CSTAF 8-K
Constellation Acquisition Corp I (CSTAF)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry Into A Material Definitive Agreement.
Business Combination Agreement
The Business Combination
On April 9, 2026, Constellation Acquisition Corp I, a Cayman Islands exempted company (“CSTA”), US Elemental Inc., a Delaware corporation (“PubCo”), CAC Merger Sub I LLC, a Delaware limited liability company and a direct wholly owned subsidiary of PubCo (“Merger Sub 1”), USE Merger Sub 2 Inc., a Nevada corporation (“Merger Sub 2”), and HiTech Minerals Inc., a Nevada corporation (“HiTech”), entered into a Business Combination Agreement (as it may be amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Business Combination Agreement.
The Business Combination Agreement provides for, among other things, the consummation of the following transactions (the transactions contemplated by the Business Combination Agreement, collectively, the “Business Combination”):
| (i) | CSTA will merge with and into Merger Sub 1 (the “Initial Merger”), with Merger Sub 1 being the surviving company (as defined in the Cayman Act) and remaining a wholly owned subsidiary of PubCo, and CSTA will cease to exist and will be struck off the Register of Companies in the Cayman Islands. Immediately following the Initial Merger, Merger Sub 2 will become a direct wholly owned subsidiary of PubCo and Merger Sub 2 will merge with and into HiTech, with HiTech being the surviving entity and becoming a wholly owned subsidiary of PubCo, on the terms and subject to the conditions in the Business Combination Agreement; |
| (ii) | each unit of CSTA (which was issued by CSTA in CSTA’s initial public offering or the exercise or the underwriters’ overallotment option) issued and outstanding prior to the Initial Merger will be automatically detached and deemed to consist of (y) one Class A ordinary share of CSTA, par value $0.0001 per share (the “CSTA Class A Ordinary Shares”) and (z) one-third of a warrant of CSTA (“CSTA Warrant”); |
| (iii) | (A) each issued and outstanding Class B ordinary share, par value $0.0001 per share, of CSTA (the “CSTA Class B Ordinary Shares”) will automatically convert into a CSTA Class A Ordinary Share, and (B) each CSTA Class A Ordinary Share (for clarity, including each converted CSTA Class B Ordinary Share) issued and outstanding will automatically be cancelled, cease to exist and exchanged for one newly issued share of common stock, par value $0.0001 per share, of PubCo (the “PubCo Common Shares”); |
| (iv) | Intercompany amounts or obligations funded by Jindalee Lithium Limited, HiTech’s parent (“Jindalee”), as a loan to HiTech, (a) existing as of September 3, 2025 will be settled at the Closing through the issuance of PubCo Loan Warrants, with the number of PubCo Loan Warrants equal to (y) the principal amount outstanding under the applicable Existing Jindalee Intercompany Amounts divided by (z) $1.50 and (b) incurred after that date and prior to the Closing in order to finance ordinary course operations of HiTech or HiTech Transaction Expenses will, at Jindalee’s election prior to the Initial Merger Effective Time, either be settled in cash or converted into PubCo Common Shares at a 15% discount to the IPO Price per Share; |
| (v) | (a) Existing Sponsor Loans will be converted at the Initial Closing, into PubCo Loan Warrants, with the number of PubCo Loan Warrants equal to (y) the principal amount outstanding under the applicable Sponsor Loans divided by (z) $1.50, (b) Continuing Sponsor Loans used to finance SPAC Transaction Expenses or Other Transaction Expenses that are due and payable prior to the Acquisition Closing will be repaid in cash at the Acquisition Closing, and (c) Continuing Sponsor Non-Transaction Loans used other than to finance SPAC Transaction Expenses or Other Transaction Expenses will be converted into PubCo Loan Warrants at the Initial Closing, with the number of PubCo Loan Warrants equal to (y) the principal amount outstanding under the applicable Sponsor Loans divided by (z) $1.50, immediately prior to the Initial Merger Effective Time; |
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| (vi) | each CSTA Warrant will be automatically assumed by PubCo and will be converted into a warrant to purchase one PubCo Common Share; and |
| (vii) | the shares of Preferred Stock (as defined below) will be cancelled and exchanged for Preferred Stock of PubCo. |
The Business Combination Agreement and the transactions contemplated thereby were approved by the boards of directors of CSTA (the “CSTA Board”) and HiTech. Prior to the closing of the Business Combination (the “Closing”), PubCo’s certificate of incorporation will be amended and restated in its entirety in a form to be mutually agreed in good faith by CSTA and HiTech, and filed with the Secretary of State of the State of Delaware.
The Business Combination is expected to close in the second half of 2026, following the receipt of the required approval by CSTA and HiTech’s shareholders and the fulfillment of other customary closing conditions.
Consideration
Under the terms of the Business Combination Agreement, the aggregate consideration in the Business Combination is derived from an equity value of $500 million.
Representations and Warranties; Covenants
The Business Combination Agreement contains representations, warranties and covenants of each of the parties thereto that are customary for transactions of this type. PubCo has agreed to take all action as may be necessary or appropriate such that, immediately after the Closing, PubCo’s board of directors (the “PubCo Board”) will consist of seven directors, which will be comprised of (A) one individual appointed by CSTA and (B) up to six individuals appointed by HiTech, in each case with written notice to be delivered to PubCo sufficiently in advance to allow for inclusion of such individuals in the Proxy/Registration Statement on Form S-4 (the “Registration Statement”). In addition, the PubCo Board will adopt an equity incentive plan prior to Closing.
Conditions to Each Party’s Obligations
The obligation of CSTA, PubCo, Merger Sub 1, Merger Sub 2, and HiTech to consummate the Business Combination is subject to certain customary closing conditions, including, but not limited to, (i) the required approval of the shareholders of CSTA, HiTech and Jindalee, (ii) the effectiveness of the Registration Statement to be filed by PubCo, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), registering certain PubCo Common Shares to be issued in the Business Combination, and (iii) the absence of any order, law or other legal restraint or prohibition issued by any court of competent jurisdiction or other governmental entity of competent jurisdiction prohibiting or preventing the consummation of the transactions contemplated by the Business Combination Agreement, other than any such restraint that is immaterial.
The obligations of HiTech to consummate the Business Combination will also be subject to the Minimum Cash Condition (as defined in the Business Combination Agreement) of $14,000,000 having been met prior to Closing.
Further, effective upon the Closing, PubCo, Constellation Sponsor LP, a Delaware limited partnership (the “Sponsor”) and Jindalee have agreed to enter into a registration rights agreement in a form to be mutually agreed by HiTech, Jindalee and CSTA (the “Registration Rights Agreement”) pursuant to which, among other things, (a) PubCo will commit to file a resale shelf registration statement that includes, among other things and subject to certain exceptions, the Shareholder Merger Consideration (as defined in the Business Combination Agreement) held by signatories to the Registration Rights Agreement, and (b) affords those registration rights holders customary demand and “piggy-back” registration rights.
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Termination
The Business Combination Agreement may be terminated under certain customary and limited circumstances prior to the Closing, including, but not limited to, (i) by mutual written consent of CSTA and HiTech, (ii) by either CSTA or HiTech, if any governmental entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered an order which has the effect of making illegal or otherwise preventing or prohibiting consummation of the transactions contemplated under the Business Combination Agreement and such order shall have become final and nonappealable, (iii) by HiTech if the CSTA Board or any committee thereof has withheld, withdrawn, qualified, amended or modified the SPAC Board Recommendation, (iv) by either CSTA or HiTech if the required approvals are not obtained from the shareholders of Jindalee, after the conclusion of a meeting of Jindalee shareholders held for such purpose at which such shareholders voted on such approvals, (v) by either CSTA or HiTech if the required approvals are not obtained from CSTA Shareholders after the conclusion of a meeting of shareholders held for such purpose at which such shareholders voted on such approvals, (vi) by CSTA if the board of directors of Jindalee (the “Jindalee Board”) effects a Change of Company Recommendation, (vii) by HiTech if the Jindalee Board authorizes HiTech or Jindalee to enter into an Alternative Acquisition Agreement, (viii) by CSTA if HiTech breaches any representation, warranty or covenant in the Business Combination Agreement, which is not cured or cannot be cured within 30 days, such that certain conditions to closing cannot be satisfied at the relevant Closing, (ix) by HiTech if CSTA breaches any representation, warranty or covenant in the Business Combination Agreement, which is not cured or cannot be cured within 30 days, such that certain conditions to closing cannot be satisfied at the relevant Closing, and (viii) subject to certain limited exceptions, by either CSTA or HiTech if the transactions contemplated by the Business Combination Agreement have not been consummated on or prior to January 9, 2027.
If the Business Combination Agreement is validly terminated, none of the parties to the Business Combination Agreement will have any liability or any further obligation under the Business Combination Agreement, except in the case of a willful and material breach or fraud and for customary obligations that survive the termination thereof (such as confidentiality obligations); provided that, if the Business Combination Agreement is terminated (i) by written notice from CSTA or HiTech to the other upon the failure to obtain the Required Shareholder Approval at the Jindalee Shareholder Meeting duly convened therefor or at any adjournment or postponement thereof taken in accordance with the Business Combination Agreement or the Shareholder Support Agreement and (y) if Jindalee effected a Change of Company Recommendation prior to the Jindalee Shareholders Meeting at which a vote for the Required Parent Shareholder Approval was actually taken or (z) as a result of the failure to receive the Required Parent Shareholder Approval following such time as a certain Company Parent Acquisition Transaction occurred at the Jindalee level, (ii) by written notice from CSTA to HiTech prior to the receipt of the Required Parent Shareholder Approval if the Jindalee Board effects a Change of Company Recommendation, or (iii) by written notice from HiTech to CSTA prior to the receipt of the Required Parent Shareholder Approval if the Jindalee Board authorized HiTech or Jindalee to enter into an Alternative Acquisition Agreement after the termination of this Agreement, to the extent permitted by and in accordance with the terms of the Business Combination Agreement, HiTech will pay to CSTA its reasonable and documented expenses incurred in connection with the Transactions through the date the Business Combination Agreement is terminated, which will not exceed $6,000,000.
A copy of the Business Combination Agreement is attached as Exhibit 2.1 hereto and is incorporated herein by reference. The foregoing description of the Business Combination Agreement and the transactions contemplated thereby is qualified in its entirety by reference thereto. The Business Combination Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of the Business Combination Agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement. The representations, warranties and covenants in the Business Combination Agreement are also modified in important part by the underlying disclosure schedules which are not filed publicly and which are subject to a contractual standard of materiality different from that generally applicable to stockholders and were used for the purpose of allocating risk among the parties rather than establishing matters as facts. CSTA does not believe that these schedules contain information that is material to an investment decision.
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Sponsor Support Agreement
Concurrently with the execution of the Business Combination Agreement, Sponsor, CSTA and HiTech entered into a sponsor support agreement (the “Sponsor Support Agreement”), pursuant to which, among other things, and subject to the terms and conditions set forth therein, Sponsor agrees (i) to vote all SPAC Class A Ordinary Shares and SPAC Class B Ordinary Shares (“CSTA Shares”) held by them in favor of the Business Combination and the Transaction Proposals, (ii) to waive the anti-dilution rights of the CSTA Class B Ordinary Shares under the SPAC Charter, (iii) to forfeit a specified amount of CSTA Shares when and if required in accordance with the express terms thereof, (iv) to appear at the extraordinary general meeting of the CSTA shareholders (the “CSTA Shareholders’ Meeting”) in person or by proxy for purposes of counting towards a quorum, (v) to vote all CSTA Shares against any proposals that would in any material respect impede the Business Combination or any other Transaction Proposal, (vi) not to redeem any CSTA Shares, (vii) not to transfer any CSTA Shares, other than as permitted therein, (viii) to the fullest extent permitted by law, waive any rights of dissent pursuant to section 238 of the Cayman Act in respect to all CSTA Shares with respect to the Initial Merger, to the extent applicable, and (ix) to agree to a lock-up of its PubCo Common Shares during the respective periods as set forth therein.
A copy of the Sponsor Support Agreement is filed with this Current Report as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Sponsor Support Agreement is qualified in its entirety by reference thereto.
Parent Transaction Support Agreement
Concurrently with the execution of the Business Combination Agreement, CSTA and Jindalee entered into a transaction support agreement (the “Parent Transaction Support Agreement”), pursuant to which, among other things, and subject to the terms and conditions set forth therein, Jindalee agreed (i) to execute and deliver to CSTA, HiTech and PubCo a written consent in its capacity as the sole voting shareholder of HiTech casting a vote to approve the Business Combination promptly following receipt of the Required Parent Shareholder Approval, (ii) to hold a meeting of its shareholders for the purposes of obtaining the necessary consent for the Company to consummate the Business Combination and to solicit the vote necessary to obtain the Required Parent Shareholder Approval and agree to such other actions with respect to the meeting of the Jindalee shareholders (the “Jindalee Shareholders’ Meeting”) as set forth therein, (iii) to agree to a lock-up of its PubCo Common Shares during the respective periods as set forth therein, (iv) not to transfer any HiTech Shares, and (v) to unconditionally and irrevocably waive the dissenters’ rights pursuant to the Nevada Revised Corporations Act of the State of Nevada in respect to all Company Shares with respect to the Acquisition Merger, if applicable.
A copy of the Parent Transaction Support Agreement is filed with this Current Report as Exhibit 10.2 and is incorporated herein by reference, and the foregoing description of the Parent Transaction Support Agreement is qualified in its entirety by reference thereto.
Parent Shareholder Voting Agreement
Concurrently with the execution of the Business Combination Agreement, certain record and beneficial owners of issued and outstanding ordinary shares of Jindalee (the “Supportive Parent Shareholders”) entered into a transaction support agreement (collectively, the “Parent Shareholder Voting Agreement”) with Jindalee, pursuant to which among other things and subject to the terms and conditions set forth therein, each Supportive Parent Shareholder agrees (i) to appear at the Jindalee Shareholders’ Meeting in person, by proxy or power of attorney for purposes of counting towards a quorum, (ii) to vote, or cause to be voted, all Jindalee shares held or controlled by such Supportive Parent Shareholder in favor of the Company’s consummation of the Business Combination and against any proposals that would in any material respect impede the Business Combination or any other acquisition proposal by a third party, and (iii) prior to the Acquisition Closing, not to transfer any securities in Jindalee.
The form of Parent Shareholder Voting Agreement is filed with this Current Report as Exhibit 10.3 and is incorporated herein by reference, and the foregoing description of the Parent Shareholder Voting Agreement is qualified in its entirety by reference thereto.
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Class B Holder Support Agreement
Concurrently with the execution of the Business Combination Agreement, CSTA, certain holders of CSTA Class B Ordinary Shares (each as “Class B Holder” and, collectively, the “Class B Holders”) and HiTech entered into letter agreements (the “Class B Holder Support Agreements”), pursuant to which, among other things, each Class B Holder agreed to (i) vote in favor of each of the Transaction Proposals, including approval of the Business Combination Agreement and the transactions contemplated thereby, (ii) waive all anti-dilution protections with respect to the conversion of CSTA Class B Ordinary Shares into CSTA Class A Ordinary Shares, and (iii) refrain from transferring or encumbering their CSTA Class B Ordinary Shares (or after the Closing, PubCo Common Shares) until the earlier of (y) 12 months after the Closing or PubCo’s completion of a qualifying change-of-control transaction or (z) certain specific events, including the occurrence of PubCo’s share price reaching a specific threshold.
The form of Class B Holder Support Agreement is filed with this Current Report as Exhibit 10.4 and is incorporated herein by reference, and the foregoing description of the Class B Holder Support Agreements is qualified in its entirety by reference thereto.
Convertible Preferred Share Purchase Agreement
Concurrently with the execution of the Business Combination Agreement, on April 9, 2026, Endurance Antarctica Partners II, LLC (the “Purchaser”), an affiliate of Antarctica Capital and the Sponsor, entered into a securities purchase agreement with Jindalee and HiTech (the “Convertible Preferred SPA”), pursuant to which the Purchaser (A) purchased from HiTech 1,550 shares of 12.0% Series A Cumulative Convertible Preferred Stock (the “Preferred Stock”), having the rights and privileges set forth in the Certificate of Designation included as an exhibit to the Convertible Preferred SPA (the “Certificate of Designation”), for an aggregate purchase price of $1,550,000, and (B) committed to purchase $2,500,000 in newly issued equity or equity-linked securities of PubCo, on substantially the same terms as PIPE Financing Agreements to be executed in connection with the Business Combination, subject to certain terms and conditions, including that the “Minimum Cash Condition” in the Business Combination Agreement is satisfied and not waived (unless Purchaser consents to such waiver) at the time of the Closing. Pursuant to the Convertible Preferred SPA, the Preferred Stock will automatically be cancelled and exchanged for Preferred Stock of PubCo at the time of the Closing, and PubCo will issue a number of warrants to Purchaser or its permitted transferees that is equal to the Accrued Value (as defined in the Certificate of Designation) divided by the Conversion Price (as defined in the Certificate of Designation), in each case, measured as of the date of Closing (the “Warrants”). Such securities will be issued in a private placement pursuant to Section 4(a)(2) of the Securities Act. The PubCo Common Shares issuable upon conversion of the Preferred Stock and exercise of the Warrants will be included as “Registrable Securities” under a Registration Rights Agreement to be entered into at the Closing.
If any securities are issued and sold in a PIPE in connection with the Business Combination with terms more favorable to the purchaser thereof than the terms set forth in the Convertible Preferred SPA applicable to Purchaser (including, without limitation, valuation, conversion price or mechanics, mandatory or optional redemption, discount, warrant coverage, liquidation preference, collateral, restrictive covenants, anti-dilution protection, or other economic or governance right), then the parties to the Convertible Preferred SPA have agreed, at the option of the Purchaser, to promptly amend any applicable documents to extend such more favorable term or terms to the Purchaser.
In connection with such purchase of Preferred Stock, Jindalee and Purchaser executed a Parent Guarantee, dated as of April 9, 2026, pursuant to which Jindalee agreed to guarantee HiTech’s payment obligation in connection with the mandatory redemption of the Preferred Stock and any Accrued Value (as defined in the Certificate of Designation) if the Business Combination Agreement is terminated.
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The Preferred Stock will vote together with the PubCo Common Shares after the Closing and shall rank senior to all existing and future classes of equity securities with respect to dividend and liquidation rights. The Preferred Stock will accrue dividends daily at the rate of (a) if paid in kind, 12.0% per annum of the original issue price, plus the amount of previously accrued dividends paid in kind, or (b) if paid in cash, 10.0% per annum of the original issue price, plus the amount of previously accrued dividends. Such dividends compounded quarterly. Upon the occurrence and during the continuation of any Event of Default (as defined in the Certificate of Designation), the dividend rate shall automatically increase to 15.0% until such Event of Default is cured or waived. The initial conversion price for the Preferred Stock will be $1,000.00 per share, subject to customary anti-dilution adjustments. Starting on the six month anniversary of the Closing and thereafter, on a quarterly basis through the second anniversary of the closing of the Closing, the conversion price will be subject to a downward adjustment based on the 20-day trailing volume-weighted average price of PubCo Common Shares, provided that the conversion price will not be reduced below $7.50 per share. Following the Closing, PubCo may redeem the Preferred Stock subject to certain premiums to the Accrued Value and the Preferred Stock will be redeemable at the option of the Purchaser at 100% of the Accrued Value after the fifth anniversary of the Closing. In the event of a change of control of PubCo after the Closing, PubCo will be required to offer to repurchase the Preferred Stock for cash at the greater of (i) the applicable call premium multiple of the Accrued Value, and (ii) the amount holder of the Preferred Stock would receive if the Preferred Stock were converted into PubCo Common Shares. Commencing on the day after the Closing, as long as the Purchaser owns at least 20% of the Preferred Stock issued and outstanding as of the Closing, PubCo or any of its successors shall not, without the affirmative vote or action by written consent of the holders of a majority of the Preferred Stock then outstanding: (i) alter or change the rights, preferences, or privileges of the Preferred Stock; (ii) increase or decrease the authorized number of shares of Preferred Stock, or issue any additional shares thereof; (iii) create any new class or series of shares having rights, preferences, or privileges senior to or on parity with the Preferred Stock; or (iv) amend, replace, or repeal the certificate of incorporation or bylaws in a manner that adversely affects the Preferred Stock.
The Warrants to be issued at the Closing pursuant to the Convertible Preferred Share Purchase Agreement will expire five years from the Closing and will be initially exercisable at $11.50 per share, subject to the same anti-dilution and other adjustments applicable to the Preferred Stock.
The Convertible Preferred SPA, the Certificate of Designation, the form of Warrant, and the Parent Guarantee are filed with this Current Report as Exhibit 10.5, Exhibit 10.6 and Exhibit 10.7, respectively, and are incorporated herein by reference, and the foregoing descriptions of such documents are qualified in their entirety by reference thereto.
Item 7.01. Regulation FD Disclosure.
On April 9, 2026, CSTA and HiTech issued a joint press release announcing the signing of the Business Combination Agreement. The joint press release is furnished hereto as Exhibit 99.1 and incorporated by reference into this Item 7.01.
On April 9, 2026, Jindalee also issued a press release announcing the signing of the Business Combination Agreement. The press release is furnished hereto as Exhibit 99.2 and incorporated by reference into this Item 7.01.
Furnished as Exhibit 99.3 hereto and incorporated into this Item 7.01 by reference is the investor presentation that the parties to the Business Combination Agreement have prepared for use in connection with the Business Combination.
The information in this Item 7.01, including Exhibits 99.1, 99.2 and 99.3, are furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into any filings under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report will not be deemed an admission as to the materiality of any information of the information in this Item 7.01.
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Cautionary Note Regarding Forward Looking Statements
Certain statements included in this Current Report are not historical facts but are forward-looking statements, including for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “project,” “forecast,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook,” “target,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include, but are not limited to (1) statements regarding estimates and forecasts of financial, performance and operational metrics, projections of market opportunity, anticipated size of the lithium resources, expected support from Jindalee, expected NPV or post-tax IRR, and planned production per year; (2) references with respect to the anticipated benefits of the Business Combination and the projected future financial and operational performance of PubCo following the Business Combination, which may be affected by, among other things, competition, the ability of PubCo to grow and manage growth profitably, maintain relationships and retain its management and key employees; (3) the sources and uses of cash of the Business Combination; (4) the anticipated capitalization and enterprise value of PubCo following the consummation of the Business Combination; (5) statements regarding PubCo’s operations following the Business Combination; (6) the amount of redemption requests made by CSTA’s public shareholders; (7) current and future potential commercial relationships; (8) plans, intentions or future operations of PubCo or HiTech, including relating to the finalization, completion of any studies, feasibility studies or other assessments or relating to attainment, retention or renewal of any assessments, permits, licenses or other governmental notices or approvals, or the commencement or continuation of any construction or operations of plants or facilities; (9) the ability of PubCo or CSTA to issue equity or equity-linked securities in the future or raise additional capital in a PIPE financing; (10) the outcome of any legal proceedings that may be instituted against Contracting Parties; (11) changes to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable laws or regulations; (12) the ability to meet stock exchange listing standards following the Business Combination; (13) the risk that the Business Combination disrupts current plans and operations of CSTA, PubCo or HiTech; (14) the availability of federal, state or local government support, and risks related to extensive regulation, compliance obligations and rigorous enforcement by federal, state, and non-U.S. governmental authorities; and (15) expectations related to the terms and timing of the Business Combination and the ability of the parties to successfully consummate the Business Combination. These statements are based on various assumptions, whether or not identified in the Current Report, and on the current expectations of the Contracting Parties’ management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of the Contracting Parties. These forward-looking statements are subject to a number of risks and uncertainties, as set forth in the slide entitled “Risk Factors” in the investor presentation published on the date hereof and those set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements and Risk Factor Summary” in CSTA’s Annual Report on Form 10-K for the year ended December 31, 2024 (the “Annual Report”), and in those other documents that CSTA has filed, or that PubCo and CSTA will file, with the SEC. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. The risks and uncertainties above are not exhaustive, and there may be additional risks that none of the Contracting Parties presently know or that they currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward looking statements reflect relevant Contracting Parties’ expectations, plans or forecasts of future events and views as of the date of the Current Report. Each of the Contracting Parties anticipate that subsequent events and developments will cause those assessments to change. However, while the Contracting Parties may elect to update these forward-looking statements at some point in the future, each of the Contracting Parties specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing any of the Contracting Parties’ assessments as of any date subsequent to the date of the Current Report. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Additional Information And Where To Find It
In connection with the Business Combination, CSTA, Jindalee, PubCo and HiTech (together, the “Contracting Parties”) are expected to prepare the Registration Statement to be filed with the SEC by PubCo and CSTA, which will include preliminary and definitive proxy statements to be distributed to CSTA’s shareholders in connection with CSTA’s solicitation for proxies for the vote by CSTA’s shareholders in connection with the Business Combination and other matters as described in the Registration Statement, as well as the prospectus relating to the offer of the securities of PubCo or CSTA in connection with the completion of the Business Combination. After the Registration Statement has been filed and declared effective, CSTA will mail a definitive proxy statement and other relevant documents to its shareholders as of the record date to be established for voting on the Business Combination. CSTA’s shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto, and the definitive proxy statement/prospectus, in connection with CSTA’s solicitation of proxies for its extraordinary general meeting of shareholders to be held to approve, among other things, the Business Combination, because these documents will contain important information about the Contracting Parties and the Business Combination. Shareholders may also obtain a copy of the preliminary or definitive proxy statement, once available, as well as other documents filed with the SEC regarding the Business Combination and other documents filed with the SEC by CSTA and PubCo, without charge, at the SEC’s website located at www.sec.gov or by directing a request to Constellation Acquisition Corp I, 1290 Avenue of the Americas, New York, NY 10104.
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This Current Report is not a substitute for the Registration Statement or for any other document that CSTA and/or PubCo may file with the SEC in connection with the Business Combination.
INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Participants in the Solicitation
CSTA, Jindalee and PubCo and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies of CSTA’s shareholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding CSTA’s directors and executive officers in CSTA’s filings with the SEC, including the Annual Report and the other documents filed by CSTA with the SEC from time to time. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to CSTA’s shareholders in connection with the Business Combination, including a description of their direct and indirect interests, which may, in some cases, be different than those of CSTA’s shareholders generally, will be set forth in the Registration Statement. Shareholders, potential investors and other interested persons should read the Registration Statement carefully when it becomes available before making any voting or investment decisions. Free copies of any documents described in the foregoing may be obtained as described under “Additional Information And Where To Find It.”
No Offer and Non-Solicitation
This Current Report does not constitute (i) a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Business Combination or (ii) an offer to sell, or a solicitation of an offer to buy, or a recommendation to purchase, any securities in any jurisdiction, or the solicitation of any vote, consent or approval in any jurisdiction in connection with the Business Combination or any related transactions, nor shall there be any sale, issuance or transfer of any securities in any jurisdiction where, or to any person to whom, such offer, solicitation or sale may be unlawful under the laws of such jurisdiction. This Current Report does not constitute either advice or a recommendation regarding any securities. No offering of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act or an exemption therefrom.
8
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| † | Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request. |
9
SIGNATURES
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.
| CONSTELLATION ACQUISITION CORP I | ||
| Date: April 9, 2026 | By: | /s/ Chandra R. Patel |
| Name: | Chandra R. Patel | |
| Title: | Chief Executive Officer | |
10
Exhibit 2.1
Execution Version
BUSINESS COMBINATION AGREEMENT
by and among
Constellation Acquisition Corp I,
US Elemental Inc.,
CAC Merger Sub I LLC,
USE Merger Sub 2 Inc.,
and
HiTech Minerals Inc.
dated as of April 9, 2026
TABLE OF CONTENTS
| Article I CERTAIN DEFINITIONS | 5 | |
| Section 1.1. | Definitions | 5 |
| Section 1.2. | Construction | 19 |
| Article II TRANSACTIONS; CLOSING | 20 | |
| Section 2.1. | Pre-Closing Actions | 20 |
| Section 2.2. | The Initial Merger and the Merger Sub 2 Transfer | 21 |
| Section 2.3. | The Acquisition Merger | 24 |
| Section 2.4. | Closing Deliverables | 26 |
| Section 2.5. | Further Assurances | 28 |
| Section 2.6. | Dissenter’s Rights | 28 |
| Section 2.7. | Withholding | 29 |
| Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 30 | |
| Section 3.1. | Organization and Qualification | 30 |
| Section 3.2. | Subsidiaries | 30 |
| Section 3.3. | Capitalization of the Company | 30 |
| Section 3.4. | Authorization | 31 |
| Section 3.5. | Consents; No Conflicts | 32 |
| Section 3.6. | Compliance with Laws, including Corruption Laws | 33 |
| Section 3.7. | Permits | 34 |
| Section 3.8. | Tax Matters | 34 |
| Section 3.9. | Financial Statements | 35 |
| Section 3.10. | Undisclosed Liabilities | 36 |
| Section 3.11. | Absence of Changes | 37 |
| Section 3.12. | Actions | 37 |
| Section 3.13. | Material Contracts and Commitments | 37 |
| Section 3.14. | Real Property | 39 |
| Section 3.15. | Intellectual Property Rights | 40 |
| Section 3.16. | Labor Relations; Employment Contracts | 42 |
| Section 3.17. | Benefit Plans | 43 |
| Section 3.18. | Brokers | 45 |
| Section 3.19. | Environmental Matters | 45 |
| Section 3.20. | Insurance | 46 |
| Section 3.21. | Company Related Parties | 46 |
| Section 3.22. | Privacy | 47 |
| Section 3.23. | Proxy/Registration Statement | 47 |
| Section 3.24. | Mining Projects | 47 |
| Section 3.25. | Government Contracts | 49 |
| Section 3.26. | Material Customers & Suppliers. | 49 |
| Section 3.27. | Proxy/Registration Statement | 50 |
| Section 3.28. | No Additional Representation or Warranties | 50 |
i
| Article IV REPRESENTATIONS AND WARRANTIES OF SPAC | 51 | |
| Section 4.1. | Organization and Qualification | 51 |
| Section 4.2. | Subsidiaries | 51 |
| Section 4.3. | Capitalization of SPAC | 51 |
| Section 4.4. | Authorization | 52 |
| Section 4.5. | Consents; No Conflicts | 53 |
| Section 4.6. | Compliance with Laws, including Corruption Laws | 54 |
| Section 4.7. | Tax Matters | 55 |
| Section 4.8. | Financial Statements | 56 |
| Section 4.9. | Undisclosed Liabilities | 57 |
| Section 4.10. | Absence of Changes | 57 |
| Section 4.11. | Actions | 57 |
| Section 4.12. | Material Contracts and Commitments | 57 |
| Section 4.13. | Brokers | 57 |
| Section 4.14. | Proxy/Registration Statement | 58 |
| Section 4.15. | SEC Filings | 58 |
| Section 4.16. | Trust Account | 58 |
| Section 4.17. | Investment Company Act; JOBS Act | 59 |
| Section 4.18. | Business Activities | 59 |
| Section 4.19. | OTC Markets Quotation | 59 |
| Section 4.20. | Reserved | 59 |
| Section 4.21. | SPAC Related Parties | 59 |
| Section 4.22. | No Outside Reliance | 59 |
| Article V REPRESENTATIONS AND WARRANTIES OF THE ACQUISITION ENTITIES | 60 | |
| Section 5.1. | Organization, Qualification and Classification | 60 |
| Section 5.2. | Capitalization | 60 |
| Section 5.3. | Corporate Structure; Subsidiaries | 61 |
| Section 5.4. | Authorization | 61 |
| Section 5.5. | Consents; No Conflicts | 62 |
| Section 5.6. | Absence of Changes | 62 |
| Section 5.7. | Actions | 62 |
| Section 5.8. | Brokers | 62 |
| Section 5.9. | Proxy/Registration Statement | 63 |
| Section 5.10. | Business Activities | 63 |
| Section 5.11. | Reserved | 63 |
| Section 5.12. | Intended Tax Treatment | 63 |
| Section 5.13. | No Outside Reliance | 63 |
ii
| Article VI COVENANTS OF THE COMPANY AND CERTAIN OTHER PARTIES | 64 | |
| Section 6.1. | Conduct of Business | 64 |
| Section 6.2. | Access to Information | 67 |
| Section 6.3. | Acquisition Proposals and Alternative Transactions | 68 |
| Section 6.4. | D&O Indemnification and Insurance | 72 |
| Section 6.5. | Notice of Developments | 74 |
| Section 6.6. | Financial Statements | 74 |
| Section 6.7. | No Trading | 75 |
| Section 6.8. | Parent Intercompany Amounts | 75 |
| Article VII COVENANTS OF PUBCO, SPAC AND CERTAIN OTHER PARTIES | 75 | |
| Section 7.1. | PubCo Incentive Plan | 75 |
| Section 7.2. | Extension | 76 |
| Section 7.3. | Conduct of Business | 76 |
| Section 7.4. | Post-Closing Directors and Officers of PubCo | 78 |
| Section 7.5. | Acquisition Proposals and Alternative Transactions | 79 |
| Section 7.6. | SPAC Public Filings | 79 |
| Section 7.7. | Sponsor Loans | 79 |
| Section 7.8. | Conduct of Business of Acquisition Entities | 80 |
| Article VIII JOINT COVENANTS | 80 | |
| Section 8.1. | Regulatory Approvals; Other Filings | 80 |
| Section 8.2. | Preparation of Proxy/Registration Statement; SPAC Shareholders’ Meeting and Approvals; and Approvals | 81 |
| Section 8.3. | Support of Transaction | 84 |
| Section 8.4. | Tax Matters | 84 |
| Section 8.5. | Shareholder Litigation | 85 |
| Section 8.6. | Private Placement. | 86 |
| Section 8.7. | U.S. Securities Exchange Listing Efforts. | 87 |
| Section 8.8. | U.S. Securities Exchange Listing | 88 |
| Section 8.9. | Services Agreement | 88 |
| Article IX CONDITIONS TO OBLIGATIONS | 89 | |
| Section 9.1. | Conditions to Obligations of SPAC, the Acquisition Entities and the Company | 89 |
| Section 9.2. | Conditions to Obligations of SPAC and the Acquisition Entities at Initial Closing | 90 |
| Section 9.3. | Conditions to Obligations of the Company at Initial Closing | 90 |
| Section 9.4. | Conditions to Obligations of the Company at Acquisition Closing | 91 |
| Section 9.5. | Frustration of Conditions | 91 |
iii
| Article X TERMINATION/EFFECTIVENESS | 91 | |
| Section 10.1. | Termination | 91 |
| Section 10.2. | Effect of Termination | 93 |
| Section 10.3. | Company Termination Amount | 93 |
| Article XI MISCELLANEOUS | 94 | |
| Section 11.1. | Trust Account Waiver | 94 |
| Section 11.2. | Waiver | 94 |
| Section 11.3. | Notices | 94 |
| Section 11.4. | Assignment | 95 |
| Section 11.5. | Rights of Third Parties | 96 |
| Section 11.6. | Expenses | 96 |
| Section 11.7. | Governing Law | 96 |
| Section 11.8. | Consent to Jurisdiction | 97 |
| Section 11.9. | Headings; Counterparts | 97 |
| Section 11.10. | Disclosure Letters | 97 |
| Section 11.11. | Entire Agreement | 98 |
| Section 11.12. | Amendments | 98 |
| Section 11.13. | Publicity | 98 |
| Section 11.14. | Confidentiality | 98 |
| Section 11.15. | Severability | 99 |
| Section 11.16. | Enforcement | 99 |
| Section 11.17. | Non-Recourse | 99 |
| Section 11.18. | Non-Survival of Representations, Warranties and Covenants | 99 |
| Section 11.19. | Conflicts and Privilege | 100 |
| Exhibits | |
| Exhibit A | Sponsor Support Agreement |
| Exhibit B | Shareholder Support Agreement |
| Exhibit C | Form Voting Agreement |
| Exhibit D | Plan of Initial Merger |
Schedules
Schedule 7.4(c) (PubCo Officers)
SPAC Disclosure Letter
Company Disclosure Letter
iv
INDEX OF DEFINED TERMS
| Acquisition Closing | 25 |
| Acquisition Closing Date | 25 |
| Acquisition Effective Time | 25 |
| Acquisition Entity | 62 |
| Acquisition Merger | 1 |
| Acquisition Merger Consideration | 6 |
| Acquisition Merger Filing Documents | 25 |
| Action | 6 |
| Affiliate | 6 |
| Agreement | 1 |
| Anti-Corruption Laws | 34 |
| Anti-Money Laundering Laws | 6 |
| Articles of the Surviving Corporation | 25 |
| Audited Financial Statements | 77 |
| Authorization Notice | 22 |
| Benefit Plan | 6 |
| Business Combination | 6 |
| Business Day | 6 |
| Cayman Act | 6 |
| Change of Company Recommendation | 71 |
| Change of SPAC Board Recommendation | 81 |
| Charter of the Surviving Company | 22 |
| Closing Date | 7 |
| Code | 7 |
| Company | 1 |
| Company Acquisition Proposal | 73 |
| Company Approvals | 32 |
| Company Board | 5 |
| Company Board Recommendation | 74 |
| Company Charter | 7 |
| Company Charter Documents | 30 |
| Company Contract | 7 |
| Company Disclosure Letter | 30 |
| Company Financial Statements | 36 |
| Company IP | 7 |
| Company IT Systems | 7 |
| Company Material Adverse Effect | 7, 92 |
| Company Parent | 1 |
| Company Parent Board | 71 |
| Company Parent Group | 102 |
| Company Parent Shareholders’ Meeting | 3 |
| Company Post-Signing Financial Statements | 77 |
| Company Shareholder | 8 |
| Company Shares | 7, 8 |
v
| Company Termination Amount | 95 |
| Company Transaction Expenses | 8 |
| Company Written Consent | 32 |
| Competing SPAC | 8 |
| Constellation Group | 101 |
| Continuing Parent Loans | 2 |
| Continuing Sponsor Non-Transaction Loans | 2 |
| Continuing Sponsor Transaction Loans | 2 |
| Contract | 8 |
| Control | 9 |
| Controlled | 9 |
| Controlling | 9 |
| D&O Indemnified Parties | 75 |
| D&O Insurance | 75 |
| DGCL | 9 |
| Disclosure Letter | 9 |
| Dissenting SPAC Shareholders | 29 |
| Dissenting SPAC Shares | 29 |
| DLLCA | 9 |
| Encumbrance | 9 |
| Enforceability Exceptions | 32 |
| Environmental Laws | 9 |
| Equity Securities | 9 |
| ERISA | 9 |
| ERISA Affiliate | 9 |
| Event | 10 |
| Exchange Act | 10 |
| Existing Parent Loans | 1 |
| Existing Sponsor Loans | 2 |
| GAAP | 10 |
| Government Official | 10 |
| Governmental Authority | 10 |
| Governmental Order | 10 |
| Group | 10 |
| Group Companies | 10 |
| Group Company | 10 |
| Hazardous Materials | 10 |
| Indebtedness | 11 |
| Initial Closing | 21 |
| Initial Closing Date | 21 |
| Initial Merger | 1 |
| Initial Merger Consideration | 11 |
| Initial Merger Effective Time | 22 |
| Initial Merger Filing Documents | 21 |
| Initial Merger Sub 1 Interests | 62 |
vi
| Initial PubCo Common Stock | 62 |
| Initial PubCo Merger Sub 2 Common Stock | 62 |
| Insurance Policies | 47 |
| Intellectual Property | 11 |
| Intended Tax Treatment | 3 |
| Interim Period | 66 |
| Investment Company Act | 11 |
| IPO | 11, 95 |
| IPO Price | 11 |
| K&E | 101 |
| Knowledge of SPAC | 11 |
| Knowledge of the Company | 11 |
| Latest Balance Sheet Date | 36 |
| Law | 12 |
| Leased Real Property | 40 |
| Liabilities | 12 |
| Lookback Cutoff Date | 12 |
| Made Available | 12 |
| Material Contract | 38 |
| Material Permits | 34 |
| Merger Sub 1 | 1 |
| Merger Sub 2 | 1 |
| Mergers | 1 |
| Mining Projects | 12 |
| Minimum Cash Condition | 12 |
| Mining Rights | 12 |
| Non-Recourse Parties | 101 |
| Non-Recourse Party | 101 |
| Notice Period | 72 |
| NRCA | 13 |
| Ordinary Course | 13 |
| Ordinary Shares | 13 |
| Organizational Documents | 13 |
| Other Transaction Expenses | 13 |
| Owned IP | 13 |
| Owned Property | 40 |
| Parent Loans | 1 |
| Patents | 13 |
| Perkins | 102 |
| Permitted Encumbrances | 13 |
| Person | 14 |
| PIPE Investment Amount | 88 |
| Plan of Acquisition Merger | 14 |
| Plan of Initial Merger | 14 |
| Privacy Laws | 14 |
| Prohibited Person | 14 |
| Proposed Changed Terms | 73 |
vii
| Proxy Statement | 14 |
| Proxy/Registration Statement | 83 |
| PubCo | 1 |
| PubCo Charter | 21 |
| PubCo Common Shares | 15 |
| PubCo Incentive Plan | 78 |
| PubCo Initial Shareholder | 15 |
| PubCo Preferred Shares | 15 |
| PubCo Subscriber Share | 62 |
| PubCo Warrant | 23 |
| Real Property | 15 |
| Real Property Leases | 40 |
| Redeeming SPAC Shares | 15 |
| Registered IP | 15 |
| Registrable Securities | 15 |
| Registration Rights Agreement | 4 |
| Registration Statement | 15 |
| Regulatory Approvals | 82 |
| Related Party | 15 |
| Remaining Trust Fund Proceeds | 28 |
| Representatives | 16 |
| Sanctions | 16 |
| SEC | 16 |
| Securities Act | 16 |
| Shareholder Merger Consideration | 16 |
| Shareholder Support Agreement | 3 |
| Software | 16 |
| SPAC | 1 |
| SPAC Acquisition Proposal | 16 |
| SPAC Board | 4 |
| SPAC Charter | 16 |
| SPAC Class A Ordinary Shares | 16 |
| SPAC Class B Ordinary Shares | 17 |
| SPAC Disclosure Letter | 51 |
| SPAC Financial Statements | 57 |
| SPAC Material Adverse Effect | 17, 93 |
| SPAC Non-Transaction Expenses | 17 |
| SPAC Preference Shares | 17 |
| SPAC Private Placement Warrant | 17 |
| SPAC SEC Filings | 59 |
| SPAC Securities | 17 |
| SPAC Shareholder | 17 |
| SPAC Shareholder Redemption Amount | 17 |
| SPAC Shareholder Redemption Right | 17 |
| SPAC Shareholders’ Approval | 17 |
| SPAC Shareholders’ Meeting | 85 |
viii
| SPAC Shares | 17 |
| SPAC Transaction Expenses | 17 |
| SPAC Treasury Shares | 24 |
| SPAC Unit | 18 |
| SPAC Warrants | 18 |
| Sponsor | 3 |
| Sponsor Financing | 2 |
| Sponsor Loans | 2 |
| Sponsor Support Agreement | 3 |
| Stockholder Litigation | 87 |
| Subsidiary | 18 |
| Superior Proposal | 74 |
| Surrender Shares | 24 |
| Surviving Company | 1 |
| Surviving Corporation | 1 |
| Tax | 18 |
| Tax Returns | 18 |
| Taxes | 18 |
| Terminating Company Breach | 94 |
| Terminating SPAC Breach | 94 |
| Third Party | 71 |
| Trade Secrets | 18 |
| Trademarks | 18 |
| Transaction Documents | 19 |
| Transaction Proposals | 19 |
| Transactions | 19 |
| Transfer Taxes | 19 |
| Trust Account | 95 |
| Trust Agreement | 59 |
| Trustee | 59 |
| U.S. | 19 |
| Unit Separation | 23 |
| Warrant Agreement | 19 |
| Written Objection | 22 |
ix
BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement, dated as of April 9, 2026 (this “Agreement”), is made and entered into by and among (i) US Elemental Inc., a Delaware corporation (“PubCo”), (ii) Constellation Acquisition Corp I, an exempted company incorporated under the laws of the Cayman Islands (“SPAC”), (iii) CAC Merger Sub I LLC, a Delaware limited liability company and a direct wholly owned subsidiary of PubCo (“Merger Sub 1”), (iv) USE Merger Sub 2 Inc., a Nevada corporation and a directly wholly owned subsidiary of SPAC (“Merger Sub 2”), and (v) HiTech Minerals Inc., a Nevada corporation (the “Company”).
RECITALS
WHEREAS, SPAC is, as of the date hereof, a blank check company and incorporated as a Cayman Islands exempted company and incorporated for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses;
WHEREAS, PubCo is a newly formed entity and was formed for the purpose of acquiring the SPAC and the Company;
WHEREAS, Merger Sub 1 is a newly incorporated entity wholly owned by PubCo and formed for the purpose of effectuating the Initial Merger;
WHEREAS, Merger Sub 2 is a newly incorporated entity wholly owned by SPAC formed for the purpose of effectuating the Acquisition Merger, and will be contributed and transferred to PubCo immediately following the Initial Merger Effective Time in accordance with Section 2.2(h);
WHEREAS, the parties desire and intend to effect a business combination transaction whereby (a) SPAC will merge with and into Merger Sub 1 (the “Initial Merger”), with Merger Sub 1 being the surviving company (as defined in the Cayman Act) and remaining a wholly owned subsidiary of PubCo (Merger Sub 1 is hereinafter referred to for the periods from and after the Initial Merger Effective Time as the “Surviving Company”), and (b) immediately following the Initial Merger, the Merger Sub 2 Transfer (as defined below) will be consummated, pursuant to which Merger Sub 2 will become a direct wholly owned subsidiary of PubCo, and (c) following the Initial Merger and the Merger Sub 2 Transfer, Merger Sub 2 will merge with and into the Company (the “Acquisition Merger” and together with the Initial Merger, the “Mergers”), with the Company being the surviving entity and becoming a wholly owned subsidiary of PubCo (the Company is hereinafter referred to for the periods from and after the Acquisition Effective Time as the “Surviving Corporation”), each Merger to occur upon the terms and subject to the conditions set forth in this Agreement, including the plan of Initial Merger, and in accordance with the applicable provisions of the Cayman Act, DGCL, DLLCA and NRCA.
WHEREAS, intercompany amounts or obligations funded by Jindalee Lithium Limited, the Company’s parent (“Company Parent”) as a loan to the Company (“Parent Intercompany Amounts”), (a) existing as of September 3, 2025 (the “Existing Parent Intercompany Amounts”) will be settled at the Acquisition Closing through the issuance of PubCo Loan Warrants, with the number of PubCo Loan Warrants equal to (y) the principal amount outstanding under the applicable Existing Parent Intercompany Amounts divided by (z) $1.50 and (b) incurred after that date and prior to the Acquisition Closing (the “Continuing Parent Intercompany Amounts”) in order to finance ordinary course operations of the Company or Company Transaction Expenses will, at Company Parent’s election prior to the Initial Merger Effective Time, either be settled in cash or converted into PubCo Common Shares at a 15% discount to the IPO Price per Share.
1
WHEREAS, loans by Sponsor, its Affiliates or any of SPAC’s officers or directors to SPAC (“Sponsor Loans”) (a) existing as of September 3, 2025 (“Existing Sponsor Loans”) will be converted at the Initial Closing, into PubCo Loan Warrants, with the number of PubCo Loan Warrants equal to (y) the principal amount outstanding under the applicable Sponsor Loans divided by (z) $1.50, (b) incurred after that date and prior to Acquisition Closing (“Continuing Sponsor Transaction Loans”) to the extent used to finance SPAC Transaction Expenses or Other Transaction Expenses that are due and payable prior to the Acquisition Closing will be repaid in cash at the Acquisition Closing and (c) incurred after that date and prior to Acquisition Closing (“Continuing Sponsor Non-Transaction Loans”) other than to the extent used to finance SPAC Transaction Expenses or Other Transaction Expenses will be converted into PubCo Loan Warrants at the Initial Closing, with the number of PubCo Loan Warrants equal to (y) the principal amount outstanding under the applicable Sponsor Loans divided by (z) $1.50, immediately prior to the Initial Merger Effective Time.
WHEREAS, on or about the date of this Agreement, an Affiliate of Sponsor has (a) funded to the Company $1.55 million in the aggregate of convertible preferred stock issued by the Company, which will be redeemable in cash if this Agreement is terminated in accordance with its terms, and (b) entered into binding commitments to fund $2.5 million of the Private Placement (collectively, the “Sponsor Financing”).
WHEREAS, for U.S. federal and applicable state and local (and, to the extent applicable, non-U.S.) income Tax purposes, it is intended that (a) the Initial Merger will qualify as a “reorganization” under Section 368(a)(1)(F) of the Code and the applicable Treasury Regulations, (b) the Acquisition Merger, will qualify as (i) a “reorganization” under Section 368(a) of the Code and the applicable Treasury Regulations and/or (ii) together with the Private Placement and any other contributions of cash and/or property to PubCo in connection with and substantially contemporaneously with the consummation of the Transactions, as a transfer of property described in Section 351(a) of the Code, (c) this Agreement constitutes a “plan of reorganization” within the meaning of Sections 354, 361 and 368 of the Code and the applicable Treasury Regulations and (d) the Parent Intercompany Amounts are treated as equity (collectively, the “Intended Tax Treatment”).
WHEREAS, the Company has received concurrently with the execution and delivery of this Agreement and as a material inducement to the Company to enter into this Agreement, a Sponsor Support Agreement substantially in the form attached hereto as Exhibit A (the “Sponsor Support Agreement”) signed by the Company, SPAC, Constellation Sponsor LP, a Delaware limited partnership (“Sponsor”), pursuant to which, among other things, and subject to the terms and conditions set forth therein, Sponsor agrees (a) to vote all SPAC Shares held by them in favor of the Transactions and the Transaction Proposals, (b) to waive the anti-dilution rights of the SPAC Class B Ordinary Shares under the SPAC Charter, (c) to forfeit a specified amount of SPAC Shares when and if required in accordance with the express terms thereof, (d) to appear at the SPAC Shareholders’ Meeting in person or by proxy for purposes of counting towards a quorum, (e) to vote all SPAC Shares against any proposals that would in any material respect impede the Transactions or any other Transaction Proposal, (f) not to redeem any SPAC Shares, (g) not to transfer any SPAC Securities, other than as permitted therein, (h) to unconditionally and irrevocably waive any rights of dissent pursuant to section 238 of the Cayman Act in respect to all SPAC Shares with respect to the Initial Merger, to the extent applicable, and (i) to agree to a lock-up of certain of its PubCo Common Shares during the respective periods as set forth therein.
2
WHEREAS, SPAC has received concurrently with the execution and delivery of this Agreement and as a material inducement to SPAC to enter into this Agreement, (a) the Shareholder Support Agreement substantially in the form attached hereto as Exhibit B (the “Shareholder Support Agreement”) signed by the Company Parent and SPAC, pursuant to which, among other things, and subject to the terms and conditions set forth therein, the Company Parent agrees (i) to execute and deliver to the Company and SPAC an irrevocable written consent in its capacity as the sole voting shareholder of the Company casting a vote to approve the Transactions promptly following receipt of the Required Parent Shareholder Approval, (ii) to hold a meeting of its shareholders (“Company Parent Shareholders’ Meeting”) for the purposes of obtaining the necessary consent for the Company to consummate the Transactions and to solicit the vote necessary to obtain the Required Parent Shareholder Approval and agree to such other actions with respect to the Company Parent Shareholders’ Meeting as set forth therein, and (iii) to agree to a lock-up of certain of its PubCo Common Shares during the respective periods as set forth therein, (iv) not to transfer any Company Shares and (v) to unconditionally and irrevocably waive the dissenters’ rights pursuant to the NRCA in respect to all Company Shares with respect to the Acquisition Merger, if applicable.
