| 4. | AFFILIATE STATUS<br><br> (Please check the applicable box) |
|---|
SUBSCRIBER
is:
is not:
an “affiliate” (as defined in Rule 144 under the Securities Act) of SPAC, the Company or Pubco or acting on behalf of an affiliate of SPAC, the Company or Pubco.
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Subscriber has indicated, by marking and initialing the appropriate box(es) below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an institutional “accredited investor.”
Any bank, registered broker or dealer, insurance company, registered investment company, business development company, small business investment company, private business development company, or rural business investment company;
Any investment adviser registered pursuant to section 203 of the Investment Advisers Act or registered pursuant to the laws of a state;
Any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act;
Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
Any employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”;
Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act;
Any (i) corporation, limited liability company or partnership, (ii) Massachusetts or similar business trust, or (iii) organization described in section 501(c)(3) of the Internal Revenue Code, in each case that was not formed for the specific purpose of acquiring the securities offered and that has total assets in excess of $5,000,000;
Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii) of Regulation D under the Securities Act;
**AND**
| 5. | FINRA<br> INSTITUTIONAL ACCOUNT STATUS (Please check the box) |
|---|
Subscriber is an “institutional account” under FINRA Rule 4512(c).
**AND**
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| 6. | EEA QUALIFIED INVESTOR (Please check the applicable<br> box) |
|---|
Subscriber is a “qualified investor” (within the meaning of Article 2 of the EU Prospectus Regulation).
Subscriber is not a resident in a member state of the European Economic Area.
**AND**
| 7. | UK<br> QUALIFIED INVESTOR (Please check the applicable box) |
|---|
Subscriber is a “qualified investor” (within the meaning of Article 2 of the UK Prospectus Regulation) who is also (i) an investment professional falling within Article the Order; (ii) a high net worth entity falling within Article 49(2)(a) to (d) of the Order; or (iii) a person to whom an invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) in connection with the issue or sale of the Subscribed Shares may be lawfully communicated or caused to be communicated.
Subscriber is not resident in the United Kingdom.
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This page should be completed by Subscriberand constitutes a partof the Subscription Agreement.
| SUBSCRIBER: |
|---|
| Print Name: |
| By: |
| Name: |
| Title: |
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