WHEREAS, SPAC has also received concurrently with the execution and delivery of this Agreement and as a material inducement to SPAC to enter into this Agreement, Parent Shareholder Voting Agreement(s), substantially in the form attached hereto as Exhibit C (each a “Voting Agreement” and collectively, the “Voting Agreements”) each signed by the Company Parent and certain Company Parent shareholders who collectively hold at least 18.00 % of the outstanding and issued ordinary fully paid shares of Company Parent (the “Supportive Parent Shareholders”), pursuant to which among other things and subject to the terms and conditions set forth therein, each Supportive Parent Shareholder agrees (a) to appear at the Company Parent Shareholders’ Meeting in person, by proxy or power of attorney for purposes of counting towards a quorum, (b) to vote, or cause to be voted, all Company Parent shares held or controlled by such Supportive Parent Shareholder to the Company’s consummation of the Transaction and against any proposals that would in any material respect impede the Transactions or any other Transaction Proposal and (c) prior to the Acquisition Closing, not to transfer any securities in Company Parent.
WHEREAS, effective upon the Acquisition Closing, PubCo, Sponsor and Company Parent will have entered into a registration rights agreement in a form to be mutually agreed by the Company, Company Parent and SPAC (the “Registration Rights Agreement”) pursuant to which, among other things, (a) PubCo will commit to file a resale shelf registration statement that includes, among other things and subject to certain exceptions, the Shareholder Merger Consideration held by signatories to the Registration Rights Agreement, and (b) affords those registration rights holders customary demand and “piggy-back” registration rights.
3
WHEREAS, the board of directors of SPAC (the “SPAC Board”) has unanimously (a) determined that (i) it is fair to, advisable and in the best interests of SPAC to enter into this Agreement, and to consummate the Initial Merger and the other Transactions, and (ii) the Transactions constitute a “Business Combination” as such term is defined in the SPAC Charter, (b) (i) approved and declared advisable this Agreement and the execution, delivery and performance of this Agreement and the consummation of the Transactions, and (ii) approved and declared advisable the Plan of Initial Merger and the execution and filing thereof and the Transaction Documents to which SPAC is a party and the execution, delivery and performance of such Transaction Documents, (c) resolved to recommend the adoption of this Agreement and the Plan of Initial Merger by the SPAC Shareholders, and (d) directed that this Agreement and the Plan of Initial Merger be submitted to the SPAC shareholders for their adoption.
WHEREAS, (a) the sole director of PubCo has (i) determined that it is fair to, advisable and in the best interests of PubCo to enter into this Agreement and to consummate the Mergers and the other Transactions, and (ii) approved and declared advisable this Agreement, the Initial Merger and the other Transaction Documents to which PubCo is a party and the execution, delivery and performance thereof and (b) the sole shareholder of PubCo has adopted a resolution by written consent (i) approving this Agreement, the Initial Merger, the Acquisition Merger and the Transactions and (ii) adopting the PubCo Charter effective at the Initial Merger Effective Time.
WHEREAS, (a) the sole member of Merger Sub 1 has (i) determined that it is fair to, advisable and in the best interests of Merger Sub 1 to enter into this Agreement and to consummate the Initial Merger and the other Transactions, (ii) approved and declared advisable this Agreement and the Plan of Initial Merger and the execution, delivery and performance of this Agreement and the Plan of Initial Merger and the consummation of the Transactions and (b) the sole member of Merger Sub 1 has adopted a resolution by written consent approving this Agreement, the Plan of Initial Merger and the Transactions.
WHEREAS, (a) the sole director of Merger Sub 2 has (i) determined that it is fair to, advisable and in the best interests of Merger Sub 2 to enter into this Agreement and to consummate the Merger Sub 2 Transfer, the Acquisition Merger and the other Transactions, (ii) approved and declared advisable this Agreement, the Merger Sub 2 Transfer Agreement and the Acquisition Merger and the execution, delivery and performance of this Agreement, the Merger Sub 2 Transfer Agreement and the Acquisition Merger and the consummation of the Transactions and (b) the sole shareholder of Merger Sub 2 has adopted a resolution by written consent approving this Agreement, the Merger Sub 2 Transfer Agreement, the Acquisition Merger and the Transactions.
WHEREAS, the board of directors of the Company (the “Company Board”) has unanimously (a) determined that it is fair to, advisable and in the best interests of the Company to enter into this Agreement and to consummate the Acquisition Merger and the other Transactions, (b) approved and declared advisable this Agreement, the Acquisition Merger and the other Transaction Documents to which the Company is a party and the execution, delivery and performance thereof, (c) resolved to recommend the adoption of this Agreement and the Acquisition Merger by the shareholder of the Company, and (d) directed that the Acquisition Merger and the Articles of Acquisition Merger be submitted to the shareholder of the Company for adoption.
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WHEREAS, the board of directors of Company Parent (the “Company Parent Board”) has unanimously (a) determined that it is fair to, advisable and in the best interests of the Company Parent to enter into this Agreement and to consummate the Acquisition Merger and the other Transactions, (b) approved and declared advisable this Agreement, the Acquisition Merger and the other Transaction Documents and the execution, delivery and performance of any of the foregoing to which the Company Parent is party, (c) resolved to recommend the adoption of this Agreement and the Acquisition Merger by the shareholders of the Company Parent, and (d) directed that the Acquisition Merger and the Articles of Acquisition Merger be submitted to the shareholder of the Company Parent for adoption.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, SPAC, PubCo, Merger Sub 1, Merger Sub 2 and the Company agree as follows:
Article
I
CERTAIN DEFINITIONS
Section 1.1. Definitions. As used herein, the following terms will have the following meanings:
“Acquisition Merger Consideration” means the sum of all PubCo Common Shares receivable by Company Shareholders pursuant to Section 2.3(e).
“Action” means any charge, claim, action, complaint, petition, prosecution, investigation, appeal, suit, litigation, arbitration or other similar proceeding initiated or conducted by a mediator, arbitrator or Governmental Authority, whether administrative, civil, regulatory or criminal, and whether at law or in equity, or otherwise under any applicable Law.
“Affiliate” means, with respect to any Person, any other Person which, directly or indirectly, Controls, is Controlled by or is under common Control with such Person.
“Anti-Money Laundering Laws” means all financial recordkeeping and reporting requirements and all money laundering-related laws of jurisdictions where the Company or its Subsidiaries conducts business or owns assets, and any related or similar Law issued, administered or enforced by any Governmental Authority.
“Antitrust Law” means (a) the Sherman Antitrust Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act, and all other federal, state, provincial and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition and (b) all applicable Laws, whether domestic or foreign, relating to foreign investment or that provide for the review of national security or defense matters or the national interest in connection with the acquisition of any interest in or assets of a business under the jurisdiction of a Governmental Authority.
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“Articles of Acquisition Merger” means the articles of merger customary form and substance and any amendment or variation thereto made in accordance with the provisions of the NRCA and the terms thereof.
“Benefit Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and compensation or benefit plan, program, policy, practice, Contract, or other arrangement, including any employment, individual independent contractor, severance, termination pay, deferred compensation, retirement, paid time off, vacation, profit sharing, incentive, bonus, health, welfare, performance awards, equity or equity-based compensation (including stock option, equity purchase, equity ownership, and restricted stock unit), disability, death benefit, life insurance, fringe benefits, retention or stay-bonus, transaction or change-in control agreement, or other compensation or benefits, whether written or unwritten, that is sponsored, maintained, contributed to or required to be contributed to by the Company, any of its Subsidiaries, or any of their respective ERISA Affiliates for the benefit of any current or former employee, officer, director or individual service provider of the Company and its Subsidiaries or otherwise with respect to which the Company or its Subsidiaries has any Liability; provided that the term “Benefit Plan” does not include any employee benefit plan, program or arrangement that is maintained or sponsored by any Governmental Authority.
“Business Combination” has the meaning given in the SPAC Charter.
“Business Day” means a day on which commercial banks are open for business in New York, U.S., the Cayman Islands and Brisbane, Australia, except a Saturday, Sunday or public holiday (gazetted or ungazetted and whether scheduled or unscheduled).
“Cayman Act” means the Companies Act (As Revised) of the Cayman Islands.
“Closing Date” means each of the Initial Closing Date and the Acquisition Closing Date.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Charter” means the Articles of Incorporation of the Company, as amended, as of the date hereof.
“Company Common Shares” means, the Common Stock, without par value, of the Company.
“Company IP” means all Owned IP and all other Intellectual Property used or held for use in or necessary for the operation of the business of the Company or any of its Subsidiaries.
“Company IT Systems” means all computer systems, hardware, Software, servers, networks, data communication lines, and other information technology and telecommunications equipment and tangible assets, including outsourced or cloud computing arrangements, and associated documentation, in each case, exclusively owned or used or by or for the Company in connection with the business of the Company.
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“Company Material Adverse 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, properties or liabilities of the Company and its Subsidiaries, taken as a whole or (ii) the ability of the Company to perform its obligations under this Agreement or consummate the Transactions; provided, however, that for the purposes 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 change in applicable Laws, GAAP or any interpretation thereof following the date of this Agreement, (b) any change in interest rates or economic, political, business or financial market conditions generally, (c) the taking or refraining from taking of any action expressly required to be taken or refrained from being taken under this Agreement (but excluding compliance with Section 6.1(A) and (B)), (d) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), epidemic or pandemic, acts of nature or change in climate, (e) any acts of terrorism or war, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions, riots or insurrections, (f) any failure in and of itself of the Company and any of its Subsidiaries to meet any projections or forecasts, provided, however, that the exception in this clause (f) will not prevent or otherwise affect a determination that any change, effect or development underlying such change has resulted in or contributed to a Company Material Adverse Effect, (g) any Events generally applicable to the industries or markets in which the Company operates, (h) any action taken by, or at the written request of, SPAC, or (i) the announcement of this Agreement and the Transactions, including any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on the Company’s and its Subsidiaries’ relationships, contractual or otherwise, with any Governmental Authority, third parties or other Person (but excluding compliance with the representations and warranties set forth in Section 3.5); provided, however, that in the case of each of clauses (a), (b), (d), (e) and (g), any such Event to the extent it disproportionately affects the Company or any of its Subsidiaries relative to other similarly situated participants in the industries and geographies in which such Persons operate will not be excluded from the determination of whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect, but only to the extent of the incremental disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to such similarly situated participants;
“Company Parent Option” means an outstanding option to purchase ordinary shares of the Company Parent granted to employees of the Company under the Company Parent Stock Plan.
“Company Parent Stock Plan” means the Jindalee Resources Limited Employee Securities Incentive Plan, dated October 1, 2022.
“Company Preferred Share” means Preferred Shares of the Company issued to PIPE Investors in connection with a PIPE Financing and pursuant to one or more PIPE Financing Agreements.
“Company Shareholder” means any holder of any Company Shares.
“Company Shares” means, together, the Company Preferred Shares and Company Common Shares.
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“Company Transaction Expenses” means any out-of-pocket fees and expenses payable by the Company or any of its Subsidiaries or Affiliates (whether or not billed or accrued for) as a result of or in connection with the negotiation, documentation and consummation of the Transactions, including, without duplication, with respect to (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 consultants and public relations firms, (b) any and all filing fees payable by the Company or any of its Subsidiaries or Affiliates to the Governmental Authorities in connection with the Transactions, and (c) all retention, stay or transaction bonuses, severance, incentive or deferred compensation payments and other compensatory payments or obligations that are payable to any current or former employee, officer, director or individual service provider of the Company or any of its Subsidiaries as a result of or in connection with the execution of this Agreement or the consummation of the Transactions (including, without duplication, the employer portion of any payroll, fees, expenses, social security, unemployment or similar Taxes with respect to such payments and calculated as if all such amounts were paid on the Acquisition Closing Date).
“Competing SPAC” means any publicly traded special purpose acquisition company other than SPAC.
“Contract” means any legally binding written, oral or other agreement, contract, subcontract, lease, instrument, note, option, warranty, purchase order, license, sublicense, mortgage, guarantee, purchase order, insurance policy, grant, arrangement, understanding, supply schedule, sublease, surface agreement, easement, statement of work or commitment or undertaking of any nature that has any outstanding rights or obligations.
“Control” in relation to any Person means (a) the direct or indirect ownership of, or ability to direct the casting of, more than fifty percent (50%) of the total voting rights conferred by all the shares then in issue and conferring the right to vote at all general meetings of such Person; (b) the ability to appoint or remove a majority of the directors of the board or equivalent governing body of such Person; (c) the right to control the votes at a meeting of the board of directors (or equivalent governing body) of such Person; or (d) the ability to direct or cause the direction of the management and policies of such Person whether by Contract or otherwise, and “Controlled”, “Controlling” and “under common Control with” will be construed accordingly.
“DGCL” means the General Corporation Law of the State of Delaware.
“Disclosure Letter” means, as applicable, the Company Disclosure Letter and the SPAC Disclosure Letter.
“DLLCA” means the Limited Liability Company Act of the State of Delaware.
“Encumbrance” means any mortgage, charge (whether fixed or floating), pledge, lien, license, covenant not to sue, option, right of first offer, refusal or negotiation, hypothecation, assignment, deed of trust, title retention or other similar encumbrance of any kind whether consensual, statutory or otherwise.
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“Environmental Laws” means all Laws concerning pollution, protection of the environment or natural resources, reclamation or restoration of land, water or property (including any current, abandoned or former mines), environmental decommissioning of property or operations, protection of wildlife and endangered or threatened species, human health or safety (including with respect to protection from environmental hazards), protection of cultural or historic resources, the generation, use, treatment, storage, handling, management, transportation and disposal or recycling of, or exposure to, Hazardous Materials, and releases and threatened releases of Hazardous Materials.
“Environmental Permits” means any Material Permits required or issued pursuant to Environmental Laws.
“Equity Securities” means, with respect to any Person, any capital stock, shares, equity interests, membership interests, partnership interests or registered capital, joint venture or other ownership interests in such person and any options, warrants or other securities (for the avoidance of doubt, including debt securities) that are directly or indirectly convertible into, or exercisable or exchangeable for, such capital stock, shares, equity interests, membership interests, partnership interests or registered capital, joint venture or other ownership interests (whether or not such derivative securities are issued by such Person).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” of any entity means each trade or business (whether or not incorporated) that is or was at the relevant time treated as a single employer with such entity for purposes of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
“Event” means any event, state of facts, development, change, circumstance, occurrence or effect.
“Ex-Im Laws” means all Laws relating to export, reexport, transfer, retransfer, and import controls, including the U.S. Export Administration Regulations, the customs and import Laws administered by U.S. Customs and Border Protection, and the EU Dual Use Regulation.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“GAAP” means generally accepted accounting principles in the United States as in effect from time to time.
“Government Contract” has the meaning given to that term in Section 3.25.
“Government Official” means any officer, cadre, civil servant, employee or any other person who acts in an official capacity for any Governmental Authority (including any government-owned or government-Controlled enterprise, political party, public international organization or official thereof), or who acts in an official capacity for any candidate for governmental or political office.
“Governmental Authority” means the government of any nation, tribe, province, state, city, locality or other political subdivision of any thereof, any entity exercising executive, legislative, judicial, regulatory, taxing or administrative functions of or pertaining to government, regulation or compliance, or any arbitrator or arbitral body (public or private), any self-regulated organization, stock exchange, or quasi-governmental authority.
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“Governmental Order” means any order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive, consent, approval, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any Governmental Authority.
“Group” or “Group Companies” means the Company and its Subsidiaries, and “Group Company” means any of them.
“Hazardous Materials” means: (a) any contaminant, compound, chemical, pollutant, mixture, substance, material or waste which is regulated by, or for which liability or standards of conduct may be imposed under, any Environmental Law, including any contaminant, compound, mixture, substance, material or waste which is defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “solid waste,” “pollutant,” “contaminant,” “toxic substance,” “toxic waste,” “mining waste,” “special waste” or other similar term or phrase under any Environmental Law and (b) extracted lithium bearing minerals to the extent regulated as a Hazardous Material under Environmental Law, including the U.S. Department of Transportation Hazardous Materials Regulations, petroleum or petroleum by-products, mine tailings, radon, radioactive materials or wastes (including naturally occurring radioactive materials), per- and polyfluoroalkyl substances, asbestos or asbestos-containing materials, toxic mold and polychlorinated biphenyls.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“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, including any amount due to any shareholder of such Person, (b) the principal and accrued 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) any 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,” “seller notes,” “exit fees” and “retention payments,” but excluding trade payables arising in the Ordinary Course, (g) earned or accrued but unpaid obligations of the Person with respect to severance, retention, deferred compensation, payable to any current or former employee, officer, director or individual service provider of the Person (including the employer portion of any Taxes thereon and calculated as if all such amounts were paid on the Initial Closing Date) prior to or as a result of this Agreement or the Transactions, (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.
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“Initial Merger Consideration” means the sum of all PubCo Common Shares receivable by SPAC Shareholders pursuant to Section 2.2(f)(ii).
“Intellectual Property” means all intellectual property, industrial property and proprietary rights in any and all jurisdictions worldwide, including rights in Patents, Trademarks, copyrights, works of authorship and mask works, Trade Secrets, Software, “moral” rights, rights of publicity or privacy, data base or data collection rights and other similar intellectual property rights, registrations, applications, and renewals for any of the foregoing and all rights in the foregoing.
“Investment Company Act” means the Investment Company Act of 1940.
“IPO” means the SPAC’s initial public offering pursuant to its prospectus dated January 26, 2021.
“IPO Price per Share” means $10.00.
“Knowledge of SPAC” or any similar expression means the knowledge that each individual listed on Section 1.1 of the SPAC Disclosure Letter actually has, or the knowledge that any such individual would have acquired following reasonable inquiry of the individual’s direct reports directly responsible for the applicable subject matter.
“Knowledge of the Company” or any similar expression means the knowledge that each individual listed on Section 1.1 of the Company Disclosure Letter actually has, or the knowledge that any such individual would have acquired following reasonable inquiry of the individual’s direct reports directly responsible for the applicable subject matter.
“Law” means any statute, law, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority, or any provisions or interpretations of the foregoing, including general principles, rules and holdings of common law and civil law and equity.
“Liabilities” means debts, liabilities and obligations (including Taxes), whether accrued or fixed, absolute or contingent, matured or unmatured, deferred or actual, determined or determinable, known or unknown.
“Lookback Cutoff Date” means January 1, 2023.
“Made Available” means, unless the context otherwise requires, that a copy of the subject documents or other materials has been provided by the Company, its Subsidiary or any of their respective Representatives at least two (2) Business Days prior to the date hereof either (i) via upload to the virtual data room operated by SecureDocs under the project name “Project Alkali” or (ii) to SPAC or its Representatives by email.
“Merger Sub 2 Transfer” has the meaning set forth in Section 2.2(h).
“Merger Sub 2 Transfer Agreement” means the transfer agreement for the Merger Sub 2 Transfer by and among PubCo and Merger Sub 1, in customary form reasonably agreed to by the Company and the SPAC consistent with this Agreement.
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“Mining Projects” means the McDermitt mining exploration project located in Malheur County, Oregon and Humboldt County, Nevada and the Clayton mining exploration project located in Esmeralda County, Nevada.
“Mining Financial Assurance” means any performance bond, surety bond, letter of credit, cash collateral or other collateral, lease bond or other financial assurance required pursuant to any applicable Law, Environment Permit or other Material Permit required for the Mining Projects.
“Mining Rights” means all interests and rights in mining claims, mining leases, mineral concessions, exploration, reconnaissance, exploitation or extraction rights, prospecting licenses, surface rights, subsurface rights, water rights, access rights or similar rights, that are held by way of Law, franchises, grants, authorizations, licenses, permits, consents, certificates, approvals and orders from Governmental Authorities or leases or otherwise.
“Minimum Cash Condition” means the following amount equals or exceeds $14,000,000: without duplication, (a) the aggregate amount of cash (including the aggregate amount of cash from the Sponsor Financing) that has been funded prior to or concurrently with the Acquisition Closing to PubCo, the SPAC or the Company pursuant to the PIPE Financing Agreements, plus (b) all amounts in the Trust Account immediately prior to the Acquisition Closing minus the SPAC Shareholder Redemption Amount and any other amounts in the Trust Account not available to the Surviving Company at and after the Initial Merger to the extent withheld to pay or that are paid on account of taxes of the SPAC (which shall not, in any event, be less than zero ($0) dollars), minus (c) the SPAC Transaction Expenses. For clarity, other SPAC Liabilities, Other Transaction Expenses and any Sponsor Loans exchanged for PubCo Loan Warrants under the terms of this Agreement or the Transaction Documents do not count against the Minimum Cash Condition.
“NRCA” means the Nevada Revised Corporations Act of the State of Nevada.
“Ordinary Course” means, with respect to an action taken or refrained from being taken by a Person, that such action or omission is taken in the ordinary course of the operations of such Person.
“Ordinary Shares” has the meaning given to that term in the Company Charter.
“Organizational Documents” means, with respect to any Person that is not an individual, its certificate of incorporation or registration, bylaws, memorandum and articles of association, constitution, limited liability company agreement, or similar organizational documents, in each case, as amended or restated.
“Other Transaction Expenses” means, any of the following out-of-pocket fees and expenses payable by SPAC or Sponsor (whether or not billed or accrued for) as a result of or in connection with the negotiation, documentation and consummation of the Transactions: (i) financial advisory fees (other than to the extent incurred by the SPAC in connection with the receipt of a fairness opinion), (ii) fees incurred in connection with the Private Placement, including arrangement or placement agent fees (iii) transfer agent and trustee fees, (iv) filing fees to the Governmental Authorities, (v) consent fees unrelated to SPAC Shareholders, (vi) printing and mailing fees, or (vii) any other fees, costs or expenses incurred as a result of or in connection with the Transactions, other than SPAC Transaction Expenses, including any fees relating to or resulting from the actions contemplated under Section 8.7 but, for clarity in each case above, excluding SPAC’s or Sponsor’s attorney’s fees.
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“Owned IP” means all Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.
“Patents” means patents, including utility models, industrial designs and design patents, and applications therefor (and any patents that issue as a result of those patent applications), and including all divisionals, continuations, continuations-in-part, continuing prosecution applications, substitutions, reissues, re-examinations, renewals, provisionals and extensions thereof, and any counterparts worldwide claiming priority therefrom.
“Permitted Encumbrances” means (a) Encumbrances for Taxes, assessments and governmental charges or levies not yet due and payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (b) mechanics’, carriers’, workmen’s, repairmen’s, materialmen’s or other Encumbrances arising or incurred in the Ordinary Course in respect of amounts that are not yet due and payable; (c) defects or imperfections of title, easements, encroachments, covenants, rights-of-way, conditions, restrictions and other similar charges or Encumbrances affecting title to the Owned Real Property that do not materially interfere with the present use or occupancy of the Owned Real Property, (d) with respect to any Leased Real Property (i) the interests and rights of the respective lessors with respect thereto, including any statutory landlord liens and any Encumbrances thereon, (ii) any Encumbrances permitted under any Real Property Lease, and (iii) any Encumbrances encumbering the real property of which the Leased Real Property is a part, (e) zoning, building, entitlement and other land use and environmental regulations promulgated by any Governmental Authority that do not materially interfere with the current use or occupancy of the Real Property, (f) non-exclusive licenses of Intellectual Property granted by the Company or any of its Subsidiaries in the Ordinary Course, (g) Ordinary Course purchase money Encumbrances and Encumbrances securing rental payments under operating or capital lease arrangements for amounts not yet due or payable, and (h) other Encumbrances arising in the Ordinary Course and not incurred in connection with the borrowing of money and on a basis consistent with past practice in connection with workers’ compensation, unemployment insurance or other types of social security.
“Person” means any individual, firm, corporation, company, partnership, limited liability company, incorporated or unincorporated association, trust, estate, joint venture, joint stock company, Governmental Authority or instrumentality or other entity of any kind.
“PIPE Preferred Securities” means any Company Preferred Shares issued to PIPE Investors pursuant to one or more PIPE Financing Agreements.
“Plan of Initial Merger” means the plan of merger substantially in the form attached hereto as Exhibit D and any amendment or variation thereto made in accordance with the provisions of the Cayman Act and DLLCA and the terms thereof.
“Privacy Laws” means all applicable Laws concerning the processing of personal data.
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“Prohibited Person” means any Person that is (a) a national or organized under the laws of, or resident in, any Sanctioned Country, (b) included on any Sanctions-related list of blocked or designated parties (including the United States Commerce Department’s Denied Parties List, Entity List, and Unverified List; the U.S. Department of Treasury’s Specially Designated Nationals and Blocked Persons List, Specially Designated Narcotics Traffickers List, Specially Designated Terrorists List, Specially Designated Global Terrorists List, or the Annex to Executive Order No. 13224; the Department of State’s Debarred List; or any list of Persons subject to sanctions issued by the United Nations Security Council, HM Treasury of the United Kingdom, and the European Union); (c) owned fifty percent or more, directly or indirectly, by a Person included on any Sanctions-related list of blocked or designated parties, as described in clause (b) above; (d) is a Person acting in his or her official capacity as a director, officer, employee, or agent of a Person included on any Sanctions-related list of blocked or designated parties, as described in clause (b) above; or (e) a Person with whom business transactions, including exports and imports, are otherwise restricted by Sanctions, including, in each clause above, any updates or revisions to the foregoing and any newly published rules.
“Proxy Statement” means the proxy statement forming part of the Proxy/Registration Statement filed with the SEC, with respect to the SPAC Shareholders’ Meeting and the Transactions, to be used for the purpose of soliciting proxies from SPAC Shareholders to approve the Transaction Proposals.
“PubCo Common Shares” means the shares of Common Stock, par value $0.0001 per share, of PubCo.
“PubCo Initial Shareholder” means the holder of the PubCo Subscriber Share prior to the Initial Merger Effective Time.
“PubCo Converted Warrant” means the former SPAC Warrants that are assumed by PubCo pursuant to Section 2.2(f)(iii).
“PubCo Loan Warrants” means PubCo Warrants with substantially the same terms as the SPAC Private Placement Warrants and in a final form reasonably satisfactory to SPAC and the Company, issued by Pubco in respect of the Existing Parent Intercompany Amount, Continuing Company Parent Intercompany Amounts, the Existing Sponsor Loans and the Continuing Sponsor Non-Transaction Loans.
“PubCo Preferred Shares” means Preferred Shares of PubCo having the same designations, terms, rights and privileges as Company Preferred Shares. If there is more than one class or series of Company Preferred Shares, then PubCo Preferred Shares will mean the same designations, terms, rights and privileges as the applicable class or series of Company Preferred Shares.
“PubCo Warrant” means, together, the PubCo Converted Warrants and the PubCo Loan Warrants.
“Real Property” means the Owned Real Property or Leased Real Property.
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“Redeeming SPAC Shares” means SPAC Ordinary Shares in respect of which the eligible (as determined in accordance with the SPAC Charter) holder thereof has validly exercised (and not validly revoked, withdrawn or lost) its SPAC Shareholder Redemption Right.
“Registered IP” means Owned IP issued by, registered, recorded or filed with, renewed by or the subject of a pending application before any Governmental Authority, Internet domain name registrar or other relevant authority.
“Registrable Securities” means (a) the PubCo Common Shares representing the Shareholder Merger Consideration, (b) the PubCo Common Shares issuable upon exercise of the PubCo Warrants, (c) the PubCo Warrants, and (d) any PubCo Common Shares received as a result of the Company Parent’s election to convert Continuing Company Parent Intercompany Amounts to PubCo Common Shares.
“Registration Statement” means a registration statement on Form S-4, or other appropriate form, including any pre-effective or post-effective amendments or supplements thereto, to be filed with the SEC by PubCo under the Securities Act with respect to the Registrable Securities.
“Related Party” means with respect to a Person (a) any member, shareholder or equity interest holder who, together with its Affiliates, directly or indirectly holds no less than 5% of the total outstanding share capital of the Person or (b) any director or officer of the Person.
“Representatives” of a Person means, collectively, officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives of such Person or its Affiliates.
“Sanctioned Country” means any country or region or government thereof that is, or has been at any time since April 24, 2019, the subject or target of Sanctions or a comprehensive embargo under Trade Control Laws (including Cuba, Iran, North Korea, Syria (until July 1, 2025), Venezuela, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic, and the non-government controlled areas of the Zaporizhzhia and Kherson regions of Ukraine).
“Sanctions” means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (a) the United States (including the United States Commerce Department’s Denied Parties List, Entity List, and Unverified Lists, the U.S. Department of Treasury’s Specially Designated Nationals and Blocked Persons List, Specially Designated Narcotics Traffickers List, or Specially Designated Terrorists List, Specially Designated Global Terrorists List, or the Annex to Executive Order No. 13224, and the Department of State’s Debarred List), (b) the European Union and enforced by its member states, or (c) any other similar economic sanctions administered by a relevant Governmental Authority.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933.
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“Shareholder Merger Consideration” means the Initial Merger Consideration and the Acquisition Merger Consideration, as applicable.
“Software” means all computer software, data, and databases, together with object code, source code, firmware, and embedded versions thereof, and documentation related thereto, together with intellectual property, industrial property and proprietary rights in and to any of the foregoing.
“SPAC Acquisition Proposal” means: (a) any, direct or indirect, acquisition, merger, domestication, reorganization, business combination, “initial business combination” under SPAC’s initial IPO prospectus or similar acquisition transaction of a Person, in one transaction or a series of transactions, involving SPAC or involving all or a material portion of the assets, Equity Securities or businesses of SPAC (whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, purchase of assets, tender offer or otherwise); or (b) any equity or similar investment in SPAC or any of its controlled Affiliates, in each case, other than the Transactions or in contemplation of the Transactions.
“SPAC Charter” means the Amended and Restated Memorandum and Articles of Association of the SPAC, adopted pursuant to a special resolution passed on January 26, 2021, as amended from time to time.
“SPAC Class A Ordinary Shares” means Class A ordinary shares of SPAC, par value $0.0001 per share, as further described in the SPAC Charter.
“SPAC Class B Ordinary Shares” means Class B ordinary shares of SPAC, par value $0.0001 per share, as further described in the SPAC Charter.
“SPAC Material Adverse Effect” means any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of SPAC to perform its obligations under this Agreement or consummate the Transactions.
“SPAC Non-Transaction Expenses” means any of the expenses payable by SPAC that are not SPAC Transaction Expenses or Other Transaction Expenses.
“SPAC Preference Shares” means preference shares of SPAC, par value $0.0001 per share, as further described in the SPAC Charter.
“SPAC Private Placement Warrant” means each warrant to purchase one SPAC Class A Ordinary Share issued to Sponsor under the Private Placement Warrant Purchase Agreement, dated as of January 26, 2021, between SPAC and Sponsor.
“SPAC Securities” means, collectively, the SPAC Shares, the SPAC Warrants, the SPAC Units and the SPAC Preference Shares.
“SPAC Shareholder” means any holder of any SPAC Shares.
“SPAC Shareholder Redemption Amount” means the aggregate amount payable with respect to all Redeeming SPAC Shares.
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“SPAC Shareholder Redemption Right” means the right of an eligible (as determined in accordance with the SPAC Charter) holder of SPAC Class A Ordinary Shares to redeem all or a portion of the SPAC Class A Ordinary Shares held by such holder as set forth in the SPAC Charter, including in connection with the Transaction Proposals with respect to SPAC Shareholders and/or any extension of the date by which the SPAC must consummate a Business Combination.
“SPAC Shareholders’ Approval” means the vote of SPAC Shareholders required to approve the Transaction Proposals, as determined in accordance with applicable laws and the SPAC Charter in effect at that time.
“SPAC Shares” means the SPAC Class A Ordinary Shares and the SPAC Class B Ordinary Shares.
“SPAC Transaction Expenses” means any of the following out-of-pocket fees and expenses payable by SPAC or, solely to the extent payable by the SPAC or would result in a payment under Section 2.3(c) to the Sponsor (whether or not billed or accrued for): (a) in each case as a result of or in connection with the negotiation, documentation and consummation of the Transactions: (i) fees, costs, expenses of obtaining a fairness opinion (for the benefit of the SPAC’s board of directors), (ii) attorney’s fees (other than to the extent reimbursable by the Company pursuant to the Sponsor Financing), accountants fees and other advisors and service provider fees, (iii) premium, costs and expenses relating to “tail” coverage under SPAC’s directors’ and officers’ liability insurance policies, (iv) deferred underwriting fees with respect to the SPAC’s initial public offering and (v) all retention, stay or transaction bonuses, severance, incentive or deferred compensation payments and other compensatory payments or obligations, if any, that were implemented by the SPAC and are payable in cash by the SPAC to any current or former employee, officer, director or individual service provider of SPAC as a result of or in connection with the execution of this Agreement or the consummation of the Transactions (including, without duplication, the employer portion of any payroll, fees, expenses, social security, unemployment or similar Taxes with respect to such payments and calculated as if all such amounts were paid on the Acquisition Closing Date) and (b) out-of-pocket attorney’s fees and expenses payable by SPAC or Sponsor (to the extent submitted for payment or for which the SPAC has any obligation to reimburse Sponsor), whether or not related to the Transaction.
“SPAC Unit” means the units issued by SPAC in SPAC’s IPO or the exercise of the underwriters’ overallotment option each consisting of one SPAC Class A Ordinary Share and one-third of a SPAC Warrant.
“SPAC Warrants” means all outstanding and unexercised warrants issued by SPAC to acquire SPAC Class A Ordinary Shares.
“Subsidiary” means, with respect to a specified Person, any other Person Controlled, directly or indirectly, by such specified Person and, in case of a limited partnership, limited liability company or similar entity, such Person is a general partner or managing member and has the power to direct the policies, management and affairs of such Person, respectively.
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“Tax” or “Taxes” means all U.S. federal, state, local, provincial, non-U.S. or other taxes imposed by any Governmental Authority, including all income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, ad valorem, value added, inventory, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, escheat and unclaimed property, sales, use, transfer, registration, alternative or add-on minimum, or estimated taxes, and including any interest, penalty, or addition thereto.
“Tax Returns” means all U.S. federal, state, local, provincial, non-U.S. or other returns, declarations, computations, notices, statements, claims, reports, schedules, forms and information returns, including any attachment thereto or amendment thereof, required or permitted to be supplied to, or filed with, a Governmental Authority with respect to Taxes.
“Top Suppliers” has the meaning given to that term in Section 3.26(b).
“Trade Secrets” means all trade secrets and other confidential or proprietary information, know-how and other inventions, processes, models, methodologies and all other information that derives economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use.
“Trademarks” means trade names, logos, trademarks, service marks, service names, trade dress, company names, collective membership marks, certification marks, slogans, domain names, social media handles, toll-free numbers, and other indicia of origin, whether or not registerable as a trademark in any given country, together with registrations and applications therefor, and the goodwill associated with any of the foregoing.
“Transaction Documents” means, collectively, this Agreement, the PIPE Financing Agreements, the Sponsor Support Agreement, the Shareholder Support Agreement, the Voting Agreements, the Registration Rights Agreement, the Assignment, Assumption and Amendment Agreement, the Initial Merger Filing Documents, the Merger Sub 2 Transfer Agreement, the Acquisition Merger Filing Documents and any other agreements, documents or certificates entered into or delivered pursuant hereto or thereto, and the expression “Transaction Document” means any one of them.
“Transaction Proposals” means the adoption and approval of each proposal reasonably agreed to by SPAC and the Company as necessary or appropriate in connection with the consummation of the Transactions, but in any event including unless otherwise agreed upon in writing by SPAC and the Company: (i) the approval and authorization of this Agreement and the Transactions as a Business Combination, (ii) the approval and authorization of the Initial Merger and the Plan of Initial Merger, (iii) the adoption and approval of a proposal for the adjournment of the SPAC Shareholders’ Meeting, if necessary, to permit further solicitation and vote of proxies because there are not sufficient votes to approve and adopt any of the foregoing, and (iv) the adoption and approval of each other proposal that the U.S. Securities Exchange or the SEC (or staff members thereof) indicates (x) are necessary in its comments to the Proxy/Registration Statement or correspondence related thereto and (y) are required to be approved by the SPAC Shareholders in order for the Acquisition Closing to be consummated.
“Transactions” means, collectively, the Mergers, the Merger Sub 2 Transfer and each of the other transactions contemplated by this Agreement or any of the other Transaction Documents.
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“Transfer Taxes” means any transfer, documentary, sales, use, real property, stamp, registration and other similar Taxes, fees and costs (including any associated penalties and interest) payable in connection with the Transactions.
“Services Agreement” means that certain Services Agreement covering the Services, as contemplated by Section 8.9 hereof.
“U.S.” means the United States of America.
“U.S. Securities Exchange” means NASDAQ or NYSE or any other U.S. national securities exchange, as defined under the Exchange Act, mutually agreed to between Company Parent and SPAC.
“Warrant Agreement” means the Warrant Agreement, dated as of January 26, 2021, by and between SPAC and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent.
Section 1.2. Construction.
(a) Unless the context of this Agreement otherwise requires or unless otherwise specified, (i) words of any gender will be construed as masculine, feminine, neuter or any other gender, as applicable; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby,” “herewith,” “hereto” and derivative or similar words refer to this entire Agreement; (iv) the terms “Article” or “Section” refer to the specified Article or Section of this Agreement; (v) the terms “Schedule” or “Exhibit” refer to the specified Schedule or Exhibit of this Agreement; (vi) the words “including,” “included,” or “includes” will mean “including, without limitation;” and will not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (vii) the word “extent” in the phrase “to the extent” means the degree to which a subject or thing extends and such phrase will not simply mean “if;” (viii) the word “or” will be disjunctive but not exclusive; (ix) the word “will” will be construed to have the same meaning as the word “will”; (x) unless the context otherwise clearly indicates, each defined term used in this Agreement will have a comparable meaning when used in its plural or singular form; (xi) words in the singular will be held to include the plural and vice versa, and words of one gender will be held to include the other gender as the context requires; (xii) references to “written” or “in writing” include in electronic form; and (xiii) a reference to any Person includes such Person’s predecessors, successors and permitted assigns;
(b) Unless the context of this Agreement otherwise requires, references to statutes will include all regulations promulgated thereunder and references to statutes or regulations will be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
(c) References to “$”, “dollar”, or “cents” are to the lawful currency of the United States of America.
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(d) Whenever this Agreement refers to a number of days or months, such number will refer to calendar days or months unless Business Days are expressly specified. Time periods within or following which any payment is to be made or act is to be done under this Agreement will be calculated by excluding the calendar day on which the period commences and including the calendar day on which the period ends, and by extending the period to the next following Business Day if the last calendar day of the period is not a Business Day.
(e) All accounting terms used in this Agreement and not expressly defined in this Agreement will have the meanings given to them under GAAP (with respect to SPAC) and IFRS (with respect to the Company or any of its Subsidiaries).
(f) Unless the context of this Agreement otherwise requires, (i) references to Merger Sub 1 with respect to periods following the Initial Merger Effective Time will be construed to mean the Surviving Company and vice versa and (ii) references to the Company with respect to periods following the Acquisition Effective Time will be construed to mean the Surviving Corporation and vice versa.
(g) The table of contents and the section and other headings and subheadings contained in this Agreement and the Exhibits hereto are solely for the purpose of reference, are not part of the agreement of the parties hereto, and will not in any way affect the meaning or interpretation of this Agreement or any Exhibit hereto.
(h) Unless the context of this Agreement otherwise requires, references to agreements and other documents will be deemed to include all subsequent amendments and other modifications thereto.
(i) Capitalized terms used in the Exhibits and the Disclosure Letter and not otherwise defined therein have the meanings given to them in this Agreement.
(j) With regard to each and every term and condition of this Agreement, the parties hereto understand and agree that the same has been mutually negotiated, prepared and drafted, and if at any time the parties hereto desire or are required to interpret or construe any such term or condition or any agreement or instrument subject hereto, no consideration will be given to the issue of which party actually prepared, drafted or requested any term or condition of this Agreement.
Article
II
TRANSACTIONS; CLOSING
Section 2.1. Pre-Closing Actions.
(a) Immediately prior to the Initial Merger Effective Time, PubCo’s certificate of incorporation as in effect immediately prior to the Initial Merger Effective Time will be amended and restated in its entirety in a form to be mutually agreed in good faith by SPAC and the Company, (the “PubCo Charter”), which will reflect the designations, terms, rights and privileges of any PubCo Preferred Shares subject to exchange under this Agreement, and, as so amended and restated, will be the certificate of incorporation of PubCo, until thereafter amended in accordance with the terms thereof and the DGCL.
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Section 2.2. The Initial Merger and the Merger Sub 2 Transfer.
(a) Initial Merger. Subject to Section 2.2(b), three (3) Business Days after the first date on which all conditions set forth in Article IX that are required hereunder to be satisfied on or prior to the Initial Closing will have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Initial Closing, but subject to the satisfaction or waiver thereof), or at such other time or in such other manner as will be agreed upon by SPAC and the Company in writing, the closing of the Transactions contemplated by this Agreement with respect to the Initial Merger (the “Initial Closing”) will take place remotely by conference call and exchange of documents and signatures. At the Initial Closing, SPAC will merge with and into Merger Sub 1, with Merger Sub 1 being the surviving company in the Initial Merger and SPAC will cease to exist and will be struck off the Register of Companies in the Cayman Islands (the day on which the Initial Closing occurs, the “Initial Closing Date”). On the Initial Closing Date, PubCo, SPAC and Merger Sub 1 will execute and cause to be filed with the Registrar of Companies of the Cayman Islands and the Delaware Secretary of State, the Plan of Initial Merger as provided in Section 233 of the Cayman Act and such other documents and filings as may be required to be made by SPAC or Merger Sub 1 in accordance with the applicable provisions of the Cayman Act, the DLLCA or by any other applicable Law to make the Initial Merger effective (collectively, the “Initial Merger Filing Documents”). The Initial Merger will become effective when the Plan of Initial Merger is registered or filed or at such later time permitted by the Cayman Act and the DLLCA as may be agreed by Merger Sub 1 and SPAC in writing with the prior written consent of the Company and specified in the Plan of Initial Merger (the “Initial Merger Effective Time”).
(b) Notice to SPAC Shareholders Delivering Written Objection. If any SPAC Shareholder gives to SPAC, before the SPAC Shareholders’ Approval is obtained at the SPAC Shareholders’ Meeting, written objection to the Initial Merger (each, a “Written Objection”) in accordance with Section 238(2) of the Cayman Act:
(i) SPAC will, in accordance with Section 238(4) of the Cayman Act, promptly give written notice of the authorization of the Initial Merger (the “Authorization Notice”) to each such SPAC Shareholder who has made a Written Objection, and
(ii) unless SPAC and the Company elect by agreement in writing to waive this Section 2.2(b)(ii), no party will be obligated to commence the Initial Closing, and the Plan of Initial Merger will not be filed with the Registrar of Companies of the Cayman Islands until at least twenty (20) days will 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 Section 9.1, Section 9.2 and Section 9.3.
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(c) Effect of the Initial Merger. At and after the Initial Merger Effective Time, the Initial Merger will have the effects set forth in this Agreement, the Plan of Initial Merger and the applicable provisions of the Cayman Act and the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Initial Merger Effective Time, all the property of every description including choses in action, rights, privileges, agreements, powers and franchises, Liabilities, undertakings, goodwill, benefits, immunities, privileges and duties of SPAC and Merger Sub 1 will vest in and become the property, rights, privileges, agreements, powers and franchises, Liabilities and duties of Merger Sub 1 as the Surviving Company (including all rights and obligations with respect to the Trust Account) which will include the assumption by Merger Sub 1 of any and all agreements, covenants, duties and obligations of SPAC and Merger Sub 1 set forth in this Agreement and the other Transaction Documents to which SPAC or Merger Sub 1 is a party, and the Surviving Company will be liable for and subject, in the same manner as SPAC and Merger Sub 1 to all mortgages, charges, or security interests and all contracts, obligations, claims, debts, and Liabilities of SPAC and Merger Sub 1. As a result of the Initial Merger, SPAC will cease to exist and will be struck off the Register of Companies in the Cayman Islands and Merger Sub 1 will continue as the Surviving Company and become a wholly owned subsidiary of PubCo.
(d) Organizational Documents of the Surviving Company. At the Initial Merger Effective Time, in accordance with the Plan of Initial Merger, the certificate of formation and operating agreement of Merger Sub 1 in the form annexed to the Plan of Initial Merger at the time of filing with the Registrar of Companies of the Cayman Islands, as in effect immediately prior to the Initial Merger Effective Time, will be the certificate of formation and operating agreement of the Surviving Company (the “Charter of the Surviving Company”), until thereafter amended in accordance with the terms thereof and the DLLCA and such operating agreement.
(e) Directors and Officers of the Surviving Company. SPAC will take all actions necessary, with effect from the Initial Merger Effective Time, to cause each member of the board of directors of SPAC to cease to be a director of the SPAC and, immediately after the Initial Merger Effective Time, the Surviving Company will be managed by its sole member, PubCo, in accordance with the Charter of the Surviving Company. At the Initial Merger Effective Time, any officers provided for by the Charter of the Surviving Company will be appointed by PubCo.
(f) Effect of the Initial Merger on Issued Securities of SPAC and Merger Sub 1. At the Initial Merger Effective Time, by virtue of and as part of the agreed consideration for the Initial Merger and without any further action (save as set out in this Section 2.2(f)) on the part of any party hereto or the holders of securities of SPAC or Merger Sub 1 or any other Person:
(i) SPAC Units. Immediately prior to the Initial Merger Effective Time, each SPAC Unit issued and outstanding immediately prior to the Initial Merger Effective Time will be automatically detached and the holder thereof will be deemed to hold one SPAC Class A Ordinary Share and one-third of a SPAC Warrant in accordance with the terms of the applicable SPAC Unit (the “Unit Separation”), provided that no fractional SPAC Warrants will be issued in connection with the Unit Separation such that if a holder of SPAC Units would be entitled to receive a fractional SPAC Warrant upon the Unit Separation, the aggregate number of SPAC Warrants to be issued to such holder upon the Unit Separation will be rounded down to the nearest whole number of SPAC Warrants. The underlying SPAC Securities held or deemed to be held following the Unit Separation will be converted in accordance with the applicable terms of this Section 2.2(f).
(ii) SPAC Ordinary Shares. Immediately following the separation of each SPAC Unit in accordance with Section 2.2(f)(i), (A) each SPAC Class B Ordinary Share issued and outstanding immediately prior to the Initial Merger Effective Time (other than any Treasury Shares and Dissenting SPAC Shares) will automatically convert into a SPAC Class A Ordinary Share in accordance with the terms of the SPAC Charter and (B) each SPAC Class A Ordinary Share (for clarity, including each converted SPAC Class B Ordinary Share) issued and outstanding immediately prior to the Initial Merger Effective Time (other than any SPAC Treasury Shares, Redeeming SPAC Shares and Dissenting SPAC Shares) will automatically be cancelled, cease to exist and exchanged for one newly issued PubCo Common Share. As of the Initial Merger Effective Time, each SPAC Shareholder will cease to have any other rights in and to such SPAC Shares, except as expressly provided herein.
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(iii) Conversion of SPAC Warrants. At the Initial Merger Effective Time, each SPAC Warrant outstanding immediately prior to the Initial Merger Effective Time will cease to be a warrant with respect to SPAC Ordinary Shares and be automatically assumed by PubCo and converted into a warrant to purchase one PubCo Common Share (each, a “PubCo Converted Warrant”) pursuant to an Assignment, Assumption and Amendment Agreement entered into between SPAC and PubCo prior to the Initial Closing (the “Assignment Assumption and Amendment Agreement”). Each PubCo Converted Warrant will continue to have and be subject to substantially the same terms and conditions as were applicable to such SPAC Warrant immediately prior to the Initial Merger Effective Time (including any repurchase rights and cashless exercise provisions) in accordance with the provisions of the Assignment, Assumption and Amendment Agreement.
(iv) SPAC Treasury Shares. Notwithstanding Section 2.2(f)(ii) above or any other provision of this Agreement to the contrary, if there are any SPAC Shares that are owned by SPAC as treasury shares or any SPAC Shares owned by any direct or indirect Subsidiary of SPAC (collectively, “SPAC Treasury Shares”) immediately prior to the Initial Merger Effective Time, such SPAC Treasury Shares will automatically be cancelled and will cease to exist at the Initial Merger Effective Time without any conversion thereof or payment or other consideration therefor.
(v) Redeeming SPAC Shares. Each Redeeming SPAC Share issued and outstanding immediately prior to the Initial Merger Effective Time will, pursuant to the SPAC Charter and subject to the provisions thereof, automatically be cancelled and cease to exist at the Initial Merger Effective Time and will thereafter represent only the right to be paid a pro rata share of the SPAC Shareholder Redemption Amount.
(vi) Dissenting SPAC Shares. Notwithstanding anything to the contrary contained herein, and to the extent available under the Cayman Act, each Dissenting SPAC Share issued and outstanding immediately prior to the Initial Merger Effective Time held by a Dissenting SPAC Shareholder will automatically be cancelled and cease to exist in accordance with Section 2.6(a) and will thereafter only entitle the holder thereof such rights as are provided to a holder of a the right to be paid the fair value of such Dissenting SPAC Share pursuant to Section 238 of the Cayman Act.
(vii) Merger Sub 1 Membership Interest. The Merger Sub 1 membership interest owned by PubCo issued and outstanding immediately prior to the Initial Merger Effective Time will continue existing and constitute the only issued and outstanding membership interest in the capital of the Surviving Company at and from the Initial Merger Effective Time.
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(g) PubCo Shares. At the Initial Merger Effective Time and immediately following the issuance of one or more PubCo Common Shares comprising the Initial Merger Consideration, the PubCo Initial Shareholder will surrender the PubCo Subscriber Share and any other shares of PubCo that were outstanding immediately prior to the Initial Merger Effective Time (the “Surrender Shares”) for no consideration to PubCo and all such shares of PubCo will be cancelled by PubCo.
(h) Merger Sub 2 Transfer. Immediately following the Initial Merger Effective Time and prior to the Acquisition Effective Time, Merger Sub 1, as the Surviving Company in the Initial Merger, as the sole holder of the outstanding shares of capital stock of Merger Sub 2 will transfer, assign and convey to PubCo all of the issued and outstanding shares of Initial Merger Sub 2 Common Stock, free and clear of all Encumbrances (other than restrictions under applicable securities Laws) for no consideration therefor, and PubCo will accept such transfer, assignment and conveyance, such that, immediately following the Merger Sub 2 Transfer, Merger Sub 2 will be a direct wholly owned subsidiary of PubCo (the “Merger Sub 2 Transfer”). The parties will take all actions necessary to effectuate the Merger Sub 2 Transfer, including the execution and delivery of the Merger Sub 2 Transfer Agreement.
Section 2.3. The Acquisition Merger.
(a) Acquisition Merger. Immediately following the Initial Merger Effective Time and the consummation of the Merger Sub 2 Transfer, on the Closing Date, the closing of the Transactions contemplated by this Agreement with respect to the Acquisition Merger (the “Acquisition Closing”) will take place remotely by conference call and exchange of documents and signatures. At the Acquisition Closing, Merger Sub 2 will, and PubCo will cause Merger Sub 2 to, merge with and into the Company, with the Company being the surviving company in the Acquisition Merger (the day on which the Acquisition Closing occurs, the “Acquisition Closing Date”). On the Acquisition Closing Date, upon the Acquisition Closing, PubCo, the Company and Merger Sub 2 will execute and cause to be filed with the Nevada Secretary of State the Articles of Acquisition Merger (and such other documents as may be required in accordance with the applicable provisions of the NRCA or by any other applicable Law to make the Acquisition Merger effective (the “Acquisition Merger Filing Documents”)). The Acquisition Merger will become effective at the time when the Articles of Acquisition Merger are filed or at such later time permitted by the NRCA as may be agreed by PubCo, Merger Sub 2 and the Company in writing and specified in the Articles of Acquisition Merger (the “Acquisition Effective Time”).
(b) Effect of the Acquisition Merger. At and after the Acquisition Effective Time, the Acquisition Merger will have the effects set forth in this Agreement, the Articles of Acquisition Merger and the applicable provisions of the NRCA. Without limiting the generality of the foregoing, and subject thereto, at the Acquisition Effective Time, all the property, rights, privileges, agreements, powers and franchises, Liabilities and duties of the Company and Merger Sub 2 will vest in and become the property, rights, privileges, agreements, powers and franchises, Liabilities and duties of the Company as the Surviving Corporation, which will include the assumption by the Company of any and all agreements, covenants, duties and obligations of the Company and Merger Sub 2 set forth in this Agreement and the other Transaction Documents to which the Company or Merger Sub 2 is a party, and the Company will thereafter exist as a wholly owned subsidiary of PubCo and the separate corporate existence of Merger Sub 2 will cease to exist.
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(c) Organizational Documents of the Surviving Corporation. At the Acquisition Effective Time, the Company Charter, as in effect immediately prior to the Acquisition Effective Time, will be the Articles of Incorporation of the Company (the “Articles of the Surviving Corporation”), until thereafter amended in accordance with the terms thereof and the NRCS.
(d) Directors and Officers of the Surviving Corporation. At the Acquisition Effective Time, the board of directors and officers of Merger Sub 2 will cease to hold office, and the board of directors and officers of the Company will be the directors and officers of the Surviving Corporation, each director and officer to hold office in accordance with the Articles of the Surviving Corporation until they are removed or resign in accordance with the Articles of the Surviving Corporation or until their respective successors are duly elected or appointed and qualified.
(e) Effect of the Acquisition Merger on Issued Securities of the Company and Merger Sub 2. At the Acquisition Effective Time, by virtue of and as part of the agreed consideration for the Acquisition Merger and without any further action (save as set out in this Section 2.3) on the part of any party hereto or the holders of securities of the Company or Merger Sub 2:
(i) Company Common Shares. Each Company Common Share issued and outstanding immediately prior to the Acquisition Effective Time will automatically be cancelled, cease to exist and exchanged for a number of newly issued PubCo Common Share equal to 50,000,000 divided by the aggregate number of Company Common Shares outstanding, without interest (such that the Company Shareholders will be entitled to receive 50,000,000 PubCo Common Shares in the aggregate). As of the Acquisition Effective Time, each Company Shareholder will cease to have any other rights in and to the securities of Company or the Surviving Corporation, except as expressly provided herein.
(ii) Company Preferred Shares. Each Company Preferred Share, if any, issued and outstanding immediately prior to the Acquisition Effective Time will automatically be cancelled, cease to exist and exchanged for one newly issued PubCo Preferred Share. As of the Acquisition Effective Time, each holder of Company Preferred Shares will cease to have any other rights in and to the Company Preferred Shares, except as expressly provided herein.
(iii) Treasury Shares. Notwithstanding Section 2.3(e)(i) above or any other provision of this Agreement to the contrary, if there are any Company Shares that are owned by the Company as treasury shares or any Company Shares owned by any direct or indirect Subsidiary of the Company immediately prior to the Acquisition Effective Time, the Company Shares will automatically be cancelled and will cease to exist without any conversion thereof or payment or other consideration therefor.
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(iv) Merger Sub 2 Share. The Initial Merger Sub 2 Common Stock issued and outstanding immediately prior to the Acquisition Effective Time will automatically be converted into one validly issued, fully paid and non-assessable share of common stock of the Surviving Corporation, which share will constitute the only issued and outstanding share in the capital of the Surviving Corporation, held by PubCo.
Section 2.4. Closing Deliverables.
(a) At the Initial Closing,
(i) the Company will deliver or cause to be delivered to SPAC:
(1) a certificate signed by an authorized director or officer of the Company, dated as of the Initial Closing Date, certifying that the conditions specified in Section 9.2 have been fulfilled;
(2) a duly executed copy of the Registration Rights Agreement, executed by the Company and Company Parent;
(3) a duly executed copy of the Services Agreement, executed by Company Parent and the Company; and
(4) evidence of the Company Written Consent and the Required Parent Shareholder Approval, each duly executed or duly passed.
(ii) SPAC will deliver or cause to be delivered to the Company,
(1) a certificate signed by an authorized director or officer of SPAC, dated as of the Initial Closing Date, certifying that the conditions specified in Section 9.3 have been fulfilled and that includes support readily available to SPAC and SPAC’s reasonable supporting calculations to determine the fulfillment of the Minimum Cash Condition; and
(2) a copy of the resignation letter, duly executed by the board of directions of SPAC, in office immediately prior to the Initial Merger Effective Time, providing for such individuals’ automatic resignation from the board of directors of the Surviving Company upon the Initial Merger Effective Time;
(3) a copy of the resignation letters, duly executed by each member of the board of directors of PubCo, in office immediately prior to the Acquisition Merger Effective Time, providing for such individuals’ automatic resignation from the board of directors of PubCo upon the Acquisition Merger Effective Time, subject to Section 7.4;
(4) a duly executed copy of the Merger Sub 2 Transfer Agreement, executed by SPAC and PubCo;
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(5) The Plan of Initial Merger, duly executed by Merger Sub 1, and all ancillary documents required to be filed in accordance with the Cayman Act, duly executed by Merger Sub 1;
(6) evidence of Merger Sub 1 requisite approvals for the Initial Closing;
(7) a duly executed copy of the Assignment, Assumption and Amendment Agreement, executed by the SPAC and PubCo; and
(iii) a share surrender form duly executed by the PubCo Initial Shareholder surrendering all Surrender Shares to PubCo in accordance with Section 2.2(g).
(b) At the Acquisition Closing,
(i) the Surviving Company (as the surviving company in the Initial Merger) will:
(1) cause any documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered;
(2) pay, or cause the Trustee to pay at the direction and on behalf of the Surviving Company, by wire transfer of immediately available funds from the Trust Account (A) as and when due all amounts payable on account of the SPAC Shareholder Redemption Amount to former SPAC Shareholders pursuant to their exercise of the SPAC Shareholder Redemption Right and (B) immediately thereafter, all remaining amounts then available in the Trust Account (if any) (the “Remaining Trust Fund Proceeds”) to a bank account designated by the Surviving Company for its immediate use, subject to this Agreement and the Trust Agreement; and
(3) thereafter, the Trust Account will terminate, except as otherwise provided in the Trust Agreement.
(ii) PubCo will deliver or cause to be delivered,
(1) to holders of the applicable Sponsor Loans the PubCo Loan Warrants issued in exchange for Sponsor Loans exchangeable for PubCo Loan Warrants;
(2) to Company Parent the PubCo Loan Warrants issued in exchange for Parent Intercompany Amounts exchangeable for PubCo Loan Warrants; and
(3) to the Sponsor, a duly executed copy of the Registration Rights Agreement, executed by PubCo, Sponsor, any Related Parties of Sponsor to be party thereto and Company Parent.
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(c) Expenses and Loan Settlement. At the Acquisition Closing, PubCo will pay, without duplication, by wire transfer of immediately available funds (i) all accrued and unpaid Company Transaction Expenses, SPAC Transaction Expenses and Other Transaction Expenses, each as set forth on a written statement to be delivered to PubCo by or on behalf of the Company and SPAC, respectively, not less than three (3) Business Days prior to the Initial Closing Date, which will include the respective amounts or estimates of such amounts, as applicable, and wire transfer instructions for the payment thereof, (ii) all amounts owing under the Continuing Sponsor Transaction Loans, and (iii) all amounts owing under the Continuing Parent Intercompany Amounts to the extent not elected by Company Parent to be settled in PubCo Common Shares. All amounts under (A) Existing Sponsor Loans, (B) Existing Parent Intercompany Amounts and (C) Continuing Sponsor Non-Transaction Loans will be converted at the Initial Closing into PubCo Loan Warrants with the number of PubCo Loan Warrants equal to (y) the principal amount outstanding under the applicable loans divided by (z) $1.50. Any amounts owing under the Continuing Parent Intercompany Amounts elected by Company Parent to be converted into PubCo Common Shares will be converted into PubCo Common Shares at a 15% discount to the IPO Price per Share, which election shall be made by delivery of written notice to PubCo not less than three (3) Business Days prior to the Acquisition Closing Date. For the avoidance of doubt, all proceeds actually funded from loans by the Company Parent to the Company or Sponsor to SPAC, respectively, will be used to pay related expenses and there will be no duplication of loans and expenses. In accordance with the Sponsor Support Agreement, prior to or at Closing, Sponsor will pay all SPAC Non-Transactional Expenses to the extent accrued prior to Closing (following SPAC’s compliance with Section 7.7), which payments will be reflected as Continuing Sponsor Non-Transaction Loans.
(d) If a bank account of PubCo or any of its Subsidiaries is designated by the Surviving Company under Section 2.4(b)(i)(2), the payment of the Remaining Trust Fund Proceeds to such bank account may be treated as (i) an advance from the Surviving Company to PubCo or such Subsidiary of PubCo, or (ii) a distribution from the Surviving Company to PubCo, in each case, as determined by the Surviving Company in its sole discretion, subject to applicable Laws.
Section 2.5. Further Assurances. If, at any time after the Initial Merger Effective Time, any further action is necessary, proper or advisable to carry out the purposes of this Agreement, PubCo, the Surviving Company, Merger Sub 2 and the Company (or their respective designees) will take all such actions as are necessary, proper or advisable under applicable Laws, so long as such action is consistent with and for the purposes of implementing the provisions of this Agreement.
Section 2.6. Dissenter’s Rights.
(a) Subject to Section 2.2(b)(ii) but notwithstanding any other provision of this Agreement to the contrary and to the extent available under the Cayman Act, SPAC Shares that are issued and outstanding immediately prior to the Initial Merger Effective Time and that are held by SPAC Shareholders who will have validly exercised their dissenters’ rights for such SPAC 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 “Dissenting SPAC Shares”, and the holders of such Dissenting SPAC Shares being the “Dissenting SPAC Shareholders”) will not be converted into, and such Dissenting SPAC Shareholders will have no right to receive, the applicable Initial Merger Consideration unless and until such Dissenting SPAC Shareholder fails to perfect or withdraws or otherwise loses its right to dissenters’ rights under the Cayman Act. The SPAC Shares owned by any SPAC Shareholder who fails to perfect or who effectively withdraws or otherwise loses its dissenters’ rights pursuant to the Cayman Act will cease to be Dissenting SPAC Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Initial Merger Effective Time, the right to receive the applicable Initial Merger Consideration, without any interest thereon in accordance with Section 2.2(h)(ii).
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(b) Prior to the Initial Closing, SPAC will give PubCo and the Company (i) prompt written notice of any demands for dissenters’ rights or purchase received by SPAC from SPAC Shareholders, including pursuant to Section 238(2) of the Cayman Act, any withdrawals of such demands and any other instruments related to such demands served pursuant to the Cayman Act and (ii) the opportunity to direct all negotiations and proceedings with respect to any such notice or demand for dissenters’ rights under the Cayman Act. SPAC will not, except with the prior written consent of the Company, or as otherwise required under the Cayman Act, voluntarily make any payment or offer to make payment, or otherwise agree or commit to any payment or other consideration. with respect to any exercise by a SPAC Shareholder of its rights to dissent from the Initial Merger or any demands for appraisal or offer or agree or commit to settle or settle any such demands or approve any withdrawal of any such dissenter rights or demands. In the event that any written notices of objection to the Initial Merger are served by any SPAC Shareholder pursuant to Section 238(2) of the Cayman Act, SPAC will serve written notice of the authorization of the Initial Merger (the “Authorization Notice”) on such shareholders pursuant to Section 238(4) of the Cayman Act within twenty (20) days of obtaining SPAC Shareholders’ Approval and the provisions of this Section 2.2(b) will apply. Unless SPAC, the Company and PubCo elect by agreement in writing to waive such requirement, no party will be obligated to commence the Initial Closing, and the Plan of Initial Merger will not be filed with the Registrar of Companies of the Cayman Islands until at least twenty (20) days will 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 Section 9.1, Section 9.2, and Section 9.3.
Section 2.7. Withholding. Each of the Company, the Surviving Corporation, the Surviving Company, PubCo, SPAC, Merger Sub 1 and Merger Sub 2 (and their respective Affiliates and Representatives) will be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amount as it is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or non-U.S. Tax Law. To the extent that amounts are so withheld by the Company, the Surviving Corporation, the Surviving Company, PubCo, SPAC, Merger Sub 1 or Merger Sub 2 (or their Affiliates or Representatives), as the case may be, and paid over to the appropriate taxing authority, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
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Article
III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (a) as set forth in the disclosure letter delivered to SPAC by the Company on the date of this Agreement (the “Company Disclosure Letter”), or (b) as otherwise explicitly contemplated by this Agreement, the Company represents and warrants to SPAC as follows:
Section 3.1. Organization and Qualification. The Company is duly organized, validly existing and in good standing under the laws of the State of Nevada and has all requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as it is presently conducted and as contemplated to be conducted. The Company is duly qualified to do business in each jurisdiction in which it is conducting its business, or the operation, ownership or leasing of its properties, makes such qualification necessary, other than in such jurisdictions where the failure to so qualify or be in good standing would not, individually or in the aggregate, be material to the Company or its business or its operations. True, correct and complete copies of the Company Charter and Bylaws (or other comparable governing instruments with different names) (collectively referred to herein as “Company Charter Documents”) of the Company, as amended and currently in effect, have been Made Available to SPAC. The Company is not in default of any term or provision of the Company Charter Documents in any material respect. No order has been made, petition presented and received by the Company, resolution of the Company passed or meeting of the Company convened for the purpose of considering a resolution for the dissolution and liquidation of the Company or the establishment of a liquidation group of the Company, no administrator has been appointed for the Company nor to the Knowledge of the Company steps taken to appoint an administrator, and to the Knowledge of the Company there are no Actions under any applicable insolvency, bankruptcy or reorganization Laws concerning the Company.
Section 3.2. Subsidiaries. The Company has no Subsidiary, and does not own, directly or indirectly, any Equity Securities or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated. The Company is not obligated to make any investment in or capital contribution to or on behalf of any other Person.
Section 3.3. Capitalization of the Company.
(a) The authorized capital of the Company is 75,000 common shares, no par value each, of which 10,000 are issued and outstanding and are owned by Company Parent, and 1,550 preferred shares, no par value each, of which 1,550 (the “Preferred Shares”) will be issued and outstanding on or about the date of this Agreement. There are no other Equity Securities of the Company issued or outstanding. All of the issued and outstanding Company Shares (x) have been duly authorized and validly issued and allotted and are fully paid and non-assessable; (y) have been offered, sold and issued by the Company in compliance with applicable Law and all requirements set forth in (1) the Company Charter Documents and (2) any other applicable Contracts governing the issuance or allotment of such securities to which the Company is a party or otherwise bound; and (z) are not subject to, nor have they been issued in violation of, any Encumbrance, purchase option, call option, pre-emptive right, subscription right or any similar right under any provision of any applicable Law, the Company Charter Documents, or any other Contract, in any such case to which the Company is a party or otherwise bound.
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(b) Other than the Preferred Shares (which are held solely by an Affiliate of Sponsor), there are no outstanding subscriptions, options, warrants, phantom stock, stock appreciation, profit participation or other equity or equity-based interests or rights or other securities (including debt securities) of the Company or the Company Parent exercisable or exchangeable for Company Common Shares, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or the issuance or sale by the Company of other Equity Securities of the Company, or for the repurchase or redemption by the Company of shares or other Equity Securities of the Company or the value of which is determined by reference to shares or other Equity Securities of the Company, and there are no voting trusts, proxies or agreements of any kind which may obligate the Company to issue, purchase, register for sale, redeem or otherwise acquire any Company Shares or other Equity Securities of the Company,
Section 3.4. Authorization.
(a) Other than the Company Approvals, the Company has all corporate power and authority to (i) enter into, execute and deliver this Agreement and each of the other Transaction Documents to which it is or will be a party, and (ii) consummate the transactions contemplated hereby and thereby (including the Transactions) and perform all of its obligations hereunder and thereunder. The execution and delivery of this Agreement and the other Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby (including the Transactions) have been duly and validly authorized and approved by the Company Board, and other than the Company Approvals, no other company or corporate proceeding on the part of the Company is necessary to authorize this Agreement and the other Transaction Documents to which the Company is a party and to consummate the transactions contemplated hereby and thereby (including the Transactions). This Agreement has been, and on or prior to the Acquisition Closing, the other Transaction Documents to which the Company is a party will be, duly and validly executed and delivered by the Company and this Agreement constitutes, and on or prior to the Acquisition Closing, the other Transaction Documents to which the Company is a party will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other applicable Laws now or hereafter in effect of general application affecting enforcement of creditors’ rights generally, and (b) as limited by applicable Laws relating to the availability of specific performance, injunctive relief, or other equitable remedies (collectively, the “Enforceability Exceptions”).
(b) The approval and authorization of the Acquisition Merger and the Articles of Acquisition Merger require (i) the approval of the Company Parent (which will be accomplished by a written consent of Company Parent (the “Company Written Consent”) following the Required Parent Shareholder Approval), (ii) the Company Parent having obtained approval from the requisite majority of the votes cast by the holders of the outstanding Ordinary Shares of Company Parent at a general meeting approving the Transaction for the purposes of the Corporations Act and the ASX Listing Rules (including for the purposes of ASX Listing Rules 11.4) and pursuant to the terms and subject to the conditions of the memorandum and articles of association of the Company Parent (the “Required Parent Shareholder Approval”, together with the Company Written Consent, the “Company Approvals”).
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(c) The Company Approvals are the only votes and approvals of holders of Company Shares and other Equity Securities of the Company or Company Parent necessary in connection with execution by the Company of this Agreement and the other Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby, including the Acquisition Closing.
(d) On or prior to the date of this Agreement, the Company Board has duly adopted resolutions (i) determining that this Agreement and the other Transaction Documents to which the Company is a party and the transactions contemplated hereby and thereby (including the Transactions) are advisable and fair to, and in the best interests of, the Company and its shareholders, as applicable, (ii) authorizing and approving the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which the Company is a party and the transactions contemplated hereby and thereby (including the Transactions), (iii) recommending that the Company Shareholders vote in favor of the Transaction Proposals, and (iv) directing that this Agreement, the Transaction Documents and the Transactions be submitted to the Company Shareholders for adoption by written consent.
Section 3.5. Consents; No Conflicts.
(a) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of the Company with respect to the Company’s execution, delivery or performance of its obligations under this Agreement or the Transaction Documents to which the Company is or will be party or the consummation of the Transactions, except for (i) applicable requirements of the HSR Act (including the expiration of the required waiting period thereunder) and any other applicable Antitrust Law, (ii) the filing with the SEC of the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC, (iii) the filing of the Acquisition Merger Filing Documents or (iv) any other consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have a Company Material Adverse Effect.
(b) None of the execution or delivery by the Company of this Agreement or any Transaction Documents to which it is or will be a party, the performance by the Company of its obligations hereunder or thereunder or the consummation of the Transactions will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of any provision of the Company’s Organizational Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or acceleration under, or trigger any right or payment under, any of the terms, conditions or provisions of (A) any Contract to which any of the Company or its Subsidiaries is a party or (B) any Material Permits, (C) any Government Order, Law or other restriction of any Governmental Authority Entity to which any of the Company or its Subsidiaries or any of its properties or assets are subject or bound or (iii) result in the creation of any Encumbrance upon any of the assets or properties (other than any Permitted Encumbrance) or Equity Securities of the Company, except in the case of any of the foregoing clauses (ii) through (iii), as would not have or be reasonably be expected to have a Company Material Adverse Effect.
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Section 3.6. Compliance with Laws, including Corruption Laws. Except as disclosed in Section 3.6 of the Company Disclosure Letter:
(a) Since the Lookback Cutoff Date, (i) the Company and its Subsidiaries are, and have been, in compliance in all material respects with all applicable Laws; (ii) neither the Company nor any of its Subsidiaries is or has been subject to any pending or, to the Knowledge of the Company, threatened in writing Action with respect to a violation of any applicable Laws; and (iii) neither the Company nor any of its Subsidiaries, to the Knowledge of the Company, is or has been subject to any material investigation by or for any Governmental Authority with respect to any violation of any applicable Laws, in each case of (i), (ii) and (iii) other than as would not be material to the Company, its business or its operations.
(b) Neither the Company nor any of its Subsidiaries (i) has received from any Governmental Authority or any Person any notice, inquiry or internal or external allegation, (ii) made any voluntary or involuntary disclosure to a Governmental Authority, or (iii) conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing or is engaged in any Actions related to Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions, Ex-Im Laws or U.S. antiboycott Laws, and to the Knowledge of the Company, no such Action has been threatened in writing.
(c) Neither the Company, any of its Subsidiaries, any of their respective directors, officers or employees, nor to the Knowledge of the Company, agents or any other Persons, in each case acting for or on behalf of the Company or any of its Subsidiaries, directly or indirectly, has at any time in the past five (5) years: (i) made any bribe, influence payment, kickback, payoff, benefits or any other type of payment (whether tangible or intangible) that would be unlawful under any applicable anti-bribery or anti-corruption (governmental or commercial) laws (including, for the avoidance of doubt, any guiding, detailing or implementing regulations), including Laws that prohibit the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any Government Official, Governmental Authority or any other individual or commercial entity to obtain a business advantage, such as a) the U.S. Foreign Corrupt Practices Act (FCPA), the UK Bribery Act 2010 or any other local or foreign anti-corruption or anti-bribery Law (collectively, “Anti-Corruption Laws”), as may be applicable; (ii) been in violation of any Anti-Corruption Law, offered, paid, promised to pay, or authorized any payment or transfer of anything of value, directly or indirectly, to any person for the purpose of (A) influencing any act or decision of any Government Official in his official capacity, (B) inducing a Government Official to do or omit to do any act in relation to his lawful duty, (C) securing any improper advantage, (D) inducing a Government Official to influence or affect any act, decision or omission of any Governmental Authority, or (E) assisting the Company or any of its Subsidiaries, or any agent or any other Person acting for or on behalf of the Company or any of its Subsidiaries, in obtaining or retaining business for or with, or in directing business to, any Person; or (iii) accepted or received any contributions, payments, gifts, or expenditures that would be unlawful under any Anti-Corruption Law.
(d) Neither the Company, any of its Subsidiaries, any of their respective directors, officers or employees nor to the Knowledge of the Company, agents, in each case acting for or on behalf of the Company or any of its Subsidiaries, has at any time in the past five (5) years (since April 24, 2019 in the case of Sanctions) violated any Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions, Ex-Im Laws or U.S. antiboycott Laws or is subject to any indictment or any government investigation with respect to any Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions, Ex-Im Laws or U.S. antiboycott Laws. Without limiting the foregoing, neither the Company, any of its Subsidiaries, any of their respective directors officers, employees nor to the Knowledge of the Company, agents acting for or on behalf of the Company or any of its Subsidiaries, any has, since April 24, 2019, (i) been a Prohibited Person or (ii) engaged in any dealings or transactions with, on behalf of, or for the benefit of any Prohibited Person or in any Sanctioned Country.
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Section 3.7. Permits. Each of the Company and its Subsidiaries has all material approvals, authorizations, clearances, licenses, registrations, permits, certificates or other approvals of a Governmental Authority (the “Material Permits”) that are required to own, lease or operate its properties and assets and to conduct its business as presently conducted in all material respects, and such Material Permits are in effect and have been complied with in all material respects, except as would not have or reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any notice that any Governmental Authority that has issued any Material Permit intends to suspend, cancel, terminate, or not renew any such Material Permit, except to the extent such Material Permit may be amended, replaced, or reissued as a result of and as necessary to reflect the transactions contemplated hereby or may be terminated in the ordinary and usual course of a reissuance or replacement process. To the Company’s Knowledge, no facts, circumstances or conditions exist as of the date hereof that the Company believes would prohibit the Company from obtaining Material Permits under applicable Law for the Mining Projects; provided that no assurance is or can be given with respect to any Governmental Authorities approval of any Material Permit or the scope of the permit.
Section 3.8. Tax Matters.
(a) All material Tax Returns required to be filed by or with respect to the Company and each Subsidiary have been filed within the requisite period (taking into account any valid extensions) and such Tax Returns are true, correct and complete in all material respects. All material Taxes due and payable by the Company and each Subsidiary have been or will be timely paid. The Company and each Subsidiary has withheld and paid over to the appropriate Tax authority all material Taxes that it is required to withhold from amounts paid or owing to any employee, independent contractor, member, equityholder, creditor or other Person.
(b) No material deficiencies for any Taxes that are currently outstanding with respect to any Tax Returns of the Company and each Subsidiary have been asserted in writing by any Tax authority. No written notice of any action, audit, assessment or other proceeding, in each case that is currently pending, with respect to any Tax Returns or any Taxes of the Company and each Subsidiary has been received from, any Tax authority. No dispute or assessment relating to any Tax Returns or any Taxes with any Tax authority is currently outstanding.
(c) No material claim that is currently outstanding has been made by a Tax authority in a jurisdiction where the Company and each Subsidiary does not file Tax Returns that such Group Company is or may be subject to taxation by that jurisdiction.
(d) There are no liens for material Taxes (other than liens for Taxes not yet due and payable) upon the assets of the Company and each Subsidiary.
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(e) None of the Group Companies has been a member of an affiliated, consolidated or similar Tax group or otherwise has any liability for the Taxes of any Person (other than a Group Company) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law, as a transferee or successor, or by Contract (including any Tax sharing, allocation or similar agreement or arrangement but excluding any commercial Contract entered into in the Ordinary Course and not primarily relating to Taxes).
(f) Reserved.
(g) Each Group Company is in compliance with all terms and conditions of any Tax incentives, exemption, holiday or other Tax reduction agreement or order of a Governmental Authority applicable to a Group Company, and the consummation of the Transactions will not have any material adverse effect on the continued validity and effectiveness of any such Tax incentives, exemption, holiday or other Tax reduction agreement or order.
(h) No Group Company has been a party to a transaction that is or is substantially similar to a “listed transaction” as defined in Treasury Regulation Section 1.6011-4(b)(2) or any transaction requiring disclosure under analogous provisions of state, local or non-U.S. law.
(i) Neither the Company nor any Subsidiary 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.
(j) Neither the execution and delivery of this Agreement nor the consummations of the transactions contemplated hereby will, either alone or in connection with any other event(s), result in payments under any Company Benefit Plan or otherwise which would not be deductible under Section 280G of the Code or entitle any Person to receive any Tax gross up, indemnity or reimbursement from the Company for any Tax incurred by such Person, including under Section 409A or Section 4999 of the Code (or any corresponding provisions of state, local or foreign Tax law).
(k) The Company has not taken any action (nor permitted any action to be taken), and is not aware of any fact or circumstance, that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment.
Section 3.9. Financial Statements.
(a) The Company has Made Available the unaudited financial statements of the Company as of and for the years ended June 30, 2025 and 2024, and for the six-months ended December 31, 2025 (such date, the “Latest Balance Sheet Date”) (collectively, the “Company Financial Statements”). The Company Financial Statements comply as to form in all material respects, and were prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except, in the case of any audited financial statements, as may be indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments and the absence of footnotes), and fairly present in all material respects the financial position of the Company and its Subsidiaries at the date thereof and the results of their operations, changes in equity and cash flows for the period indicated (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments and the absence of footnotes) and were derived from and accurately reflect in all material respects, the books and records of the Company and its Subsidiaries.
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(b) The Company has established and maintained a system of internal controls. To the Knowledge of the Company the internal controls are sufficient to provide reasonable assurance (i) that all transactions are executed in accordance with management’s authorization, (ii) that all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP, and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s properties or assets. The Company maintains and, for all periods covered by the Company Financial Statements, has maintained books and records in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Company, in each case in all material respects. Neither the Company (including any employee thereof), or the Company’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company, (ii) any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or (iii) any claim or allegation regarding any of the foregoing.
(c) The Company Post-Signing Financial Statements, upon the effectiveness of the Proxy/Registration Statement, will comply as to form in all material respects, and will be prepared in accordance with GAAP applied on a consistent basis through the periods involved, and fairly present in all material respects the financial position of the Company at the date thereof and the results of their operations, changes in equity and cash flows for the period indicated, will be derived from and accurately reflect in all material respects, the books and records of the Company and its subsidiaries, and will 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 (including Regulation S-X or Regulation S-K, as applicable) in effect as of the respective dates of the Company Post-Signing Financial Statements, at the time of effectiveness of the Proxy/Registration Statement.
(d) (i) Except as set forth in Section 3.9(d) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has any Indebtedness, other than Parent Intercompany Amounts incurred in accordance with this Agreement, and (ii) the aggregate principal amount of Existing Parent Intercompany Amounts are as set forth on Section 3.9(d) of the Company Disclosure Letter.
Section 3.10. Undisclosed Liabilities. Neither the Company nor any of its Subsidiaries has any Liabilities of the nature required to be disclosed on a balance sheet in accordance with GAAP, except for Liabilities (a) set forth in the Company Financial Statements, (b) that are Liabilities incurred since Latest Balance Sheet Date in the Ordinary Course, (c) set forth in Section 3.11 of the Company Disclosure Letter, (d) that will be discharged or paid off prior to the Acquisition Closing, (e) reflected in Parent Intercompany Amounts or (f) that are not, individually or in the aggregate, material to the Company and its Subsidiaries, its business or its operations.
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Section 3.11. Absence of Changes. Since the Latest Balance Sheet Date to the date of this Agreement (a) the Company has operated its business in the Ordinary Course, (b) there has not been any occurrence of any Company Material Adverse Effect and (c) the Company has not taken any action that would require the consent of SPAC if taken during the Interim Period pursuant to Section 6.1(a), Section 6.1(c), Section 6.1(f), Section 6.1(g), Section 6.1(h), Section 6.1(k), Section 6.1(l), Section 6.1(m), Section 6.1(o), Section 6.1(r), Section 6.1(t) or Section 6.1(u).
Section 3.12. Actions. Except as set forth in Section 3.12 of the Company Disclosure Letter, as of the date of this Agreement there is, and since the Lookback Cutoff Date there has been, no (a) Action pending or, to the Knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries, or any of their respective directors or officers (in their capacity as such), (b) Action initiated or threatened by or on behalf of the Company, and (c) judgment or award unsatisfied against the Company or any of its Subsidiaries, nor is there any Governmental Order in effect and binding on the Company or any of its Subsidiaries or their respective directors or officers (in their capacity as such) or assets or properties, except in each case of (a),(b) or (c), as would not reasonably be expected to be material to the Company, its business or its operations.
Section 3.13. Material Contracts and Commitments.
(a) Section 3.13(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Material Contract” of the Company or its Subsidiaries means each of the following Contracts to which, as of the date of this Agreement, the Company is a party (other than Benefit Plans, and Contracts relating to Insurance Policies):
(i) any Contract that has resulted in payments within the 12-month period ended December 31, 2025 in excess of $250,000, or would reasonably be expected to result in payments in excess of $250,000 in any 12-month period, in each case to or by the Company;
(ii) any Contract with a Related Party of the Company or Company Parent;
(iii) any Government Contract;
(iv) any Contract that purports to limit or prohibit the Company from (A) engaging or competing with any Person in any line of business or in any geographic area in any manner that is material to the Company or reasonably expected to be material to the Company’s contemplated operations or (B) soliciting and/or hiring customers, employees or service providers;
(v) any Contract for or relating to any Indebtedness by or from the Company;
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(vi) any Contract that contains any “most favored nation”, “take or pay”, minimum requirements, right of first refusal, right of first offer, or other similar provisions with respect to any transaction engaged in by the Company;
(vii) any Contract that is related to the governance or operation of any joint venture, partnership or similar arrangement, other than such contract solely between or among any Company;
(viii) any Contract providing for the grant of any preferential rights to purchase or lease any asset of the Company;
(ix) any Contracts for: (A) the sale of any of the business, properties or tangible assets of any the Company other than in the Ordinary Course; (B) the grant to any Person of any preferential rights to purchase any of the properties or assets of any the Company; (C) the acquisition by the Company of any operating business, properties or assets, whether by merger, purchase or sale of stock or assets or otherwise (other than Contracts for the purchase of inventory or supplies entered into in the Ordinary Course);
(x) any Liability, contingent or otherwise, arising out of the prior acquisition or divestiture of the business, assets or stock of other Persons;
(xi) any Contract providing for the grant of any license or other right relating to any Company Intellectual Property (A) to the Company or its Subsidiaries (other than licenses to commercially available off-the-shelf software licensed to the Company pursuant to standard agreements for an annual aggregate fee less than $250,000) and (B) by the Company or its Subsidiaries to any other Person (other than non-exclusive licenses granted to vendors, suppliers or contractors in the Ordinary Course);
(xii) any Contract providing for the invention, creation, conception or other development of any Intellectual Property (A) by the Company or its Subsidiaries for any Person, (B) by any Person for the Company or its Subsidiaries (other than invention assignment agreements entered into with current or former employees or independent contractors in the Ordinary Course) or (C) jointly by the Company or its Subsidiaries and any Person;
(xiii) any Contract providing for the assignment or transfer of any ownership interest in or to any Company IP material to the operation of the business by (A) the Company or its Subsidiaries to any Person or (B) any Person to the Company or its Subsidiaries (other than invention assignment agreements entered into with current or former employees or independent contractors in the Ordinary Course);
(xiv) any Collective Bargaining Agreement;
(xv) any Contract that is a settlement, conciliation or similar agreement (A) with any Governmental Authority or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement;
(xvi) any Contract with a Top Supplier that is not terminable on 30 days or less without notice; and
(xvii) any written offer or proposal which, if accepted, would constitute any of the foregoing.
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(b) Each Material Contract is in full force and effect and, to the Knowledge of the Company, is legal, valid and binding upon and enforceable against each of the parties thereto in accordance with the terms thereto, except insofar as enforceability may be limited by the Enforceability Exceptions. True, correct and complete copies of all Material Contracts have been Made Available to SPAC or its representatives.
(c) Neither the Company nor, to the Knowledge of the Company, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Contract, and no party to any Material Contract has given any written notice of any claim of any such breach, default or event, which in each case, individually or in the aggregate, are reasonably likely to have a Company Material Adverse Effect. The Company has not, within the last 12 months, provided to or received from the counterparty to any Material Contract any written notice or written communication (or to the Knowledge of the Company, oral notice or communication) that any party has violated or breached or committed any default under any Material Contract. The Company has not received any written notice or written communication or, to the Knowledge of the Company, oral notice or communication that any part to any Material Contract is contemplating, and to the Knowledge of the Company, no party intends, to cancel, terminate, materially adversely modify, refuse to perform or not renew any such Material Contract, the loss of which would be a Company Material Adverse Event.
Section 3.14. Real Property.
(a) Section 3.14(a) of the Company Disclosure Letter contains a true, correct, and complete list of all parcels of real property and real property interests, including by address if available (excluding mining claims), owned in fee by the Company or its Subsidiaries (the “Owned Property”). The Company or its Subsidiaries have good and marketable fee simple title to the Owned Property. The Company has no options, contracts, or other agreements under which the Company or its Subsidiaries have a right to purchase, lease or otherwise acquire, or the obligation to sell, lease, or otherwise divest, any real property or interests in real property. Except as set forth on Section 3.14(a) of the Company Disclosure Letter, the Company or its Subsidiaries own the Owned Property free and clear of all Encumbrances, except for Permitted Encumbrances. The Company has not leased or otherwise is a party to any Contract granting any Person the right to use or occupy the Owned Property or any portion thereof. There are no outstanding options, rights of first offer or rights of first refusal to purchase the Owned Property or any portion thereof or interest therein.
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(b) Section 3.14(b) of the Company Disclosure Letter contains a true, correct, and complete list of all leases, subleases, easements, surface use agreements, licenses, and similar occupancy agreements, including all amendments, extensions, renewals, guaranties and similar agreements, for the use or occupancy of real property or real property interests (excluding mining claims) held by the Company or its Subsidiaries (the “Real Property Leases”) and descriptions of the real property subject to the Real Property Leases (“Leased Real Property”). The Company has Made Available to SPAC true, correct and complete copies of the Real Property Leases and all material extensions, amendments, modifications and supplements, thereof. The Company or its Subsidiaries, as applicable, have valid leasehold title to all of the Real Property Leases, free and clear of all Encumbrances, except for Permitted Encumbrance. Each of the Real Property Leases are in full force and effect and is a legal, valid and binding obligation of the Company or its Subsidiaries, and to the Knowledge of the Company, any counterparty, enforceable against them in accordance with its terms. The Company’s or its Subsidiaries’ possession and quiet enjoyment of the Leased Real Property has not been disturbed, and, to the Knowledge of the Company, there are no material disputes under any Real Property Lease. There is not, under any of the Real Property Leases, any existing breach or default or event of breach or default of the Company or its Subsidiaries or, to the Knowledge of the Company, any event which with notice or lapse of time, or both, would constitute a breach or default or would permit the termination, modification, or acceleration of rent under any Real Property Lease. The Company has not (a) subleased, licensed or otherwise is a party to a Contract granting any Person the right to use or occupy the Leased Real Property or any portion thereof or (b) collaterally assigned or granted any other security interest under any Real Property Lease or any interest therein. The Owned Property and the Leased Real Property constitute all of the real property used or intended to be used in, or otherwise related to, the business of the Company or its Subsidiaries.
(c) The Company has not received any notice and has no Knowledge of any pending condemnation, action in eminent domain, taking, revocation (or intent to revoke), contest action, or notice of failure to pay maintenance fees, by any Governmental Authority with respect to any of the Owned Property or Leased Real Property that is material to the Company or its Subsidiaries taken as a whole.
Section 3.15. Intellectual Property Rights.
(a) Section 3.15(a) of the Company Disclosure Letter is a true, correct and complete list, as of the date of this Agreement, of each item of Registered IP, specifying for each item: (i) the record owner, (ii) the jurisdiction in which such item has been issued, registered or filed, (iii) the issuance, registration or application date, and (iv) the issuance, registration or application number. All Owned IP is subsisting and, to the Knowledge of the Company, valid and enforceable in accordance with applicable Law.
(b) The Company or its Subsidiaries (i) exclusively owns all right, title and interest in and to all Owned IP, free and clear of all Encumbrances (other than Permitted Encumbrance) and (ii) has sufficient rights to use, pursuant to a written license, sublicense, or agreement, all Company IP free and clear of all Encumbrances (other than Permitted Encumbrance), except in the case of clauses (i) and (ii), where the failure to have such rights would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company IP constitutes all Intellectual Property used in and necessary for, the operation of the business of the Company or its Subsidiaries as currently conducted. Section 3.15(c) is the sole representation and warranty of the Company under this Agreement with respect to any actual or alleged infringement, misappropriation or other violation of any Intellectual Property and nothing in this Section 3.15(b) will be deemed, construed, or interpreted to constitute a representation with respect to infringement, misappropriation or other violation of any Intellectual Property.
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(c) Since the Lookback Cutoff Date, and to the Knowledge of the Company, neither the Company nor any of its Subsidiaries, nor the operation of the business of the Company or any of its Subsidiaries, has infringed, misappropriated (or resulted from the misappropriation of) or otherwise violated, or is infringing, misappropriating (or results from the misappropriation of) or otherwise violating any Intellectual Property of any Person. Since the Lookback Cutoff Date, neither the Company nor any of its Subsidiaries has received from any Person any written notice, written claim or written threat, or to the Knowledge of the Company, any other claim or notice: (i) alleging any infringement, misappropriation or other violation of any Intellectual Property of any Person, (ii) inviting any the Company or any of its Subsidiaries to take a license under any Intellectual Property of any Person or (iii) challenging the ownership, use, validity or enforceability of any Owned IP in each case that is material to the Company or its Subsidiaries.
(d) To the Knowledge of the Company, no Owned IP has been or is being infringed, misappropriated, or otherwise violated by any Person. No Action against any Person with respect to the alleged infringement, misappropriation or other violation of any Owned IP or invalidity or enforceability of any Intellectual Property is pending or threatened by the Company or its Subsidiaries, and the Company and its Subsidiaries have not sent any claim, complaint, notice or demand and have not been party to any Action related to any of the foregoing.
(e) No Governmental Authority or any university, college, other educational institution or research center owns, purports to own, has any other rights in or to, or has any option to obtain any rights in or to, any Owned IP.
(f) The Company and its Subsidiaries take and have taken commercially reasonable steps to maintain and protect the confidentiality of and otherwise designed to protect all material Trade Secrets included in the Owned IP. No material Trade Secret included in the Owned Intellectual Property has been authorized to be disclosed or, to the Knowledge of the Company, has been actually disclosed to any Person other than pursuant to a written confidentiality agreement restricting the disclosure and use thereof.
(g) Each of the Company and its Subsidiaries take and has taken commercially reasonable measures designed to maintain and protect the performance of the Company IT Systems (and all Software, information and data stored thereon). The Company IT Systems are adequate and sufficient for the operation of the businesses of the Company and its Subsidiaries as currently conducted. There have been no (i) to the Knowledge of the Company. material failures, breakdowns or other impairments of any Company IT Systems that have not been remedied or are in the process of being remedied in full as of the date of this Agreement or (ii) to the Knowledge of the Company, material security breaches or unauthorized use, access or intrusions of any Company IT Systems.
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Section 3.16. Labor Relations; Employment Contracts.
(a) None of the Company or its Subsidiaries is a party to or bound by any collective bargaining agreement or other labor Contract with a labor union, works council, or other labor organization applicable to persons employed by the Company or its Subsidiaries (each, a “Collective Bargaining Agreement”), and none are being negotiated, and no employees of the Company or any of its Subsidiaries are represented by any labor union, works council, labor organization or other employee representative with respect to their employment with the Company or any of its Subsidiaries. No union, works council, other labor organization, or group of employees of the Company or its Subsidiaries have made a pending written demand for recognition, and there are no representation proceedings or petitions seeking a representation proceeding presently pending or, to the Knowledge of the Company, threatened to be brought or filed, with the National Labor Relations Board or other labor relations tribunal, nor, to the Knowledge of the Company, has any such representation proceeding, petition, or demand been brought, filed, made, or threatened within the last three years. There is no organizing activity involving the Company or any of its Subsidiaries that is pending or, to the Knowledge of the Company, threatened by any labor organization or group of employees, nor, to the Knowledge of the Company, has any such organizing activity been pending or threatened since the Lookback Cutoff Date.
(b) There are no pending: (i) strikes, work stoppages, slowdowns, lockouts, picketing, hand billing, or arbitrations (nor have there been any strikes, work stoppages, slowdowns, lockouts, picketing, hand billing, or arbitrations within the three years prior to the date of this Agreement); or (ii) or, to the Knowledge of the Company, threatened material grievances or other material labor disputes against or involving the Company or its Subsidiaries involving any employee of the Company or its Subsidiaries. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, there are no unfair labor practice charges, grievances or complaints pending or, to the Knowledge of the Company, threatened by or on behalf of any employee, former employee, or labor organization.
(c) The Company and its Subsidiaries are in compliance in all material respects and, to the Knowledge of the Company, each of their executive officers are in compliance in all material respects, with the terms of any employment agreements between the Company or its Subsidiaries and such individuals.
(d) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company or any of its Subsidiaries, there are no complaints, charges or claims against the Company or its Subsidiaries pending or, to the Knowledge of the Company, threatened that could be brought or filed, with any Governmental Authority based on, arising out of, in connection with or otherwise relating to the employment or termination of employment or failure to employ by the Company or its Subsidiaries, of any individual.
(e) The Company and its Subsidiaries are, and since the Lookback Cutoff Date, have been, in material compliance with all Laws relating labor and employment, including laws relating to wages (including minimum wage and overtime), hours or work, child labor, discrimination, withholdings and deductions, classification and payment of employees, independent contractors, and consultants, employment equity, plant closures and layoffs (including the Worker Adjustment and Retraining Notification Act and any similar state or local “mass layoff” or “plant closing” Law (the “WARN Act”)), collective bargaining, occupational health and safety, workers’ compensation, and immigration. There has been no “mass layoff” or “plant closing” (as defined by the WARN Act) with respect to the Company or its Subsidiaries within the six (6) months prior to the Closing.
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(f) None of the Company or its Subsidiaries have incurred, or have Knowledge of circumstances under which the Company or its Subsidiaries would reasonably be expected to incur, any liability from (i) the failure to pay wages, including overtime wages, (ii) the misclassification of employees as independent contractors, or (iii) the misclassification of employees as exempt from the requirements of the Fair Labor Standards Act or similar state Laws.
(g) The Company and its Subsidiaries have investigated (to the extent reasonable) any employment discrimination and sexual harassment allegations reported to the Company or any of its Subsidiaries. The Company and its Subsidiaries have taken reasonable corrective action with respect to each such allegation with potential merit and does not expect any material liability with respect to any such allegations. The Company has policies and procedures in place to address issues relating to employment discrimination and sexual harassment allegations.
(h) To the Knowledge of the Company, as of the date of this Agreement, no employee of the Company or any of its Subsidiaries with annualized compensation at or above $100,000 has expressed an intention to terminate his or her employment with the Company or any of its Subsidiaries prior to the one-year anniversary of the Closing.
Section 3.17. Benefit Plans. Section 3.17(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each material Benefit Plan, provided that with respect to any Benefit Plans that are offer letters, employment agreements, independent contractor agreements, or equity award agreements that in each case (y) do not materially deviate from the standard form of the applicable agreement Made Available to SPAC or its representatives prior to the date of this Agreement and (z) do not provide for severance, termination, change in control, or vesting acceleration payments or benefits, only the forms thereof need be listed in Section 3.17(a) of the Company Disclosure Letter.
(a) With respect to each material Benefit Plan, the Company and its Subsidiaries have delivered or Made Available to SPAC or its representatives copies of, to the extent applicable, (i) the most recent plan document (and all amendments thereto) for such Benefit Plan and any trust agreement, insurance contract or other funding arrangement (as currently in effect) relating to such Benefit Plan, (ii) the most recent summary plan description for such Benefit Plan, (iii) the most recent annual report on Form 5500 and all attachments thereto filed with the Employee Benefits Security Administration with respect to such Benefit Plan and (iv) the most recent determination or opinion letter, if any, issued by the Internal Revenue Service with respect to such Benefit Plan.
(b) Each Benefit Plan has been maintained, administered, operated and funded in accordance in all material respects with its terms and in compliance in all material respects with all applicable Laws, including, if applicable, ERISA and the Code. Except as would not result in a material liability to the Company, all contributions, premiums and benefit payments required to be made with respect to each Benefit Plan on or before the date hereof have been timely made, and all such amounts for any period ending on or before the Acquisition Closing Date that are not yet due have been made or properly accrued. No Benefit Plan is intended to be qualified within the meaning of Section 401(a) of the Code. Each Benefit Plan subject to the requirements of Section 408 of the Code complies in all material respects with such requirements. Neither the Company nor any of its Subsidiaries has incurred any material Tax, penalty or other Liability (whether or not assessed) pursuant to Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
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(c) None of the Company, any of its Subsidiaries or any of their respective ERISA Affiliates sponsors, maintains, contributes to or is required to contribute to, or since the Lookback Cutoff Date has sponsored, maintained, contributed to or been obligated to contribute to, nor does the Company, any of its Subsidiaries or any of their respective ERISA Affiliates have any Liability under or in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA, (ii) a “multiemployer plan” (within the meaning of Section 3(37) of ERISA), (iii) a “multiple employer plan” (within the meaning of Section 413(c) of the Code) or (iv) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. Neither the Company nor any of its Subsidiaries has any Liability with respect to an employee benefit plan as a consequence of at any time being considered a single employer under Section 414 of the Code with any other Person.
(d) No Benefit Plan provides for, and neither the Company nor any of its Subsidiaries has any Liability to provide, post-termination, post-ownership or retiree life insurance, health or other employee welfare benefits for any Person, except continuation coverage required by Section 4980B of the Code, Part 6 of Subtitle B of Title I of ERISA and similar state Law, for which the covered individual pays the entire premium cost.
(e) (i) No Actions, suits or claims (other than routine claims for benefits) are pending or, to the Knowledge of the Company, threatened in writing with respect to any Benefit Plan, and (ii) no Benefit Plan is currently under audit or examination by any Governmental Authority. Each Company Parent Option was granted in accordance with the terms of the Company Parent Stock Plan and applicable Law, and each Company Parent Option’s per share exercise price is equal to or greater than the fair market value of an ordinary share of the Company Parent on the date of grant of such Company Parent Option, determined in accordance with Section 409A of the Code, as applicable. No Company Parent Option has had its exercise date or grant date “back-dated” or materially delayed.
(f) Except as required by Law or this Agreement or as set forth on Section 3.17(f) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in connection with any other event(s), (i) accelerate the time of payment or vesting of, or trigger any funding of compensation or benefits payable under, any Benefit Plan or otherwise; (ii) entitle any current or former employee, officer, director, or other individual service provider of the Company or any of its Subsidiaries (or any dependent or beneficiary thereof) to any payment or increase in compensation or benefits (whether in cash, property, the vesting or property, a forgiveness of indebtedness or otherwise) under any Benefit Plan or otherwise; (iii) require a contribution by the Company or any of its Subsidiaries to any Benefit Plan; or (iv) limit or restrict the ability of PubCo to merge, amend or terminate any Benefit Plan.
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(g) Each Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been established and administered in all material respects in operational and documentary compliance with Section 409A of the Code and all IRS guidance promulgated thereunder, and no amount under any such Benefit Plan is subject to any Tax under Section 409A of the Code. Each Company Parent Option was granted in accordance with the terms of the Company Parent Stock Plan and applicable Law, and each Company Parent Option’s per share exercise price is equal to or greater than the fair market value of an ordinary share of the Company Parent on the date of grant of such Company Parent Option, determined in accordance with Section 409A of the Code, as applicable. No Company Parent Option has had its exercise date or grant date “back-dated” or materially delayed.
Section 3.18. Brokers. Except as set forth in Section 3.18 of the Company Disclosure Letter, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission or expense reimbursement in connection with the Transactions contemplated based upon arrangements made by and on behalf of the Company.
Section 3.19. Environmental Matters.
(a) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company, its business or operations:
(i) The Company and its Subsidiaries are, and have been since the Lookback Cutoff Date, in compliance with all applicable Environmental Laws;
(ii) The Company and its Subsidiaries obtain, maintain and comply with all Environmental Permits that are required to own, lease or operate its properties and assets and to conduct its business as presently conducted, including, as applicable, with respect to the development, design, construction, ownership, operation, reclamation, remediation, or restoration of the Mining Projects as presently conducted, and such Environmental Permits are in effect and have been complied with. The Company has not received any notice that any Governmental Authority that has issued any Environmental Permit intends to suspend, cancel, terminate, or not renew any such Environmental Permit, except to the extent such Environmental Permit may be amended, replaced, or reissued as necessary to reflect the transactions contemplated hereby or may be terminated in the ordinary and usual course of a reissuance or replacement process; and
(iii) To the Company’s Knowledge, no facts, circumstances or conditions exist as of the date hereof that the Company believes would prohibit the Company from obtaining material Environmental Permits under applicable Environmental Law for the Mining Projects.
(iv) Neither the Company nor any of its Subsidiaries (a) has, since the Lookback Cutoff Date (or earlier to the extent unresolved), received any written notice, report, Governmental Order, directive from a Governmental Authority or other Person regarding any actual or alleged violation of or Liabilities under Environmental Laws or (b) is a party to any pending or, to the Knowledge of the Company, threatened in writing, Action arising under or related to Environmental Laws;
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(v) Neither the Company nor any of its Subsidiaries has treated, stored, handled, transported, disposed of, arranged for the disposal of, exposed any Person to, released, or owned or operated any property or facility contaminated by, any Hazardous Materials, and to the Knowledge of the Company, no conditions currently exist with respect to the Owned Property or Leased Real Property, or any property currently or, to the Knowledge of the Company, formerly, owned, leased or operated by the Company or its Subsidiaries, or, to the Knowledge of the Company, any property to which the Company or its Subsidiaries arranged for the disposal or treatment of Hazardous Material, in each case as would result in the Company or its Subsidiaries incurring material Liabilities or obligations under Environmental Laws; and
(vi) Neither the Company nor any of its Subsidiaries has assumed, undertaken or provided an indemnity with respect to any liability of any other Person relating to Environmental Laws.
(b) The Company and its Subsidiaries have Made Available copies of all environmental assessments, studies, audits, analyses or reports, relating to the Owned Property or Leased Real Property or any property currently or formerly owned, leased or operated by the Company or its Subsidiaries and copies of all other material, non-privileged documents relating to any material and outstanding Liabilities of the Company or its Subsidiaries under Environmental Law to the extent such are in the possession or custody of the Company or its Subsidiaries.
Section 3.20. Insurance. Section 3.20 of the Company Disclosure Letter contains a list of all policies of property, fire and casualty, product liability, workers’ compensation, and other forms of insurance held by, or for the benefit of, the Company as of the date of this Agreement, but not including any policies with respect to any Benefit Plan (collectively, the “Insurance Policies”). All premiums and other amounts owed with respect to the Insurance Policies have been timely paid in accordance with the terms of such policies and there have been no lapses in insurance coverage. Neither the Company nor any of its Subsidiaries has received any written notice from any insurer under any of the Insurance Policies, canceling or materially adversely amending any such policy or denying renewal of coverage thereunder and all premiums on such insurance policies due and payable as of the date hereof have been paid. As of the date of this Agreement, there is no claim pending under any such policies or binders with respect to which coverage has been questioned, denied or disputed by the underwriters of the Insurance Policies or binders or which is reasonably likely to exhaust the applicable limit of liability.
Section 3.21. Company Related Parties. Except as set forth in Sections 3.21 of the Company Disclosure Letter, the Company is not, and has not been since the Lookback Cutoff Date, party to any Contract with any Related Party. No Related Party (i) owns any property or right (tangible or intangible) that is used in the Company’s business or operations as presently conducted or as contemplated to be conducted, (ii) owes any amount to, or is owed any amount by, the Company (other than ordinary course accrued compensation, employee benefits, employee or director expense reimbursement or other transactions), or (iii) has any financial interest in (other than the ownership of 2% or less of any class of publicly traded securities of a company on a passive basis), directly or indirectly, or is a director or executive officer of, any Person which is a Top Supplier, lessor, lessee, distributor, wholesaler, retailer, reseller, or competitor of the Company.
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Section 3.22. Privacy.
(a) The Company and its Subsidiaries and any Person acting for or on behalf of any the Company or its Subsidiaries have at all times complied in all material respects with: (i) all applicable Privacy Laws; (ii) all of the Company’s or its Subsidiaries’ applicable policies and notices regarding personal data; and (iii) all of the Company or its Subsidiaries’ applicable contractual obligations with respect to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (technical, physical and administrative), disposal, destruction, disclosure, or transfer (including cross-border) of personal data, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) The Company and its Subsidiaries have implemented and at all times maintained reasonable and appropriate technical and organizational safeguards, which safeguards are consistent with practices in the industry in which the Company or its Subsidiaries operate, to protect personal information and other confidential data in its possession or under its control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure.
(c) To the Knowledge of the Company, there have been no material breaches or security incidents relating to the unauthorized access to or disclosure of any personal information in the possession or control of the Company or its Subsidiaries or collected, used or processed by or on behalf of the Company or its Subsidiaries. The Company has not been required to notify (and has not notified) any Person of any security incident or in connection with any actual or alleged data security requirement.
Section 3.23. Proxy/Registration Statement. The information supplied or to be supplied by the Company, any of its Subsidiaries or their respective Representatives in writing specifically for inclusion in the Proxy/Registration Statement will not, at (a) the time the Proxy/Registration Statement is declared effective, (b) the time the Proxy/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the SPAC Shareholders, and (c) the time of the SPAC Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by or on behalf of SPAC, its Affiliates or their respective Representatives.
Section 3.24. Mining Projects.
(a) Section 3.24(a) of the Company Disclosure Letter sets forth a true, correct, and complete list of all current Mining Rights owned, leased, operated or used by the Company or otherwise forming part of the Mining Projects (the “Company Mining Rights”), and identifies the Mining Project, claim number, area, expiry date, and granting authority, whether the Company Mining Right is owned, leased or otherwise held and types of minerals covered by each Mining Right. The Company Mining Rights collectively constitute all of the Mining Rights that are reasonably required for the conduct of the Company’s business and operations as currently conducted.
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(b) To the Knowledge of the Company, each Company Mining Right is valid, in good standing and is not liable to forfeiture, termination, cancellation or suspension for any currently existing reason, or the subject of any pending or threated claims, proceedings or disputes, and there is no unremedied material breach by the Company (with or without notice or lapse of time or both), of any statutory requirement or any other conditions relating to each Company Mining Right.
(c) All statutory and contractual payments, rents, royalties and other fees currently due in respect of each Company Mining Right have been paid.
(d) The estimated proven and probable mineral reserves and estimated indicated, measured and inferred mineral resources publicly disclosed by the Company or its Affiliates have been prepared and disclosed in all material respects in accordance with the Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves (2012 Edition).
(e) Except as set forth in Section 3.24(e) of the Company Disclosure Letter, the Company, solely to the extent provided by applicable Law and the Company Mining Rights, is in exclusive possession or control of the rights under Law and the Company Mining Rights, to develop the minerals that are locatable, located in, on or under the Mining Projects.
(f) Except as set forth in Schedule 3.24(f) of the Company Disclosure Letter, the Company has not received notice of any conflicting material Mining Rights owned by third parties which overlay with the Mining Projects.
(g) No Company is party to any, and to the Knowledge of the Company, there is no, joint venture agreement, stockholder agreement, partnership agreement, voting agreement, powers of attorney, co-ownership agreement, co-tenancy agreements, management agreements or any other existing oral or written agreement of any kind which does or would have any material adverse impact on the Company’s interest in the Company Mining Rights, or the access to, exploration, development or mining of same, and to the Knowledge of the Company, no other Person has any interest in the Company Mining Rights (absent the interests of any Governmental Authority) or any right to acquire or otherwise obtain any such interest.
(h) Except as set forth in Section 3.24(h) of the Company Disclosure Letter, there are no options, back-in rights, earn-in rights, rights of first refusal, rights of first offer, preemptive rights, off-take rights or similar provisions or rights which would materially affect the Company’s interest in the Company Mining Rights after the Closing Date.
(i) The Company has not received any notice in writing from any Governmental Authority or any Person with jurisdiction or applicable authority, of any revocation or intention to revoke the Company’s interests in or file a contest action related to the Company Mining Rights.
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(j) To the Knowledge of the Company, the Company has made available to the SPAC all material information and data pertaining to the Company Mining Rights in their possession, including, to the extent material: mining plans and plans of operation; reclamation plans; life of mine studies and reports; notices of intent; including those related to exploration drilling, pad and road construction; mining exploration; land and survey records; the existence of minerals within the Company Mining Rights, including relevant reserve and resource estimates; metallurgical testwork and sampling data; drill data and assay results; all reclamation and bond release information; financial assurances for reclamation and all information concerning record, possessory, legal or equitable title to the Company Mining Rights. Set forth in Section 3.24(j) of the Company Disclosure Letter is a list of all mining title opinions and title opinions and title policies of insurance relating to any of the real property interests in the Mining Projects, the Owned Real Property and the Leased Real Property to the extent such policies or opinions are in the Company’s possession.
(k) The Company has the right to use all information and data pertaining to the Company Mining Rights in their possession.
(l) The Company has complied, in all material respects, with Mining Financial Assurances required for the Mining Projects.
(m) None of the representations and warranties in this Agreement (other than those contained in this Section 3.24) will be deemed to constitute, directly or indirectly, a representation or warranty by the Company with respect to any matter relating to the Mining Rights other than as set forth specifically in this Section 3.24.
Section 3.25. Government Contracts. Except as set forth on Section 3.25 of the Company Disclosure Letter, the Company is not party to: (a) any Contract, including an individual task order, delivery order, purchase order, basic ordering agreement, letter Contract or blanket purchase agreement between the Company, on one hand, and any Governmental Authority, on the other hand, that is still in effect and that is material in any respect; or (b) any subcontract or other Contract by which the Company has agreed to provide goods or services through a prime contractor directly to a Governmental Authority that is expressly identified in such subcontract or other Contract as the ultimate consumer of such goods or services that is still in effect and that is material in any respect (collectively, (a) and (b), “Government Contracts” and each a “Government Contract”). The Company has not provided any offer, bid, quotation or proposal to sell products made or services provided by the Company that, if accepted or awarded, would lead to any Contract or subcontract of the type described by the foregoing sentence.
Section 3.26. Material Customers & Suppliers.
(a) As of the date hereof, the Company currently has no customers, including any off-takers.
(b) Section 3.26(b) of the Company Disclosure Letter lists as of the date of this Agreement, all suppliers or manufacturers of goods or services and the total spend for the 12 months ended December 31, 2025 and the 12 months ended December 31, 2024 to which the Company made payments or accrued obligations in excess of $250,000 (the “Top Suppliers”).
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Section 3.27. Proxy/Registration Statement; Company Parent Circular.
(a) The information supplied or to be supplied by the Company, its Affiliates or their respective Representatives in writing specifically for inclusion in the Proxy/Registration Statement will not, at (a) the time the Proxy/Registration Statement is declared effective, (b) the time the Proxy/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the SPAC Shareholders, and (c) the time of the SPAC Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by or on behalf of SPAC or its Affiliates or Representatives.
(b) The information supplied or to be supplied by the Company its Affiliates or their respective Representatives in writing specifically for inclusion or incorporation by reference in any circular, explanatory memorandum or similar document prepared by or on behalf of Company Parent for distribution to the shareholders of Company Parent in connection with soliciting the vote necessary to obtain the Required Parent Shareholder Approval (the “Company Parent Circular”) will not, at (a) the time the Company Parent Circular (or any amendment thereof or supplement thereto) is first dispatched, sent or made available to the shareholders of Company Parent and (b) the time of any meeting of the shareholders of Company Parent convened for the purpose of approving or consenting to the Transactions (or, if approval is sought by written consent, at the time such consent is solicited), 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 were made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by or on behalf of SPAC specifically for inclusion or incorporation by reference in the Company Parent Circular.
Section 3.28. No Additional Representation or Warranties. Except as set forth in Article IV and Section 11.1, the Company acknowledges and agrees that SPAC is not making any representation or warranty whatsoever to the Company pursuant to this Agreement.
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Article IV
REPRESENTATIONS AND WARRANTIES OF SPAC
Except (a) as set forth in any SPAC SEC Filings filed or submitted on or prior to the second Business Day prior to the date hereof (excluding any disclosures in any risk factors section, any disclosures in any forward-looking statements disclaimer and any other disclosures that are generally cautionary, predictive or forward-looking in nature) (it being acknowledged that nothing disclosed in SPAC SEC Filings will be deemed to modify or qualify the representations and warranties set forth in Section 4.3, Section 4.7 (except for Section 4.7(i)) and Section 4.13); (b) as set forth in the disclosure letter delivered by SPAC to the Company on the date of this Agreement (the “SPAC Disclosure Letter”) or (c) as otherwise explicitly contemplated by this Agreement, SPAC represents and warrants to the Company as follows:
Section 4.1. Organization and Qualification. SPAC is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands and has requisite corporate power and authority to own and operate its properties and assets, to carry on its business as presently conducted and contemplated to be conducted, except as would not be material to SPAC. SPAC is duly licensed or qualified to do business in each jurisdiction in which it is conducting its business, or the operation, ownership or leasing of its properties, makes such qualification necessary, other than in such jurisdictions where the failure to so qualify or be in good standing would not, individually or in the aggregate, be material to the SPAC or its business or its operations. A true, correct and complete copy of the SPAC Charter has been made available by or on behalf of SPAC to the Company. SPAC is not in default of any term or provision of the SPAC Charter in any material respect.
Section 4.2. Subsidiaries. SPAC has no Subsidiary, and does not own, directly or indirectly, any Equity Securities or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated. SPAC is not obligated to make any investment in or capital contribution to or on behalf of any other Person.
Section 4.3. Capitalization of SPAC.
(a) As of the date of this Agreement and immediately prior to the Initial Merger Effective Time, the authorized share capital of SPAC consists of 221,000,000 total shares divided into (i) 200,000,000 SPAC Class A Ordinary Shares, of which 7,646,529 SPAC Class A Ordinary Shares (including SPAC Class A Ordinary Shares underlying SPAC Units) are issued and outstanding, (ii) 20,000,000 SPAC Class B Ordinary Shares, of which 150,000 SPAC Class B Ordinary Shares are issued and outstanding, and (iii) 1,000,000 SPAC Preference Shares, of which no SPAC Preference Share is issued and outstanding. There are no other issued or outstanding SPAC Shares as of the date of this Agreement. All of the issued and outstanding SPAC Shares (x) have been duly authorized and validly issued and allotted and are fully paid and non-assessable; (y) have been offered, sold and issued and allotted by SPAC in compliance with applicable Law and all requirements set forth in (1) the SPAC Charter, and (2) any other applicable Contracts governing the issuance or allotment of such securities to which SPAC is a party or otherwise bound; and (z) are not subject to, nor have they been issued in violation of, any Encumbrance, purchase option, call option, pre-emptive right, subscription right or any similar right under any provision of any applicable Law, the SPAC Charter or any Contract to which SPAC is a party or otherwise bound.
(b) As of the date of this Agreement, 15,800,000 SPAC Warrants are issued and outstanding. The SPAC Warrants are not exercisable until thirty (30) days after the closing of a Business Combination. All outstanding SPAC Warrants (i) have been duly authorized and validly issued and constitute valid and binding obligations of SPAC, enforceable against SPAC in accordance with their terms, subject to the Enforceability Exceptions, (ii) have been offered, sold and issued by SPAC in compliance with applicable Law and all requirements set forth in (x) the SPAC Charter and (y) any other applicable Contracts governing the issuance of such securities to which SPAC is a party or otherwise bound; and (iii) are not subject to, nor have they been issued in violation of, any Encumbrance, purchase option, call option, pre-emptive right, subscription right or any similar right under any provision of any applicable Law, the SPAC Charter or any Contract to which SPAC is a party or otherwise bound (other than transfer restrictions under the Securities Act or otherwise agreed to with the SPAC).
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(c) Except as set forth in Section 4.3(c) of the SPAC Disclosure Letter, there are no outstanding subscriptions, options, warrants, rights or other securities (including debt securities) of SPAC exercisable or exchangeable for SPAC Securities, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or other Equity Securities of SPAC, or for the repurchase or redemption by SPAC of shares or other Equity Securities of the SPAC or the value of which is determined by reference to shares or other Equity Securities of the SPAC, and there are no voting trusts, proxies, transfer rights or agreements of any kind which may obligate SPAC to issue, purchase, register for sale, transfer, redeem or otherwise acquire any SPAC Securities or other Equity Securities of SPAC.
Section 4.4. Authorization.
(a) Other than the SPAC Shareholders’ Approval, SPAC has all requisite corporate power and authority to (i) enter into, execute, and deliver this Agreement and each of the other Transaction Documents to which it is or will be a party, and (ii) consummate the transactions contemplated hereby and thereby (including the Transactions) and perform all of its obligations hereunder and thereunder. The execution and delivery of this Agreement and the other Transaction Documents to which SPAC is a party and the consummation of the transactions contemplated hereby and thereby (including the Transactions) have been duly and validly authorized and approved by the SPAC Board and, other than the SPAC Shareholders’ Approval, no other company or corporate proceeding on the part of SPAC is necessary to authorize this Agreement and the other Transaction Documents to which SPAC is a party and to consummate the transactions contemplated hereby and thereby (including the Transactions). This Agreement has been, and at or prior to the Acquisition Closing, the other Transaction Documents to which SPAC is a party will be, duly and validly executed and delivered by SPAC, and this Agreement constitutes, and on or prior to the Acquisition Closing, the other Transaction Documents to which SPAC is a party will constitute, a legal, valid and binding obligation of SPAC, enforceable against SPAC in accordance with its terms, subject to the Enforceability Exceptions.
(b) Assuming that a quorum (as determined pursuant to the SPAC Charter) is present:
(i) The approval and authorization of the Initial Merger and the Plan of Initial Merger require the approval by a special resolution passed by the affirmative vote of SPAC Shareholders holding at least two-thirds majority of the SPAC Shares entitled to attend and vote and that do so vote thereon in person or by proxy at a general meeting of SPAC of which notice specifying the intention to propose the resolution as a special resolution has been duly given, pursuant to the terms and subject to the conditions of the SPAC Charter and applicable Law; and
(ii) The approval and authorization of this Agreement and the Transactions as a Business Combination and the adoption and approval of a proposal for the adjournment of the SPAC Shareholders’ Meeting in each case will require approval by an ordinary resolution passed by the affirmative vote of SPAC Shareholders holding at least a majority of the SPAC Shares entitled to attend and vote and that do so vote thereon in person or by proxy at a general meeting of SPAC, pursuant to the terms and subject to the conditions of the SPAC Charter and applicable Law.
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(c) The SPAC Shareholders’ Approval are the only votes and approvals of holders of SPAC Shares or other Equity Securities of SPAC necessary in connection with execution of this Agreement and the other Transaction Documents to which SPAC is a party by SPAC and the consummation of the transactions contemplated hereby, including the Initial Closing and the Acquisition Closing.
(d) On or prior to the date of this Agreement, the SPAC Board has duly adopted resolutions (i) determining that this Agreement and the other Transaction Documents to which SPAC is a party contemplated hereby and the transactions contemplated hereby and thereby (including the Transactions) are advisable and fair to, and in the best interests of, SPAC and constitute a Business Combination, (ii) authorizing and approving the execution, delivery and performance by SPAC of this Agreement and the other Transaction Documents to which SPAC is a party contemplated hereby and the transactions contemplated hereby and thereby (including the Transactions), (iii) making the SPAC Board Recommendation, and (iv) directing that this Agreement, the Transaction Documents and the Transactions be submitted to the SPAC Shareholders for adoption at an extraordinary general meeting called for such purpose pursuant to the terms and conditions of this Agreement.
Section 4.5. Consents; No Conflicts.
(a) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of SPAC with respect to the SPAC’s execution, delivery or performance of its obligations under this Agreement or the Transaction Documents to which SPAC is or will be party or the consummation of the Transactions, except for (i) applicable requirements of the HSR Act (including the expiration of the required waiting period thereunder) and any other applicable Antitrust Law, (ii) the filing with the SEC of the Proxy/Registration Statement and the declaration of the effectiveness thereof by the SEC, (iii) the filing of the Initial Merger Filing Documents and the Acquisition Merger Filing Documents or (iv) any other consents, approvals, notifications, notices, submissions, applications, authorizations, designations, declarations, waivers or filings, the absence of which would not have a SPAC Material Adverse Effect.
(b) None of the execution or delivery by SPAC of this Agreement or any Transaction Documents to which it is or will be a party, the performance by SPAC of its obligations hereunder or thereunder or the consummation of the Transactions will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of any provision of the SPAC’s Organizational Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or acceleration under, or trigger any right or payment under, any of the terms, conditions or provisions of (A) any Contract to which any of SPAC is a party, (B) any of SPAC’s material permits or (C) any Government Order, Law or other restriction of any Governmental Authority to which any of SPAC or any of its properties or assets are subject or bound or (iii) result in the creation of any Encumbrance upon any of the assets or properties (other than any Permitted Encumbrance) or Equity Securities of SPAC, except (y) in each case, as would not, individually or in the aggregate, have, or reasonably be expected to have, a material adverse effect on the ability of SPAC to enter into and perform its obligations contemplated hereby, or (z) in the case of (ii) and (iii), be or reasonably be expected to have a SPAC Material Adverse Effect.
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Section 4.6. Compliance with Laws, including Corruption Laws.
(a) Since the Lookback Cutoff Date, (i) SPAC is, and has been, in compliance in all material respects with all applicable Laws; (ii) SPAC is not and has not been subject to any pending or, to the Knowledge of SPAC, threatened in writing Action with respect to a violation of any applicable Laws; and (iii) SPAC, to the Knowledge of SPAC, is not and has not been subject to any material investigation by or for any Governmental Authority with respect to any violation of any applicable Laws, in each case of (i), (ii) and (iii) other than as would not be material to SPAC, its business or its operations.
(b) SPAC has not (i) received from any Governmental Authority or any Person any notice, inquiry or internal or external allegation, (ii) made any voluntary or involuntary disclosure to a Governmental Authority, or (iii) conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing or is engaged in any Actions related to Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions, Ex-Im Laws or U.S. antiboycott Laws, and to the Knowledge of SPAC, no such Action has been threatened in writing.
(c) SPAC, any of its directors, officers or employees, or to the Knowledge of SPAC, its agents or any other Persons acting for or on behalf of SPAC, directly or indirectly, has not at any time in the past five (5) years: (i) made any bribe, influence payment, kickback, payoff, benefits or any other type of payment (whether tangible or intangible) that would be unlawful under any applicable anti-bribery or anti-corruption (governmental or commercial) laws (including, for the avoidance of doubt, any guiding, detailing or implementing regulations), including Laws that prohibit the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any Government Official, Governmental Authority or any other individual or commercial entity to obtain a business advantage, such as a) Anti-Corruption Laws, as may be applicable; (ii) been in violation of any Anti-Corruption Law, offered, paid, promised to pay, or authorized any payment or transfer of anything of value, directly or indirectly, to any person for the purpose of (A) influencing any act or decision of any Government Official in his official capacity, (B) inducing a Government Official to do or omit to do any act in relation to his lawful duty, (C) securing any improper advantage, (D) inducing a Government Official to influence or affect any act, decision or omission of any Governmental Authority, or (E) assisting SPAC, or any agent or any other Person acting for or on behalf of SPAC, in obtaining or retaining business for or with, or in directing business to, any Person; or (iii) accepted or received any contributions, payments, gifts, or expenditures that would be unlawful under any Anti-Corruption Law.
(d) SPAC, any of its directors, officers or employees or to the Knowledge of SPAC, its agents acting for or on behalf of SPAC, has not at any time in the past five (5) years (since April 24, 2019 in the case of Sanctions) violated any Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions, Ex-Im Laws or U.S. antiboycott Laws or is subject to any indictment or any government investigation with respect to any Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions, Ex-Im Laws or U.S. antiboycott Laws. Without limiting the foregoing, SPAC, any of its directors officers, employees or to the Knowledge of SPAC, its agents acting for or on behalf of SPAC, any has, since April 24, 2019, (i) been a Prohibited Person or (ii) engaged in any dealings or transactions with, on behalf of, or for the benefit of any Prohibited Person or in any Sanctioned Country.
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Section 4.7. Tax Matters.
(a) All material Tax Returns required to be filed by or with respect to SPAC have been filed within the requisite period (taking into account any valid extensions) and such Tax Returns are true, correct and complete in all material respects. All material Taxes due and payable by SPAC have been or will be timely paid. SPAC has withheld and paid over to the appropriate Tax authority all material Taxes that it is required to withhold from amounts paid or owing to any employee, independent contractor, member, equityholder, creditor or other Person.
(b) No material deficiencies for any Taxes that are currently outstanding with respect to any Tax Returns of SPAC have been asserted in writing by any Tax authority. No written notice of any action, audit, assessment or other proceeding, in each case that is currently pending, with respect to such Tax Returns or any Taxes of SPAC has been received from, any Tax authority. No dispute or assessment relating to such Tax Returns or such Taxes with any such Tax authority is currently outstanding.
(c) No material claim that is currently outstanding has been made by a Tax authority in a jurisdiction where SPAC does not file Tax Returns that SPAC is or may be subject to taxation by that jurisdiction.
(d) There are no liens for material Taxes (other than liens for Taxes not yet due and payable) upon the assets of the SPAC.
(e) SPAC has not been a member of an affiliated, consolidated or similar Tax group and otherwise does not have any liability for the Taxes of any Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law, as a transferee or successor, or by Contract (including any Tax sharing, allocation or similar agreement or arrangement but excluding any commercial Contract entered into in the Ordinary Course and not primarily relating to Taxes).
(f) SPAC has complied in all material respects with all applicable transfer pricing requirement imposed by any Governmental Authority.
(g) SPAC is in compliance with all terms and conditions of any Tax incentives, exemption, holiday or other Tax reduction agreement or order of a Governmental Authority, and the consummation of the Transactions will not have any material adverse effect on the continued validity and effectiveness of any such Tax incentives, exemption, holiday or other Tax reduction agreement or order.
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(h) SPAC has not been a party to a transaction that is or is substantially similar to a “listed transaction” as defined in Treasury Regulation Section 1.6011-4(b)(2) or any transaction requiring disclosure under analogous provisions of state, local or non-U.S. law.
(i) SPAC does not have 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.
(j) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in connection with any other event(s), result in payments under any SPAC Benefit Plan which would not be deductible under Section 280G of the Code or entitle any Person to receive any Tax gross-up, indemnity or reimbursement from the Company for any Tax incurred by such Person, including under Section 409A or Section 4999 of the Code.
(k) SPAC has not taken any action (nor permitted any action to be taken), and is not aware of any fact or circumstance, that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment.
Section 4.8. Financial Statements.
(a) The financial statements of SPAC contained in SPAC SEC Filings (the “SPAC Financial Statements”) were prepared, in accordance with GAAP applied on a consistent basis throughout the periods involved (except, in the case of any audited financial statements, as may be indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments and the absence of footnotes), and fairly present in all material respects the financial position of SPAC at the date thereof and the results of their operations, changes in equity and cash flows for the period indicated (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments and the absence of footnotes) and were derived from and accurately reflect in all material respects, the books and records of the SPAC and its Subsidiaries. The SPAC Financial Statements 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 SPAC, in effect as of the respective dates thereof (including, to the extent applicable to SPAC, Regulation S-X).
(b) SPAC has established and maintained a system of internal controls. The internal controls are sufficient to provide reasonable assurance regarding the reliability of SPAC’s financial reporting and the preparation of SPAC’s financial statements for external purposes in accordance with GAAP. Neither SPAC (including any employee thereof), or SPAC’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by SPAC, (ii) any fraud, whether or not material, that involves SPAC’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by SPAC or (iii) any claim or allegation regarding any of the foregoing.
(c) (i) Except as set forth in Section 4.8(c) of the SPAC Disclosure Letter, the SPAC does not have any Indebtedness, and (ii) the Existing Sponsor Loans and the aggregate principal amount with respect thereto and the SPAC’s good faith estimate of SPAC Transaction Expenses and Other Transaction Expenses as of the date of this Agreement is as set forth in Section 4.8(c) of the SPAC Disclosure Letter.
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Section 4.9. Undisclosed Liabilities. SPAC has no Liability, and there is no existing condition, situation or set of circumstances which is reasonably expected to result in any Liability, except for Liabilities (i) that are incurred in the Ordinary Course of Business that are individually and in the aggregate immaterial, (ii) in the SPAC Financial Statements, (iii) that are Liabilities incurred since latest balance sheet date included in the SPAC Financial Statements in the Ordinary Course that will be repaid prior to the Acquisition Closing or be reflected in Sponsor Loans, and (iv) Liabilities set forth in Section 4.9 of the SPAC Disclosure Letter.
Section 4.10. Absence of Changes. Since the latest balance sheet date included in the SPAC Financial Statements, (a) to the date of this Agreement SPAC has operated its business in the Ordinary Course, and (b) there has not been any SPAC Material Adverse Effect.
Section 4.11. Actions. There is, and since the Lookback Cutoff Date, there has been no (a) Action pending or, to the Knowledge of SPAC, threatened in writing against or affecting SPAC, or any of its directors or officers (in their capacity as such) and (b) Action initiated or threatened by or on behalf of SPAC, (c) judgment or award unsatisfied against SPAC, nor is there any Governmental Order in effect and binding on SPAC or its directors or officers (in their capacity as such) or assets or properties, except in each case of (a) or (b), as would not, individually or in the aggregate, (i) have, or reasonably be expected to have, a material adverse effect on the ability of SPAC to enter into and perform its obligations contemplated hereby, or (ii) be or reasonably be expected to be material to SPAC. No order has been made, petition presented and received by SPAC, resolution passed or meeting convened for the purpose of considering a resolution for the dissolution and liquidation of SPAC or the establishment of a liquidation group, no administrator has been appointed for SPAC nor to the Knowledge of SPAC steps taken to appoint an administrator, and to the Knowledge of SPAC there are no Actions under any applicable insolvency, bankruptcy or reorganization Laws concerning SPAC.
Section 4.12. Material Contracts and Commitments. Except as set forth in Section 4.12 of the SPAC Disclosure Letter or as reserved against on the balance sheet and disclosed in the SPAC SEC Filings, and other than Contracts that would not reasonably be expected to give rise to more than $50,000 of liability or expense, (a) SPAC is not party to any material Contract other than those Contracts filed as an exhibit to the SPAC SEC Filings and (b) none of SPAC, any Affiliate or Related Party of SPAC, Sponsor or any Affiliate or Related Party of Sponsor is party to any engagement letter or Contract to pay or incur any Other Transaction Expenses for which the SPAC will be responsible for amounts following the Initial Closing.
Section 4.13. Brokers. Except as set forth in Section 4.13 of the SPAC Disclosure Letter, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission or expense reimbursement in connection with the Transactions contemplated based upon arrangements made by and on behalf of SPAC or any of its Affiliates.
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Section 4.14. Proxy/Registration Statement; Company Parent Circular.
(a) The information supplied or to be supplied by SPAC, its Affiliates or their respective Representatives in writing specifically for inclusion in the Proxy/Registration Statement will not, at (a) the time the Proxy/Registration Statement is declared effective, (b) the time the Proxy/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the SPAC Shareholders, and (c) the time of the SPAC Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, SPAC makes no representation, warranty or covenant with respect to any information supplied by or on behalf of Company, its Subsidiaries, the Acquisition Entities or their respective Affiliates or Representatives. 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.
(b) The information supplied or to be supplied by SPAC, its Affiliates or their respective Representatives in writing specifically for inclusion or incorporation by reference in the Company Parent Circular will not, at (a) the time the Company Parent Circular (or any amendment thereof or supplement thereto) is first dispatched, sent or made available to the shareholders of Company Parent and (b) the time of any meeting of the shareholders of Company Parent convened for the purpose of approving or consenting to the Transactions (or, if approval is sought by written consent, at the time such consent is solicited), 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 were made, not misleading. Notwithstanding the foregoing, SPAC makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the Company, Company Parent, any of their respective Subsidiaries specifically for inclusion or incorporation by reference in the Company Parent Circular.
Section 4.15. SEC Filings. SPAC has filed or furnished all statements, forms, reports and documents required to be filed or furnished by it with the SEC, pursuant to the Exchange Act or the Securities Act (collectively, as they have been amended, supplemented or modified since the time of their filing or furnishing through the date of this Agreement, the “SPAC SEC Filings”). Each of the SPAC SEC Filings, as of the respective date of its filing, or as of the date of any amendment or filing that superseded the initial filing, complied in all material respects with the requirements of the Securities Act and the Exchange Act applicable to such SPAC SEC Filings. As of the respective date of its filing (or if amended or superseded by a filing prior to the date of this Agreement or the Acquisition Closing Date, then on the date of such filing), the SPAC SEC Filings did not 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 made therein, in light of the circumstances under which they were made, not misleading. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to any SPAC SEC Filing. To the Knowledge of SPAC, none of the SPAC SEC Filings 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.
Section 4.16. Trust Account. As of the date of this Agreement, SPAC has at least $635,282 in the Trust Account, such monies invested in United States government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act pursuant to the Investment Management Trust Agreement, dated as of January 26, 2021, between SPAC and Continental Stock Transfer & Trust Company, as trustee (in such capacity, the “Trustee,” and such Investment Management Trust Agreement, the “Trust Agreement”). There are no separate Contracts or side letters that would cause the description of the Trust Agreement in the SPAC SEC Filings to be inaccurate in any material respect or that would entitle any Person (other than SPAC Shareholders holding SPAC Ordinary Shares (prior to the Acquisition Effective Time) who will have elected to redeem their SPAC Ordinary Shares (prior to the Acquisition Effective Time) pursuant to the SPAC Charter and the underwriters of SPAC’s IPO with respect to deferred underwriting commissions) to any portion of the proceeds in the Trust Account. Prior to the Acquisition Closing, none of the funds held in the Trust Account may be released other than to pay Taxes and payment to SPAC Shareholders who have validly exercised their redemption rights pursuant to the SPAC Charter. There are no Actions pending or, to the Knowledge of SPAC, threatened with respect to the Trust Account. SPAC has performed all material obligations required to be performed by it to date under, and is not in default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. As of the Acquisition Closing, the obligations of SPAC to dissolve or liquidate pursuant to the SPAC Charter will terminate, and as of the Acquisition Closing, SPAC will have no obligation whatsoever pursuant to the SPAC Charter to dissolve and liquidate the assets of SPAC by reason of the consummation of the Transactions. To the Knowledge of SPAC, as of the date of this Agreement, following the Acquisition Closing, no SPAC Shareholder is entitled to receive any amount from the Trust Account except to the extent such SPAC Shareholder has exercised its SPAC Shareholder Redemption Right. As of the date of this Agreement, assuming the accuracy of the representations and warranties contained in Article III and the compliance by each of the Company and the Acquisition Entities with its obligations hereunder, SPAC has no reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to the Surviving Company (as the surviving company in the Initial Merger) on the Acquisition Closing Date.
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Section 4.17. Investment Company Act; JOBS Act. SPAC is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, in each case within the meaning of the Investment Company Act. SPAC constitutes an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012.
Section 4.18. Business Activities.
(a) Since its incorporation, SPAC has not conducted any business activities other than activities related to SPAC’s IPO or directed toward the accomplishment of a Business Combination. Except as set forth in the SPAC Charter or as otherwise contemplated by the Transaction Documents and the Transactions, there is no Contract to which SPAC is a party which has or would reasonably be expected to have the effect of prohibiting or impairing in any material respect any business practice of SPAC or any acquisition of property by SPAC or the conduct of business by SPAC as currently conducted or as contemplated to be conducted as of the Acquisition Closing.
(b) Except for the Transactions, SPAC does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. Except for this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby, SPAC has no material interests, rights, obligations or Liabilities with respect to, and is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or would reasonably be interpreted as constituting, a Business Combination.
(c) Except for (i) this Agreement and the other Transaction Documents to which it is party and the transactions contemplated hereby and thereby (including with respect to SPAC Transaction Expenses and Other Transaction Expenses) and (ii) Contracts with the underwriters of SPAC’s initial public offering that are filed as an exhibit to the SPAC SEC Filings, (iii) administrative and operational expenses incurred in the Ordinary Course consistent with SPAC’s operations as a blank check company and (iv) Contracts pursuant to which all Liabilities are reflected or reserved against in the SPAC Financial Statements or other financial statements that have been included in the SPAC SEC Filings, SPAC is not party to any Contract with any other Person that would require payments by SPAC after the date hereof in excess of $100,000 in the aggregate for all such Contracts. Section 4.18(c) of the SPAC Disclosure Letter sets forth the true, correct and complete amount of SPAC Loans as of September 3, 2025 and the date of this Agreement.
Section 4.19. OTC Markets Quotation. Prior to January 16, 2024, the SPAC Class A Ordinary Shares, SPAC Warrants and SPAC Units were each registered pursuant to Section 12(b) of the Exchange Act and listed on the NYSE under the symbols “CSTA,” “CSTA.W,” and “CSTA.U,” respectively. As of the date of the Agreement, the SPAC Class A Ordinary Shares, SPAC Warrants and SPAC Units are quoted on the OTC Markets under “CSTAF,” “CSTWF,” and “CSTUF,” respectively. There is currently no Action pending or, to the Knowledge of SPAC, threatened against SPAC by OTC Markets or the SEC with respect to the SPAC Class A Ordinary Shares, SPAC Warrants or SPAC Units.
Section 4.20. Reserved.
Section 4.21. SPAC Related Parties. Except for as set forth in any SPAC SEC Filing, SPAC has not engaged in any transactions with Related Parties that would be required to be disclosed in the Proxy/Registration Statement.
Section 4.22. No Outside Reliance. Notwithstanding anything contained in this Agreement, each of SPAC and its equityholders, partners, members and Representatives, including Sponsor and any of its Affiliates, has made its own investigation of the Company and its Subsidiaries. The SPAC acknowledges and agrees that neither the Company nor any of its Affiliates, agents or Representatives is making any representation or warranty whatsoever, express or implied, beyond those expressly given by the Company in Article III, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Company or any of its Subsidiaries. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other predictions, forecasts or other forward looking information including those related to mining that may be contained or referred to in the Company Disclosure Letter or elsewhere, as well as any information, documents or other materials (including any such materials Made Available (whether or not accessed by SPAC or its Representatives) or reviewed by SPAC) or management presentations that have been or will hereafter be provided to SPAC or any of its Affiliates, agents or Representatives or Investors are not and will not be deemed to be representations or warranties of the Company, any of its Subsidiaries or Company Shareholders, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in Article III. Except as otherwise expressly set forth in this Agreement, SPAC understands and agrees that any assets, properties and business of the Company and any of its Subsidiaries are furnished “as is”, “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article III, with all faults and without any other representation or warranty of any nature whatsoever. Notwithstanding anything to the contrary herein or therein, nothing in this Agreement or any Transaction Document will operate to limit any claim for fraud.
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Article
V
REPRESENTATIONS AND WARRANTIES OF THE ACQUISITION ENTITIES
PubCo, Merger Sub 1 and Merger Sub 2 (each, an “Acquisition Entity”) hereby jointly and severally represent and warrant to SPAC and the Company as follows:
Section 5.1. Organization, Qualification and Classification. Merger Sub 1 is a limited liability company duly formed, validly existing and in good standing under the Laws of Delaware. Merger Sub 1 is, has been as of the effective date of its formation, and will be through the Acquisition Closing Date, properly classified as disregarded as an entity separate from PubCo for U.S. federal and applicable state and local income tax purposes. Merger Sub 2 is a corporation duly formed, validly existing and in good standing under the Laws of Nevada.
Section 5.2. Capitalization.
(a) As of the date hereof and immediately prior to the filing of PubCo Charter, the authorized capital of PubCo consists of 1,000 shares of common stock, par value $0.0001 per share (“Initial PubCo Common Stock”). As of the date hereof and immediately prior to the Initial Merger, one share of PubCo Common Stock is issued and outstanding (the “PubCo Subscriber Share”).
(b) The authorized capital of Merger Sub 1 consists of a 100% membership interest (“Initial Merger Sub 1 Interests”) solely owned by PubCo as of the date hereof and immediately prior to the Initial Merger.
(c) The authorized capital of Merger Sub 2 consists of 1,000 shares of common stock, no par value (“Initial Merger Sub 2 Common Stock”), one share of which is issued and outstanding, as of the date hereof and immediately prior to the Initial Merger. SPAC is the sole stockholder of Merger Sub 2 as of the date hereof and immediately prior to the Initial Merger.
(d) The outstanding shares of Initial PubCo Common Stock and Initial Merger Sub 2 Common Stock and the outstanding Initial Merger Sub 1 Interests have been duly authorized, validly issued, full paid and non-assessable and have been issued and granted in compliance with all applicable securities Laws and other applicable Laws and were issued free and clear of all Encumbrances other than transfer restrictions under applicable securities Laws and the applicable Organizational Documents of PubCo, Merger Sub 1 and Merger Sub 2.
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(e) The PubCo Shares constituting the Initial Merger Consideration being delivered by PubCo under this Agreement will be duly and validly issued, fully paid and nonassessable, and each such shares will be issued free and clear of all Encumbrances, other than transfer restrictions under applicable securities Laws, the PubCo Organizational Documents and, as applicable the Transaction Documents. The PubCo Shares constituting the Aggregate Merger Consideration being delivered by PubCo under this Agreement will be issued in compliance with all applicable securities Laws and other applicable Laws and will not be subject to or give rise to any preemptive rights or rights of first refusal.
(f) Except as contemplated by this Agreement or the other Transaction Documents, there are no issued or outstanding Equity Interests of PubCo, Merger Sub 1 or Merger Sub 2 and there are no outstanding subscriptions, options, warrants, rights or other securities (including debt securities) of PubCo, Merger Sub 1 or Merger Sub 2 exercisable or exchangeable for Equity Securities of PubCo, Merger Sub 1 or Merger Sub 2, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or of other Equity Securities of PubCo, Merger Sub 1 or Merger Sub 2, or for the repurchase or redemption by PubCo, Merger Sub 1 or Merger Sub 2 of shares or other Equity Securities of PubCo, Merger Sub 1 or Merger Sub 2 or the value of which is determined by reference to shares or other Equity Securities of PubCo, Merger Sub 1 or Merger Sub 2, and there are no voting trusts, proxies or agreements of any kind which may obligate PubCo, Merger Sub 1 or Merger Sub 2 to issue, purchase, register for sale, redeem or otherwise acquire any shares or other Equity Securities of PubCo, Merger Sub 1 or Merger Sub 2.
(g) PubCo does not own or control, directly or indirectly, any interest in any Person other than Merger Sub 1 and, immediately following the Merger Sub 2 Transfer, Merger Sub 2, and as of the Acquisition Closing Date, the Surviving Company and the Company. Neither Merger Sub 1 nor Merger Sub 2 owns or controls, directly or indirectly, any interest in any Person.
Section 5.3. Corporate Structure; Subsidiaries. No Acquisition Entity is obligated to make any investment in or capital contribution to or on behalf of any other Person other than in connection with the Transactions.
Section 5.4. Authorization. Each Acquisition Entity has all requisite corporate power and authority to (i) enter into, execute, deliver and perform its obligations under this Agreement and each of the other Transaction Documents to which it is or will be a party, and (ii) consummate the transactions contemplated hereby and thereby (including the Transactions) and perform all of its obligations hereunder and thereunder. All corporate actions on the part of each Acquisition Entity necessary for the authorization, execution and delivery of this Agreement and the other Transaction Documents to which an Acquisition Entity is or will be a party and the performance of all its obligations thereunder (including any board or shareholder approval, as applicable) have been taken, subject to the filing of the Initial Merger Filing Documents and the Acquisition Merger Filing Documents with the applicable Governmental Authority. This Agreement and the other Transaction Document to which an Acquisition Entity is or will be a party is, or when executed by the other parties thereto, will constitute, valid and legally binding obligations of such Acquisition Entity enforceable against it in accordance with its terms, subject to the Enforceability Exceptions.
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Section 5.5. Consents; No Conflicts.
(a) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of any Acquisition Entity with respect to its execution, delivery or performance of its obligations under this Agreement or the Transaction Documents to which the Acquisition Entity is or will be party or the consummation of the Transactions, except for (i) applicable requirements of the HSR Act (including the expiration of the required waiting period thereunder) and any other applicable Antitrust Law, (ii) the filing with the SEC of the Proxy/Registration Statement and the declaration of the effectiveness thereof by the SEC, (iii) the filing of the Acquisition Merger Filing Documents or (iv) any other consents, approvals, notifications, notices, submissions, applications, authorizations, designations, declarations, waivers or filings, the absence of which would not be material to the Acquisition Entity.
(b) None of the execution or delivery any Acquisition Entity of this Agreement or any Transaction Documents to which it is or will be a party, the performance by it of its obligations hereunder or thereunder or the consummation of the Transactions will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of any provision of the Acquisition Entity’s Organizational Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or acceleration under, or trigger any right or payment under, any of the terms, conditions or provisions of (A) any Contract to which it is a party, (B) any material permits or (C) any Government Order, Law or other restriction of any Governmental Authority to which any Acquisition Entity or any of its properties or assets are subject or bound or (iii) result in the creation of any Encumbrance upon any of the assets or properties (other than any Permitted Encumbrance) or Equity Securities of the Acquisition Entity, except in the case of any of the foregoing clauses (ii) through (iii), as would not be or reasonably be expected to be individually or in the aggregate, material to any Acquisition Entity’s business, properties and operations, taken as a whole.
Section 5.6. Absence of Changes. Since the date of its formation, each Acquisition Entity has operated its business in the Ordinary Course.
Section 5.7. Actions. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of any Acquisition Entity to consummate the Transactions, (a) there is no Action pending or, to the Knowledge of the Company, threatened in writing against any Acquisition Entity; and (b) there is no judgment or award unsatisfied against such Acquisition Entity, nor is there any Governmental Order in effect and binding on any Acquisition Entity or its assets or properties.
Section 5.8. Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission or expense reimbursement in connection with the Transactions contemplated based upon arrangements made by and on behalf of any Acquisition Entity.
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Section 5.9. Proxy/Registration Statement. The information supplied or to be supplied by each Acquisition Entity or its Representatives in writing specifically for inclusion in the Proxy/Registration Statement will not, at (a) the time the Proxy/Registration Statement is declared effective, (b) the time the Proxy/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to SPAC Shareholders, and (c) the time of the SPAC Shareholders’ Meeting and, 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 were made, not misleading. Notwithstanding the foregoing, none of the Acquisition Entities makes any representation, warranty or covenant with respect to any information supplied by or on behalf of SPAC, its Affiliates or their respective Representatives. All documents that an Acquisition Entity 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.
Section 5.10. Business Activities. Each Acquisition Entity was formed solely for the purpose of effecting the Transactions and has not engaged in any business activities or conducted any operations other than in connection with the Transactions and has no, and at all times prior to the Acquisition Closing except as expressly contemplated by this Agreement, the Transaction Documents and the Transactions, will have no, assets, Liabilities or obligations of any kind or nature whatsoever other than those incident to its formation and the Transactions.
Section 5.11. Reserved.
Section 5.12. Intended Tax Treatment. No Acquisition Entity has taken any action (nor permitted any action to be taken), or is aware of any fact or circumstance, that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment.
Section 5.13. No Outside Reliance. Notwithstanding anything contained in this Agreement, each of the Acquisition Entities, and any of their respective equityholders, partners, members or Representatives has made its own investigation of the Company, its Subsidiaries and that neither the Company nor any of its Affiliates, agents or Representatives is making any representation or warranty whatsoever, express or implied, beyond those expressly given by the Company in Article III, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Company or any of its Subsidiaries. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other predictions, forecasts or other forward looking information that may be contained or referred to in the Company Disclosure Letter or elsewhere, as well as any information, documents or other materials (including any such materials contained in any “data room” (whether or not accessed by such Acquisition Entity or its Representatives) or reviewed by such Acquisition Entity) or management presentations that have been or will hereafter be provided to such Acquisition Entity or any of its Affiliates, agents or Representatives or Investors are not and will not be deemed to be representations or warranties of the Company, any of its Subsidiaries or the Company Shareholders, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in Article III. Except as otherwise expressly set forth in this Agreement, such Acquisition Entity understands and agrees that any assets, properties and business of the Company and any of its Subsidiaries are furnished “as is”, “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article III, with all faults and without any other representation or warranty of any nature whatsoever. Notwithstanding anything to the contrary herein or therein, nothing in this Agreement or any Transaction Document will operate to limit any claim for fraud.
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Article
VI
COVENANTS OF THE COMPANY AND CERTAIN OTHER PARTIES
Section 6.1. Conduct of Business. Except (1) as permitted by the Transaction Documents (including, for the avoidance of doubt, any action or failure to take an action reasonably required in connection with or as a result of the PIPE Financing Agreements or PIPE Investments, in each case in a manner consistent with Section 8.6), (2) as required by applicable Law, (3) as set forth on Section 6.1 of the Company Disclosure Letter or (4) as consented to by SPAC in writing (which consent will not be unreasonably conditioned, withheld, or delayed), from the date of this Agreement through the earlier of the Acquisition Closing or valid termination of this Agreement pursuant to Article X (the “Interim Period”), the Company (A) will operate the business of the Company and its Subsidiaries in the Ordinary Course, and (B) will use commercially reasonable efforts to preserve the Company’s business organization, assets, properties and material business and operational relationships, in each case where commercially reasonable to do so, and (C) will not, and will cause its Subsidiaries not to, except as otherwise expressly required or permitted by this Agreement or the other Transaction Documents or required by Law, to:
(a) (i) amend its Organizational Documents (whether by merger, consolidation, amalgamation or otherwise); or (ii) liquidate, dissolve, reorganize or otherwise wind-up its business and operations, or propose or adopt a plan of complete or partial liquidation or dissolution, restructuring, recapitalization, reclassification or similar change in capitalization or other reorganization (other than liquidation or dissolution of any dormant Subsidiary);
(b) incur, assume, guarantee or repurchase or otherwise become liable for any Indebtedness, or issue or sell any debt securities or options, warrants or other rights to acquire debt securities, except for Parent Intercompany Amounts and borrowings disclosed in Section 6.1(b) of the Company Disclosure Letter;
(c) transfer, issue, sell, grant, pledge or otherwise dispose of (i) any of the Equity Securities of the Company or any of its Subsidiaries to a third party, or (ii) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitment obligations of the Company or any of its Subsidiaries to purchase or obtain any Equity Securities of the Company or any of its Subsidiaries to a third party, other than issuance of Equity Securities by a Subsidiary of the Company (x) to the Company or a wholly-owned Subsidiary of the Company or (y) on a pro rata basis to all shareholders of such Subsidiary;
(d) sell, lease, sublease, license, transfer, abandon, allow to lapse or dispose of any material property or assets (other than Intellectual Property), in any single transaction or series of related transactions, except for (i) transactions pursuant to Contracts entered into in the Ordinary Course, (ii) transactions that do not exceed $250,000 individually and $500,000 in the aggregate, or (iii) dispositions of obsolete, surplus or worn out assets that are no longer useful in the conduct of the business of the Company or its Subsidiaries in the Ordinary Course;
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(e) sell, assign, transfer, lease, license or sublicense, abandon, permit to lapse or otherwise dispose of or impose any Encumbrance (other than Permitted Encumbrances, except with respect to clause (f) in the definition of Permitted Encumbrances) upon any material Owned IP, in each case, except for non-exclusive licenses under material Owned IP granted in the Ordinary Course;
(f) (i) make any acquisition of, or investment in, a business, by purchase of stock, securities or assets, merger or consolidation, or contributions to capital, or loans or advances or (ii) merge, consolidate, combine or amalgamate the Company or any of its Subsidiaries with any Person;
(g) (i) split, combine, subdivide, reclassify, or amend any terms of its Equity Securities, except for any such transaction by a wholly-owned Subsidiary of the Company that remains a wholly-owned Subsidiary of the Company after consummation of such transaction, (ii) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its Equity Securities, (iii) declare, set aside, establish a record date for, make or pay any dividend or other distribution, payable in cash, shares, property or otherwise, with respect to any of its share capital other than dividends or distributions by any Subsidiary of the Company on a pro rata basis to its shareholders, or (iv) amend any term or alter any rights of any of its outstanding Equity Securities; Agreement;
(h) authorize, make or incur any capital expenditures, other than any capital expenditures in an amount not to exceed $1,000,000 in the aggregate as set forth in any capital budget provided to SPAC prior to the date of this Agreement;
(i) except in the Ordinary Course, (i) enter into any Material Contract or Real Property Lease, (ii) amend any such Material Contract or Real Property Lease extend, transfer, terminate or waive any right or entitlement of material value under any Material Contract or Real Property Lease, in a manner that is materially adverse to the Company and its Subsidiaries, taken as a whole;
(j) sell the Owned Property or any portion thereof or purchase any real property;
(k) make any material change in its accounting principles or methods unless required by GAAP or applicable Laws;
(l) (i) make (outside of the Ordinary Course), change or revoke any election in respect of material Taxes, (ii) adopt or change any material tax accounting method, (iii) file any material amended Tax Return, (iv) enter into any material Tax closing agreement with any Governmental Authority, (v) settle any material Tax claim or assessment, (vi) knowingly surrender any right to claim a refund of material Taxes, (vii) consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, or (viii) knowingly fail to pay any material Tax that becomes due and payable (including estimated Tax payments) (other than Taxes being contested in good faith and for which adequate reserves have been established in the Company Financial Statements in accordance with GAAP);
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(m) knowingly take any action where such action could reasonably be expected to prevent, impair or impede the Intended Tax Treatment;
(n) except as required by any Benefit Plan as in effect on the date of this Agreement, (i) increase the compensation or benefits payable or provided, or to become payable or provided to, any Company Service Provider, except for base salary or wage increases pursuant to the Company’s annual compensation review process or in connection with any promotions, in each case, in the Ordinary Course consistent with past practice for any employee of the Company whose total annual compensation opportunities that do not exceed $150,000, (ii) grant or announce any incentive awards, bonuses, transaction, retention, severance or other additional compensatory right or award to any Company Service Provider, (iii) grant or announce any equity or equity-based incentive awards, bonuses, transaction, retention, severance or other additional compensatory right or award to any Company Service Provider or (iv) accelerate the time of payment, vesting or funding of any benefits or compensation provided under any Benefit Plan or otherwise to any Company Service Provider; provided that, for the purposes of this Section, “Company Service Provider” means any current or former director, officer, employee or individual service provider of the Company;
(o) except as required by any Benefit Plan as in effect on the date of this Agreement, or as otherwise required by Law, materially amend, materially modify, or terminate any Benefit Plan or adopt or establish a new Benefit Plan (or any plan, program, agreement or other arrangement that would be a Benefit Plan if in effect as of the date of this Agreement);
(p) (i) hire, promote or engage, or otherwise enter into any employment or consulting agreement or arrangement with, any individual whose annualized compensation opportunities exceeds or would exceed $250,000 or (ii) terminate the employment or engagement of any individual whose annualized compensation opportunities exceed $250,000 for any reason other than for “cause”;
(q) (i) modify, extend, terminate, negotiate or enter into any Collective Bargaining Agreement or (ii) recognize or certify any labor union, works council, or other labor organization as the bargaining representative for any employees of the Company of any of its Subsidiaries;
(r) implement or announce any employee layoffs, furloughs, reductions in force, plant closings, reductions in compensation or other similar actions that could implicate the WARN Act;
(s) waive or release any noncompetition, nonsolicitation, nondisclosure or other restrictive covenant obligation of any current or former employee or independent contractor of the Company or any of its Subsidiaries;
(t) settle any Action by any Governmental Authority or any other third-party material to the business of the Company and its Subsidiaries, taken as a whole, in excess of $50,000 individually and $100,000 in the aggregate, or that imposes, or by its terms will impose at any point in the future, any material, non-monetary obligations on the Company;
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(u) terminate (other than expiration in accordance with its terms), suspend, abrogate, amend or modify any Material Permit, except in the Ordinary Course or as would not be material to the business of the Company and its Subsidiaries, taken as a whole; and
(v) enter into or amend any Contract between the Company and a Related Party;
(w) repay all or any portion of an Existing Parent Loan;
(x) except in the Ordinary Course (i) fail to timely pay any annual maintenance fees or perform any assessment work required to maintain any unpatented mining claims held by the Company or any of its Subsidiaries in good standing under applicable Law, or fail to timely file any notices, affidavits, or other documentation required by applicable Law to preserve such claims; (ii) abandon, forfeit, or allow to lapse any unpatented mining claims held by the Company or any of its Subsidiaries; (iii) affirmatively authorize any third party to locate, stake, or acquire any mining claims that overlap with any unpatented mining claims held by the Company or any of its Subsidiaries; (iv) convert, restake, or reclassify, outside the ordinary course of business, any unpatented mining claims held by the Company or any of its Subsidiaries; (v) fail to timely evaluate and take appropriate action to defend any unpatented mining claims held by the Company or any of its Subsidiaries against any overlapping claims located or staked by a third party, including by asserting any available trespass claims, quiet title actions, or challenging the validity of such overlapping claims or (vi) fail to take any action reasonably necessary to secure all Mining Financial Assurances needed to ensure the development of the Mining Projects; or
(y) enter into any agreement or otherwise make a commitment to do any of the foregoing (except to the extent that such an agreement or commitment would be permitted by a subsection of the foregoing subsections (a) through (x)).
For the avoidance of doubt, if any action taken or refrained from being taken by the Company or a Subsidiary is covered by a subsection of this Section 6.1 and not prohibited thereunder, the taking or not taking of such action will be deemed not to be in violation of any other part of this Section 6.1.
Section 6.2. Access to Information. Upon reasonable prior notice and subject to applicable Law, from the date of this Agreement until the Acquisition Effective Time, the Company will, and will cause each of its Subsidiaries and each of its and its Subsidiaries’ officers, directors and employees to, and will use its commercially reasonable efforts to cause its Representatives to, afford SPAC and its officers, directors, employees and Representatives, following reasonable notice from SPAC in accordance with this Section 6.2, reasonable access during normal business hours to the officers, directors, employees, agents, properties, offices and other facilities, books and records of each of it and its Subsidiaries, and all other financial, operating and other data and information as will be reasonably requested; provided, however, that in each case, the Company and its Subsidiaries will not be required to disclose any document or information, or permit any inspection, that would, in the reasonable judgment of the Company, (a) result in the disclosure of any Trade Secrets or violate the terms of any confidentiality provisions in any agreement with a third party, (b) result in a violation of applicable Law, including any fiduciary duty, (c) waive the protection of any attorney-client work product or other applicable privilege or (d) result in the disclosure of any sensitive or personal information that would expose the Company to the risk of Liabilities. All information and materials provided pursuant to this Agreement will be subject to the confidentiality provisions under the heading “Confidentiality” set forth in that certain Summary of Certain Proposed Terms and Conditions, dated as of September 3, 2025, by and between Constellation Acquisition Corp I and Company Parent (the “Term Sheet”). The Company agrees that it will be responsible for any breach of this Section 6.2 by any of its Controlled Affiliates or any of its or their respective Representatives.
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Section 6.3. Acquisition Proposals and Alternative Transactions.
(a) During the Interim Period, the Company will not, and it will cause its Affiliates and its and their respective Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a, or with a view to obtaining a, Company Acquisition Proposal, (ii) afford access to the business, properties, assets, books, records or furnish or disclose any non-public information to any Person in connection with or that could reasonably be expected to lead to a Company Acquisition Proposal, (iii) enter into any agreement, arrangement or understanding (including any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract) regarding a Company Acquisition Proposal other than an Acceptable Confidentiality Agreement (an “Alternative Acquisition Agreement”), (iv) enter into any agreement, arrangement or understanding that could reasonably be expected to adversely affect the ability of the Company and/or its Affiliates to consummate the Transactions in a timely manner, (v) prepare or take any steps in connection with a public offering of any securities of the Company or any of its Subsidiaries, other than in connection with the Transactions, or (vi) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person (other than SPAC and/or its Affiliates) to do or seek to do any of the foregoing or seek to circumvent the Transactions or with a view to obtaining or furthering a Company Acquisition Proposal. Further, no later than twenty-four (24) hours after the date hereof, the Company will and it will cause its Affiliates and its and their respective Representatives to immediately terminate any existing discussions, negotiations and contacts (including terminating all access granted to any such Person and its Representatives to any physical or electronic data room or information (including access to the business, properties, assets, books, records or other non-public information or to personnel of the Company Parent, or the Company or its Subsidiaries)) regarding any Company Acquisition Proposal and request the return or destruction of any non-public information of the Company or its Affiliates provided to any Person regarding any Company Acquisition Proposal.
(b) Except as expressly permitted by this Section 6.3, from and after the date of this Agreement until the receipt of the Required Parent Shareholder Approval, or, if earlier, the termination of this Agreement in accordance with Article X, neither the Company Board nor any committee thereof or the Company Parent Board will (i) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Company Acquisition Proposal or any offer or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, (ii) withdraw, change or qualify or publicly propose to withhold withdraw, qualify or modify, in a manner adverse to SPAC, the Company Board Recommendation, (iii) approve, adopt or authorize the Company to enter into any merger agreement, letter of intent or other similar agreement relating to any Company Acquisition Proposal or that would reasonably be expected to lead to a Company Acquisition Proposal, (iv) fail to include the Company Board Recommendation in any the proxy or information statement or similar document delivered to Company Parent shareholders, (v) fail to publicly recommend against any tender offer or exchange offer for the Equity Securities of the Company or any other public Company Acquisition Proposal within five (5) Business Days after the commencement of such offer, or (vi) formally resolve or agree to do or publicly propose to do any of the foregoing (any action set forth in the foregoing clauses (i) to (vi) of this sentence, a “Change of Company Recommendation”) or (viii) cause or permit the Company to enter into any Alternative Acquisition Agreement.
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(c) Notwithstanding anything to the contrary contained in Sections 6.3(a) and (b) and, if at any time prior to the receipt of the Required Parent Shareholder Approval (i) the Company has received, after the date of this Agreement, a bona fide unsolicited written Company Acquisition Proposal from a third party not Affiliated with the Company (“Third Party”), (ii) such Company Acquisition Proposal did not otherwise result from a breach of Section 6.3(a) (other than a breach that is immaterial and results from a Company action that was not reasonably anticipated by the Company to result in such breach) and (iii) the Company Parent Board determines in good faith, after consultation with its financial advisors and outside counsel, based on information then available, that (x) such Company Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (y) failing to provide non-public information to or otherwise engaging and negotiating with the Third Party would likely be a breach of the Company Parent Board’s fiduciary or statutory duties under applicable Law, then subject to providing prior written notice of its decision to take such action to SPAC as promptly as practicable after such determination was reached (and in any event, no later than 24 hours thereafter) and after Sections 6.3(d) having been fully complied with, the Company may (1) furnish information with respect to the Company and its Subsidiaries to the Third Party making such Company Acquisition Proposal pursuant to one or more confidentiality agreements having provisions that are not materially less restrictive than the confidentiality provisions set forth under the heading “Confidentiality” in the Term Sheet, which under no circumstances restricts the Company or Company Parent from its obligations under this Agreement (including, for the avoidance of doubt, this Section 6.3(c) and Section 6.3(d)) (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Company Acquisition Proposal) and (2) participate in discussions or negotiations with the Third Party making such Company Acquisition Proposal regarding such Company Acquisition Proposal; provided, that any information concerning the Company Parent or its Subsidiaries to be provided or made available to any Third Party will, to the extent not previously provided or made available to SPAC, be provided or made available to SPAC concurrently with or promptly following such time (and in any event, no later than twenty-four hours thereafter) as it is provided or made available to such Third Party. For purposes of this Section 6.3, the Company will be deemed to have received a Company Acquisition Proposal if the Company Parent or any of their Affiliates receives a Company Acquisition Proposal.
(d) From and after the date of this Agreement, the Company will promptly (and in any event within 24 hours) notify SPAC in the event that the Company or any of its Affiliates receives any Company Acquisition Proposal. The Company will notify SPAC promptly (and in any event within 24 hours) of a summary of the material terms of the Company Acquisition Proposal, including the proposed consideration and identity of the Person who submitted such Company Acquisition Proposal. The Company will promptly (and in any event within 24 hours after such determination) advise SPAC if the Company or the Company Parent determines to begin providing information or to engage in discussions or negotiations concerning a Company Acquisition Proposal. The Company will notify SPAC promptly (and in any event within 24 hours) of any material modification to the terms of any such proposals.
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(e) Notwithstanding anything to the contrary contained in this Sections 6.3, if the Company has received after the date of this Agreement a bona fide written Company Acquisition Proposal that the Company Parent Board determines in good faith, after consultation with its financial advisors and outside counsel, constitutes a Superior Proposal, and such Company Acquisition Proposal did not result from a breach Section 6.3 (other than a breach that is immaterial and results from a Company action that was not reasonably anticipated by the Company to result in such breach), the Company Parent Board may at any time prior to the receipt of the Required Parent Shareholder Approval, (i) effect a Change of Company Recommendation with respect to such Superior Proposal and/or (ii) terminate this Agreement pursuant to Section 10.1(g) to enter into an Alternative Acquisition Agreement, in either case if the Company Parent Board determines in good faith after consultation with its outside counsel and financial advisors that the failure to take such action would be likely to be a breach of its fiduciary duties or statutory duties to the stockholders of the Company Parent and subject to compliance with the requirements of this Section 6.3(e). The Company Parent may not effect a Change of Company Recommendation pursuant to this Section 6.3(e) or terminate this Agreement pursuant to Section 10.1(g) to enter into an Alternative Acquisition Agreement, unless the Company has provided to SPAC at least five (5) Business Days’ prior written notice (the “Notice Period”) of the Company Parent’s intention to take such action, which notice will include that (x) after complying in all respects with Section 6.3(a) (other than a breach that is immaterial and results from a Company action that was not reasonably anticipated by the Company to result in such breach), the Company Board and Company Parent Board (or any of their Affiliates) has received a bona fide unsolicited Company Acquisition Proposal that has not been withdrawn, (y) the Company Parent Board concluded in good faith that such Company Acquisition Proposal constitutes a Superior Proposal, and (z) an unredacted copy of such Superior Proposal and all related documentation (including the definitive transaction agreement (and related schedules and exhibits) to be entered into by the Company or Company Parent in respect of such Superior Proposal that are the basis of the Change of Company Recommendation or termination pursuant to Section 10.1(g), the identity of the Person or “group” of Persons making such Superior Proposal and, if applicable and to the extent received by the Company, financing documentation), and:
(i) during the Notice Period, if requested by SPAC, the Company will have, and will have caused its legal and financial advisors to have, engaged in good faith negotiations with the SPAC regarding any amendment to this Agreement proposed in writing by SPAC and intended to cause the relevant Company Acquisition Proposal to no longer constitute a Superior Proposal; and
(ii) the Company Parent Board will have considered in good faith any adjustments and/or proposed amendments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by SPAC (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last day of the Notice Period (or such other time as mutually agreed by SPAC and the Company in writing) and have determined in good faith, after consultation with its financial advisors and outside counsel, that the Superior Proposal would continue to constitute a Superior Proposal and that the failure to take such action would likely constitute a breach of its fiduciary or statutory duties to the shareholders of the Company Parent if such Proposed Changed Terms were to be given effect, taking into account all of the terms and conditions of the Proposed Changed Terms and the Company Acquisition Proposal.
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In the event of any material revisions to such Superior Proposal offered in writing by the party making such Superior Proposal (including any change in purchase price), the Company must deliver a new written notice to SPAC and must again comply with the requirements of this Section 6.3(e) with respect to such new written notice.
(f) For purposes of this Agreement:
(i) “Company Acquisition Proposal” means any offer, inquiry, indication of interest or proposal from a Third Party concerning any transaction or series of related transactions under which the Third Party alone or in a group (as defined under Section 13 of the Exchange Act) directly or indirectly (a) acquires or purchases, directly or indirectly, more than twenty percent (20%) of the equity securities or assets, revenue or net income of the Company and its Subsidiaries, taken as whole (measured by the fair market value thereof as of the date of such purchase or acquisition) (whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, purchase of assets, tender offer or otherwise), (b) is a Competing SPAC that enters into an alternative transaction with the Company or the Company Parent with respect to the Company, (c)(i) acquires control or otherwise acquires or purchases in excess of twenty percent (20%) of the voting power or voting equity securities of the Company (whether by merger, consolidation, racialization, purchase or issues of equity securities, purchase of assets, tender offer or otherwise) that, if consummated in accordance with its terms, would result in such Person or “group” of Persons beneficially owning more than or acquiring voting power in excess of twenty percent (20%) of the total outstanding equity securities of the Company (by vote or economic interests), or (ii) acquires control or otherwise acquires or purchases fifty percent (50%) or more of the voting power (as defined in the Corporations Act 2001 (Cth)) or voting equity securities of the Company Parent (whether by merger, consolidation, racialization, purchase or issues of equity securities, purchase of assets, tender offer or otherwise) that, if consummated in accordance with its terms, would result in such Person or “group” of Persons beneficially owning more than or acquiring voting power in excess of fifty percent (50%) of the voting power (as defined in the Corporations Act 2001 (Cth)) or voting equity securities of the Parent Company(by vote or economic interests) (a transaction in this subsection (c)(ii), a “Company Parent Acquisition Transaction”), or (d) a merger, reorganization, share exchange, consolidation, business combination, recapitalization, in each case, as a result of which the Company Parent ceases to own at least eighty percent (80%) of the total voting equity and voting securities of the Company or the surviving entity (or any direct or indirect parent company thereof), other than, in the case of each of clauses (a), (b), (c) and (d), any such transaction(s) or investment(s) with SPAC and/or any of its Affiliates or the PIPE Financing. For clarity, an equity or similar investment by the Company Parent in the Company will not be considered a “Company Acquisition Proposal”.
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(ii) “Company Board Recommendation” means a statement to the effect that Company Parent Board has unanimously recommended that the Company Parent’s shareholders vote in favor of the Transactions at the Company Parent Shareholders Meeting called for the purpose of voting to approve the Acquisition Merger, and that each Company Parent Board director intends to vote all shares of the Company Parent held or controlled by them, or that they direct, in favor of the Acquisition merger, which may be expressed to be in the absence of a Superior Proposal.
(iii) “Superior Proposal” means a bona fide written Company Acquisition Proposal that did not result from a breach by the Company of Section 6.3 (other than a breach that is immaterial and unintentional) and was made by a Person that is not an Affiliate of the Company, substituting in the definition thereof, “in excess of fifty percent (50%)” for each of “in excess of twenty percent (20%)” and “at least eighty percent (80%)”, and that the Company Parent Board determines in good faith, after consultation with its financial advisors and outside legal counsel, taking into account such factors as the Company Parent Board considers in good faith to be appropriate, (x) reasonably capable of being valued and consummated in accordance with its terms, taking into account all aspects of the Company Acquisition Proposal (including, among other things, the identity of the Third Party making such Company Acquisition Proposal, termination fees, expense reimbursement provisions, financing, market conditions, form of consideration, all financial, regulatory, legal and other aspects of such proposal and the conditionality, timing and certainty of consummation of such proposal), and (y) if completed substantially in accordance with its terms would likely be more favorable to the stockholders of the Company Parent (in their capacity as such) taking into account all aspects (including those items set forth above) of the Company Acquisition Proposal and any modification to such Superior Proposal and the Proposed Changed Terms proposed by SPAC in response to such Company Acquisition Proposal or otherwise and any consequence of such modification.
Any action taken by a Representative of the Company or Company Parent, acting on behalf of, at the direction of, or in concert with the Company or the Company Parent that would be a breach by the Company or the Company Parent of this Section 6.3 will be deemed to constitute a breach by the Company or Company Parent of this Section 6.3.
Section 6.4. D&O Indemnification and Insurance.
(a) From and after the Acquisition Closing, the Surviving Corporation, the Surviving Company and PubCo will jointly and severally indemnify and hold harmless each present and former director and officer of the Company, any of its Subsidiaries, SPAC and any Acquisition Entity (in each case, solely to the extent acting in his or her capacity as such and to the extent such activities are related to the business of the Company, its Subsidiaries, SPAC or such Acquisition Entity, respectively) (the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Acquisition Closing, whether asserted or claimed prior to, at or after the Acquisition Closing, to the fullest extent that the Company, its Subsidiaries, SPAC or such Acquisition Entity, respectively, would have been permitted under applicable Law and its respective Organizational Documents in effect on the date of this Agreement to indemnify such D&O Indemnified Parties (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, the Surviving Corporation, the Surviving Company and PubCo will, and will cause their Subsidiaries to, (i) maintain for a period of not less than six years from the Acquisition Closing provisions in its Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of the Surviving Corporation and its Subsidiaries’ or SPAC’s and each Acquisition Entity’s, respectively, former and current officers, directors, employees, and agents that are no less favorable to those Persons than the provisions of the Organizational Documents of the Surviving Corporation and its Subsidiaries, SPAC or such Acquisition Entity, respectively, in each case, as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
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(b) For a period of six years from the Acquisition Closing, each of PubCo, the Surviving Corporation and the Surviving Company will (and the Surviving Corporation will cause its Subsidiaries to) maintain in effect directors’ and officers’ liability insurance (each a “D&O Insurance”) covering those Persons who are currently covered by the Company’s, any of its Subsidiaries’, SPAC’s or any Acquisition Entity’s, respectively, directors’ and officers’ liability insurance policies (including, in any event, the D&O Indemnified Parties) on terms not less favorable than the terms of such current insurance coverage, except that in no event will PubCo, the Surviving Corporation, its Subsidiaries or the Surviving Company be required to pay an annual premium for such insurance in excess of 300% of the aggregate annual premium payable by the Company, its Subsidiaries, SPAC or such Acquisition Entity, respectively, for such insurance policy for the year ended December 31, 2024, as the case may be; provided, however, that (i) each of PubCo, the Surviving Corporation and the Surviving Company may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy (each a “D&O Tail”) with respect to claims existing or occurring at or prior to the Acquisition Closing and if and to the extent such policies have been obtained prior to the Acquisition Closing with respect to any such Persons, the Surviving Corporation, the Surviving Company and PubCo, respectively, will maintain such policies in effect and continue to honor the obligations thereunder, and (ii) if any claim is asserted or made within such six-year period, any insurance required to be maintained under this Section 6.4 will be continued in respect of such claim until the final disposition thereof. The costs of any D&O Insurance for the period after the Acquisition Closing Date, and the cost of any D&O Tail to the extent in effect following the Acquisition Closing Date, will be borne by PubCo and will not be a SPAC Transaction Expense.
(c) Notwithstanding anything contained in this Agreement to the contrary, this Section 6.4 will survive the Acquisition Closing indefinitely and will be binding, jointly and severally, on the Surviving Corporation, the Surviving Company and PubCo and all of their respective successors and assigns. In the event that the Surviving Corporation, the Surviving Company, PubCo or any of their respective successors or assigns consolidates with or merges into any other Person and will not be the continuing or surviving company or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Surviving Corporation, the Surviving Company or PubCo, respectively, will ensure (and each of PubCo, the Surviving Company and the Surviving Corporation will cause its Subsidiaries to ensure) that proper provision will be made so that the successors and assigns of the Surviving Corporation, the Surviving Company or PubCo as the case may be, will succeed to the obligations set forth in this Section 6.4.
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(d) The provisions of Section 6.4(a) through (c): (i) are intended to be for the benefit of, and will be enforceable by, each Person who is now, or who has been at any time prior to the date of this Agreement or who becomes prior to the Acquisition Closing, a D&O Indemnified Party, his or her heirs and his or her personal representatives, (ii) will be binding on the Surviving Corporation, the Surviving Company and PubCo and their respective successors and assigns, (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have, whether pursuant to Law, Contract, Organizational Documents, or otherwise and (iv) will survive the consummation of the Acquisition Closing and will not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party without the consent of such D&O Indemnified Party.
Section 6.5. Notice of Developments. During the Interim Period, the Company will promptly (and in any event prior to the Acquisition Closing) notify SPAC in writing, and SPAC will promptly (and in any event prior to the Acquisition Closing) notify the Company in writing, upon any of the Group Companies or SPAC, as applicable, becoming aware (awareness being determined with reference to the Knowledge of the Company or the Knowledge of SPAC, as the case may be): (a) of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which has caused or is reasonably likely to cause any condition to the obligations of any party to effect the Transactions not to be satisfied or (b) of any notice or other communication from any Governmental Authority which is reasonably likely to have a material adverse effect on the ability of the parties hereto to consummate the Transactions or to materially delay the timing thereof. The delivery of any notice pursuant to this Section 6.5 will not cure any breach of any representation or warranty requiring disclosure of such matter or any breach of any covenant, condition or agreement contained in this Agreement or any other Transaction Document or otherwise limit or affect the rights of, or the remedies available to, SPAC or the Company, as applicable. Notwithstanding anything to the contrary contained herein, any failure to give such notice pursuant to this Section 6.5 will not give rise to any liability of the Company or SPAC or be taken into account in determining whether the conditions in Article IX have been satisfied or give rise to any right of termination set forth in Article X.
Section 6.6. Financial Statements.
(a) The Company will deliver to SPAC, (i) as promptly as reasonably practicable following the date of this Agreement, and in any event no later than June 30, 2026, the audited consolidated balance sheets of the Company as of June 30, 2025 and 2024, the related audited consolidated statements of operations and comprehensive loss and cash flows of the Company for the years then ended (the financial statements described in this clause (i), the “Audited Financial Statements”), and (ii) as promptly as reasonably practicable following the date of the applicable period, any other audited or unaudited consolidated balance sheets and the related audited or unaudited consolidated statements of operations and comprehensive loss, and stockholders’ deficit and cash flows of the Group Companies as of and for a year-to-date period ended as of the end of any other different fiscal quarter (and as of and for the same period from the previous fiscal year) or fiscal year (and as of and for the prior fiscal quarter), as applicable that as of such date is required to be included in the Registration Statement / Proxy Statement (the financial statements described in this clause (ii) collectively with the Audited Financial Statements, the “Company Post-Signing Financial Statements”). The Company will use commercially reasonable efforts to cause the Company Post-Signing Financial Statements (x) to be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments and the absence of notes thereto), (y) to 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 in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable) and (z) contain an unqualified report of the Company’s auditor other than with reference to a “going concern” emphasis of matter paragraph.
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(b) The Company, SPAC and PubCo will each use its commercially reasonable efforts (i) to assist the other, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of the Company, any of its Subsidiaries, SPAC or PubCo, in preparing in a timely manner any other financial information or statements (including customary pro forma financial statements) that are required to be included in the Proxy/Registration Statement and any other filings to be made by SPAC or PubCo with the SEC in connection with the Transactions and (ii) to obtain the consents of its auditors with respect thereto as may be required by applicable Law or requested by the SEC in connection therewith.
Section 6.7. No Trading. The Company acknowledges and agrees that it is aware, and that its Controlled Affiliates have been made aware of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees on behalf of itself and its Controlled Affiliates that it will not purchase or sell any securities of SPAC in violation of such Laws, or cause or encourage any Person to do the foregoing.
Section 6.8. Parent Intercompany Amounts. Not later than three (3) Business Days prior to the Initial Closing, the Company will deliver to SPAC a true, correct and complete schedule of the Parent Intercompany Amounts, detailed by the purpose of the amounts by Existing Parent Intercompany Amounts and Parent Intercompany Amounts, together with reasonable supporting documentation.
Article
VII
COVENANTS OF PUBCO, SPAC AND CERTAIN OTHER PARTIES
Section 7.1. PubCo Incentive Plan. Prior to the Acquisition Closing Date, PubCo will approve and adopt (a) an incentive equity plan in a form to be mutually agreed to by the Company and SPAC (the “PubCo Incentive Plan”). As promptly as reasonably practicable following the expiration of the sixty (60) day period following the date PubCo has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company, PubCo will file a registration statement on Form S-8 (or other applicable form) with respect to the PubCo Common Shares issuable under the PubCo Incentive Plan, and PubCo will use commercially reasonable efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the PubCo Incentive Plan remain outstanding.
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Section 7.2. Extension. The Company and SPAC agree that, from the date hereof through the earlier of the Closing or the termination of this Agreement, but in no event for a period beyond the Outside Date, the Sponsor shall deposit, or cause to be deposited, into the Trust Account such amount, when and if required, under the SPAC Charter (in the form it exists as of the date hereof) in order to continue to extend the business combination deadline as set forth in the SPAC Charter (in the form it exists as of the date hereof) (each such required deposit, an “Extension Amount”), in each case in exchange for a non-interest bearing, unsecured promissory note. Any such promissory notes issued to its Affiliates in connection with deposits of Extension Amounts into the Trust Account will constitute Continuing Sponsor Non-Transaction Loans under this Agreement and will be treated in accordance with the terms applicable to Continuing Sponsor Non-Transaction Loans.
Section 7.3. Conduct of Business. Except (1) as contemplated or permitted by the Transaction Documents (including, for the avoidance of doubt, any action or failure to take an action reasonably required in connection with or as a result of the PIPE Financing Agreements or PIPE Investments, in each case in a manner consistent with Section 8.6), (2) as required by applicable Law, (3) as set forth on Section 7.3 of the SPAC Disclosure Letter or (4) as consented to by the Company in writing (which consent will not be unreasonably withheld, conditioned or delayed), during the Interim Period, SPAC (A) will operate its business in the Ordinary Course and (B) will not:
(a) (i) seek any approval from SPAC Shareholders to change, modify or amend the Trust Agreement or the SPAC Charter, except as contemplated by the Transaction Proposals or (ii) change, modify or amend the Trust Agreement or their respective Organizational Documents, except as expressly contemplated by the Transaction Proposals, other than to amend the SPAC Charter to extend the business combination deadline;
(b) (i) declare, set aside, establish a record date for, make or pay any dividend or other distribution, payable in cash, shares, property or otherwise, with respect to any of its share capital, (ii) split, combine, subdivide, reclassify or amend any terms of its Equity Securities or (iii) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its Equity Securities, other than a redemption of SPAC Class A Ordinary Shares in connection with the exercise of any SPAC Shareholder Redemption Right by any SPAC Shareholder or upon conversion of SPAC Class B Ordinary Shares in accordance with the SPAC Charter;
(c) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or any equity in, or by any other manner) or make any advance or loan to or investment in any other Person or be acquired by any other Person;
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(d) (i) make (outside of the Ordinary Course), change or revoke any election in respect of Taxes, (ii) adopt or change any material tax accounting method, (iii) file any material amended Tax Return, (iv) enter into any material Tax closing agreement with any Governmental Authority, (v) settle any material Tax claim or assessment, (vi) knowingly surrender any right to claim a refund of material Taxes, (vii) consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, or (viii) knowingly fail to pay any material Tax that becomes due and payable (including estimated Tax payments) (other than Taxes being contested in good faith and for which adequate reserves have been established in the SPAC Financial Statements in accordance with GAAP);
(e) knowingly take any action could reasonably be expected prevent, impair or impede the Intended Tax Treatment;
(f) (i) enter into, renew or amend in any material respect, any transaction or material Contract, except for material Contracts entered into in the Ordinary Course that will terminate at the Initial Closing or for which no material amounts will accrue following the Initial Closing to the extent any amounts are accounted for as SPAC Transaction Expenses or Other Transaction Expenses, (ii) extend, transfer, terminate or waive any right or entitlement of material value under any material Contract in a manner that is materially adverse to the SPAC; provided, however, that notwithstanding anything to the contrary contained in this Agreement, even if done in the Ordinary Course, SPAC will not enter into, renew or amend in any respect, any transaction or Contract involving an Affiliate or Related Party of SPAC, Sponsor or any Affiliate of Sponsor, except as permitted under the Transaction Documents or in connection with the incurrence of Sponsor Loans in accordance with this Agreement; provided, further, that (A) SPAC or (B) Sponsor or any SPAC Related Party on its behalf or for which the SPAC is responsible or will result in a SPAC Transaction Expense or Other Transaction Expense will not enter into Contracts that result in any individual Other Transaction Expenses for which the SPAC or Sponsor is responsible that exceeds $50,000, individually (together with any substantially similar or series of Contracts for the same vendor), without the prior written approval of the Company (not to be unreasonably withheld, conditioned or delayed) which for the avoidance of doubt does not include Sponsor Loans;
(g) incur, assume, guarantee or repurchase or otherwise become liable for any Indebtedness or other Liability or issue or sell any debt securities or options, warrants, rights or conversion or other rights to acquire debt securities, other than (i) Indebtedness expressly set out in the SPAC Disclosure Letter, (ii) Liabilities that qualify as SPAC Transaction Expenses, (iii) Liabilities related to or as a result of administrative and operational expenses incurred in the Ordinary Course consistent with SPAC’s operations as a blank check company, including additional Sponsor Loans incurred during the Interim Period, (iv) Liabilities that qualify as Other Transaction Expenses and (v) Indebtedness issued in connection with the Extension Amount; provided, that (A) SPAC or (B) Sponsor or any SPAC Related Party on its behalf or for which the SPAC is responsible or will result in a SPAC Transaction Expense or Other Transaction Expense will not enter into new engagement letter or Contract to pay or incur any individual Other Transaction Expenses for which the SPAC is responsible that exceeds $50,000, individually (together with any substantially similar or series of Contracts for the same vendor), without the prior written approval of the Company (not to be unreasonably withheld, conditioned or delayed), provided further that, for the avoidance of doubt, no such approval will be required in connection with any Other Transaction Expense required to be paid or which is incurred pursuant to applicable Law or pursuant to engagements or Contracts entered into or commenced prior to September 3, 2025;
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(h) make any change in its accounting principles or methods unless required by GAAP or applicable Laws;
(i) (i) issue any Equity Securities, other than (i) the issuance of Equity Securities of PubCo (or SPAC convertible into Equity Securities of PubCo) pursuant to the PIPE Financing Agreements, this Agreement or in connection with any Sponsor Loans disclosed on the SPAC Disclosure Letter, or the issuance of SPAC Class A Ordinary Shares upon conversion of SPAC Class B Ordinary Shares in accordance with the SPAC Charter, (ii) the grant any options, warrants, rights of conversion or other equity-based awards or (iii) in connection with the Extension Amount;
(j) settle or agree to settle any Action before any Governmental Authority or any other third party or that imposes injunctive or other non-monetary relief on SPAC;
(k) form any Subsidiary;
(l) liquidate, dissolve, reorganize or otherwise wind-up the business and operations of SPAC or propose or adopt a plan of complete or partial liquidation or dissolution, consolidation, restructuring, recapitalization, reclassification or similar change in capitalization or other reorganization of SPAC; or
(m) enter into any agreement or otherwise make any commitment to do any action prohibited under this Section 7.3;
provided, however, that during the Interim Period, neither the Surviving Company nor PubCo will take any action except as required or contemplated by this Agreement or the other Transaction Documents.
Section 7.4. Post-Closing Directors and Officers of PubCo. Subject to the terms of the PubCo Charter, the Company, SPAC and PubCo will take all such action within their power as may be necessary or appropriate such that immediately following the Acquisition Closing:
(a) the board of directors of PubCo (i) will have been reconstituted to consist of seven (7) directors, which will be comprised of (A) one (1) individual appointed by SPAC (the “SPAC Director”) and (B) up to six (6) individuals appointed by the Company, in each case with written notice to be delivered to PubCo sufficiently in advance to allow for inclusion of such individuals in the Proxy/Registration Statement and (ii) will have reconstituted its applicable committees to consist of the directors designated by the Company prior to the Acquisition Closing Date; provided, however, that the composition of the PubCo board of directors and committees will comply with the independence requirement under the Exchange Act and the listing rules of the exchange on which PubCo’s securities are listed; provided further, that the composition of the committees will ensure that the SPAC Director is afforded reasonable representation and review of the conduct of PubCo’s business affairs; and
(b) the individuals set forth on Schedule 7.4(b) as it may be updated by the Company prior to the Acquisition Closing will be the officers of PubCo, each such officer to hold office in accordance with the PubCo Organization Documents.
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Section 7.5. Acquisition Proposals and Alternative Transactions. During the Interim Period, SPAC will not, and it will cause its Affiliates and its and their respective Representatives not to, directly or indirectly: (a) solicit, negotiate or enter into any letter of intent, term sheet or other document that would reasonably be expected to lead to any definitive agreement regarding any Business Combination or any SPAC Acquisition Proposal with any third party (other than with the Company or its Affiliates); (b) commence, continue or renew any due diligence, negotiations or discussions regarding any Business Combination or any SPAC Acquisition Proposal with any third party (other than with the Company or its Affiliates); (c) solicit or initiate transactions with, or encourage any inquiries or proposals by, or provide any non-public information to, any Person (other than the Company and its Representatives) concerning any Business Combination or any SPAC Acquisition Proposal (other than with the Company or its Affiliates).
(a) From and after the date of this Agreement until the receipt of the SPAC Shareholders’ Approval, or, if earlier, the termination of this Agreement in accordance with Article X, neither the SPAC Board nor any committee thereof will (i) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any SPAC Acquisition Proposal or any offer or proposal that would reasonably be expected to lead to a SPAC Acquisition Proposal, (ii) withdraw, change or qualify or propose to publicly withdraw, qualify or modify, in a manner adverse to the Company, the SPAC Board Recommendation, (iii) approve or cause SPAC to enter into any merger agreement, letter of intent or other similar agreement relating to any SPAC Acquisition Proposal or that would reasonably be expected to lead to a SPAC Acquisition Proposal, (iv) fail to include the SPAC Board Recommendation any the Proxy/Registration Statement, (v) fail to publicly recommend against any tender offer or exchange offer for the Equity Securities of SPAC, or (vi) formally resolve or agree to do or publicly propose to do any of the foregoing (any action set forth in the foregoing clauses (i) to (v) of this sentence, a “Change of SPAC Board Recommendation”).
Section 7.6. SPAC Public Filings. During the Interim Period, each of SPAC and PubCo will use commercially reasonable efforts to accurately and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Laws.
Section 7.7. Sponsor Loans. Not later than three (3) Business Days prior to the Initial Closing, SPAC will deliver to the Company a true, correct and complete schedule of the Sponsor Loans, detailed by the purpose of the Sponsor Loans by Existing Sponsor Loans, Continuing SPAC Transactional Sponsor Loan and Continuing SPAC Non-Transactional Loans, together with reasonable supporting documentation. Prior to and in connection with the Initial Closing, SPAC will use commercially reasonable best efforts to obtain final invoices from its vendors and advisors and Sponsor’s vendors and advisors to the extent payments to the Sponsor’s vendors or advisors would be expenses payable or reimbursable by SPAC.
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Section 7.8. Conduct of Business of Acquisition Entities. Until the Acquisition Closing, each Acquisition Entity will not engage in any business activities or conduct any operations other than in connection with the Transactions and will have no, assets, Liabilities or obligations of any kind or nature whatsoever other than those incident to its organization and the Transactions. Other than as contemplated by this Agreement, including in connection with the Transactions, the Private Placement and the matters set forth in Section 8.7, the Acquisition Entities will not:
(a) (i) amend their respective Organizational Documents (whether by merger, consolidation, amalgamation or otherwise) or (ii) liquidate, dissolve, reorganize or otherwise wind-up their respective businesses and operations, or propose or adopt a plan of complete or partial liquidation or dissolution, restructuring, recapitalization, reclassification or similar change in capitalization or other reorganization; or
(b) transfer, issue, sell, grant, pledge or otherwise dispose of, as applicable, (i) any of the Equity Securities of the Acquisition Entities to a third party, or (ii) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitment obligations of the Acquisition Entities to purchase or obtain any Equity Securities of the Acquisition Entities to a third party.
Article
VIII
JOINT COVENANTS
Section 8.1. Regulatory Approvals; Other Filings.
(a) Each of the Company, SPAC and the Acquisition Entities will use their commercially reasonable efforts to cooperate in good faith with any Governmental Authority and to undertake promptly any and all action required to obtain any necessary or advisable regulatory approvals, consents, Actions, nonactions or waivers in connection with the Transactions (the “Regulatory Approvals”) as soon as practicable and any and all action necessary to consummate the Transactions as contemplated hereby. Each of the Company, SPAC and the Acquisition Entities will use commercially reasonable efforts to cause the expiration or termination of the waiting, notice or review periods under any applicable Regulatory Approval with respect to the Transactions as promptly as possible after the execution of this Agreement.
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(b) With respect to each of the Regulatory Approvals and any other requests, inquiries, Actions or other proceedings by or from Governmental Authorities, each of the Company, SPAC and the Acquisition Entities will (i) diligently and expeditiously defend and use commercially reasonable efforts to obtain any necessary clearance, approval, consent or Regulatory Approval under any applicable Laws prescribed or enforceable by any Governmental Authority for the Transactions and to resolve any objections as may be asserted by any Governmental Authority with respect to the Transactions; and (ii) cooperate fully with each other in the defense of such matters. To the extent not prohibited by Law, the Company will promptly furnish to SPAC, and SPAC and the Acquisition Entities will promptly furnish to the Company, copies of any material, substantive notices or written communications received by such party or any of its Affiliates from any Governmental Authority with respect to the Transactions, and each such party will permit counsel to the other parties an opportunity to review in advance, and each such party will consider in good faith the views of such counsel in connection with, any proposed material, substantive written communications by such party or its Affiliates to any Governmental Authority concerning the Transactions; provided, however, that none of SPAC or any of the Acquisition Entities will enter into any agreement with any Governmental Authority relating to any Regulatory Approval contemplated in this Agreement without the prior written consent of the Company; provided, further, that neither the Company nor any Acquisition Entity will enter into any agreement with any Governmental Authority with respect to the Transactions which (i) as a result of its terms materially delays the consummation of, or prohibits, the Transactions or (ii) adds any condition to the consummation of the Transactions, in any such case, without the prior written consent of SPAC. To the extent not prohibited by Law, the Company agrees to provide SPAC and its counsel, and SPAC and the Acquisition Entities agree to provide to the Company and its counsel, the opportunity, to the extent practical, on reasonable advance notice, to participate in any material substantive meetings or discussions, either in person or by telephone, between such party or any of its Affiliates or Representatives, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions. Each of the Company, SPAC and the Acquisition Entities agrees to make all filings, to provide all information required of such party and to reasonably cooperate with each other, in each case, in connection with the Regulatory Approvals; provided, further, that such party will not 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 (z) disclosure of any such information would reasonably be likely to result in the loss or waiver of the attorney-client, work product or other applicable privilege.
(c) Subject to Section 11.6, the Company, on the one hand, and SPAC, on the other, will each be responsible for and pay one-half of the filing fees payable to the Governmental Authorities in connection with the Transactions, including such filing fees payable by an Acquisition Entity. SPAC will not be responsible for any filing fees payable by the Company Parent to Governmental Authorities related to its compliance or filings in connection with the Transactions.
Section 8.2. Preparation of Proxy/Registration Statement; SPAC Shareholders’ Meeting and Approvals; and Approvals.
(a) Proxy/Registration Statement.
(i) As promptly as reasonably practicable after the execution of this Agreement, SPAC, the Acquisition Entities and the Company will prepare, and PubCo will file with the SEC, a Registration Statement (as amended or supplemented from time to time, and including the Proxy Statement, the “Proxy/Registration Statement”) relating to (x) the SPAC Shareholders’ Meeting to approve and adopt the Transaction Proposals and (y) the registration under the Securities Act of the Registrable Securities. SPAC, the Acquisition Entities and the Company each will use their commercially reasonable efforts to (1) cause the Proxy/Registration Statement when filed with the SEC to comply in all material respects with all Laws applicable thereto and rules and regulations promulgated by the SEC, (2) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy/Registration Statement, (3) cause the Proxy/Registration Statement to be declared effective under the Securities Act as promptly as practicable and (4) keep the Proxy/Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Proxy/Registration Statement, the Company, SPAC and PubCo will take all or any action required under any applicable federal or state securities Laws in connection with the issuance of PubCo Common Shares and PubCo Warrants pursuant to this Agreement. Each of the Company, SPAC and PubCo also agrees to use its commercially reasonable efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the Transactions, and the Company and SPAC will furnish all information respectively, concerning SPAC and the Company, its Subsidiaries and any of their respective members or shareholders as may be reasonably requested in connection with any such action.
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(ii) As promptly as practicable after finalization and effectiveness of the Proxy/Registration Statement, SPAC will, and will use commercially reasonable efforts to, within ten (10) Business Days of such finalization and effectiveness, mail the Proxy/Registration Statement to the SPAC Shareholders. Each of SPAC, PubCo and the Company will furnish to the other parties all information concerning itself, its Subsidiaries, officers, directors, managers, shareholders, and other equityholders and information regarding such other matters as may be reasonably necessary or advisable or as may be reasonably requested by any of them or any Governmental Authority in connection with the Proxy/Registration Statement, or any other statement, filing, notice or application made by or on behalf of SPAC, PubCo, the Company or their respective Affiliates to any Governmental Authority (including any relevant U.S. Securities Exchange) in connection with the Transactions. Subject to Section 11.6, the Company, on the one hand, and SPAC, on the other, will each be responsible for and pay one-half of the cost for the preparation, filing and mailing of the Proxy/Registration Statement and other related fees.
(iii) Any filing of, or amendment or supplement to, the Proxy/Registration Statement will be mutually prepared and agreed upon by SPAC, PubCo and the Company. PubCo will advise the Company and SPAC, promptly after receiving notice thereof, of the time when the Proxy/Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order, of the suspension of the qualification of PubCo Common Shares and PubCo Warrants to be issued or issuable in connection with this Agreement for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy/Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information and responses thereto, and will provide the Company and SPAC a reasonable opportunity to provide comments and amendments to any such filing. SPAC, PubCo and the Company will cooperate and mutually agree upon (such agreement not to be unreasonably conditioned, withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy/Registration Statement and any amendment to the Proxy/Registration Statement filed in response thereto.
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(iv) If, at any time prior to the Initial Merger Effective Time, any event or circumstance relating to SPAC, an Acquisition Entity or their respective officers or directors, should be discovered by SPAC or an Acquisition Entity which should be set forth in an amendment or a supplement to the Proxy/Registration Statement, SPAC or PubCo, as the case may be, will promptly inform the Company. If, at any time prior to the Initial Merger Effective Time, any event or circumstance relating to the Company, any of its Subsidiaries or their respective officers or directors, should be discovered by the Company which should be set forth in an amendment or a supplement to the Proxy/Registration Statement, the Company will promptly inform SPAC and PubCo. Thereafter, SPAC, PubCo and the Company will promptly cooperate in the preparation and filing of an appropriate amendment or supplement to the Proxy/Registration Statement describing or correcting such information and SPAC and PubCo will promptly file such amendment or supplement with the SEC and, to the extent required by Law, disseminate such amendment or supplement to the SPAC Shareholders.
(b) SPAC Shareholders’ Approval.
(i) Prior to or as promptly as practicable after the Proxy/Registration Statement is declared effective under the Securities Act, SPAC will establish a record date for, duly call, give notice of, convene and hold an extraordinary general meeting of the SPAC Shareholders (including any adjournment or postponement thereof, the “SPAC Shareholders’ Meeting”) in accordance with the SPAC Charter to be held as promptly as reasonably practicable and, unless otherwise agreed by SPAC and the Company in writing, in any event not more than thirty-five (35) days following the date that the Proxy/Registration Statement is declared effective under the Securities Act for the purpose of voting on the Transaction Proposals and obtaining the SPAC Shareholders’ Approval (including the approval of any adjournment or postponement of such meeting for the purpose of soliciting additional proxies in favor of the adoption of the Transaction Proposals), providing SPAC Shareholders with the opportunity to elect to exercise their SPAC Shareholder Redemption Right and such other matters as may be mutually agreed by SPAC and the Company. SPAC will use its commercially reasonable efforts (A) to solicit from its shareholders proxies in favor of the adoption of the Transaction Proposals, including the SPAC Shareholders’ Approval, and will take all other action necessary or advisable to obtain such proxies and SPAC Shareholders’ Approval and (B) to obtain the vote or consent of its shareholders required by and in compliance with all applicable Law, OTC Market rules and the SPAC Charter. SPAC (x) will consult with the Company regarding the record date and the date of the SPAC Shareholders’ Meeting prior to determining such dates and (y) will not adjourn or postpone the SPAC Shareholders’ Meeting without the prior written consent of Company (which consent will not be unreasonably withheld, conditioned or delayed); provided, however, that SPAC will adjourn or postpone the SPAC Shareholders’ Meeting (1) to the extent necessary to ensure that any supplement or amendment to the Proxy/Registration Statement that SPAC or PubCo reasonably determines (following consultation with the Company, except with respect to any Company Acquisition Proposal) is necessary to comply with applicable Laws, is provided to the SPAC Shareholders in advance of a vote on the adoption of the Transaction Proposals, (2) if, as of the time that the SPAC Shareholders’ Meeting is originally scheduled, there are insufficient SPAC Shares represented at such meeting (either in person or by proxy) to constitute a quorum necessary to conduct the business of the SPAC Shareholders’ Meeting, (3) if, as of the time that the SPAC Shareholders’ Meeting is originally scheduled, adjournment or postponement of the SPAC Shareholders’ Meeting is necessary to enable SPAC to solicit additional proxies required to obtain SPAC Shareholders’ Approval, (4) to comply with applicable Law or (5) to seek to limit or reverse any redemptions of SPAC Class A Ordinary Shares; provided further, however, that without the prior written consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned), SPAC will not adjourn or postpone on more than two (2) occasions and so long as the date of the SPAC Shareholders’ Meeting is not adjourned or postponed more than an aggregate of thirty (30) consecutive days.
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(ii) The Proxy/Registration Statement will include a statement to the effect that SPAC Board has unanimously recommended that the SPAC Shareholders vote in favor of the Transaction Proposals at the SPAC Shareholders’ Meeting and neither the SPAC Board nor any committee thereof will withhold, withdraw, qualify, amend or modify, or publicly propose or resolve to withhold, withdraw, qualify, amend or modify, the SPAC Board Recommendation.
Section 8.3. Support of Transaction. Without limiting any covenant contained in Article VI, or Article VII (a) the Company will, and will cause its Subsidiaries to, and (b) each of SPAC and the Acquisition Entities will, (i) use commercially reasonable efforts to obtain all material consents and approvals of third parties that the Company and any of its Subsidiaries or any of SPAC or any of the Acquisition Entities, as applicable, are required to obtain in order to consummate the Transactions (including the consents and approvals set forth in Section 8.3 of the Company Disclosure Letter), and (ii) use commercially reasonable efforts to take such other action as may be reasonably necessary or as another party hereto may reasonably request to satisfy the conditions of Article IX (including, in the case of the Company, SPAC and PubCo, the use of commercially reasonable efforts to enforce their respective rights under the PIPE Financing Agreements) or otherwise to comply with this Agreement and to consummate the Transactions as soon as practicable; provided, however, that, notwithstanding anything contained in this Agreement to the contrary, nothing in this Agreement, including this Article VIII, will require the Company, any of its Subsidiaries, SPAC or any Acquisition Entity or any of their respective Affiliates to (A) commence or threaten to commence, pursue or defend against any Action, whether judicial or administrative, (B) seek to have any stay or Governmental Order vacated or reversed, (C) propose, negotiate, commit to or effect by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of PubCo, the Company or any of its Subsidiaries or SPAC, (D) take or commit to take actions that limit the freedom of action of any of PubCo, the Company, any of its Subsidiaries or SPAC with respect to, or the ability to retain, control or operate, or to exert full rights of ownership in respect of, any of the businesses, product lines or assets of PubCo, the Company, any of its Subsidiaries or SPAC or (E) grant any financial, legal or other accommodation to any other Person, including agreeing to change any of the terms of the Transactions.
Section 8.4. Tax Matters.
(a) Each of SPAC, the Acquisition Entities and the Company will (i) use its respective commercially reasonable efforts to cause the Mergers to qualify, and agree not to, and not to permit or cause any of their Affiliates or Subsidiaries to, take any action which to its knowledge would reasonably be expected to prevent, impair or impede the Transactions from qualifying, for the Intended Tax Treatment. Each of SPAC, the Acquisition Entities and the Company will report the Transactions consistently with the Intended Tax Treatment and the immediately preceding sentence unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code or a change in applicable Law. The parties will cooperate with each other and their respective tax counsel to document and support the Tax treatment of each of the Mergers as a “reorganization” within the meaning of Section 368(a) of the Code (or, in the case of the acquisition Merger, as a contribution under Section 351(a) of the Code).
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(b) If, in connection with the preparation and filing of the Proxy Statement/Registration Statement, the SEC requests or requires that Tax opinions be prepared and submitted in such connection, SPAC and the Company will deliver to Kirkland & Ellis LLP and Perkins Coie LLP customary Tax representation letters satisfactory to its counsel, dated and executed as of the date the Proxy Statement/Registration Statement will have been declared effective by the SEC and such other date(s) as determined reasonably necessary by such counsel in connection with the preparation and filing of the Proxy Statement/Registration Statement, and, if required, Kirkland & Ellis LLP will furnish an opinion, subject to customary assumptions and limitations, with respect to the Intended Income Tax Treatment as it applies to the Initial Merger and, if required, Perkins Coie LLP will furnish an opinion, subject to customary assumptions and limitations, with respect to the Intended Income Tax Treatment as it applies to the Acquisition Merger.
(c) Each of the Parties will (and will cause their respective Affiliates to) cooperate fully, as and to the extent reasonably requested by another Party, in connection with the filing of relevant Tax Returns, the issuance of any Tax opinions regarding the Initial Merger or the Acquisition Merger and any Tax audit or proceeding. Such cooperation will include the retention and (upon the other Party’s request) the provision (with the right to make copies) of records and information reasonably relevant to any Tax proceeding or audit, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and using commercially reasonable efforts to make available to the pre-Merger shareholders of SPAC information reasonably necessary to compute any income of any such holder (or its direct or indirect owners) arising (i) if applicable, as a result of SPAC’s status as a “passive foreign investment company” within the meaning of Section 1297(a) of the Code or a “controlled foreign corporation” within the meaning of Section 957(a) of the Code for any taxable period ending on or prior to the Closing, including timely providing (A) a PFIC Annual Information Statement to enable such holders to make a “Qualifying Electing Fund” election under Section 1295 of the Code for such taxable period, and (B) information to enable applicable holders to report their allocable share of “subpart F” income under Section 951 of the Code for such taxable period and (ii) under Section 367(b) of the Code and the Treasury Regulations promulgated thereunder as a result of the Initial Merger.
Section 8.5. Shareholder Litigation. Prior to the Initial Closing Company will promptly advise SPAC, and SPAC will promptly advise the Company and PubCo, as the case may be, of any Action commenced (or to the Knowledge of PubCo 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 or officers by any Company Shareholder or SPAC Shareholder relating to this Agreement, the Mergers or any of the other Transactions (any such Action, “Stockholder Litigation”), and such party will keep the other party reasonably informed regarding any such Stockholder Litigation. Other than with respect to any Stockholder Litigation where the parties identified in this sentence are adverse to each other or in the context of any Stockholder Litigation related to or arising out of a SPAC Acquisition Proposal, (a) prior to the Initial Closing, PubCo will give the Company and SPAC a reasonable opportunity to participate in the defense or settlement of any such Stockholder Litigation (and consider in good faith the suggestions of SPAC in connection therewith) brought against PubCo, any of their respective Subsidiaries or any of their respective directors or officers and no such settlement will be agreed to without the Company’s and SPAC’s prior consent (which consent will not be unreasonably withheld, conditioned or delayed) and (b) SPAC will give the Company a reasonable opportunity to participate in the defense or settlement of any such Stockholder Litigation (and consider in good faith the suggestions of the Company in connection therewith) brought against SPAC, any of its Subsidiaries or any of its directors or officers, and no such settlement will be agreed to without the Company’s prior consent (which consent will not be unreasonably withheld, conditioned or delayed).
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Section 8.6. Private Placement.
(a) During the period between the date of this Agreement and the Initial Closing, SPAC and the Company will use reasonable best efforts to obtain additional financing from investors (“PIPE Investors”) to make an investment in PubCo (or SPAC or the Company to be converted into PubCo at Closing) to purchase equity in the aggregate amount (inclusive of the $4.0 million of Sponsor financing, which, for the avoidance of doubt, includes the $1.5 million funded under convertible preferred equity issued by the Company to Sponsor) of $25.0 million (the “PIPE Investment Amount”) by entering into customary subscription agreements in the form and substance and on terms reasonably satisfactory to the Company and SPAC (the “PIPE Financing Agreements”), pursuant to which the PIPE Investors commit to make investments in PubCo (or SPAC or the Company (which will require reasonable consent of SPAC or the Company, as applicable) to be converted into PubCo at Closing) by way of subscribing for equity securities, debt securities or other equity-linked or convertible securities of the Company (the “PIPE Investments” or the “Private Placement”). In the event that one or more PIPE Financing Agreements is entered into by SPAC, PubCo or the Company (the “Financing Entity”) in connection with the Private Placement, (i) the Financing Entity may not modify or waive, or provide consent to modify or waive (including consent to termination, to the extent required), any provisions of any such PIPE Financing Agreement or any remedy thereunder, in each case, without the prior written consent of SPAC, which shall not be unreasonably withheld, and the Company, as applicable, other than immaterial or ministerial modifications or waivers, (ii) the Financing Entity will use its reasonable best efforts to take, or cause to be taken, all actions and take reasonable best efforts to do, or cause to be done, all the things necessary, proper or advisable to consummate the transactions contemplated by such PIPE Financing Agreement on the terms and subject to the conditions described therein, including satisfying on a timely basis all conditions and covenants applicable to the Financing Entity and otherwise complying with its obligations thereunder, (iii) if all conditions in any such PIPE Financing Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, the Financing Entity will consummate the transactions contemplated by each such PIPE Financing Agreement at the time contemplated in the PIPE Financing Agreement, (iv) the Financing Entity will deliver notices to counterparties to each such PIPE Financing Agreement as required by and in the manner set forth therein in order to cause timely funding in advance of the Acquisition Closing, (v) the Financing Entity will enforce its rights under each such PIPE Financing Agreement to cause the applicable PIPE Investors to fund the amounts set forth therein and (vi) the Financing Entity will provide prompt written notice to the Company if any counterparty to any PIPE Financing Agreement notifies the Financing Entity of any breach of any representation or other agreement contained in any such Financing Agreement by such counterparty.
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(b) Prior to the Initial Closing, the Company will, and will cause the Company Parent to, use its commercially reasonable efforts to provide to SPAC, and will cause each of its Subsidiaries to use its commercially reasonable efforts to provide, and will use its commercially reasonable best efforts to cause its Representatives to provide, all cooperation reasonably requested by SPAC that is customary in connection with completing the Private Placement (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries), which commercially reasonable efforts will include, among other things, the Company’s (i) furnishing, reasonably promptly following receipt of a request therefore, information regarding the Company (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company) customary for such financing activities, to the extent reasonably available and subject to disclosure limitation for a public company, (ii) causing the Company Parent’s and the Company’s senior management and other representatives with appropriate seniority and expertise to participate in a reasonable number of meetings, presentations, due diligence sessions and drafting sessions, (iii) taking all corporate actions, subject to the occurrence of the Initial Closing, reasonably requested by SPAC or any financing sources to permit the consummation of such financing activities, and (iv) cooperating with requests for due diligence to the extent customary and reasonable.
Section 8.7. U.S. Securities Exchange Listing Efforts.
(a) The Company and SPAC will use their commercially reasonable efforts to cause PubCo to satisfy the applicable U.S. Securities Exchange listing requirements by the Acquisition Closing, such as the shareholder distribution requirements relating to Round Lots and Round Lot Holders (each as defined in the applicable U.S. Securities Exchange Listing Rules), including through engaging a third party advisor. To the extent SPAC and the Company mutually determine to engage a Listing Advisor for this purpose, promptly following the date of this Agreement, the Company and SPAC will jointly engage a third party advisor (the “Listing Advisor”) with experience in identifying transaction counterparties for transactions that would result in PubCo satisfying applicable U.S. Securities Exchange listing rules, including the shareholder distribution requirements relating to Round Lots and Round Lot Holders (each as defined in the U.S. Securities Exchange Listing Rules).
(b) The Listing Advisor will use commercially reasonable efforts to identify and present to SPAC and PubCo one or more potential transaction counterparties that are willing to participate in a merger or similar transaction (a “Listing Transaction”) that, when taken together with PubCo’s existing and anticipated shareholder base, would result in PubCo satisfying applicable U.S. Securities Exchange listing rules, including the shareholder distribution requirements relating to Round Lots and Round Lot Holders (each as defined in the applicable U.S. Securities Exchange Listing Rules). SPAC, PubCo, and the Company will consult with each other in good faith regarding the selection of any such counterparty, and no such counterparty will be selected without the prior written consent of SPAC and the Company.
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(c) Following the identification and selection of a Listing Transaction counterparty, SPAC and the Company will use commercially reasonable best efforts to negotiate, finalize, and execute a definitive agreement with such counterparty (the “Listing Transaction Agreement”), on terms reasonably satisfactory to SPAC and the Company, providing for the consummation of the Listing Transaction on terms substantially consistent with the purpose of this Section 8.7 and otherwise in compliance with applicable Law. The structure and terms of the Listing Transaction will be mutually agreed upon in good faith by SPAC and the Company.
(d) Each of SPAC, PubCo, the Company and the Acquisition Entities will use commercially reasonable best efforts to cooperate with each other, the Listing Advisor, and any counterparty in connection with the Listing Transaction, including by providing such information and taking such actions as may be reasonably necessary to (i) obtain any required approvals, consents, or orders of any applicable Government Authority, (ii) prepare and file any notices, motions, or other documents required to be filed therewith, (iii) prepare any disclosure regarding the Listing Transaction for inclusion in the Proxy/Registration Statement, and (iv) take all other actions reasonably necessary to consummate the Listing Transaction in accordance with the Listing Transaction Agreement and applicable Law.
(e) Notwithstanding the foregoing, if (i) the Listing Transaction contemplated by this Section 8.7 is not reasonably likely to be consummated on a timely basis or on terms reasonably satisfactory to SPAC and the Company, or (ii) SPAC and the Company mutually agree in writing that an alternative method or structure would be more effective or advisable in enabling PubCo to satisfy the applicable U.S. Securities Exchange listing rules described herein, then SPAC, PubCo, and the Company will use commercially reasonable best efforts to pursue such alternative methods or structures in lieu of, or in addition to, the Listing Transaction, on terms mutually agreed upon by SPAC and the Company (an “Alternative Listing Transaction”).
Section 8.8. U.S. Securities Exchange Listing. From the date of this Agreement through the closing of the Initial Merger, PubCo will promptly apply for, and along with SPAC and the Company, will use commercially reasonable efforts to cause, the PubCo Common Shares and public PubCo Converted Warrants to be issued in connection with the Transactions to be approved for listing on NASDAQ or other U.S. Securities Exchange and accepted for clearance by the Depository Trust Company, subject to official notice of issuance, prior to the Initial Closing Date. Subject to Section 11.6, the Company, on the one hand, and SPAC, on the other, will each be responsible for and pay one-half of the filing fees payable to NASDAQ in connection with the Transactions, including such filing fees payable by an Acquisition Entity.
Section 8.9. Services Agreement. Prior to the Initial Closing Date, Company Parent, the Company and SPAC will use reasonable best efforts to negotiate in good faith a customary and commercially reasonable services agreement, including pricing, with respect to the provision of services and assets from the Company Parent to the Company that are reasonably necessary to operate the Company business and operations and at substantially the same level of quality, timeliness, and priority as such services and assets, unless otherwise reasonably agreed to by SPAC, were provided to the Company during the twelve (12)-month period prior to the Initial Closing Date (the “Services”), which Services will include the third party vendor and other services being provided via agreement or arrangement with the Company Parent.
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Article
IX
CONDITIONS TO OBLIGATIONS
Section 9.1. Conditions to Obligations of SPAC, the Acquisition Entities and the Company. The obligations of SPAC and the Acquisition Entities to consummate, or cause to be consummated, the Transactions to occur at the Initial Closing, and the obligations of the Company and the Acquisition Entities to consummate, or cause to be consummated, the Transactions to occur at the Acquisition Closing, are each subject to the satisfaction of the following conditions, any one or more of which may be waived (if legally permitted) in writing by the party or parties whose obligations are conditioned thereupon:
(a) The SPAC Shareholders’ Approval and the Company Approval will have been obtained;
(b) The Proxy/Registration Statement will have become effective under the Securities Act and no stop order suspending the effectiveness of the Proxy/Registration Statement will have been issued and no proceedings for that purpose will have been initiated or threatened by the SEC and not withdrawn;
(c) (i) PubCo’s initial listing application with a U.S. Securities Exchange in connection with the Transactions will have been conditionally approved and, immediately following the Acquisition Closing, PubCo will satisfy any applicable initial and continuing listing requirements of such U.S. Securities Exchange and PubCo will not have received any notice of non-compliance therewith, and (ii) the PubCo Common Shares and public PubCo Converted Warrants to be issued in connection with the Transactions will have been approved for listing on a U.S. Securities Exchange, subject to official notice of issuance;
(d) Reserved.
(e) No Governmental Authority will have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) or Governmental Order that is then in effect and which has the effect of making the Initial Closing or the Acquisition Closing illegal or which otherwise prevents or prohibits consummation of the Initial Closing or the Acquisition Closing (any of the foregoing, a “restraint”), other than any such restraint that is immaterial.
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Section 9.2. Conditions to Obligations of SPAC and the Acquisition Entities at Initial Closing. The obligations of SPAC and the Acquisition Entities to consummate, or cause to be consummated, the Transactions to occur at the Initial Closing are subject to the satisfaction of the following additional conditions as of the Initial Closing Date, any one or more of which may be waived in writing by SPAC:
(a) The representations and warranties contained in Section 3.4 (Authorization), Section 3.11(b) (Absence of Changes) will be true and correct in all respects as of the Initial Closing Date as if made at the Initial Closing Date. The representations and warranties contained in Section 3.1 (Organization and Qualification), Section 3.2 (Subsidiaries), Section 3.3(b) (Capitalization), Section 3.18 (Brokers), will be true and correct in all material respects as of the Initial Closing Date as if made at the Initial Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties will be true and correct in all material respects at and as of such date). The representations and warranties contained in Section 3.3(a) (Capitalization) (disregarding any such qualifications and exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception) will be true and correct in all respects as of the Initial Closing Date as if made at the Initial Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties (disregarding any such qualifications and exceptions) will be true and correct in all respects at and as of such date) other than de-minimis inaccuracies. Each of the other representations and warranties of the Company and the Acquisition Entities contained in this Agreement will be true and correct as of the Initial Closing Date as if made at the Initial Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties will be true and correct at and as of such date) except for inaccuracies in or the failure of such representations and warranties to be true and correct that (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception) individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect; and
(b) Each of the covenants of the Company to be performed as of or prior to the Initial Closing Date will have been performed in all material respects, including delivery of all of the documentation required under Section 2.4.
(c) Since the date of this Agreement, no Company Material Adverse Effect has occurred that is continuing.
(d) The Company shall have waived in writing its condition set forth in Section 9.4 or the condition shall have been satisfied.
Section 9.3. Conditions to Obligations of the Company at Initial Closing. The obligations of the Company to consummate, or cause to be consummated, the Transactions to occur at the Initial Closing are subject to the satisfaction of the following additional conditions as of the Initial Closing Date, any one or more of which may be waived in writing by the Company:
(a) The representations and warranties contained in Section 4.4 (Authorization) and Section 4.10(b) (Absence of Changes) will be true and correct in all respects as of the Initial Closing Date as if made at the Initial Closing Date. The representations and warranties contained in Section 4.1 (Organization and Qualification), Section 4.2 (Corporate Structure; Subsidiaries), Section 4.13 (Brokers), Section 4.18 (Business Activities)will be true and correct in all material respects as of the Initial Closing Date as if made at the Initial Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties will be true and correct in all material respects at and as of such date). The representations and warranties contained in Section 4.3 (Capitalization) (disregarding any such qualifications and exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception) will be true and correct in all respects as of the Initial Closing Date as if made at the Initial Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties (disregarding any such qualifications or exceptions) will be true and correct in all respects at and as of such date), in each case other than de-minimis inaccuracies. Each of the other representations and warranties of SPAC contained in this Agreement will be true and correct as of the Initial Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties will be true and correct at and as of such date) except for inaccuracies in or the failure of such representations and warranties to be true and correct that (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “SPAC Material Adverse Effect” or any similar qualification or exception), individually or in the aggregate, has not had, and would not reasonably be expected to have a SPAC Material Adverse Effect; and
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(b) Each of the covenants of SPAC and the Acquisition Entities to be performed as of or prior to the Initial Closing Date will have been performed in all material respects, including delivery of all of the documentation required under Section 2.4.
Section 9.4. Conditions to Obligations of the Company at Acquisition Closing. The obligations of the Company to consummate, or cause to be consummated, the Transactions to occur at the Acquisition Closing will be subject to the satisfaction of the additional conditions, any one or more of which may be waived in writing by the Company, that (a) the Initial Merger Effective Time and the Initial Closing will have occurred and (b) the Minimum Cash Condition will have been met.
Section 9.5. Frustration of Conditions. None of SPAC, the Acquisition Entities or the Company may rely on the failure of any condition set forth in this Article IX to be satisfied if such failure was caused by such party’s failure to comply in all material respects with its obligations under Section 8.3.
Article
X
TERMINATION/EFFECTIVENESS
Section 10.1. Termination. This Agreement may be terminated and the Transactions abandoned at any time prior to the Initial Merger Effective Time:
(a) by mutual written consent of the Company and SPAC;
(b) by written notice from the Company or SPAC to the other if any Governmental Authority will have enacted, issued, promulgated, enforced or entered any Governmental Order which has become final and nonappealable and has the effect of making consummation of the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions;
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(c) by written notice from the Company to SPAC if the SPAC Board or any committee thereof has withheld, withdrawn, qualified, amended or modified, or publicly proposed or resolved to withhold, withdraw, qualify, amend or modify, the SPAC Board Recommendation;
(d) by written notice from SPAC or the Company to the other if the Required Parent Shareholder Approval was not obtained at the Company Parent Shareholders Meeting duly convened therefor or at any adjournment or postponement thereof taken in accordance with this Agreement or the Shareholder Support Agreement;
(e) by written notice from SPAC or the Company to the other if the SPAC Shareholders’ Approval will not have been obtained by reason of the failure to obtain the required vote at the SPAC Shareholders’ Meeting duly convened therefor or at any adjournment or postponement thereof taken in accordance with this Agreement;
(f) by written notice from SPAC to the Company, at any time prior to the receipt of the Required Parent Shareholder Approval, if the Company Parent Board effects a Change of Company Recommendation;
(g) by written notice from the Company to SPAC, at any time prior to the receipt of the Required Parent Shareholder Approval, if the Company Parent Board authorized the Company or the Company Parent to enter into an Alternative Acquisition Agreement after termination of this Agreement, to the extent permitted by and in accordance with the terms of Section 6.3(e); provided, that the Company will prior to or concurrently with, and as a condition of, such termination pay the Company Termination Fee to SPAC pursuant to Section 10.3;
(h) by written notice from SPAC to the Company if there is any breach of any representation, warranty, covenant or agreement on the part of the Company, such that the conditions specified in Section 9.2 would not be satisfied at the relevant Closing Date (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Company, then for a period of up to 30 days after receipt by the Company of written notice from SPAC of such breach, such termination will not be effective, and such termination will become effective only if the Terminating Company Breach is not cured within such 30-day period, provided that SPAC will not have the right to terminate this Agreement pursuant to this Section 10.1(h) if it is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement;
(i) by written notice from the Company to SPAC if there is any breach of any representation, warranty, covenant or agreement on the part of SPAC or any Acquisition Entity set forth in this Agreement set forth in this Agreement, such that the conditions specified in Section 9.3 would not be satisfied at the relevant Closing Date (a “Terminating SPAC Breach”), except that if any such Terminating SPAC Breach is curable by SPAC or such Acquisition Entity, then for a period of up to 30 days after receipt by SPAC of written notice from the Company of such breach, such termination will not be effective, and such termination will become effective only if the Terminating SPAC Breach is not cured within such 30-day period, provided that Company will not have the right to terminate this Agreement pursuant to this Section 10.1(i) if it is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement;
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(j) by written notice from SPAC or the Company to the other, if the transactions contemplated by this Agreement will not have been consummated on or prior to January 9, 2027 (the “Outside Date”); provided that the right to terminate this Agreement pursuant to this Section 10.1(j) will not be available to any party whose breach of any provision of this Agreement primarily caused or resulted in the failure of the transactions to be consummated by such time.
Section 10.2. Effect of Termination. In the event of the termination of this Agreement pursuant to Section 10.1, this Agreement will forthwith become void and have no effect, without any liability on the part of any party hereto or its respective Affiliates, officers, directors or shareholders, other than liability of the Company, SPAC or any Acquisition Entity, as the case may be, for actual fraud or for any willful and material breach of this Agreement occurring prior to such termination, except that the provisions of this Section 10.2, Section 10.3, Section 8.1(c), the last sentence of Section 8.2(a)(ii) and Article XI will survive any termination of this Agreement.
Section 10.3. Company Termination Amount.
(a) If this Agreement is terminated (i) by SPAC or the Company pursuant to Section 10.1(d) (x) if the Company Parent effected a Change of Company Recommendation prior to the Company Parent Shareholders Meeting at which a vote for the Required Parent Shareholder Approval was actually taken or (y) as a result of the failure to receive the Required Parent Shareholder Approval following such time as a Company Parent Acquisition Transaction occurred at the Company Parent (where for purposes of this Section 10.3(a)(i)(y), the references to 50% in the definition of Company Parent Acquisition Transaction shall be replaced with 35%), (ii) by SPAC pursuant to Section 10.(f) or (iii) by the Company pursuant to Section 10.1(g), then the Company will pay to SPAC its reasonable and documented expenses incurred in connection with the Transactions through the date this Agreement is terminated, which will not exceed $6,000,000 (the “Company Termination Amount”).
(b) All payments under this Section 10.3 will be made by wire transfer of immediately available funds to an account designated in writing by SPAC within two Business Days following the submission of reasonable documentation supporting the expense reimbursement.
(c) Each of the parties acknowledges that the agreements contained in this Section 10.3 are an integral part of the Transactions, and that without these agreements, SPAC and the Company would not enter into this Agreement.
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Article
XI
MISCELLANEOUS
Section 11.1. Trust Account Waiver. Notwithstanding anything to the contrary set forth in this Agreement, the Company and each Acquisition Entity acknowledges that it has read the publicly filed final prospectus of SPAC, filed with the SEC on January 26, 2021 (File No. 333-39945), including the Trust Agreement, and understands that SPAC has established the trust account described therein (the “Trust Account”) for the benefit of SPAC’s public shareholders and that disbursements from the Trust Account are available only in the limited circumstances set forth therein. The Company and each Acquisition Entity further acknowledges and agrees that SPAC’s sole assets consist of the cash proceeds of SPAC’s initial public offering (the “IPO”) and private placements of its securities occurring simultaneously with the IPO, and that substantially all of these proceeds have been deposited in the Trust Account for the benefit of its public shareholders. Accordingly, the Company (on behalf of itself and its Affiliates) and each Acquisition Entity hereby waives any past, present or future claim of any kind arising out of this Agreement against, and any right to access, the Trust Account, any trustee of the Trust Account or SPAC, to collect from the Trust Account any monies that may be owed to them by SPAC or any of its Affiliates for any reason whatsoever, and will not seek recourse against the Trust Account at any time for any reason whatsoever, including for any knowing and intentional breach by any of the parties to this Agreement of any of its representations or warranties as set forth in this Agreement, or such party’s material breach of any of its covenants or other agreements set forth in this Agreement, which material breach constitutes, or is a consequence of, a purposeful act or failure to act by such party with the knowledge that the taking of such act or failure to take such act would cause a material breach of this Agreement. This Section 11.1 will survive the termination of this Agreement for any reason.
Section 11.2. Waiver. Any party to this Agreement may, at any time prior to the Acquisition Closing, by action taken by its board of directors or officers or Persons thereunto duly authorized, (a) extend the time for the performance of the obligations or acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties (of another party hereto) that are contained in this Agreement or (c) waive compliance by the other parties hereto with any of the agreements or conditions contained in this Agreement, but such extension or waiver will be valid only if set forth in an instrument in writing signed by the party granting such extension or waiver.
Section 11.3. Notices. All general notices, demands or other communications required or permitted to be given or made hereunder will be in writing and delivered personally or sent by courier or sent by registered post or sent by electronic mail to the intended recipient thereof at its address or at its email address set out below (or to such other address or email address as a party may from time to time notify the other parties). Any such notice, demand or communication will be deemed to have been duly served (a) if given personally or sent by courier, upon delivery during normal business hours at the location of delivery or, if later, then on the next Business Day after the day of delivery; (b) if sent by electronic mail during normal business hours at the location of delivery, immediately, or, if later, then on the next Business Day after the day of delivery; (c) the third Business Day following the day sent by reputable international overnight courier (with written confirmation of receipt), and (d) if sent by registered post, five days after posting. The initial addresses and email addresses of the parties for the purpose of this Agreement are:
(a) If to SPAC, to:
Constellation Acquisition Corp I
1290 Avenue of the Americas, 10th Floor
New York, NY 10104
Att: Chandra R. Patel, Jarett Goldman
Email: [email protected], [email protected]
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with a copy (which will not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Lauren Colasacco, P.C., Peter Seligson, P.C., Monica Ruiz
E-mail: [email protected]; [email protected]; [email protected]
(b) If to any Acquisition Entity, to:
c/o Constellation Acquisition Corp I
1290 Avenue of the Americas, 10th Floor
New York, NY 10104
Att: Chandra R. Patel, Jarett Goldman
Email: [email protected], [email protected]
with a copy (which will not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Lauren Colasacco, P.C., Peter Seligson, P.C., Monica Ruiz
E-mail: [email protected]; [email protected]; [email protected]
(c) If to the Company, to:
HiTech Minerals Inc.
241 Ridge Street Suite 210
Reno, Nevada 89501
Attention: Ian Rodgers
Email: [email protected]
with a copy (which will not constitute notice) to:
Perkins Coie LLP
1155 Avenue of the Americas, 22nd Floor
New York, New York 10036-2711
Attention: Elliott Smith; Christopher Hall
E-mail: [email protected]; [email protected]
Section 11.4. Assignment. No party hereto will assign this Agreement or any part hereof without the prior written consent of the other parties hereto and any such transfer without prior written consent will be void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
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Section 11.5. Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or will be construed to (a) confer upon or give any Person (including any equityholder, any current or former director, manager, officer, employee or independent contractor of the Company or any of its Subsidiaries, or any participant in any Benefit Plan or other employee benefit plan, agreement or other arrangement (or any dependent or beneficiary thereof)), other than the parties hereto, any right or remedies under or by reason of this Agreement, (b) establish, amend or modify any benefit or compensation plan, program, policy, agreement or arrangement or (c) limit the right of SPAC, the Company, any Acquisition Entity or their respective Affiliates to amend, terminate or otherwise modify any Benefit Plan or other benefit or compensation plan, policy, agreement or other arrangement following the Acquisition Closing; provided, however, that (i) the D&O Indemnified Parties (and their successors, heirs and representatives) are intended third-party beneficiaries of, and may enforce, Section 6.4, and (ii) the Non-Recourse Parties (and their respective successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, Section 11.17.
Section 11.6. Expenses. Except as set forth in Sections 8.1(c), Section 8.2(a)(i), and Section 10.3, each party hereto will be responsible for and pay its own expenses incurred in connection with this Agreement and the Transactions, including all fees of its legal counsel, financial advisers and accountants; provided, however, that if the Acquisition Closing will occur, the Surviving Company will pay or cause to be paid (i) Transfer Taxes and (ii) all loan amounts elected to be settled in cash by Company Parent and all expenses described in and in accordance with Section 2.4(c).
Section 11.7. Governing Law. This Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Agreement, will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of laws that would otherwise require the application of the law of any other state (provided that the fiduciary duties of the SPAC Board and the Initial Merger and any right to or exercise of any appraisal and dissenters’ rights under the laws of the Cayman Islands with respect to the Initial Merger, will in each case be governed by the laws of the Cayman Islands and that that the fiduciary duties of the Company Board and the Acquisition Merger will in each case be governed by the laws of the State of Nevada).
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Section 11.8. Consent to Jurisdiction. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF 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, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING WILL BE HEARD AND DETERMINED BY SUCH A DELAWARE STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 11.3 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW WILL BE VALID AND SUFFICIENT SERVICE THEREOF. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 11.8.
Section 11.9. Headings; Counterparts. The headings in this Agreement are for convenience only and will not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, 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 will 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) will have the same legal effect as original signatures and will be considered original executed counterparts of this Agreement.
Section 11.10. Disclosure Letters. The Disclosure Letters (including, in each case, any section thereof) referenced in this Agreement are a part of this Agreement as if fully set forth herein. All references in this Agreement to the Disclosure Letters (including, in each case, any section thereof) will be deemed references to such parts of this Agreement, unless the context will otherwise require. Any disclosure made by a party in the applicable Disclosure Letter, or any section thereof, with reference to any section of this Agreement or section of the applicable Disclosure Letter will be deemed to be a disclosure with respect to such other applicable sections of this Agreement or sections of the applicable Disclosure Letter to which it is reasonably apparent on the face of such disclosure that such disclosure is responsive to such other section of this Agreement or section of the applicable Disclosure Letter. Certain information set forth in the Disclosure Letters is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information will 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 will such information be deemed to establish a standard of materiality or that the facts underlying such information constitute a Company Material Adverse Effect or a SPAC Material Adverse Effect, as applicable.
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Section 11.11. Entire Agreement. This Agreement (together with the Disclosure Letters) and the other Transaction Documents constitute the entire agreement among the parties to this Agreement relating to the Transactions and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the parties hereto or any of their respective Subsidiaries relating to the Transactions (including the Summary of Certain Proposed Terms and Conditions between SPAC and the Company, dated as of November 3, 2025). No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the Transactions exist between such parties except as expressly set forth in the Transaction Documents.
Section 11.12. Amendments. This Agreement may be amended or modified in whole or in part prior to the Initial Merger Effective Time, only by a duly authorized agreement in writing in the same manner as this Agreement, which makes reference to this Agreement and which will be executed by the Company and the SPAC; provided, however, that after the Company Approval or the SPAC Shareholders’ Approval has been obtained, there will be no amendment or waiver that by applicable Law requires further approval by the shareholders of the Company or the SPAC Shareholder, respectively, without such approval having been obtained.
Section 11.13. Publicity.
(a) All press releases or other public communications relating to the Transactions, and the method of the release for publication thereof, will prior to the Acquisition Closing, be subject to the prior mutual approval of SPAC and the Company; provided, that no such party will be required to obtain consent pursuant to this Section 11.13(a) to the extent any proposed release or statement is substantially equivalent to the information that has previously been made public without breach of the obligation under this Section 11.13(a).
(b) The restriction in Section 11.13(a) will not apply to the extent the public announcement is required by applicable securities Law, any Governmental Authority or stock exchange rule; provided, however, that in such an event, the party making the announcement will, to the extent practicable, use its commercially reasonable efforts to consult with the other party in advance as to its form, content and timing.
Section 11.14. Confidentiality. The existence and terms of this Agreement are confidential and may not be disclosed by either party hereto, their respective Affiliates or any Representatives of any of the foregoing, and will at all times be considered confidential and treated with the same degree of care that such party uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality of such information. Notwithstanding anything to the contrary contained in the preceding sentence, each party will be permitted to disclose Confidential Information, including the Transaction Documents, the fact that the Transaction Documents have been signed and the status and terms of the Transactions to its existing or potential Affiliates, joint ventures, joint venture partners, shareholders, lenders, underwriters, financing sources and any Governmental Authority (including the applicable U.S. Securities Exchange ), and to the extent required, in regulatory filings, and their respective Representatives; provided that such parties entered into customary confidentiality agreements or are otherwise bound by fiduciary or other duties to keep such information confidential.
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Section 11.15. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. The parties hereto further agree that if any provision contained in this Agreement is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they will take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, will amend or otherwise modify this Agreement to replace any provision contained in this Agreement that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties hereto.
Section 11.16. Enforcement. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specific enforcement of the terms and provisions of this Agreement, in addition to any other remedy to which any party is entitled at law or in equity. In the event that any Action will be brought in equity to enforce the provisions of this Agreement, no party will allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waiver any requirement for the securing or posting of any bond in connection therewith.
Section 11.17. Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the Transactions may only be brought against, the Persons that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such party. Except to the extent a party hereto (and then only to the extent of the specific obligations undertaken by such party to this Agreement or any other Transaction Document), (i) no past, present or future director, officer, employee, incorporator, member, partner, shareholder, stockholder, Affiliate, agent, attorney, advisor or other Representative of any party hereto and (ii) no past, present or future director, officer, employee, incorporator, member, partner, shareholder, stockholder, Affiliate, agent, attorney, advisor or other Representative of any of the foregoing will have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, any Acquisition Entity or SPAC under this Agreement of or for any claim based on, arising out of, or related to this Agreement or the Transactions (each of the Persons identified in the foregoing sub-clauses (a) or (b), a “Non-Recourse Party”, and collectively, the “Non-Recourse Parties”).
Section 11.18. Non-Survival of Representations, Warranties and Covenants. Except as otherwise contemplated by Section 10.2, the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate (including confirmations therein), statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, will not survive the Acquisition Closing and will terminate and expire upon the occurrence of the Acquisition Closing (and there will be no liability after the Acquisition Closing in respect thereof), except for (a) those covenants and agreements contained in this Agreement that by their terms expressly apply in whole or in part after the Acquisition Closing, and then only with respect to any breaches occurring after the Acquisition Closing and (b) this Article XI.
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Section 11.19. Conflicts and Privilege.
(a) The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC or the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, PubCo or the Surviving Corporation) (collectively, the “Constellation Group”), on the one hand, and (y) PubCo, the Surviving Company or any member of the Company Parent Group, on the other hand, any legal counsel, including Kirkland & Ellis LLP (“K&E”), that represented SPAC or the Sponsor prior to the Acquisition Closing may represent the Sponsor or any other member of the Constellation Group, in such dispute even though the interests of such Persons may be directly adverse to PubCo or the Surviving Company, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo, the Surviving Company or the Sponsor. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among SPAC, the Sponsor or any other member of the Constellation Group, on the one hand, and K&E, on the other hand, the attorney/client privilege and the expectation of client confidence will survive the Mergers and belong to the Constellation Group after the Acquisition Closing, and will not pass to or be claimed or controlled by PubCo or the Surviving Company. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Acquisition Closing with SPAC or the Sponsor under a common interest agreement will remain the privileged communications or information of PubCo, the Surviving Company and the Surviving Corporation.
(b) The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Company Parent, the shareholders or holders of other equity interests of the Company and Company Parent or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo) (collectively, the “Company Parent Group”), on the one hand, and (y) PubCo, the Surviving Corporation or any member of the Constellation Group, on the other hand, any legal counsel, including Perkins Coie LLP (“Perkins”) that represented the Company Parent Group prior to the Acquisition Closing may represent any member of the Company Parent Group in such dispute even though the interests of such Persons may be directly adverse to PubCo and the Surviving Corporation, and even though such counsel may have represented the Company Parent Group in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo and the Surviving Corporation. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company or any member of the Company Parent Group, on the one hand, and Perkins, on the other hand, the attorney/client privilege and the expectation of client confidence will survive the Mergers and belong to the Company Parent Group after the Acquisition Closing, and will not pass to or be claimed or controlled by PubCo or the Surviving Corporation. Notwithstanding the foregoing, any privileged communications or information shared by SPAC or Sponsor prior to the Acquisition Closing with the Company or the Company Parent Group under a common interest agreement will remain the privileged communications or information of PubCo or the Surviving Corporation.
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IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date first above written.
| SPAC: | |||
| Constellation Acquisition Corp I | |||
|
By: |
/s/ Chandra R. Patel | ||
| Name: | Chandra R. Patel | ||
| Title: | Chief Executive Officer | ||
| MERGER SUB 1: | |||
| CAC Merger Sub I LLC | |||
|
By: |
/s/ Chandra R. Patel | ||
| Name: | Chandra R. Patel | ||
| Title: | Chief Executive Officer | ||
|
MERGER SUB 2: | |||
| USE Merger Sub 2 Inc. | |||
|
By: |
/s/ Chandra R. Patel | ||
| Name: | Chandra R. Patel | ||
| Title: | Chief Executive Officer | ||
|
PUBCO: | |||
| US Elemental Inc. | |||
|
By: |
/s/ Chandra R. Patel | ||
| Name: | Chandra R. Patel | ||
| Title: | Chief Executive Officer | ||
| COMPANY: | |||
| HiTech Minerals Inc. | |||
|
By: |
/s/ Lindsay Dudfield | ||
| Name: | Lindsay Dudfield | ||
| Title: | President | ||
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Exhibit A
Sponsor Support Agreement
[Omitted - Filed under Separate Cover]
A-1
Exhibit B
Shareholder Support Agreement
[Omitted - Filed under Separate Cover]
B-1
Exhibit C
Form Voting Agreement
[Omitted - Filed under Separate Cover]
C-1
Exhibit D
The Companies Act (As Revised) of the Cayman Islands
Plan of Merger
This plan of merger (the “Plan of Merger”) is made on [insert date] between CAC Merger Sub I LLC (the “Surviving Company”) and Constellation Acquisition Corp I (the “Merging Company”).
Whereas the Merging Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part 16 of the Companies Act (As Revised) (the “Statute”).
Whereas the Surviving Company is a limited liability company incorporated in Delaware and is entering into this Plan of Merger pursuant to the provisions of Part 16 of the Statute.
Whereas the directors of the Merging Company and the directors of the Surviving Company deem it desirable and in the commercial interests of the Merging Company and the Surviving Company, respectively, that the Merging Company be merged with and into the Surviving Company and that the undertaking, property and liabilities of the Merging Company vest in the Surviving Company (the “Merger”).
Terms not otherwise defined in this Plan of Merger shall have the meanings given to them under the business combination agreement dated [insert date] and made by and among the Surviving Company, the Merging Company, US Elemental Inc., USE Merger Sub 2 Inc., and HiTech Minerals, Inc. (the “Business Combination Agreement”) a copy of which is annexed at Annexure 1 hereto.
Now therefore this Plan of Merger provides as follows:
| 1 | The constituent companies (as defined in the Statute) to this Merger are the Surviving Company and the Merging Company. |
| 2 | The surviving company (as defined in the Statute) is the Surviving Company. |
| 3 | The registered office of the Surviving Company is c/o Cogency Global Inc., 850 New Burton Road, Suite 201, Dover, Delaware 19904 and the registered office of the Merging Company is c/o Maples Corporate Services Limited of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands. |
| 4 | Immediately prior to the Effective Date (as defined below), the Surviving Company has 100% of its limited liability company membership interests issued and outstanding (the “LLC Interests”). |
| 5 | Immediately prior to the Effective Date (as defined below), the share capital of the Merging Company will be US$22,100; divided into 200,000,000 Class A ordinary shares of a par value of US$0.0001 each of which [●] are in issue, 20,0000 Class B ordinary shares of a par value of US$0.0001 each of which [8,625,000] are in issue and 1,000,000 preference shares of US$0.0001 each of which none are in issue. |
| 6 | The date on which it is intended that the Merger is to take effect is the date that this Plan of Merger is registered by the Registrar in accordance with section 237(15) of the Statute (the “Effective Date”). |
D-1
| 7 | The terms and conditions of the Merger, including the manner and basis of converting shares/LLC Interests in each constituent company into LLC Interests in the Surviving Company, are set out in the Business Combination Agreement in the form annexed at Annexure 1 hereto. |
| 8 | The rights and restrictions attaching to the LLC Interests in the Surviving Company are set out in the certificate of formation and the operating agreement of the Surviving Company in the form annexed at Annexure 2 hereto (the “Organisational Documents”). |
| 9 | The Organisational Documents immediately prior to the Merger shall be the Organisational Documents after the Merger. |
| 10 | There are no amounts or benefits which are or shall be paid or payable to any director of either constituent company or the Surviving Company consequent upon the Merger. |
| 11 | The Merging Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 12 | Each Director of the Merging Company will cease to be a director of Merging Company on the Effective Date. The surviving company (as defined in the Statute) shall be managed by its sole member and any officers of the surviving company (as defined in the Statute) will be appointed as provided for in the Organisational Documents. |
| 13 | This Plan of Merger has been approved by the board of directors of the Merging Company pursuant to section 233(3) of the Statute. |
| 14 | This Plan of Merger has been authorised by the shareholders of the Merging Company pursuant to section 233(6) of the Statute by way of resolutions passed at an extraordinary general meeting of the Merging Company. |
| 15 | At any time prior to the Effective Date, this Plan of Merger may be: |
| 15.1 | terminated by the board of directors of the Merging Company or by the managers of the Surviving Company; |
| 15.2 | amended by the board of directors of the Merging Company or by the managers of the Surviving Company to: |
| (a) | change the Effective Date provided that such changed date shall not be a date later than the ninetieth day after the date of registration of this Plan of Merger with the Registrar of Companies; and |
| (b) | effect any other changes to this Plan of Merger which the directors of both the Surviving Company and the Merging Company deem advisable, provided that such changes do not materially adversely affect any rights of the shareholders of the Surviving Company or the Merging Company, as determined by the managers or directors (as applicable) of both the Surviving Company and the Merging Company, respectively. |
| 16 | This Plan of Merger may be executed in counterparts. |
| 17 | This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands. |
(Signature Pages Follow).
2
(Surviving Company Signature Page to Plan of Merger)
In witness whereof the parties hereto have caused this Plan of Merger to be executed on the day and year first above written.
| SIGNED by Chandra Patel | ) | ||
| Duly authorised for | ) | ||
| and on behalf of | ) | Director | |
| CAC Merger Sub I LLC | ) |
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(Merging Company Signature Page to Plan of Merger)
| SIGNED by Chandra Patel | ) | ||
| Duly authorised for | ) | ||
| and on behalf of | ) | Director | |
| Constellation Acquisition Corp I | ) |
4
Annexure 1
Business Combination Agreement
5
Annexure 2
Organisational Documents of the Surviving Company
6
Exhibit 10.1
Execution Version
SPONSOR SUPPORT AGREEMENT
This Sponsor Support Agreement (this “Agreement”) is dated as of April 9, 2026, by and among Constellation Sponsor, LP, a Delaware limited partnership (“Sponsor”), Constellation Acquisition Corp I, an exempted company and incorporated in the Cayman Islands (“SPAC”), and HiTech Minerals Inc., a Nevada corporation (the “Company”). Each of Sponsor, SPAC and the Company are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used but not defined herein will have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, SPAC, the Company and certain other Persons party thereto are entering into a Business Combination Agreement, dated as of the date hereof (as it may be amended, restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”).
WHEREAS, as a condition and inducement to the willingness of SPAC and the Company to enter into the Business Combination Agreement, SPAC, the Company and the Sponsor are entering into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
1. Agreement to Vote. During the period commencing on the date hereof and ending on the earlier of (i) the Initial Closing and (ii) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 10.1 thereof, Sponsor, in its capacity as a shareholder of SPAC, hereby irrevocably agrees, at any meeting of the shareholders of SPAC duly called and convened in accordance with the Organizational Documents of SPAC, whether or not adjourned and however called, including at the SPAC Shareholders’ Meeting or otherwise, and in any action by written consent of the SPAC Shareholders, (i) to vote, or cause to be voted, or execute and return, or cause to be executed and returned, an action by written consent with respect to, as applicable, all of Sponsor’s SPAC Shares held of record or beneficially by Sponsor as of the date of this Agreement, or to which Sponsor acquires record or beneficial ownership after the date hereof and prior to the Initial Closing (collectively, the “Subject SPAC Equity Securities”) in favor of each of the Transaction Proposals, in each case, to the extent the Subject SPAC Equity Securities are entitled to vote thereon or consent thereto, (ii) when such meeting is held, appear at such meeting or otherwise cause the Subject SPAC Equity Securities to be counted as present thereat for the purpose of establishing a quorum, (iii) to the fullest extent permitted under applicable Law, waive any dissenters, appraisal or other similar rights, whether such rights are afforded by Law or contract, in respect of the transactions contemplated by the Business Combination Agreement and the Transaction Documents, including the Initial Merger, and (iv) to vote against, or cause to be voted against, or withhold consent, or cause consent to be withheld, with respect to, as applicable, (A) any SPAC Acquisition Proposal or (B) any transactions that would materially impede the consummation of the Transactions.
2. Waiver of Anti-Dilution Protection. Sponsor hereby (a) waives, subject to, and conditioned upon, the occurrence of the Initial Closing (for itself and for its successors, heirs and assigns), and (b) agrees not to assert or perfect, any rights to adjustment or other anti-dilution protections with respect to the rate that the SPAC Class B Ordinary Shares held by it convert into SPAC Class A Ordinary Shares, including those set out in Article 17 of the Amended and Restated Memorandum and Articles of Association of SPAC (the “SPAC Articles”), in connection with the Transactions or otherwise. SPAC hereby acknowledges and agrees to such waiver. For the avoidance of doubt in connection with the Transactions, the SPAC Class B Ordinary Shares shall convert into SPAC Class A Ordinary Shares on a one-to-one basis.
3. Sponsor Share Adjustment. Sponsor hereby agrees that immediately prior and subject to the Initial Closing Sponsor will irrevocably surrender to SPAC, all of the Sponsor Equity Securities other than the Retained Sponsor Equity Securities. For the avoidance of doubt, Sponsor will retain all of its SPAC Warrants and will not forfeit any SPAC Warrants.
(a) “Sponsor Equity Securities” means all of the SPAC Shares owned beneficially or of record by Sponsor as of the date of this Agreement.
(b) “Retained Sponsor Equity Securities” means (i) 7,633,750 SPAC Shares, minus (ii) 1,908,438 SPAC Shares, minus (iii) 500,000 SPAC Shares for every full increment of $2,500,000 by which the aggregate PIPE Investment Amount is below $25,000,000; provided that the Retained Sponsor Equity Securities will equal at least 4,500,000 SPAC Shares (even if the foregoing formula generates a number less than 4,500,000 SPAC Shares). For the purposes of the calculation of the PIPE Investment Amount, (x) the PIPE Investment Amount will include the PIPE Investments funded prior to or in connection with the Acquisition Closing and any amounts funded by Sponsor or its Affiliates pursuant to the PIPE Investment (and not Sponsor Loans), plus (y) if Sponsor or its applicable Affiliate does not breach its obligation to fund at least $4,000,000 of the PIPE Investment prior to or in connection with the Acquisition Closing (pursuant to the terms of the Securities Purchase Agreement, dated on or about the date of this Agreement, among the Company Parent, the Company, PubCo and Sponsor’s Affiliate), the PIPE Investment Amount shall be deemed to include amounts that were offered by Third Party investors pursuant to bona fide term sheets and/or bona fide written offers from such Third Party investors and which had the same terms and conditions as the PIPE Investments by the PIPE Investors, but which the Company did not accept. For the avoidance of doubt, the calculation of Retained Sponsor Equity Securities shall be made one time in connection with the Initial Closing, and the Sponsor shall not be subject to any further forfeiture obligations thereafter.
4. Sponsor Loans and SPAC Transaction and Other Expenses.
(a) If the amount of SPAC Transaction Expenses plus the amount outstanding under any Continuing Sponsor Transaction Loans to the extent used to finance amounts which would otherwise constitute SPAC Transaction Expenses had they not been paid exceed $6,000,000 in the aggregate, Sponsor will forfeit, in addition to the surrender or forfeiture of any Sponsor Equity Securities pursuant to Section 3, immediately prior to the Initial Closing an amount of Subject SPAC Equity Securities equal to (x) the excess over $6,000,000 divided by (y) $10.00.
(b) At the Acquisition Closing, Sponsor will exchange all Existing Sponsor Loans and Continuing Sponsor Non-Transaction Loans for PubCo Loan Warrants. The number of PubCo Loan Warrants to be issued pursuant to this Section 4(b) shall be equal to the principal amount outstanding under the applicable Sponsor Loans divided by $1.50.
(c) Prior to or at the Initial Closing, Sponsor will pay all SPAC Non-Transactional Expenses to the extent accrued prior to Closing (following SPAC’s compliance with Section 7.7 of the Business Combination Agreement), which payments will be reflected as Continuing Sponsor Non-Transaction Loans that will be subject to Section 4(b) above. For the avoidance of doubt, this obligation shall terminate in full upon the occurrence of the Initial Closing assuming the Sponsor shall have so paid such SPAC Non-Transactional Expenses accrued as of the Initial Closing, and the Sponsor shall have no obligation hereunder thereafter.
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5. Transfer of Lock-up Shares. Except with the prior written consent of the Company before the Acquisition Closing, and PubCo following the Acquisition Closing (such consent to be given or withheld in its sole discretion), from and after the date hereof, until the earlier of (i) twelve (12) months after the Acquisition Closing and (ii) the date following the Acquisition Closing on which PubCo (or its successor) completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction with an unaffiliated third party that results in all of PubCo’s (or such successor’s) shareholders having the right to exchange their securities for cash, securities or other property (the “Lock-up Period”), Sponsor agrees not to (a) Transfer or permit any Transfer of the PubCo Common Shares issued to Sponsor upon conversion of Sponsor’s SPAC Shares in connection with the Initial Merger and pursuant to Section 2.2(f) of the Business Combination Agreement (the “Lock-up Shares”), (b) enter into (i) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more events or developments (including the satisfaction or waiver of any conditions precedent)) require Sponsor to Transfer the Lock-up Shares or (ii) any voting trust, proxy or other Contract with respect to the voting or transfer of the Lock-up Shares or (c) enter into any Contract to take, or cause to be taken, any of the actions set forth in clauses (a) or (b) or (d) exercise any redemption rights with respect to any SPAC Shares held by it. For purposes of this Agreement, “Transfer” means any direct or indirect sale, transfer, distribution, assignment, pledge, mortgage, exchange, hypothecation, hedge, grant of a security interest or encumbrance in or disposition of an interest (whether with or without consideration, whether voluntarily or involuntarily or by operation of law or otherwise). In the event of any change in the shares of SPAC or PubCo, as the case may be, by reason of any reclassification, recapitalization, reorganization, share split (including a reverse share split) or subdivision or combination, exchange or readjustment of shares, or any dividend or distribution, merger or other similar change in capitalization, the term “Lock-up Shares” shall be deemed to refer to and include such shares as well as all such dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction. Notwithstanding anything to the contrary herein, for the avoidance of doubt, under no circumstances shall any PubCo Warrants (or any converted shares thereto) or any shares (including SPAC Shares or PubCo Common Shares) received by Sponsor in connection with any PIPE Investment be considered Lock-Up Shares.
6. Other Agreements.
(a) Sponsor agrees that Sponsor will be bound by and subject to Section 11.1 (Trust Account Waiver) of the Business Combination Agreement to the same extent as such provisions apply to the Company, as if Sponsor is directly party thereto.
(b) Sponsor understands and acknowledges that (i) SPAC, PubCo and the Company are entering into the Business Combination Agreement in reliance on Sponsor entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and (ii) but for the Sponsor entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with the agreements, covenants and obligations contained in this Agreement, the SPAC, PubCo and the Company would not have entered into the Business Combination Agreement.
7. Representations and Warranties of Sponsor. Sponsor represents and warrants, as of the date hereof to SPAC and the Company, as follows:
(a) Sponsor is an organization duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization.
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(b) Sponsor has the requisite entity power and authority to perform its covenants, agreements and obligations hereunder (including, for the avoidance of doubt, those covenants, agreements and obligations hereunder that relate to the provisions of the Business Combination Agreement), and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement has been duly authorized by all necessary corporate (or other similar) action on the part of Sponsor. This Agreement has been duly and validly executed and delivered by Sponsor and constitutes a valid, legal and binding agreement of Sponsor (assuming that this Agreement is duly authorized, executed and delivered by the other Parties hereto), enforceable against Sponsor in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(c) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of Sponsor with respect to Sponsor’s execution, delivery or performance of its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby, except for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not prevent or materially impair the ability of Sponsor to perform, or otherwise comply with, any of its covenants, agreements or obligations hereunder in any material respect.
(d) None of the execution or delivery of this Agreement by Sponsor, the performance by Sponsor of any of its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in any breach of any provision of Sponsor’s governing documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which Sponsor is a party, (iii) violate, or constitute a breach under, any Governmental Order or applicable Law to which Sponsor or any of its properties or assets are bound or (iv) result in the creation of any Encumbrance upon the Subject SPAC Equity Securities, except, in the case of any of clauses (ii) through (iv) above, as would not prevent or materially impair the ability of Sponsor to perform, or otherwise comply with, any of its covenants, agreements or obligations hereunder in any material respect.
(e) Sponsor is the record and/or beneficial owner, as applicable, of the Subject SPAC Equity Securities and has valid, good and marketable title to the Subject SPAC Equity Securities, free and clear of all Encumbrances (other than Transfer restrictions under applicable securities Laws, under the Organizational Documents of SPAC or under that certain Letter Agreement, dated January 26, 2021, by and among the Company and its initial shareholders, directors and officers (as further amended by and among, SPAC, its directors and officers, the Sponsor and other parties thereto, on January 30, 2023)) (the “Letter Agreement”). Except for (i) 7,633,750 SPAC Ordinary Shares, (ii) 5,466,667 Private Placement Warrants and (iii) additional warrants, upon the repayment of outstanding loans as described in the SPAC SEC Filings, Sponsor does not own, beneficially or of record, any Equity Securities of SPAC or have the right to acquire any Equity Securities of SPAC (other than warrants that may be issued pursuant to promissory notes issued by the SPAC to the Sponsor). Except as disclosed in writing to the Company prior to the date of this Agreement, no Affiliate of Sponsor or Sponsor Related Party owns, beneficially or of record, any Equity Securities of SPAC or has the right to acquire any Equity Securities of SPAC (other than warrants that may be issued pursuant to promissory notes issued by the SPAC to the Sponsor). Sponsor has the sole right to vote (and provide consent in respect of, as applicable) the Subject SPAC Equity Securities and, except for this Agreement, the Business Combination Agreement, the Organizational Documents of SPAC, or any proxy given for purposes of voting in favor of the Transaction Proposals, Sponsor is not party to or bound by (i) any option, warrant, purchase right, or other contract that would (either alone or in connection with one or more events or developments (including the satisfaction or waiver of any conditions precedent)) require Sponsor to Transfer any of the Subject SPAC Equity Securities or (ii) any voting trust, proxy or other contract with respect to the voting or Transfer of any of the Subject SPAC Equity Securities in a manner inconsistent with the requirements of this Agreement.
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(f) There is no Action pending or, to Sponsor’s knowledge, threatened in writing against or involving Sponsor or any of its Affiliates that, if adversely decided or resolved, would reasonably be expected to prevent or materially impair the ability of Sponsor to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement in any material respect or consummate the transactions contemplated by the Business Combination Agreement.
8. Termination. This Agreement and all of its provisions will terminate and be of no further force or effect upon the earlier of the (i) termination of the Lock-up Period or (ii) termination of the Business Combination Agreement in accordance with its terms. Upon such termination of this Agreement, all obligations of the Parties under this Agreement will terminate, without any liability or other obligation on the part of any Party hereto to any Person in respect hereof or the transactions contemplated hereby, and no Party hereto will have any claim against another (and no Person will have any rights against such Party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement will not relieve any Party hereto from liability arising in respect of any willful and material breach of, or actual fraud, in connection with, this Agreement prior to such termination. Notwithstanding the foregoing, Sections 8 to 17 of this Agreement will survive the termination of this Agreement. The representations and warranties in Section 7 of this Agreement will not survive the Acquisition Closing and will terminate and expire upon the occurrence of the Acquisition Closing (and there will be no liability after the Acquisition Closing in respect thereof).
9. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) the Sponsor makes no agreement or understanding herein in any capacity other than in the Sponsor’s capacity as a record holder and/or beneficial owner of the Subject SPAC Equity Securities, and (b) nothing herein will be construed to limit or affect any action or inaction by any representative of the Sponsor serving as a member of the board of directors (or other similar governing body) of any SPAC Party or as an officer, employee or fiduciary of any SPAC Party, in each case, acting in such person’s capacity as a director, officer, employee or fiduciary of such SPAC Party.
10. No Recourse. Except for claims pursuant to the Business Combination Agreement or any other Transaction Document by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein and except for claims based on or for fraud, each Party agrees that (a) this Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and no claims of any nature whatsoever (whether in tort, contract or otherwise) arising under or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby will be asserted against the Company Parent or any Company Parent Affiliate (other than the Party hereto, on the terms and subject to the conditions set forth herein) or any SPAC Affiliate or Sponsor Affiliate, and (b) none of the Company Parent, any Company Affiliate (other than the Party hereto, on the terms and subject to the conditions set forth herein) or any SPAC Affiliate or Sponsor Affiliate will have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement, except, in each case, as provided herein or in any Transaction Document to which such entity is a party.
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11. Amendments and Waivers; Assignment. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by each Party hereto. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any other right hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assignable by any Party without the other Party’s prior written consent (to be withheld or given in its sole discretion). Any attempted assignment of this Agreement not in accordance with the terms of this Section 11 will be void.
12. Notices. All notices, requests, claims, demands and other communications hereunder will be in writing and will be given (and will be deemed to have been duly given) (i) by delivery in person, (ii) by email (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the email was sent to the intended recipient thereof without an “error” or receipt of a similar message that such email was not deliverable or not received by such intended recipient)), or (iii) by nationally recognized overnight delivery service to the other Parties as follows:
If to any SPAC or Sponsor, to:
Constellation Acquisition Corp. I
Attention: Chandra R. Patel, Jarett Goldman
Email: [email protected]; [email protected]
with a copy (which will not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Lauren Colasacco, P.C., Peter Seligson, P.C., Monica Ruiz
Email: [email protected]; [email protected]; [email protected]
If to the Company, to:
HiTech Minerals, Inc.
241 Ridge Street Suite 210
Reno, Nevada 89501
Attention: Ian Rodger
Email: [email protected]
with a copy (which will not constitute notice) to:
Perkins Coie LLP
1155 Avenue of the Americas, 22nd Floor
New York, New York 10036-2711
Attention: Elliott Smith
E-mail: [email protected]
or to such other address as the Party to whom notice is given may have furnished following the date of this Agreement and prior to such notice to the others in writing in the manner set forth above.
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13. No Third-Party Beneficiaries. This Agreement will be for the sole benefit of the Parties and their respective successors and permitted assigns (which will, for the avoidance of doubt, include any successor to SPAC, which successor will be bound by all obligations and entitled to enforce all rights of SPAC under this Agreement) and is not intended, nor will be construed, to give any Person, other than the Parties and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever by reason of this Agreement. Nothing in this Agreement, expressed or implied, is intended to or will constitute the Parties, partners or participants in a joint venture.
14. Entire Agreement. This Agreement, the Business Combination Agreement and documents referred to herein and therein constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior agreements and undertakings, including for the avoidance of doubt, the Letter Agreement, both written and oral, among the Parties with respect to the subject matter of this Agreement, except as otherwise expressly provided in this Agreement. The restrictions on Transferring PubCo Common Shares under this Agreement will be unaffected by any other restrictions on Transferring PubCo Common Shares under any other agreement to which Sponsor is a party.
15. Fees and Expenses. Without limiting the rights under the Business Combination Agreement, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, will be paid by the Party incurring such fees or expenses.
16. Remedies. The Parties agree that irreparable damage would occur in the event that either Party does not perform such Party’s respective obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that each Party will be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that such Party will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
17. Construction; Miscellaneous. Sections 1.1, 1.2, 11.7, 11.8, 11.9, 11.11, 11.13, 11.14, 11.15, 11.16, 11.19 of the Business Combination Agreement will apply to this Agreement, mutatis mutandis.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Sponsor, SPAC and the Company have each caused this Agreement to be duly executed as of the date first written above.
| SPONSOR: | ||
| CONSTELLATION SPONSOR, LP | ||
| By: | /s/ Chandra R. Patel | |
| Name: | Chandra R. Patel | |
| Title: | Chief Executive Officer | |
IN WITNESS WHEREOF, the Sponsor, SPAC and the Company have each caused this Agreement to be duly executed as of the date first written above.
| SPAC: | ||
| CONSTELLATION ACQUISITION CORP. I | ||
| By: | /s/ Chandra R. Patel | |
| Name: | Chandra R. Patel | |
| Title: | Chief Executive Officer | |
[Signature Page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the Sponsor, SPAC and the Company have each caused this Agreement to be duly executed as of the date first written above.
| COMPANY: | ||
| HiTech Minerals Inc. | ||
| By: | /s/ Lindsay Dudfield | |
| Name: | Lindsay Dudfield | |
| Title: | President | |
[Signature Page to Sponsor Support Agreement]
Exhibit 10.2
Execution Version
PARENT TRANSACTION SUPPORT AGREEMENT
This PARENT TRANSACTION SUPPORT AGREEMENT (this “Agreement”) is dated as of April 9, 2026, by and between Constellation Acquisition Corp I, an exempted company incorporated in the Cayman Islands (“SPAC”), and Jindalee Lithium Limited, an Australian public company limited by shares (the “Company Parent”). Each of SPAC and the Company Parent are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. Capitalized terms used but not otherwise defined herein will have the meanings ascribed to them in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, SPAC, HiTech Minerals Inc., a Nevada corporation and a wholly-owned subsidiary of the Company Parent (the “Company”) and certain other Persons party thereto entered into a Business Combination Agreement, dated as of the date hereof (as it may be amended, restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”).
WHEREAS, as of the date of this Agreement, the Company Parent is the record holder and beneficial owner of all of the issued and outstanding Company Shares (together with any other Company Shares that the Company Parent acquires record and beneficial ownership after the date hereof, the “Owned Shares”); provided that from and after the Acquisition Merger Effective Time, the “Owned Shares” shall be the PubCo Common Shares issued to Company Parent upon conversion of the Company Parent’s Company Common Shares in connection with the Acquisition Merger pursuant to Section 2.3(e) of the Business Combination Agreement, and for the avoidance of doubt, will exclude any PubCo Loan Warrants, the underlying PubCo Common Shares and PubCo Common shares issued upon conversion of any Continuing Parent Intercompany Amounts
WHEREAS, as a condition and inducement to the willingness of SPAC and the Company to enter into the Business Combination Agreement, SPAC and the Company Parent are entering into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
1. Company Parent Shareholders’ Meeting and Consent and Related Matters.
(a) As promptly as reasonably practicable after the execution of this Agreement, the Company Parent will prepare the notice of meeting, explanatory memorandum and proxy form to be provided to the Company Parent shareholders in respect of the Transactions, including the Required Parent Shareholder Approval (such documents, together with any amendments or supplements thereto, the “Circular”). The Company Parent will use its commercially reasonable efforts to (i) respond as promptly as reasonably practicable to and resolve all comments received from the ASX concerning the Circular, and (ii) cause (x) the Circular, when released to the ASX and Parent Company Shareholders, to comply with the rules and regulations promulgated by the ASX (including all necessary disclosures and voting exclusions required), Australian Law and the Company Parent’s Organizational Documents and (y) the ASX to issue a notice of no objection to the Circular on terms acceptable to the Company.
(b) If, at any time prior to the Acquisition Effective Time, any event or circumstance relating to SPAC or its respective officers or directors, should be discovered by SPAC which should be set forth in an amendment or a supplement to the Circular, SPAC will promptly inform the Company Parent. If, at any time prior to the Acquisition Effective Time, any event or circumstance relating to the Company, the Company Parent, PubCo or the Acquisition Entities or their respective officers or directors, should be discovered by the Company Parent which should be set forth in an amendment or a supplement to the Circular, the Company Parent will promptly inform SPAC. Thereafter, SPAC and the Company Parent will promptly cooperate in the preparation and filing of an appropriate amendment or supplement to the Circular describing or correcting such information and the Company Parent, if required by the ASX or applicable Law, will promptly submit such amendment or supplement to the ASX and, to the extent required by Law and subject to receiving a notice of no objection from the ASX with respect to such amendment or supplement, disseminate such amendment or supplement to the Company Parent shareholders in accordance with the requirements of Australian Law and the Company Parent’s Organizational Documents.
(c) Promptly following the date that the Proxy/Registration Statement is declared effective under the Securities Act and the Company Parent’s receipt of the notice of no objection from the ASX with respect to the Circular, the Company Parent will duly call, give notice of, convene and hold the Company Parent Shareholders’ Meeting, in accordance with the Company Parent’s Organizational Documents and applicable Law (including all relevant requirements under the ASX Listing Rules), to be held as promptly as reasonably practicable and, unless otherwise agreed by SPAC in writing, in any event not more than thirty-five (35) days following the date that the Proxy/Registration Statement is declared effective under the Securities Act for the purpose of (i) obtaining all requisite approvals and authorizations from the Company Parent’s shareholders in connection with the Transactions, including the Required Parent Shareholder Approval (and including the approval of any adjournment or postponement of such meeting for the purpose of soliciting additional proxies for the purposes of the obtaining the Required Parent Shareholder Approval) and (ii) related and customary procedural and administrative matters to consummate the Transactions. The Company Parent will use its commercially reasonable efforts in accordance with Australian Law (x) to solicit from its shareholders proxies required to obtain the Required Parent Shareholder Approval and will take all other action necessary or advisable to obtain such proxies and the Required Parent Shareholder Approval and (B) to obtain the vote or consent of its shareholders required by and in compliance with all applicable Law and ASX listing rules and the Company Parent’s Organizational Documents. The Company Parent (x) will consult in good faith with SPAC regarding the record date and the date of the Company Parent Shareholders’ Meeting prior to determining such dates and (y) will not adjourn or postpone the Company Parent Shareholders’ Meeting without the prior written consent of SPAC (which consent will not be unreasonably withheld, conditioned or delayed); provided, however, that the Company Parent will adjourn or postpone the Company Parent Shareholders’ Meeting (1) to the extent necessary to ensure that any supplement or amendment to the Circular that the Company Parent reasonably determines (following consultation in good faith with SPAC, except with respect to any Company Acquisition Proposal, so long as the Company is, and continues to be, in compliance with Section 6.3 of the Business Combination Agreement) is necessary to comply with applicable Laws and ASX listing rules, is provided to the Company Parent Shareholders in advance of a vote on the adoption of the applicable Transaction Proposals, (2) if, as of the time that the Company Parent Shareholders’ Meeting is originally scheduled, there are insufficient shareholders or shares represented at such meeting (either in person or by proxy) to constitute a quorum necessary to conduct the business at the Company Parent Shareholders’ Meeting, (3) if, as of the time that the Company Parent Shareholders’ Meeting is originally scheduled, adjournment or postponement of the Company Parent Shareholders’ Meeting is necessary to enable the Company Parent to solicit additional proxies required to obtain the Required Parent Shareholder Approval, or (4) to comply with applicable Law and ASX listing rules; provided further, however, that without the prior written consent of SPAC (such consent not to be unreasonably withheld, delayed or conditioned), the Company Parent will not adjourn or postpone on more than two (2) occasions and will not adjourn or postpone the date of the Company Parent Shareholders’ Meeting more than an aggregate of thirty (30) consecutive days.
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(d) The Circular will include the Company Board Recommendation, and neither the Parent Board nor any committee thereof will withhold, withdraw, qualify, amend or modify, or publicly propose or resolve to withhold, withdraw, qualify, amend or modify, the Company Board Recommendation, in each case subject to its right to a Change of Company Recommendation pursuant to the terms and conditions of, and subject to compliance with, Section 6.3 of the Business Combination Agreement.
(e) SPAC will furnish all information concerning itself, its Affiliates, Subsidiaries, officers, directors, managers, stockholders and other equityholders, and any information regarding such other matters as may be reasonably necessary in connection with the Circular.
(f) The Company Parent will (i) provide SPAC and SPAC’s counsel an opportunity (and in any event, at least five (5) Business Days) to review the Circular in advance of the Company Parent’s delivery of the Circular to the ASX, as well as any comments (including oral comments) the Company Parent or its counsel may receive from ASX or its staff with respect to the Circular promptly and within one (1) Australian Business Day after receiving those comments and (ii) consider in good faith and acting reasonably any proposed comments by SPAC regarding the Circular or any response to any comments or notices. The Company Parent will also promptly provide to SPAC any correspondence received by ASX or any other regulatory body (including ASIC and the Takeovers Panel) relating to the Transaction or the Circular.
(g) As promptly as practical, and in any event within one (1) Business Day, following the receipt of the Required Parent Shareholder Approval, the Company Parent, in the Company Parent’s capacity as a stockholder of the Company, will duly execute and deliver to the Company, and provide to the SPAC and PubCo, the Company Written Consent.
(h) The Company Parent hereby unconditionally and irrevocably undertakes and commits to the SPAC that it shall do all things necessary and exercise all rights as the sole shareholder of the Company and in its individual capacity, to cause the Company to perform and comply, with each of the Company’s obligations, covenants and undertakings pursuant to the Business Combination Agreement. The Company Parent agrees that it will use its reasonable best efforts to cooperate in connection with the PIPE Financing, including taking the actions applicable to the Company Parent provided in Section 8.6(b) of the Business Combination Agreement.
(i) The Company Parent hereby absolutely, irrevocably and unconditionally guarantees to the SPAC, the due and punctual and full and complete payment and discharge of the Company’s obligation to pay the Company Termination Amount, if, when, as and to the extent due and payable under Section 10.3(a) of the Business Combination Agreement (the “Guaranteed Obligations”). This guarantee shall be a guarantee of payment and not merely of collection. The liability of Company Parent hereunder is irrevocable, absolute and unconditional. This guarantee of Company Parent shall be a continuing guarantee and shall remain in full force and effect until the Guaranteed Obligations are discharged and paid in full in accordance with and subject to the terms and conditions of the Business Combination Agreement. SPAC shall not be required to exhaust remedies against the Company prior to proceeding against this guaranty.
(j) The Company Parent will lodge a notice in accordance with section 671B of the Corporations Act in connection with the Parent Shareholder Voting Agreements entered into as of the date hereof in connection with the Business Combination Agreement (the “Parent Shareholder Voting Agreements”) and which lodgement will include the voting power acquired by the SPAC and its relevant associates in connection with the Parent Shareholder Voting Agreements and be the form agreed to by the SPAC prior to lodgement.
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(k) The Company Parent shall use its commercially reasonable efforts to furnish to PubCo all information concerning itself, its Subsidiaries, officers, directors, and managers as may be reasonably necessary in connection with the filing of the Proxy/Registration Statement.
2. Parent Loans and Company Transaction Expenses.
(a) At the Acquisition Closing, the Company Parent will exchange all Existing Parent Intercompany Amounts for PubCo Loan Warrants with the number of PubCo Loan Warrants equal to (i) the principal amount outstanding under the applicable Existing Parent Intercompany Amounts divided by (ii) $1.50.
(b) If elected by the Company Parent by delivery of written notice to PubCo and SPAC no later than three (3) Business Days prior to the Acquisition Closing, at the Acquisition Closing, the Company Parent will exchange all Continuing Parent Intercompany Amounts for PubCo Common Shares at a 15% discount to the IPO Price per Share.
(c) The Company Parent agrees that the Company Parent will be bound by and subject to (i) Section 11.1 (Trust Account Waiver) of the Business Combination Agreement to the same extent as such provisions apply to the Company and (ii) Section 6.3 (Acquisition Proposals and Alternative Transactions) and Section 8.9 (Services) of the Business Combination Agreement as it applies to the Company Parent, in each case, as if the Company Parent is directly party thereto.
(d) The Company Parent acknowledges and agrees that (i) SPAC and the Company are entering into the Business Combination Agreement in reliance on the Company Parent entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and (ii) but for the Company Parent entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with the agreements, covenants and obligations contained in this Agreement, the SPAC would not have entered into the Business Combination Agreement.
3. Company Parent Representations and Warranties. The Company Parent represents and warrants to SPAC as follows:
(a) The Company Parent is an Australian public company limited by shares and is duly organized, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of organization.
(b) The Company Parent has the requisite entity power and authority to perform its covenants, agreements and obligations hereunder (including, for the avoidance of doubt, those covenants, agreements and obligations hereunder that relate to the provisions of the Business Combination Agreement), and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement has been duly authorized by all necessary corporate (or other similar) action on the part of the Company Parent. This Agreement has been duly and validly executed and delivered by the Company Parent and constitutes a valid, legal and binding agreement of the Company Parent (assuming that this Agreement is duly authorized, executed and delivered by the other Parties hereto), enforceable against the Company Parent in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
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(c) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of the Company Parent with respect to the Company Parent’s execution, delivery or performance of its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby, except those filings in connection with the Company Parent Shareholders’ Meeting and except for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not prevent or materially impair the ability of the Company Parent to perform, or otherwise comply with, any of its covenants, agreements or obligations hereunder in any material respect.
(d) None of the execution or delivery of this Agreement by the Company Parent, the performance by the Company Parent of any of its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in any breach of any provision of the Company Parent’s governing documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which the Company Parent is a party, (iii) violate, or constitute a breach under, any Governmental Order or applicable Law to which the Company Parent or any of its properties or assets are bound or (iv) result in the creation of any Encumbrance upon the Owned Shares, except, in the case of any of clauses (ii) through (iv) above, as would not prevent or materially impair the ability of the Company Parent to perform, or otherwise comply with, any of its covenants, agreements or obligations hereunder in any material respect.
(e) The Company Parent is the record and beneficial owner of the Owned Shares and has valid, good and marketable title to the Owned Shares, free and clear of all Encumbrances (other than transfer restrictions under applicable securities Laws and under the Organizational Documents of the Company). Except for the Owned Shares, the Company Parent does not own, beneficially or of record, any Equity Securities of the Company or have the right to acquire any Equity Securities of the Company. No Affiliate of the Company Parent or Company Parent Related Party owns, beneficially or of record, any Equity Securities of the Company or has the right to acquire any Equity Securities of the Company. Except for the Owned Shares and any Equity Securities that may be issued in connection with the PIPE Financing, there are no other Equity Securities of the Company issued or outstanding. The Company Parent has the sole right to vote (and provide consent in respect of, as applicable) the Owned Shares and, except for this Agreement, the Business Combination Agreement or any proxy given for purposes of voting in favor of the Transaction Proposals, the Company Parent is not party to or bound by (i) any option, warrant, purchase right, or other contract that would (either alone or in connection with one or more events, developments or events (including the satisfaction or waiver of any conditions precedent)) require the Company Parent to transfer any of the Owned Shares or (ii) any voting trust, proxy or other contract with respect to the voting or transfer of any of the Owned Shares in a manner inconsistent with the requirements of this Agreement.
(f) There is no Action pending or, to the Company Parent’s knowledge, threatened in writing against or involving the Company Parent or any of the Company Parent’s Affiliates that, if adversely decided or resolved, would reasonably be expected to prevent or materially impair the ability of the Company Parent to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement in any material respect or consummate the transactions contemplated by the Business Combination Agreement.
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(g) The Company Parent understands and acknowledges that SPAC is entering into the Business Combination Agreement in reliance upon the Company Parent’s execution and delivery of this Agreement.
4. Lock-up of Owned Shares. Except with the prior written consent of SPAC (such consent to be given or withheld in its sole discretion), from and after the date hereof, until the earlier of (i) twelve (12) months after the Acquisition Closing and (ii) the date following the Acquisition Closing on which PubCo (or its successor) completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction with an unaffiliated third party that results in all of PubCo’s (or such successor’s) shareholders having the right to exchange their securities for cash, securities or other property (the “Lock-up Period”), the Company Parent agrees not to (a) Transfer or permit any Transfer of the Owned Shares, (b) enter into (i) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more events or developments (including the satisfaction or waiver of any conditions precedent)) require the Company Parent to Transfer the Owned Shares or (ii) any voting trust, proxy or other Contract with respect to the voting or transfer of the Owned Shares, or (c) enter into any Contract to take, or cause to be taken, any of the actions set forth in clauses (a) or (b). For purposes of this Agreement, “Transfer” means any, direct or indirect, sale, transfer, distribution, assignment, pledge, mortgage, exchange, hypothecation, hedge, grant of a security interest or encumbrance in or disposition of an interest (whether with or without consideration, whether voluntarily or involuntarily or by operation of law or otherwise).
5. Dividends, Distributions, Etc. In the event of any change in the shares of the Company or PubCo, as the case may be, by reason of any reclassification, recapitalization, reorganization, share split (including a reverse share split) or subdivision or combination, exchange or readjustment of shares, or any dividend or distribution, merger or other similar change in capitalization, the term “Owned Shares” shall be deemed to refer to and include such shares as well as all such dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
6. Termination. This Agreement and all of its provisions will terminate and be of no further force or effect upon the earlier of the (i) termination of the Lock-up Period or (ii) termination of the Business Combination Agreement in accordance with its terms. Upon such termination of this Agreement, all obligations of the Parties under this Agreement will terminate, without any liability or other obligation on the part of any Party hereto to any Person in respect hereof or the transactions contemplated hereby, and no Party hereto will have any claim against another (and no Person will have any rights against such Party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement will not relieve either Party from liability arising in respect of any willful and material breach of, or actual fraud, in connection with, of this Agreement prior to such termination or relieve the obligations of the Company Parent under Section 1(i) and Section 6 to 15 of this Agreement will survive the termination of this Agreement. The representations and warranties in Section 3 of this Agreement will not survive the Acquisition Closing and will terminate and expire upon the occurrence of the Acquisition Closing (and there will be no liability after the Acquisition Closing in respect thereof).
7. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) the Company Parent makes no agreement or understanding herein in any capacity other than in the Company Parent’s capacity as a record holder and beneficial owner of the Owned Shares, and not in any other capacity and (b) nothing herein will be construed to limit or affect any action or inaction by any director of the Company Parent serving as a member of the board of directors of any Group Company or as a fiduciary of any Group Company, in each case, acting in such person’s capacity as a director or fiduciary of such Group Company.
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8. No Recourse. Except for claims pursuant to the Business Combination Agreement or any other Transaction Document by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein and except for claims based on or for fraud, each Party agrees that (a) this Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and no claims of any nature whatsoever (whether in tort, contract or otherwise) arising under or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby will be asserted against the Company or any Company Affiliate (other than the Party hereto, on the terms and subject to the conditions set forth herein) or any SPAC, SPAC Affiliate or Sponsor Affiliate, and (b) none of the Company, any Company Affiliate (other than the Party hereto, on the terms and subject to the conditions set forth herein) nor SPAC, any SPAC Affiliate nor any Sponsor Affiliate will have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement, except, in each case, as provided herein or in any Transaction Document to which such entity is a party.
9. Amendments and Waivers; Assignment. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Company Parent and SPAC. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any other right hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assignable by any Party without SPAC’s prior written consent (in the case of the Company Parent) and the Company Parent’s written consent (in the case of SPAC) (in each case, to be withheld or given in its sole discretion). Any attempted assignment of this Agreement not in accordance with the terms of this Section 9 will be void.
10. Notices. All notices, requests, claims, demands and other communications hereunder will be in writing and will be given (and will be deemed to have been duly given) (i) by delivery in person, (ii) by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the email was sent to the intended recipient thereof without an “error” or receipt of a similar message that such email was not deliverable or not received by such intended recipient)), or (iii) by nationally recognized overnight delivery service to the other Parties as follows:
If to any SPAC, to:
Constellation Acquisition Corp.
I
Attention: Chandra R. Patel, Jarett Goldman
Email: [email protected]; [email protected]
with a copy (which will not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Lauren Colasacco, P.C., Peter Seligson, P.C., Monica Ruiz
Email: [email protected]; [email protected]; [email protected]
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If to the Company Parent, to:
Jindalee Lithium Limited
L2, 9 Havelock St,
West Perth, Western Australia 6005
Attention: Ian Rodger
Email: [email protected]
with a copy (which will not constitute notice) to:
Perkins Coie LLP
1155 Avenue of the Americas, 22nd Floor
New York, New York 10036-2711
Attention: Elliott Smith
E-mail: [email protected]
or to such other address as the Party to whom notice is given may have furnished following the date of this Agreement and prior to such notice to the others in writing in the manner set forth above.
11. No Third-Party Beneficiaries. This Agreement will be for the sole benefit of the Parties and their respective successors and permitted assigns and is not intended, nor will be construed, to give any Person, other than the Parties and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever by reason this Agreement. Nothing in this Agreement, expressed or implied, is intended to or will constitute the Parties as partners or participants in a joint venture.
12. Entire Agreement. This Agreement, the Business Combination Agreement and documents referred to herein and therein constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter of this Agreement, except as otherwise expressly provided in this Agreement.
13. Fees and Expenses. Without limiting the rights under the Business Combination Agreement, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, will be paid by the Party incurring such fees or expenses.
14. Remedies. The Parties agree that irreparable damage would occur in the event that either Party does not perform such Party’s respective obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that each Party will be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that such Party will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
15. Construction; Miscellaneous. Sections 1.1, 1.2, 11.7, 11.8, 11.9, 11.11, 11.13, 11.14, 11.15, 11.16, 11.19 of the Business Combination Agreement will apply to this Agreement, mutatis mutandis.
[SIGNATURE PAGES FOLLOW]
8
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first above written.
| JINDALEE LITHIUM LIMITED | ||
| By: | /s/ Ian Rodger | |
| Name: | Ian Rodger | |
| Title: | Chief Executive Officer | |
9
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first above written.
| CONSTELLATION ACQUISITION CORP I | ||
| By: | /s/ Chandra R. Patel | |
| Name: | Chandra R. Patel | |
| Title: | Chief Executive Officer | |
10
Exhibit 10.3
Execution Version
PARENT SHAREHOLDER VOTING AGREEMENT
This PARENT SHAREHOLDER VOTING AGREEMENT (this “Agreement”) is dated as of April 9, 2026, by and between Jindalee Lithium Limited, an Australian public company limited by shares (the “Company Parent”) and the undersigned shareholder of the Company Parent executing this Agreement (the “Shareholder”). Each of the Company Parent and the Shareholder are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. Capitalized terms used but not otherwise defined herein will have the meanings ascribed to them in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, Constellation Acquisition Corp I, an exempted company incorporated in the Cayman Islands (“SPAC”), HiTech Minerals Inc., a Nevada corporation and a wholly-owned subsidiary of the Company Parent (the “Company”) and certain other Persons party thereto entered into a Business Combination Agreement, dated as of the date hereof (as it may be amended, restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”).
WHEREAS, Shareholder is the record and beneficial owner of issued and outstanding Ordinary Shares of the Company Parent (“Ordinary Shares”).
WHEREAS, as a condition and inducement to the willingness of SPAC and the Company to enter into the Business Combination Agreement, SPAC, the Company Parent and the Shareholder are entering into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
1. Agreement to Vote. During the period commencing on the date hereof and ending on the earlier of (i) the Acquisition Closing and (ii) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 10.1 thereof, Shareholder, in its capacity as a shareholder of Company Parent and on behalf of itself, hereby irrevocably agrees, at any meeting of the shareholders of Company Parent duly called and convened in accordance with the Organizational Documents of Company Parent, whether or not adjourned and however called, including at the Company Parent Shareholders’ Meeting or otherwise, and in any action by written consent of the Company Parent shareholders, (i) to vote, or cause to be voted, or execute and return, or cause to be executed and returned, an action by written consent with respect to, as applicable, all of the Ordinary Shares held of record or beneficially by Shareholder as of the date of this Agreement, or to which Shareholder acquires record or beneficial ownership after the date hereof and prior to the Acquisition Closing, other than the Excluded Ordinary Shares (collectively, the “Owned Shares”) in favor of each of the Transaction Proposals, in each case, to the extent the Owned Shares are entitled to vote thereon or consent thereto, (ii) when such meeting is held, appear at such meeting or otherwise cause the Owned Shares to be counted as present thereat for the purpose of establishing a quorum, in each case, with respect to clause (i) and (ii), and (iii) (y) to the fullest extent permitted under applicable Law, waive any dissenters, appraisal or other similar rights, whether such rights are afforded by Law or Contract, in respect of the Transactions contemplated by the Business Combination Agreement and the Transaction Documents, including the Acquisition Merger and (z) to the extent permitted by Law, not to commence or participate in, and take all actions necessary to opt out of, any class action with respect to, any claim, derivative or otherwise, against the Company or its Affiliates relating to the negotiation, execution or delivery of this Agreement, the Business Combination Agreement or the consummation of the Transaction, including any claim challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or alleging a breach of fiduciary duty of the board of directors of Company Parent or the Company in connection with this Agreement, the Business Combination Agreement or the Transaction, and (iv) to vote against, to cause to be voted against or withhold consent, or cause consent to be withheld, with respect to, as applicable, any (x) Company Acquisition Proposal or (y) transactions that would materially impede the consummation of the Transactions.
The obligations in clause 1 do not apply to the Excluded Ordinary Shares. The “Excluded Ordinary Shares” are such number of Ordinary Shares held of record or beneficially by Shareholder that are acquired after the date of this Agreement, including as a result of the exercise of any options to acquire Ordinary Shares, which would, having regard to all Parent Shareholder Voting Agreements entered into between a shareholder and Parent Company, give the Parent Company or SPAC “voting power” (as defined in the Corporations Act 2001 (Cth) (“Corporations Act”) in more than 19.99% in Parent Company or otherwise contravene section 606 of the Corporations Act.
2. Other Agreements.
(a) The Shareholder agrees that the Shareholder will be bound by and subject to Section 11.1 (Trust Account Waiver) of the Business Combination Agreement to the same extent as such provisions apply to the Company, as if the Shareholder is directly party thereto.
(b) The Shareholder acknowledges and agrees that (i) SPAC and the Company are entering into the Business Combination Agreement in reliance on the Shareholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and (ii) but for the Shareholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with the agreements, covenants and obligations contained in this Agreement, the SPAC would not have entered into the Business Combination Agreement.
3. Shareholder Representations and Warranties. The Shareholder represents and warrants to Company Parent as follows:
(a) If the Shareholder is an entity, the Shareholder is duly organized, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of organization.
(b) If the Shareholder is an entity, the Shareholder has the requisite entity power and authority to perform its covenants, agreements and obligations hereunder (including, for the avoidance of doubt, those covenants, agreements and obligations hereunder that relate to the provisions of the Business Combination Agreement), and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement has been duly authorized by all necessary corporate (or other similar) action on the part of the Shareholder. This Agreement has been duly and validly executed and delivered by the Shareholder and constitutes a valid, legal and binding agreement of the Shareholder (assuming that this Agreement is duly authorized, executed and delivered by the other Parties hereto), enforceable against the Shareholder in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(c) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of the Shareholder with respect to the Shareholder’s execution, delivery or performance of its covenants, agreements or obligations under this Agreement or the consummation of the transactions contemplated hereby, except as required by the ASX Listing Rules and section 671B of the Corporations Act or for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not prevent or materially impair the ability of the Shareholder to perform, or otherwise comply with, any of its covenants, agreements or obligations hereunder in any material respect.
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(d) None of the execution or delivery of this Agreement by the Shareholder, the performance by the Shareholder of any of its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) if the Shareholder is an entity, result in any breach of any provision of the Shareholder’s governing documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which the Shareholder is a party, (iii) violate, or constitute a breach under, any Governmental Order or applicable Law to which the Shareholder or any of its properties or assets are bound or (iv) result in the creation of any Encumbrance upon the Owned Shares, except, in the case of any of clauses (ii) through (iv) above, as would not prevent or materially impair the ability of the Shareholder to perform, or otherwise comply with, any of its covenants, agreements or obligations hereunder in any material respect.
(e) The Shareholder is the record and beneficial owner of the Owned Shares and has valid, good and marketable title to the Owned Shares, free and clear of all Encumbrances (other than transfer restrictions under applicable securities Laws and the Organizational Documents of Company Parent). Except for the Owned Shares set forth on Schedule I hereto, the Shareholder does not own, beneficially or of record, any Equity Securities of the Company Parent or have the right to acquire any Equity Securities of the Company Parent. The Shareholder has the sole right to vote (and provide consent in respect of, as applicable) the Owned Shares and, except for this Agreement, the Business Combination Agreement or any proxy given for purposes of voting in favor of the Transaction Proposals, the Shareholder is not party to or bound by (i) any option, warrant, purchase right, or other contract that would (either alone or in connection with one or more developments or events (including the satisfaction or waiver of any conditions precedent)) require the Shareholder to transfer any of the Owned Shares or (ii) any voting trust, proxy or other contract with respect to the voting or transfer of any of the Owned Shares in a manner inconsistent with the requirements of this Agreement.
(f) There is no Action pending or, to the Shareholder’s knowledge, threatened in writing against or involving the Shareholder or any of the Shareholder’s Affiliates that, if adversely decided or resolved, would reasonably be expected to prevent or materially impair the ability of the Shareholder to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement in any material respect.
4. Transfer of Owned Shares. During the period commencing on the date hereof and ending on the earlier of (i) the Acquisition Closing and (ii) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 10.1 thereof, the Shareholder agrees not to (a) Transfer any of the Owned Shares, (b) enter into (i) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more events or developments (including the satisfaction or waiver of any conditions precedent)) require the Shareholder to Transfer the Owned Shares or (ii) any voting trust, proxy or other Contract with respect to the voting or transfer of the Owned Shares, or (c) enter into any Contract to take, or cause to be taken, any of the actions set forth in clauses (a) or (b). For purposes of this Agreement, “Transfer” means any, direct or indirect, sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest or encumbrance in or disposition of an interest (whether with or without consideration, whether voluntarily or involuntarily or by operation of law or otherwise).
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5. Termination. This Agreement and all of its provisions will terminate and be of no further force or effect upon the earlier of (a) the Acquisition Effective Time or (b) the termination of the Business Combination Agreement in accordance with its terms. Upon such termination of this Agreement, all obligations of the Parties under this Agreement will terminate, without any liability or other obligation on the part of any Party hereto to any Person in respect hereof or the transactions contemplated hereby, and no Party hereto will have any claim against another (and no Person will have any rights against such Party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement will not relieve either Party from liability in respect of any willful and material breach of, or actual fraud, in connection with, this Agreement prior to such termination. Section 5 to 14 of this Agreement will survive the termination of this Agreement.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) the Shareholder makes no agreement or understanding herein in any capacity other than in such Shareholder’s capacity as a record holder and beneficial owner of the Owned Shares, and not in such Shareholder’s capacity as a director of any Group Company and (b) nothing herein will be construed to limit or affect any action or inaction by such Shareholder or any representative of such Shareholder serving as a member of the board of directors of any Group Company or as a fiduciary of any Group Company, in each case, acting in such person’s capacity as a director or fiduciary of such Group Company.
7. No Recourse. Except pursuant to the Business Combination Agreement or any other Transaction Document by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein and except for claims based on or for fraud, each Party agrees that (a) this Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and no claims of any nature whatsoever (whether in tort, contract or otherwise) arising under or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby will be asserted against the Company or any Company Affiliate (other than the Party hereto, on the terms and subject to the conditions set forth herein) or any SPAC, SPAC Affiliate or Sponsor Affiliate, and (b) none of the Company, any Company Affiliate (other than the Party hereto, on the terms and subject to the conditions set forth herein) or any SPAC, SPAC Affiliate or Sponsor Affiliate will have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement, except, in each case, as provided herein or in any other Transaction Document to which they are party.
8. Amendments and Waivers; Assignment. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Shareholder, SPAC and the Company Parent. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any other right hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assignable by any Party without SPAC’s and Company Parent’s prior written consent (in the case of the Shareholder) and the Shareholder’s written consent (in the case of SPAC or the Company Parent) (in each case, to be withheld or given in its sole discretion). Any attempted assignment of this Agreement not in accordance with the terms of this Section 8 will be void.
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9. Notices. All notices, requests, claims, demands and other communications hereunder will be in writing and will be given (and will be deemed to have been duly given) (i) by delivery in person, (ii) by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the email was sent to the intended recipient thereof without an “error” or receipt of a similar message that such email was not deliverable or not received by such intended recipient)), or (iii) by nationally recognized overnight delivery service to the other Parties as follows:
If to Company Parent, to:
Jindalee Lithium Limited
L2, 9 Havelock St,
West Perth, Western Australia 6005
Attention: Ian Rodger
Email: [email protected]
with a copy (which will not constitute notice) to:
Perkins Coie LLP
1155 Avenue of the Americas, 22nd Floor
New York, New York 10036-2711
Attention: Elliott Smith
E-mail: [email protected]
If to the Shareholder, to the address set forth on the signature page to this Agreement:
or to such other address as the Party to whom notice is given may have furnished following the date of this Agreement and prior to such notice to the others in writing in the manner set forth above.
10. No Third-Party Beneficiaries. This Agreement will be for the sole benefit of the Parties and their respective successors and permitted assigns and is not intended, nor will be construed, to give any Person, other than the Parties and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever by reason of this Agreement. Nothing in this Agreement, expressed or implied, is intended to or will constitute the Parties as partners or participants in a joint venture. Notwithstanding anything to the contrary set forth herein, SPAC shall be a third-party beneficiary of the rights of Company Parent hereunder and shall be entitled to enforce Company Parent’s rights hereunder to the extent not so enforced by Company Parent. SPAC shall also be a third-party beneficiary for purposes of Section 8 hereof.
11. Entire Agreement. This Agreement, the Business Combination Agreement and documents referred to herein and therein constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter of this Agreement, except as otherwise expressly provided in this Agreement.
12. Fees and Expenses. Without limiting the rights under the Business Combination Agreement, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, will be paid by the Party incurring such fees or expenses.
13. Remedies. The Parties agree that irreparable damage would occur in the event that either Party does not perform such Party’s respective obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that each Party will be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that such Party will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
14. Construction; Miscellaneous. Sections 1.1 1.2, 11.7, 11.8, 11.9, 11.11, 11.13, 11.14, 11.15, 11.16, 11.19 of the Business Combination Agreement will apply to this agreement, mutatis mutandis.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties have executed and delivered this Parent Shareholder Voting Agreement as of the date first above written.
| JINDALEE LITHIUM LIMITED | ||
| By: | ||
| Name: | Ian Rodger | |
| Title: | Chief Executive Officer | |
Title: IN WITNESS WHEREOF, the Parties have executed and delivered this Parent Shareholder Voting Agreement as of the date first above written.
| SHAREHOLDER | ||
| [•] | ||
| By: | ||
| Name | ||
| Title: | ||
| Address: | ||
Schedule I
Equity Securities
Exhibit 10.4
Agreed Form
CLASS B HOLDERS SUPPORT AGREEMENT
This Support Agreement (this “Agreement”) is dated as of April 9, 2026, by and among the undersigned (the “Class B Holder”), Constellation Acquisition Corp I, an exempted company and incorporated in the Cayman Islands (“SPAC”), and HiTech Minerals Inc., a Nevada corporation (the “Company”). Each of the Class B Holder, SPAC and the Company are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used but not defined herein will have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, SPAC, the Company and certain other Persons party thereto are entering into a Business Combination Agreement, dated as of the date hereof (as it may be amended, restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”).
WHEREAS, as a condition and inducement to the willingness of SPAC and the Company to enter into the Business Combination Agreement, SPAC, the Company and the Class B Holder are entering into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
1. Agreement to Vote. During the period commencing on the date hereof and ending on the earlier of (i) the Initial Closing and (ii) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 10.1 thereof, the Class B Holder, in their individual capacity as a shareholder of SPAC, hereby irrevocably agrees, at any meeting of the shareholders of SPAC duly called and convened in accordance with the Organizational Documents of SPAC, whether or not adjourned and however called, including at the SPAC Shareholders’ Meeting or otherwise, and in any action by written consent of the SPAC Shareholders, (i) to vote, or cause to be voted, or execute and return, or cause to be executed and returned, an action by written consent with respect to, as applicable, all of their SPAC Shares held of record or beneficially by the Class B Holder as of the date of this Agreement, as set forth in Exhibit A, or to which the Class B Holder acquires record or beneficial ownership after the date hereof and prior to the Initial Closing (collectively, the “Subject SPAC Equity Securities”) in favor of each of the Transaction Proposals, in each case, to the extent the Subject SPAC Equity Securities are entitled to vote thereon or consent thereto, (ii) when such meeting is held, appear at such meeting or otherwise cause the Subject SPAC Equity Securities to be counted as present thereat for the purpose of establishing a quorum, (iii) to the fullest extent permitted under applicable Law, waive any dissenters, appraisal or other similar rights, whether such rights are afforded by Law or contract, in respect of the transactions contemplated by the Business Combination Agreement (the “Transactions”) and the Transaction Documents, including the Initial Merger, and (iv) to vote against, or cause to be voted against, or withhold consent, or cause consent to be withheld, with respect to, as applicable, (A) any SPAC Acquisition Proposal or (B) transactions that would materially impede the consummation of the Transactions.
2. Waiver of Anti-Dilution Protection. The Class B Holder hereby (a) waives, subject to, and conditioned upon, the occurrence of the Initial Closing (for itself and for its successors, heirs and assigns), and (b) agrees not to assert or perfect, any rights to adjustment or other anti-dilution protections with respect to the rate that the SPAC Class B Ordinary Shares held by them convert into SPAC Class A Ordinary Shares, including those set out in Article 17 of the Amended and Restated Memorandum and Articles of Association of SPAC, in connection with the Transactions or otherwise. SPAC hereby acknowledges and agrees to such waiver. For the avoidance of doubt in connection with the Transactions, the SPAC Class B Ordinary Shares shall convert into SPAC Class A Ordinary Shares on a one-to-one basis.
3. Transfer of Lock-Up Shares.
(a) Except with the prior written consent of the Company before the Acquisition Closing, and PubCo following the Acquisition Closing (such consent to be given or withheld in its sole discretion), the Class B Holder agrees that it will not Transfer any SPAC Class B Ordinary Shares (or any PubCo Common Shares issuable upon conversion thereof) until the earlier of (i) twelve (12) months after the Acquisition Closing and (ii) following the Acquisition Closing (x) if the closing price of the PubCo Common Shares equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Acquisition Closing or (y) the date on which PubCo (or its successor) completes a liquidation, merger, amalgamation, capital stock exchange, reorganization or other similar transaction that results in all of PubCo’s (or such successor’s) shareholders having the right to exchange their PubCo Common Shares for cash, securities or other property (the “Lock-Up Period”). “Transfer” means the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).
(b) Notwithstanding the provisions set forth in paragraph 3(a), Transfers of the SPAC Class B Ordinary Share (or any PubCo Common Shares issuable upon conversion thereof) that are held by the Class B Holder is permitted (a) to the SPAC’s officers or directors, any affiliate or family member of any of the SPAC’s officers or directors, any affiliate of the Sponsor or to any members of the Sponsor or any of their affiliates; (b) by gift to a member of the Class B Holder’s immediate family or to a trust, the beneficiary of which is a member of such Class B Holder’s immediate family, an affiliate of such individual or to a charitable organization; (c) by virtue of laws of descent and distribution upon death of such Class B Holder; (d) pursuant to a qualified domestic relations order; (e) by private sales or transfers made in connection with any forward purchase agreement or similar arrangement or in connection with the Acquisition Closing at prices no greater than the price at which the securities were originally purchased; or (f) in the event of the SPAC’s liquidation prior to the completion of an initial business combination; provided, however, that in the case of clauses (a) through (e), these permitted transferees must enter into a written agreement with PubCo agreeing to be bound by the transfer restrictions herein.
4. Other Agreements.
(a) The Class B Holder understands and acknowledges that (i) SPAC, PubCo and the Company are entering into the Business Combination Agreement in reliance on the Class B Holder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and (ii) but for the Class B Holder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with the agreements, covenants and obligations contained in this Agreement, the SPAC, PubCo and the Company would not have entered into the Business Combination Agreement.
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(b) The Class B Holder hereby agrees that that certain Registration Rights Agreement, dated January 26, 2021, by and among SPAC, Constellation Sponsor GmbH & Co. KG, a German limited partnership and the other parties thereto will terminate in connection with the Initial Closing.
5. Representations and Warranties of Class B Holder. The Class B Holder represents and warrants, as of the date hereof to SPAC and the Company, as follows:
(a) This Agreement has been duly and validly executed and delivered by the Class B Holder and constitutes a valid, legal and binding agreement of the Class B Holder (assuming that this Agreement is duly authorized, executed and delivered by the other Parties hereto), enforceable against the Class B Holder in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(b) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of the Class B Holder with respect to the Class B Holder’s execution, delivery or performance of its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the Transactions contemplated hereby, except for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not prevent or materially impair the ability of the Class B Holder to perform, or otherwise comply with, any of its covenants, agreements or obligations hereunder in any material respect.
(c) None of the execution or delivery of this Agreement by the Class B Holder, the performance by the Class B Holder of any of its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which the Class B Holder is a party, (ii) violate, or constitute a breach under, any Governmental Order or applicable Law to which the Class B Holder or any of their properties or assets are bound or (iii) result in the creation of any Encumbrance upon their Subject SPAC Equity Securities, except, in the case of any of clauses (i) through (iii) above, as would not prevent or materially impair the ability of the Class B Holder to perform, or otherwise comply with, any of their covenants, agreements or obligations hereunder in any material respect.
(d) The Class B Holder is the record and/or beneficial owner, as applicable, of the Subject SPAC Equity Securities, and the Class B Holder has valid, good and marketable title to their Subject SPAC Equity Securities, free and clear of all Encumbrances (other than Transfer restrictions under applicable securities Laws, under the Organizational Documents of SPAC or under that certain Letter Agreement, dated January 26, 2021, by and among SPAC and its initial shareholders, directors and officers (as further amended by and among, the Company, its directors and officers, the Class B Holder and other parties thereto, on January 30, 2023)) (the “Letter Agreement”). Except for the Class B Holder’s SPAC Shares set forth on Exhibit A, the Class B Holder does not own, beneficially or of record, any Equity Securities of SPAC or have the right to acquire any Equity Securities of SPAC. The Class B Holder has the sole right to vote (and provide consent in respect of, as applicable) the SPAC Shares set forth on Exhibit A and, except for this Agreement, the Organizational Documents of SPAC, or any proxy given for purposes of voting in favor of the Transaction Proposals, the Class B Holder is not party to or bound by (i) any option, warrant, purchase right, or other contract that would (either alone or in connection with one or more events or developments (including the satisfaction or waiver of any conditions precedent)) require the Class B Holder to Transfer any Subject SPAC Equity Securities or (ii) any voting trust, proxy or other contract with respect to the voting or Transfer of any of the Subject SPAC Equity Securities in a manner inconsistent with the requirements of this Agreement.
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(e) There is no Action pending or, to the Class B Holder’s knowledge, threatened in writing against or involving any Class B Holder or any of their Affiliates that, if adversely decided or resolved, would reasonably be expected to prevent or materially impair the ability of the Class B Holder to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement in any material respect or consummate the transactions contemplated by the Business Combination Agreement.
6. Termination. This Agreement and all of its provisions will terminate and be of no further force or effect upon the earlier of the (i) termination of the Lock-Up Period or (ii) termination of the Business Combination Agreement in accordance with its terms. Upon such termination of this Agreement, all obligations of the Parties under this Agreement will terminate, without any liability or other obligation on the part of any Party hereto to any Person in respect hereof or the transactions contemplated hereby, and no Party hereto will have any claim against another (and no Person will have any rights against such Party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement will not relieve any Party hereto from liability arising in respect of any willful and material breach of, or actual fraud, in connection with, this Agreement prior to such termination. Sections 6 to 15 of this Agreement will survive the termination of this Agreement.
7. Reserved.
8. No Recourse. Except for claims pursuant to the Business Combination Agreement or any other Transaction Document by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein and except for claims based on or for fraud, each Party agrees that (a) this Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and no claims of any nature whatsoever (whether in tort, contract or otherwise) arising under or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby will be asserted against the Company Parent or any Company Parent Affiliate (other than the Party hereto, on the terms and subject to the conditions set forth herein) or any SPAC Affiliate or Sponsor Affiliate, and (b) none of the Company Parent, any Company Affiliate (other than the Party hereto, on the terms and subject to the conditions set forth herein) or any SPAC Affiliate or Sponsor Affiliate will have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement, except, in each case, as provided herein or in any Transaction Document to which such entity is a party.
9. Amendments and Waivers; Assignment. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by each Party hereto. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any other right hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assignable by any Party without the other Party’s prior written consent (to be withheld or given in its sole discretion). Any attempted assignment of this Agreement not in accordance with the terms of this Section 9 will be void.
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10. Notices. All notices, requests, claims, demands and other communications hereunder will be in writing and will be given (and will be deemed to have been duly given) (i) by delivery in person, (ii) by email (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the email was sent to the intended recipient thereof without an “error” or receipt of a similar message that such email was not deliverable or not received by such intended recipient)), or (iii) by nationally recognized overnight delivery service to the other Parties as follows:
If to the SPAC, to:
Constellation Acquisition Corp. I
1290 Avenue of the Americas, 10th Floor
New York, NY 10104
Attention: Chandra R. Patel; Jarett Goldman
Email: [email protected]; [email protected]
with a copy (which will not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Lauren Colasacco, P.C., Peter Seligson, P.C., Monica Ruiz
Email: [email protected]; [email protected]; [email protected]
If to the Company, to:
HiTech Minerals, Inc.
241 Ridge Street Suite 210
Reno, Nevada 89501
Attention: Ian Rodger
Email: [email protected]
If to the Class B Holder, to:
[●]
or to such other address as the Party to whom notice is given may have furnished following the date of this Agreement and prior to such notice to the others in writing in the manner set forth above.
11. No Third-Party Beneficiaries. This Agreement will be for the sole benefit of the Parties and their respective successors and permitted assigns (which will, for the avoidance of doubt, include any successor to SPAC, which successor will be bound by all obligations and entitled to enforce all rights of SPAC under this Agreement) and is not intended, nor will be construed, to give any Person, other than the Parties and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever by reason of this Agreement. Nothing in this Agreement, expressed or implied, is intended to or will constitute the Parties, partners or participants in a joint venture.
12. Entire Agreement. This Agreement, the Business Combination Agreement and documents referred to herein and therein constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior agreements and undertakings, including for the avoidance of doubt, the Letter Agreement, both written and oral, among the Parties with respect to the subject matter of this Agreement, except as otherwise expressly provided in this Agreement. The restrictions on Transferring PubCo Common Shares under this Agreement will be unaffected by any other restrictions on Transferring PubCo Common Shares under any other agreement to which the Class B Holder is a party.
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13. Fees and Expenses. Without limiting the rights under the Business Combination Agreement, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, will be paid by the Party incurring such fees or expenses.
14. Remedies. The Parties agree that irreparable damage would occur in the event that either Party does not perform such Party’s respective obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that each Party will be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that such Party will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
15. Construction; Miscellaneous. Sections 1.2, 11.7, 11.8, 11.9, 11.11, 11.13, 11.14, 11.15, 11.16, 11.19 of the Business Combination Agreement will apply to this Agreement, mutatis mutandis.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Class B Holder, SPAC and the Company have each caused this Agreement to be duly executed as of the date first written above.
| [●] |
IN WITNESS WHEREOF, the Class B Holders, SPAC and the Company have each caused this Agreement to be duly executed as of the date first written above.
| SPAC: | |||
| CONSTELLATION ACQUISITION CORP. I | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Class B Holders Support Agreement]
IN WITNESS WHEREOF, the Class B Holders, SPAC and the Company have each caused this Agreement to be duly executed as of the date first written above.
| COMPANY: | |||
| HiTech Minerals Inc. | |||
| By: | |||
| Name: | Lindsay Dudfield | ||
| Title: | President | ||
[Signature Page to Class B Holders Support Agreement]
Exhibit A
Class B Holder – SPAC Shares
Exhibit 10.5
Confidential
Execution Version
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of April 9, 2026, by and among Jindalee Lithium Limited, an Australian public company (the “Parent”), HiTech Minerals, Inc., a Nevada corporation (the “Company”), US Elemental Inc., a Delaware corporation (“PubCo”), and Endurance Antarctica Partners II, LLC, a Delaware limited liability company (including its successors and assigns, the “Purchaser”).
WHEREAS, on the date hereof, the Company, Constellation Acquisition Corp I, an exempted company incorporated under the laws of the Cayman Islands, PubCo and the other parties thereto entered into a Business Combination Agreement (as it may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement,” and the transactions contemplated by the Business Combination Agreement, the “Business Combination”);
WHEREAS, in connection with the Business Combination, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act (as defined below), the Company and PubCo each desire to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company and PubCo, securities of the Company and PubCo as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Parent, the Company, PubCo and the Purchaser agree as follows:
Article 1
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Certificate of Designation (as defined herein), and (b) the following terms have the meanings set forth in this Section 1.1:
“Acquiring Person” shall have the meaning ascribed to such term in Section 4.7.
“Action” means any action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the applicable party, threatened against or affecting the applicable party or any of its properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business Combination” shall have the meaning ascribed to such term in the recitals.
“Business Combination Agreement” shall have the meaning ascribed to such term in the recitals.
“Business Combination Consummation” means the closing of the Business Combination.
“Business Day” means a day on which commercial banks are open for business in New York, U.S., Nevada, U.S., the Cayman Islands and Brisbane, Australia, except a Saturday, Sunday or public holiday (gazetted or ungazetted and whether scheduled or unscheduled).
“Certificate of Designation” means the Certificate of Designation of Preferences Rights and Limitations of 12.0% Series A Cumulative Convertible Preferred Stock to be filed prior to the Closing by the Company with the Secretary of State of Nevada, in the form of Exhibit A attached hereto.
“Closing” means the closing of the purchase and sale of the Preferred Stock pursuant to Section 2.1.
“Closing Date” means the date hereof.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means, prior to the consummation of the Business Combination, the common stock of the Company, without par value, and following the consummation of the Business Combination, the common stock of the PubCo, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Company Material Adverse Effect” shall have the meaning ascribed to such term in the Business Combination Agreement and mean any event, state of facts, condition, change, development, circumstance, occurrence or effect, that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, results of operations or financial condition of the Company, or (ii) does or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the ability of the Company to consummate the transactions contemplated by this Agreement.
“Conversion Shares” means the shares of Common Stock issued and issuable upon conversion of the shares of Preferred Stock purchased pursuant to this Agreement in accordance with the terms of the Certificate of Designation.
“Disqualification Event” shall have the meaning ascribed to such term in Section 3.1(h).
“Effective Date” means the first date on which (a) a Registration Statement has been declared effective by the Commission registering the resale of all of the Underlying Shares or (b) all of the Underlying Shares may be sold pursuant to Rule 144 (without volume or manner of sale limitations).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Expenses” means the reasonable, documented out-of-pocket expenses of the Purchaser incurred in connection with the negotiation and execution of this Agreement and its investment in the Securities, subject to a limit of $50,000.
“Law” means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
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“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Organizational Documents” means, with respect to any Person that is an entity, its certificate of incorporation or formation, articles of incorporation, bylaws, operating agreement, memorandum and articles of association or similar organizational documents, in each case, as amended.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Preferred Stock” means the 12.0% Series A Cumulative Convertible Preferred Stock having the rights, preferences and privileges set forth in the Certificate of Designation.
“Proceeding” means an action, claim, suit, investigation or proceeding, whether commenced or threatened.
“Pubco Material Adverse Effect” means any event, state of facts, condition, change, development, circumstance, occurrence or effect, that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, results of operations or financial condition of PubCo, or (ii) does or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the ability of PubCo to consummate the transactions contemplated by this Agreement or the Business Combination Agreement.
“Registration Rights Agreement” means the registration rights agreement, to be entered into in connection with the consummation of the Business Combination, among the Purchaser, Constellation Sponsor LP, a Delaware limited partnership, PubCo and the other parties thereto.
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the Underlying Shares by the Purchaser as provided for in the Registration Rights Agreement.
“Required Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon exercise in full of all Warrants (assuming for this purpose, an exercise price equal to $11.50, subject to adjustment as set forth therein) and conversion in full of all shares of Preferred Stock (assuming for this purpose, a conversion price equal to the Floor Price), ignoring any conversion or exercise limits set forth therein.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such rule.
“Securities” means the shares of Preferred Stock, the Warrants and the Underlying Shares.
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“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Stated Value” means $1,000.00 per share of Preferred Stock.
“Subscription Amount” shall mean $1,550,000.00.
“Taxes” means all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property, windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges in the nature of a tax, together with any interest and any penalties, additions to tax or additional amounts with respect thereto imposed by a Governmental Authority.
“Transaction Documents” means this Agreement, the Certificate of Designation, the Warrants and all exhibits and schedules thereto.
“Transfer Agent” means the primary transfer agent of PubCo.
“Underlying Shares” means the Conversion Shares and the Warrant Shares.
“Warrants” means, the warrants exercisable for Common Stock to be delivered by PubCo to the Purchaser at the Business Combination Consummation, in the form of Exhibit B attached hereto.
“Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
Article 2
PURCHASE AND SALE
2.1 Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase, 1,550 shares of Preferred Stock with an aggregate Stated Value equal to the Subscription Amount. The Closing shall occur on the date of the Business Combination Agreement (the “Closing Date”).
2.2 Deliveries.
(a) On the Closing Date, (i) the Company shall deliver or cause to be delivered to the Purchaser a certificate evidencing the shares of Preferred Stock registered in the name of the Purchaser and evidence of the filing and acceptance of the Certificate of Designation from the Secretary of State of Nevada and (ii) the Purchaser shall deliver to the Company the Subscription Amount, net of Expenses, together with a properly executed IRS Form W-9 or other certification satisfactory to the Company certifying as to Purchaser’s status (or the status of Purchaser’s beneficial owner(s)) as a United States person (within the meaning of Section 7701(a)(30) of the Code) and Purchaser’s (or Purchaser’s beneficial owners’) eligibility for complete exemption from backup withholding.
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Article 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. The Company represents and warrants to the Purchaser, as of the date of this Agreement (or, if such representations and warranties are made with respect to a specified date, as of such date):
(a) The Preferred Stock have been duly authorized and, when issued, paid for and delivered in accordance herewith, will be validly issued, fully paid and non-assessable, free and clear of all Liens or other restrictions (other than those arising under this Agreement and applicable securities laws), and will not have been issued in violation of any preemptive or similar rights created under the Company’s Organizational Documents or the laws of its jurisdiction of incorporation.
(b) This Agreement has been duly authorized, validly executed and delivered by the Company, and assuming the due authorization, execution and delivery of the same by the other parties hereto, this Agreement shall constitute the valid and legally binding obligation of the Company, enforceable against the Company 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.
(c) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.4 of this Agreement, the execution and delivery of this Agreement, the issuance and sale of the Preferred Stock hereunder, the compliance by the Company with all of the provisions hereof and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) the Organizational Documents of the Company, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Company Material Adverse Effect.
(d) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.4 of this Agreement, the Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Agreement (including, without limitation, the issuance of the Preferred Stock), other than (i) filings required by applicable state securities and corporations laws, (ii) filings and approvals required to consummate the Business Combination as provided under the Business Combination Agreement, and (iii) those filings, the failure of which to obtain would not have a Company Material Adverse Effect
(e) Except for such matters as have not had and would not have a Company Material Adverse Effect, there is no (i) Action, Proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Company, threatened in writing against the Company or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against the Company.
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(f) Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.4 of this Agreement, no registration under the Securities Act or any state securities (or Blue Sky) laws is required for the offer and sale of the Preferred Stock by the Company to the Purchaser.
(g) Neither the Company nor any person acting on its behalf has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Preferred Stock. The Preferred Stock is 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. Neither the Company nor any person acting on the Company’s behalf has, directly or indirectly, at any time within the past six (6) months prior to the date of this Agreement, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would cause the offering of the Preferred Stock pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act or any applicable shareholder approval provisions. Neither the Company nor any person acting on the Company’s behalf has offered or sold any securities, or has taken any other action, which would reasonably be expected to subject the offer, issuance or sale of the Preferred Stock, as contemplated hereby, to the registration provisions of the Securities Act.
(h) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the Company, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) is applicable.
(i) No placement agent, broker or finder is entitled to any fees, costs, expenses or commissions in connection with the transactions contemplated hereby based upon arrangements made by and on behalf of the Company.
(j) The Company acknowledges and agrees that the Purchaser is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that the Purchaser is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by the Purchaser or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchaser’s purchase of the Preferred Stock. The Company further represents to the Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(k) Subject to the qualifications, exceptions and disclosures set forth in the Business Combination Agreement and the disclosure schedules thereto (which disclosure schedules have been made available to the Purchaser, and the Purchaser acknowledges and agrees that it has had the opportunity to review the same), the Company hereby makes to the Purchaser the representations and warranties of the “Company” set forth in the Business Combination Agreement, solely to the extent such representations and warranties are applicable to the transactions contemplated by this Agreement, and as if such representations and warranties were set forth herein in their entirety, mutatis mutandis; provided, however, that (i) such representations and warranties are made only as of the date or dates on which such representations and warranties are made in the Business Combination Agreement and shall be subject to the same definitions, qualifications, limitations, survival periods and other terms (including with respect to materiality, knowledge and Company Material Adverse Effect qualifiers) as are applicable to such representations and warranties under the Business Combination Agreement, (ii) any breach of such representations and warranties shall be determined in a manner consistent with the interpretation and application of such representations and warranties under the Business Combination Agreement, and (iii) to the extent any such representation or warranty is qualified by “knowledge” or a similar concept, such knowledge shall be deemed to refer only to the knowledge of the Persons specified in the Business Combination Agreement (and not any broader group of Persons).
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3.2 Representations and Warranties of Pubco. PubCo represents and warrants to the Purchaser, as of the date of this Agreement and as of the Business Combination Consummation (or, if such representations and warranties are made with respect to a specified date, as of such date):
(a) The Securities to be issued by PubCo at the Business Combination Consummation will have been duly authorized prior to such issuance, and, when issued by PubCo at the Business Combination Consummation, will be validly issued, fully paid and non-assessable, free and clear of all Liens or other restrictions (other than those arising under applicable securities laws), and will not have been issued in violation of any preemptive or similar rights created under PubCo’s Organizational Documents or the laws of its jurisdiction of incorporation.
(b) This Agreement has been duly authorized, validly executed and delivered by PubCo, and assuming the due authorization, execution and delivery of the same by the other parties hereto, this Agreement shall constitute the valid and legally binding obligation of PubCo, enforceable against 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.
(c) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.4 of this Agreement, the execution and delivery of this Agreement, the issuance and sale of the Securities to be issued by PubCo at the Business Combination Consummation hereunder, the compliance by PubCo with all of the provisions hereof 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 PubCo pursuant to the terms of (i) 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) the Organizational Documents of PubCo, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over PubCo or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a PubCo Material Adverse Effect.
(d) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.4 of this Agreement, PubCo is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Agreement (including, without limitation, the issuance of the Securities to be issued by PubCo at the Business Combination Consummation), other than (i) filings required by applicable state securities laws, (ii) filings and approvals required to consummate the Business Combination as provided under the Business Combination Agreement, and (iii) those filings, the failure of which to obtain would not have a PubCo Material Adverse Effect
(e) Except for such matters as have not had and would not have a Material Adverse Effect, there is no (i) Action, Proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of PubCo, threatened in writing against PubCo or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against PubCo.
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(f) Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.4 of this Agreement, no registration under the Securities Act or any state securities (or Blue Sky) laws is required for the offer and sale by PubCo to the Purchaser of the Securities to be issued by PubCo at the Business Combination Consummation.
(g) Neither PubCo nor any person acting on its behalf has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities. The Securities 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. Neither PubCo nor any person acting on PubCo’s behalf has, directly or indirectly, at any time within the past six (6) months prior to the date of this Agreement, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would cause the offering of the Securities pursuant to this Agreement to be integrated with prior offerings by PubCo for purposes of the Securities Act or any applicable shareholder approval provisions. Neither PubCo nor any person acting on PubCo’s behalf has offered or sold any securities, or has taken any other action, which would reasonably be expected to subject the offer, issuance or sale of the Securities, as contemplated hereby, to the registration provisions of the Securities Act.
(h) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to PubCo, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) is applicable.
(i) No placement agent, broker or finder is entitled to any fees, costs, expenses or commissions in connection with the transactions contemplated hereby based upon arrangements made by and on behalf of PubCo.
(j) PubCo acknowledges and agrees that the Purchaser is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. PubCo further acknowledges that the Purchaser is not acting as a financial advisor or fiduciary of PubCo (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by the Purchaser or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchaser’s purchase of the Securities. PubCo further represents to the Purchaser that PubCo’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by PubCo and its representatives.
(k) As of the Business Combination Consummation, the Common Stock will be eligible for clearing through The Depository Trust Company (“DTC”), through its Deposit/Withdrawal At Custodian (DWAC) system, and PubCo will be eligible and will participate in the Direct Registration System (DRS) of DTC with respect to the Common Stock. PubCo’s Transfer Agent will be a participant in DTC’s Fast Automated Securities Transfer Program.
(l) Subject to the qualifications, exceptions and disclosures related thereto in the Business Combination Agreement, PubCo hereby makes to the Purchaser each of the representations and warranties of “PubCo” set forth in the Business Combination Agreement, solely to the extent such representations and warranties are applicable to the transactions contemplated by this Agreement, and as if such representations and warranties were set forth herein in their entirety, mutatis mutandis; provided, however, that such representations and warranties shall be subject to the same definitions, qualifications, limitations, survival periods, and other terms (including with respect to materiality and knowledge qualifiers) as are applicable to such representations and warranties under the Business Combination Agreement.
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3.3 Representations and Warranties of the Parent. The Parent hereby represents and warrants as of the date of this Agreement (or, if such representations and warranties are made with respect to a specified date, as of such date):
(a) This Agreement has been duly authorized, validly executed and delivered by the Parent, and assuming the due authorization, execution and delivery of the same by the other parties hereto, this Agreement shall constitute the valid and legally binding obligation of the Parent, enforceable against the Parent 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.
(b) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.4 of this Agreement, the execution and delivery of this Agreement, the compliance by the Parent with all of the provisions hereof and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Parent pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Parent is a party or by which the Parent is bound or to which any of the property or assets of the Parent is subject, (ii) the Organizational Documents of the Parent, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Parent or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Material Adverse Effect.
(c) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.4 of this Agreement, the Parent is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Agreement, other than those filings, the failure of which to obtain would not have a Material Adverse Effect
(d) Except for such matters as have not had and would not have a Material Adverse Effect, there is no (i) Action, Proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Parent, threatened in writing against the Parent or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against the Parent.
(e) Neither the Parent nor, to the knowledge of the Parent, any agent or other person acting on behalf of the Parent has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Parent (or made by any person acting on its behalf of which the Parent is aware) which is in violation of law or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
3.4 Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants as of the date of this Agreement (or, if such representations and warranties are made with respect to a specified date, as of such date):
(a) The Purchaser is an entity duly formed, validly existing and in good standing under the laws of its jurisdiction of formation with the requisite power and authority to enter into and perform its obligations under this Agreement.
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(b) This Agreement has been duly authorized, executed and delivered by the Purchaser, and assuming the due authorization, execution and delivery of the same by the other parties hereto, this Agreement shall constitute the valid and legally binding obligation of the Purchaser, enforceable against the Purchaser 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.
(c) The execution, delivery and performance of this Agreement, including the purchase of the Securities hereunder, the compliance by the Purchaser with all of the provisions of this 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 the Purchaser pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound or to which any of the property or assets of the Purchaser is subject; (ii) the Organizational Documents of the Purchaser; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Purchaser or any of its properties that in the case of clauses (i) and (iii), would reasonably be expected to have a material adverse effect on the Purchaser’s ability to consummate the transactions contemplated by this Agreement, including the purchase of the Securities.
(d) At the time the Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises any Warrants or converts any shares of Preferred Stock, it will be, (i) an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (ii) acquiring the Securities only for its own account and not for the account of others, and (iii) not acquiring the Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act.
(e) The Purchaser acknowledges and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act or the securities laws of any state in the United States or other jurisdiction and that neither the Company nor PubCo is required to register the Securities, other than pursuant to the Registration Rights Agreement. The Purchaser acknowledges and agrees that the Securities may not be offered, resold, transferred, pledged or otherwise disposed of by the Purchaser absent an effective registration statement under the Securities Act or an exemption therefrom, and that any certificates or account entries representing the Securities shall contain a restrictive legend to such effect. The Purchaser acknowledges and agrees that the Securities will be subject to these securities law transfer restrictions, and as a result of these transfer restrictions, the Purchaser may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. The Purchaser acknowledges and agrees that the Securities will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year following the filing of certain required information with the Commission after the Business Combination Consummation. The Purchaser acknowledges and agrees that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Securities.
(f) In making its decision to purchase the Securities, the Purchaser has relied solely upon independent investigation made by the Purchaser and the Company’s, PubCo’s and Parent’s representations in Sections 3.1, 3.2 and 3.3, respectively, of this Agreement. The Purchaser acknowledges and agrees that the Purchaser has received such information as the Purchaser deems necessary in order to make an investment decision with respect to the Securities, including with respect to the Company, PubCo, the Parent and the Business Combination, and made its own assessment and is satisfied concerning the relevant financial, tax and other economic considerations relevant to the Purchaser’s investment in the Securities. The Purchaser represents and agrees that the Purchaser and the Purchaser’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Purchaser and the Purchaser’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities.
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(g) The Purchaser became aware of this offering of the Securities solely by means of direct contact between the Purchaser and the Company, PubCo or the Parent (or their respective representatives), and the Securities were offered to the Purchaser solely by direct contact between the Purchaser and the Company, PubCo or the Parent (or their respective representatives). The Purchaser did not become aware of this offering of the Securities, nor were the Securities offered to the Purchaser, by any other means. The Purchaser acknowledges that the Company and PubCo each represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
(h) The Purchaser acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. The Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and the Purchaser has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as the Purchaser has considered necessary to make an informed investment decision. The Purchaser (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities.
(i) The Purchaser understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment.
(j) The Purchaser is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Purchaser agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Purchaser is permitted to do so under applicable law. If the Purchaser is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Purchaser maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, the Purchaser maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, the Purchaser maintains policies and procedures reasonably designed to ensure that the funds held by the Purchaser and used to purchase the Securities were legally derived.
(k) No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Company as a result of the purchase and sale of Securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as a result of the purchase and sale of Securities hereunder.
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(l) No broker or finder is entitled to any brokerage or finder’s fee or commission to be paid by the Purchaser solely in connection with the sale of the Securities to the Purchaser.
(m) The Purchaser has no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the Securities.
Article 4
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions.
(a) The Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities in the following form:
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
Subject to the terms of the Certificate of Designations, the Company and PubCo each acknowledges and agrees that the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, the Purchaser may transfer pledged or secured Securities to the pledgees or secured parties; provided, however, that, as a prerequisite to such pledge, the Purchaser shall (x) provide notice to the Company or PubCo, as applicable, of such pledge or transfer at least five (5) Business Days prior thereto and (y) cause to be delivered to the Company or PubCo, as applicable, customary legal opinions of legal counsel of the pledgee, secured party and pledgor as shall be reasonably requested by the Company or PubCo, as applicable, in connection therewith. Thereafter, at the Purchaser’s expense, the Company or PubCo, as applicable, will execute and deliver such reasonable documentation as a pledgee or secured party of Securities or the Transfer Agent may reasonably request in connection with a pledge or transfer of the Securities, including, if the Securities are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of selling securityholders thereunder.
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(b) Certificates (or reasonable evidence of issuance by book entry, as applicable) evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) following the Effective Date, (ii) following any sale of such Underlying Shares pursuant to Rule 144 or an effective registration statement or (iii) as otherwise provided in the Certificate of Designation. In connection with the removal of the legend on any Underlying Shares pursuant to the preceding sentence, PubCo shall cause its counsel to issue a legal opinion to the Transfer Agent or Purchaser promptly, and in the case of clause (ii), as reasonably necessary to allow for T+1 settlement of such sales. If all or any shares of Preferred Stock are converted or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Underlying Shares, or if such Underlying Shares may be sold under Rule 144 and PubCo is then in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), or if the Underlying Shares may be sold under Rule 144 without the requirement for PubCo to be in compliance with the current public information required under required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to such Underlying Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) or as provided in the Certificate of Designation or Warrants, then such Underlying Shares shall be initially issued free of all legends, provided that PubCo and its counsel may request customary representations from any Holder in connection with such issuance of Underlying Shares without legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4.1. Certificates for Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. PubCo shall cause the Transfer Agent to waive any medallion guarantee requirement to effect the de-legending or transfer of the Securities by the Purchaser.
(c) The Purchaser agrees with the Company and PubCo that the Purchaser will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates (or reasonable evidence of issuance by book entry, as applicable) representing Securities as set forth in this Section 4.1 is predicated upon the Company’s and PubCo’s reliance upon this understanding.
(d) The Underlying Securities held by Purchaser or its transferees, whether issued or to be issued, shall be considered “Registrable Securities,” or such other similar term, under the Registration Rights Agreement.
4.2 Acknowledgment of Dilution. The Company and PubCo each acknowledge that the issuance of the Securities may result in dilution of the outstanding shares of Common Stock, which dilution may be substantial under certain market conditions. The Company and PubCo each further acknowledges that its obligations under the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares pursuant to the Transaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the Company or PubCo may have against the Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other stockholders of the Company or PubCo.
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4.3 Furnishing of Information; Public Information. Until the time that the Purchaser does not own any Securities, following the Business Combination Consummation, PubCo shall use commercially reasonable efforts to maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file all reports required to be filed by PubCo pursuant to the Exchange Act.
4.4 Integration. Neither the Company nor PubCo shall sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any applicable stock exchange such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
4.5 Conversion and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants and the form of Notice of Conversion included in the Certificate of Designation set forth the totality of the procedures required of the Purchaser in order to exercise the Warrants or convert its Preferred Stock. Without limiting the preceding sentences, no ink-original Notice of Exercise or Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise or Notice of Conversion form be required in order to exercise the Warrants or convert its Preferred Stock. No additional legal opinion, other information or instructions shall be required of the Purchaser to exercise its Warrants or convert its Preferred Stock. PubCo shall honor exercises of the Purchaser’s Warrants and conversions of the Purchaser’s Preferred Stock and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.6 Securities Laws Disclosure; Publicity. None of the Parent, the Company or PubCo shall publicly disclose the name of the Purchaser, or include the name of the Purchaser in any filing with the Commission or any regulatory agency, without the prior written consent of the Purchaser (not to be unreasonably withheld, delayed or conditioned), except (a) as required by federal securities law or requested by the staff of the Commission in connection with (i) any filings in connection with the Business Combination, (ii) any registration statement contemplated by the Registration Rights Agreement and (iii) the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted under this clause (b).
4.7 Stockholder Rights Plan. No claim will be made or enforced by the Parent, the Company or PubCo or, with the consent of the Parent, the Company or PubCo, any other Person, that exclusively as a result of the transactions contemplated by this Agreement the Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Parent, the Company or PubCo, or that the Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents.
4.8 Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for general corporate and working capital purposes, in the Company’s exclusive discretion, subject to the restrictions set forth in the Business Combination Agreement.
4.9 Reservation and Listing of Securities.
(a) Commencing on the Business Combination Consummation, PubCo shall maintain a reserve of the Required Minimum from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.
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(b) If, on any date following the Business Combination Consummation, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than 100% of (i) the Required Minimum on such date, minus (ii) the number of shares of Common Stock previously issued pursuant to the Transaction Documents, then the board of directors of PubCo shall use commercially reasonable efforts to amend the Company’s certificate of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time (minus the number of shares of Common Stock previously issued pursuant to the Transaction Documents), as soon as possible and in any event not later than the 75th day after such date, provided that the Company will not be required at any time to authorize a number of shares of Common Stock greater than the maximum remaining number of shares of Common Stock that could possibly be issued after such time pursuant to the Transaction Documents. If at any time after the Business Combination Consummation, the Purchaser is unable to convert Preferred Stock or exercise a Warrant solely as a result of PubCo not having sufficient authorized and unissued Common Stock, it shall constitute an Event of Default under the Certificate of Designation.
(c) PubCo shall, as applicable: (i) in connection with the initial listing of the Common Stock at the Business Combination Consummation, take all steps reasonably necessary to cause the Underlying Shares to be approved for listing or quotation on the applicable stock exchange and (ii) use commercially reasonable efforts to maintain the listing or quotation of the Common Stock. PubCo agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.10 Blue Sky Filings. The Company and PubCo shall take such action as the Company and PubCo shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the Purchaser at the Closing under applicable securities or “Blue Sky” laws of the states of the United States.
4.11 Parent Guarantee. The Parent hereby acknowledges and agrees to satisfy in full its obligation under the “Parent Guarantee” described in Section 8(c) of the Certificate of Designation, and that such obligation is unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction.
4.12 Tax Matters.
(a) The Company, Parent and PubCo shall use commercially reasonable efforts to cooperate with the Purchaser to structure any redemption or repurchase of Preferred Stock permitted under the Certificate of Designation to be treated as a payment in exchange for stock pursuant to Section 302 of the Code.
(b) For so long as Purchaser owns equity or securities convertible into equity in the Company, prior to the consummation of the Business Combination, the Company shall not be liquidated, merged, or converted into a limited liability company, or otherwise enter into a transaction, in each case if the Company ceases to exist as an entity treated as a corporation for U.S. federal income Tax purposes (and state and local Tax purposes, where applicable), without Purchaser’s prior written approval.
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(c) The Company and PubCo will pay any and all transfer, documentary, sales, use, registration and other similar Taxes incurred in connection with this Agreement and the issuance and purchase of the Preferred Stock.
4.13 Business Combination Consummation. The following actions shall be taken at, and subject to, the Business Combination Consummation:
(a) The Preferred Stock issued by Company will automatically be cancelled, cease to exist and exchanged for Preferred Stock of PubCo on a one-to-one basis, pursuant to the terms of the Business Combination Agreement, free and clear of all Liens, other than restrictions under the securities laws.
(b) If any securities are issued and sold pursuant to the “Private Placement” contemplated in the Business Combination Agreement, whether prior to or at the Business Combination Consummation, with any term more favorable to the purchaser thereof than the terms set forth in the Transaction Documents applicable to Purchaser (including, without limitation, valuation, conversion price or mechanics, mandatory or optional redemption, discount, warrant coverage, liquidation preference, collateral, restrictive covenants, anti-dilution protection, or other economic or governance right), then the parties hereto shall, at the option of the Purchaser, promptly amend any applicable Transaction Document to incorporate such more favorable term or terms.
(c) PubCo shall issue to the Purchaser a number of Warrants that is equal to the Accrued Value (as defined in the Certificate of Designation) divided by the Conversion Price (as defined in the Certificate of Designation), in each case, measured as of the date of the Business Combination Consummation, free and clear of all Liens, other than restrictions under the securities laws.
(d) Purchaser shall purchase $2,500,000 in newly issued equity or equity-linked securities of PubCo, on substantially the same terms as the other “PIPE Investors” in the “Private Placement”, as set forth in the “PIPE Financing Agreements,” as each term is contemplated in the Business Combination Agreement; subject to (i) satisfaction or waiver by the Company of the conditions to the Business Combination Consummation set forth in the Business Combination Agreement, provided, however, that Purchaser’s obligation under this clause shall be conditioned on the “Minimum Cash Condition” in the Business Combination Agreement being satisfied at the Business Combination Consummation, and not waived (unless Purchaser consents to such waiver); (ii) no applicable governmental authority having enacted, issued, promulgated, enforced or having entered into any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the consummation of the transactions contemplated by the PIPE Financing Agreements illegal or otherwise enjoining, restraining or prohibiting consummation of (x) the sale, purchase and issuance of any securities pursuant to any PIPE Financing Agreements or (y) the Business Combination; (iii) customary representations and warranties of PubCo in the PIPE Financing Agreements being true and correct in all material respects at and as of the closing date under the PIPE Financing Agreements (other than (A) representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects and (B) for those representations and warranties that speak as of a specified earlier date, which shall be so true and correct in all material respects (or, if qualified by materiality, in all respects) as of such specified earlier date); and (iv) PubCo having performed, satisfied and complied in all material respects with all obligations, covenants, agreements and conditions required by this Agreement and the PIPE Financing Agreements to be performed, satisfied or complied with by it at or prior to the closing date under the PIPE Financing Agreements.
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Article 5
MISCELLANEOUS
5.1 Termination. This Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect hereof, upon the earlier to occur of (a) the mutual written agreement of the parties hereto to terminate this Agreement, or (b) the termination (for any reason) of the Business Combination Agreement by any party to the same. Additionally, (i) the Company may terminate this Agreement with respect to the Purchaser if any of the conditions set forth in Sections 2.3(a) or (b) applicable to the Purchaser shall have become incapable of fulfillment, and shall not have been waived by the Company; and (ii) the Purchaser may terminate this Agreement if any of the conditions set forth in Sections 2.3(a) or (c) shall have become incapable of fulfillment, and shall not have been waived by the Purchaser. Notwithstanding the foregoing, nothing herein will relieve any party from liability for any intentional breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such intentional breach. The obligation of the Company and the Parent set forth in Section 8(c) of the Certificate of Designation shall survive any termination.
5.2 Fees and Expenses. Except as expressly set forth in the Transaction Documents, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement and the Transaction Documents. PubCo shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by PubCo and any conversion notice delivered by a Purchaser), stamp taxes and other Taxes and duties levied in connection with the delivery of any Securities to the Purchaser. Notwithstanding the foregoing, Purchaser shall be entitled to net the Expenses from the Subscription Amount when delivered to the Company at Closing, and the Expenses shall not be considered as expenses under the Business Combination Agreement.
5.3 Entire Agreement. The Transaction Documents and the Business Combination Agreement, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email at the e-mail address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Business Day, (b) the next Business Day after the time of transmission, if such notice or communication is delivered via email attachment at the e-mail address as set forth on the signature pages attached hereto on a day that is not a Business Day or later than 5:30 p.m. (New York City time) on any Business Day, (c) the second (2nd) Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the parties hereto, and in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
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5.6 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. None of the Company, PubCo or the Parent may assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser (other than by merger). The Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchaser.”
5.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
5.9 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (other than the Certificate of Designation) (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the State of Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Delaware for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents, other than the Certificate of Designation), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
5.10 Survival. The representations and warranties contained in Section 3.1, Section 3.2, Section 3.3 and Section 3.4 herein shall survive the Closing and the delivery of the Securities. Section 4.11 shall survive termination.
5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a ”.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such “pdf” signature page were an original thereof.
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5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever the Purchaser exercises a right, election, demand or option under a Transaction Document and the Company, PubCo or the Parent do not timely perform their related obligations within the periods therein provided, then the Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of (x) a rescission of a conversion of the Purchaser’s Preferred Stock, the Purchaser shall be required to return any Conversion Shares subject to any such rescinded conversion or (y) a recission of an exercise of a Warrant, the Purchaser shall be required to return any Warrant Shares subject to any exercise notice concurrently with the return to the Purchaser of the aggregate exercise price paid to PubCo for such shares and the restoration of the Purchaser’s right to acquire such shares pursuant to the Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.14 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, Company or PubCo, as applicable, shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to Company or PubCo, as applicable, of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser, Parent, Company and PubCo will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.
5.16 Payment Set Aside. To the extent that Parent, Company or PubCo makes a payment or payments to the Purchaser pursuant to any Transaction Document or the Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to Parent, Company or PubCo, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), as applicable, then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
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5.17 Usury. To the extent it may lawfully do so, Company or PubCo hereby agree not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any Action or Proceeding that may be brought by the Purchaser in order to enforce any right or remedy under any Transaction Document. Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed and provided that the total liability of Parent, Company or PubCo under the Transaction Documents for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest that Company or PubCo may be obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Transaction Documents from the effective date thereof forward, unless such application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by Company or PubCo to the Purchaser with respect to Indebtedness evidenced by the Transaction Documents, such excess shall be applied by the Purchaser to the unpaid principal balance of any such Indebtedness or be refunded to Company or PubCo, as applicable, the manner of handling such excess to be at the Purchaser’s election.
5.18 Liquidated Damages. Any obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of Company or PubCo and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.
5.19 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.20 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. In this Agreement, unless the context otherwise requires: (i) whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; and (iii) the words “herein”, “hereto” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular portion of this Agreement.
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5.21 NO LIABILITY UPON GOOD FAITH TERMINATION. OTHER THAN WITH RESPECT TO ANY LIABILITIES ARISING PURSUANT TO SECTION 5.2 ABOVE, NONE OF THE PARENT, THE COMPANY, PUBCO, ANY OF THEIR AFFILIATES, OR ANY OTHER PARTY TO THE BUSINESS COMBINATION AGREEMENT, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EQUITYHOLDERS, MANAGERS, MEMBERS, ADVISORS OR LEGAL COUNSEL SHALL HAVE ANY LIABILITY (INCLUDING, BUT NOT LIMITED TO, AS A RESULT OF POTENTIAL LOST PROFITS AND OPPORTUNITIES) TO THE PURCHASER AS A RESULT OF THE TERMINATION OF THIS AGREEMENT AS A RESULT OF THE GOOD FAITH TERMINATION OF THE BUSINESS COMBINATION AGREEMENT BECAUSE OF A FAILURE OF A CLOSING CONDITION TO BE MET (SOLELY TO THE EXTENT SUCH FAILURE IS OUTSIDE OF THE CONTROL OF PARENT, THE COMPANY OR PUBCO, BUT REGARDLESS OF WHETHER THE BUSINESS COMBINATION AGREEMENT IS TERMINATED BY THE PARENT, THE COMPANY OR PUBCO).
5.22 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| JINDALEE LITHIUM LIMITED | Address for Notice: | ||
| L2, 9 Havelock St, West Perth, Western Australia 6005 | |||
| By: | /s/ Ian Rodger | Attention: Ian Rodger | |
| Name: | Ian Rodger | ||
| Title: | Chief Executive Officer | Email: [email protected] | |
With a copy to (which shall not constitute notice):
Perkins Coie LLP
1155 Avenue of the Americas, 22nd Floor
New York, New York 10036-2711
Attention: Elliott Smith; Christopher Hall
E-mail: [email protected];
[Remainder of Page Intentionally Left Blank
Signature Page For Company Follows]
[Company Signature Pages To HiTech SPA]
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| HITECH MINERALS, INC. | Address for Notice: | ||
HiTech Minerals Inc. 241 Ridge Street Suite 210 Reno, Nevada 89501 | |||
| By: | /s/ Lindsay Dudfield | Attention: Ian Rodgers | |
| Name: | Lindsay Dudfield | ||
| Title: | President | ||
| Email: [email protected] | |||
With a copy to (which shall not constitute notice):
Perkins Coie LLP
1155 Avenue of the Americas, 22nd Floor
New York, New York 10036-2711
Attention: Elliott Smith; Christopher Hall
E-mail: [email protected];
[Remainder of Page Intentionally Left Blank
Signature Page For Purchaser Follows]
[Company Signature Page to HiTech SPA]
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| ENDURANCE ANTARCTICA PARTNERS II, LLC | Address for Notice: | ||
By: Antarctica Endurance Manager, LLC, its Managing Member |
1290 Avenue of the Americas 10th Floor New York, NY 10104 | ||
| By: | /s/ Chandra R. Patel | Email: [email protected] | |
| Name: | Chandra R. Patel | ||
| Title: | Authorized Signatory | ||
With a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Peter Seligson, P.C. and Mathieu Kohmann
Email: [email protected]; [email protected]
[Purchaser Signature Pages to HiTech SPA]
Exhibit A
Certificate of Designation
Confidential
Execution Version
HITECH MINERALS INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION
chapter 78.195 and 78.1955 OF THE
nevada REVISED STATUTES
The undersigned, Lindsay Dudfield, does hereby certify that:
1. He is the President of HiTech Minerals Inc., a Nevada corporation (the “Corporation”).
2. The Corporation is authorized to issue 1,550 shares of preferred stock, none of which have been issued.
3. The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
WHEREAS, the articles of incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of 1,550 shares, no par value per share, issuable from time to time in one or more series;
WHEREAS, the Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and
WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of the preferred stock, which shall consist of, except as otherwise set forth in the Purchase Agreement, up to 1,550 shares of the preferred stock which the Corporation has the authority to issue, as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:
TERMS OF 12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
Section 1. Definitions. For the purposes hereof, the following terms shall have the following meanings:
“Accreted Dividend” shall have the meaning set forth in Section 3(a).
“Accrued Dividend” shall have the meaning set forth in Section 3(a).
“Accrued Value” means, as of any date, with respect to each share of Preferred Stock as of the determination date, the sum, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Preferred Stock, of (i) the Stated Value per share of Preferred Stock, plus (ii) the aggregate amount of any accrued Accreted Dividends on such share of Preferred Stock as of such date, determined in accordance with Section 3(a), plus (iii) on each Quarterly-Annual Dividend Date and on a cumulative basis, an additional amount equal to the dollar value of all Cash Dividends that have accrued on such share pursuant to Section 3(b), but only to the extent such Cash Dividends have not been paid, whether or not declared, but that have not, as of such date, been added to the Accrued Value.
“Additional Interest” shall have the meaning set forth in Section 8(b)(iii).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.
“Alternate Consideration” shall have the meaning set forth in Section 7(f).
“Annual Rate” means with respect to an Accreted Dividend, 12.0% of the Accrued Value and with respect to a Cash Dividend, 10% of the Accrued Value. Upon the occurrence and during the continuation of any Event of Default, the Annual Rate shall automatically increase to 15.0% until such Event of Default is cured or waived by the Holder, as applicable.
“Applicable Price” shall have the meaning set forth in Section 7(c).
“Attribution Parties” shall have the meaning set forth in Section 6(d).
“Available Proceeds” shall have the meaning set forth in Section 5(c)(i).
“Beneficial Ownership Limitation” shall have the meaning set forth in Section 6(d).
“Business Combination” means the transactions contemplated by the Business Combination Agreement.
“Business Combination Agreement” means that certain Business Combination Agreement, dated as of April 9, 2026, as may be amended, modified or supplemented from time to time, by and among PubCo, the Corporation and the SPAC.
“Business Combination Closing” means the closing of the transactions contemplated by the Business Combination Agreement.
“Business Combination Closing Date” shall mean the date of the Business Combination Closing.
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“Business Day” means a day on which commercial banks are open for business in New York, U.S., Nevada, U.S., the Cayman Islands and Brisbane, Australia, except a Saturday, Sunday or public holiday (gazetted or ungazetted and whether scheduled or unscheduled).
“Buy-In” shall have the meaning set forth in Section 6(c)(iv).
“Cash Dividend” shall have the meaning set forth in Section 3(a).
“Closing” means the closing of the purchase and sale of the Securities pursuant to Section 2.1 of the Purchase Agreement.
“Closing Date” means the Business Day on which the Purchase Agreement has been executed and delivered by the applicable parties thereto, which shall be the day that (i) the Holder pays for the Securities and (ii) the Corporation delivers the Preferred Stock to Holder.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the common stock, no par value per share, of the Corporation and stock of any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Corporation that would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Conversion Date” shall have the meaning set forth in Section 6(a).
“Conversion Price” shall have the meaning set forth in Section 6(b).
“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance with the terms hereof.
“Convertible Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.
“Corporation Notice” shall have the meaning set forth in Section 8(a).
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“Deemed Liquidation Event” means, after the Business Combination Closing Date: (i) a merger or consolidation in which (a) the Corporation is a constituent party or (b) a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation; provided, that, a Deemed Liquidation Event shall not include any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; or (ii) (a) the sale, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole, or (b) the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or a series of related transactions) of one (1) or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale is to a wholly owned subsidiary of the Corporation. For the avoidance of doubt, the Business Combination shall not be a Deemed Liquidation Event.
“Dilutive Issuance” shall have the meaning set forth in Section 7(c).
“Distribution” shall have the meaning set forth in Section 7(d).
“Effective Date” means the date that the Registration Statement filed by the Corporation pursuant to the Registration Rights Agreement is first declared effective by the Commission.
“Event of Default” means (i) the failure by the Corporation to pay when due any Cash Dividend, redemption price, Redemption Price, Liquidation Preference, Accrued Value or other amount owing with respect to the Preferred Stock and such failure continued unremedied for ten (10) Business Days after the same becomes due, or (ii) the Corporation’s breach of any material covenant, obligation, agreement or other provision contained in the Registration Rights Agreement, Purchase Agreement or this Certificate of Designation and such breach remains uncured for thirty (30) days after the Corporation’s receipt of written notice thereof from any Holder, in each case whether or not such payment or compliance is at such time permitted by the NRS or the terms of other instruments or agreements to which the Corporation is a party or otherwise subject or otherwise.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Shares” shall have the meaning set forth in Section 8(b)(ii).
“Exempt Issuance” means the issuance of (a) any securities of the Corporation to employees, officers or directors, consultants, contractors, vendors or other agents of the Corporation pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Corporation, (b) securities upon the exercise or exchange of or conversion of any Securities issued pursuant to the Purchase Agreement, the PIPE Financing Agreements (for the avoidance of doubt, the MFN Amendment Requirement in Section 9(e) herein shall still apply) or the Business Combination Agreement and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Subscription Date, provided that such securities have not been amended since the Subscription Dates to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) the Underlying Shares, (d) securities in connection with the entry into a commercial arrangement that is synergistic with the Corporation’s business and provides the Corporation with operational or commercial benefits; provided that such securities are not primarily issued for the purpose of raising capital or otherwise finance the business, and (e) any securities issued by the Corporation pursuant to any legal settlement or similar arrangement agreed or entered into by the Corporation, but any such Exempt Issuance shall not include a transaction in which the Corporation is issuing securities (i) primarily for the purpose of raising capital, including an at-the-market offering, and (ii) to an entity whose primary business is investing in securities.
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“Floor Price” means the lesser of (i) $7.50 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction occurring after the date of the Purchase Agreement) and (ii) the Conversion Price then in effect.
“Fundamental Transaction” shall have the meaning set forth in Section 7(e).
“Holder” shall mean, at any time and from time to time, the registered holder of Preferred Stock, who shall initially be the purchaser of the Preferred Stock as set forth in the Purchase Agreement and any such Holder’s Permitted Transferees.
“Junior Securities” shall have the meaning set forth in Section 5(a).
“MFN Amendment Requirement” shall have the meaning set forth in Section 9(e).
“Measurement Date” shall mean the date that is (i) six months, (ii) nine months, (iii) 12 months, (iv) 15 months, (v) 18 months, (vi) 21 months, or (vii) 24 months after the Business Combination Closing Date. If a particular Measurement Date is not a Trading Day, then the Measurement Date for purposes of such determination shall be the next Trading Day thereafter.
“NRS” shall mean Chapter 78 of the Nevada Revised Statutes.
“Nevada Courts” shall have the meaning set forth in Section 9(d).
“New Issuance Price” shall have the meaning set forth in Section 7(c).
“Notice of Conversion” shall have the meaning set forth in Section 6(a).
“Parent” shall mean Jindalee Lithium Ltd.
“Parent Guarantee” shall mean the guarantee of the Corporation’s payment obligation in connection with a redemption of the Preferred Stock pursuant to Section 8(c) herein, as set forth in the Guarantee Agreement, dated April 9, 2026 among the Parent, and the initial Holder.
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“Option Value” means the value of an Option based on the Black and Scholes Option Pricing model obtained from the “OV” function on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable Option, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, for pricing purpose and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the applicable Option as of the applicable date of determination, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of (A) the Trading Day immediately following the public announcement of the applicable Option if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iii) the underlying price per share used in such calculation shall be the highest weighted average price of the Common Stock during the period beginning on the Trading Day prior to the execution of definitive documentation relating to the issuance of the applicable Option and ending on (A) the Trading Day immediately following the public announcement of such issuance, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iv) a zero cost of borrow and (v) a 360 day annualization factor.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Permitted Transferee” means (i) Antarctica Capital LLC (“Antarctica”), (ii) any Affiliate of Antarctica, and (iii) any investment fund, vehicle or other entity controlled by Antarctica or its Affiliates, including any such fund, vehicle or entity for which Antarctica or its Affiliates serve as general partner, manager or equivalent controlling person.
“PIPE” shall mean the financing contemplated by the PIPE Financing Agreements.
“PIPE Financing Agreements” means the definitive agreements, among the Corporation, the SPAC, PubCo, and the investors party thereto, to be entered into in connection with the Business Combination Closing, relating to an investment in PubCo to be consummated in connection with the Business Combination, as such agreements may be amended, modified or supplemented from time to time in accordance with its terms.
“PIPE Financing Obligation” shall mean the Holder’s commitment to fund at least $2.5 million in the PIPE, as set forth in Section 4.12(d) of the Purchase Agreement.
“Preferred Stock” shall have the meaning set forth in Section 2(a).
“Preferred Stock Liquidation Amount” shall have the meaning set forth in Section 5(b)(ii).
“Preferred Stock Register” shall have the meaning set forth in Section 2(b).
“PubCo” shall mean US Elemental Inc.
“Purchase Rights” shall have the meaning set forth in Section 7(c).
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“Quarterly-Annual Dividend Date” shall mean March 1, June 1, September 1 and December 1 of each year.
“Redemption Date” shall have the meaning set forth in Section 8(b)(i).
“Redemption Notice” shall have the meaning set forth in Section 8(b)(ii).
“Redemption Price” shall have the meaning set forth in Section 8(b)(i).
“Redemption Request” shall have the meaning set forth in Section 8(b)(i).
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Business Combination Closing Date, among PubCo and the parties signatory thereto.
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the Underlying Shares by each Holder as provided for in the Registration Rights Agreement, including the Initial Registration Statement (as defined in the Registration Rights Agreement) and any additional Registration Statements which may be required thereunder.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities” means the Preferred Stock, the Warrants and the Underlying Shares.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share Delivery Date” shall have the meaning set forth in Section 6(c)(i).
“Standard Settlement Period” shall have the meaning set forth in Section 6(c)(i).
“Stated Value” shall have the meaning set forth in Section 2(a).
“Subscription Date” shall mean the date of the applicable Purchase Agreement.
“Subsidiary” means any subsidiary of the Corporation as of the Closing Date and shall, where applicable, also include any direct or indirect subsidiary of the Corporation formed or acquired after the earliest Subscription Date.
“Successor Entity” shall have the meaning set forth in Section 7(e).
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“Trading Day” means a day on which the principal Trading Market is open for business.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Certificate of Designation, the Purchase Agreement, the Warrants, the Registration Rights Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated pursuant to the Purchase Agreement.
“Transfer Agent” means the transfer agent of the Corporation, which is expected to be Continental Stock Transfer & Trust Company upon the Business Combination Closing, or any successor transfer agent of the Corporation.
“Underlying Shares” means the Conversion Shares and the Warrant Shares.
“Valuation Event” shall have the meaning set forth in Section 7(c)(iii).
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for the 20 Trading Days preceding such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for the 20 Trading Days preceding such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the average of the highest closing bid price and the lowest closing ask price of the Common Stock for the 20 Trading Days preceding such date, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Preferred Stock then outstanding and reasonably acceptable to the Corporation, the fees and expenses of which shall be paid by the Corporation.
“Warrant Shares” means, collectively, the shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms of the Warrants.
“Warrants” means, collectively, the warrants to purchase shares of Common Stock issued pursuant to the Purchase Agreement.
Section 2. Designation, Amount and Par Value.
(a) The series of preferred stock shall be designated as its “12.0% Series A Cumulative Convertible Preferred Stock” (the “Preferred Stock”) and the number of shares so designated shall be 1,550 (which shall not be subject to increase without the written consent of the Holder in its sole discretion). Each share of Preferred Stock shall have no par value per share and a stated value equal to $1,000 (the “Stated Value”).
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(b) The Corporation shall register, or cause its Transfer Agent to register, shares of the Preferred Stock upon records to be maintained by the Corporation or its Transfer Agent for that purpose (the “Preferred Stock Register”), in the name of the Holder. The Corporation may deem and treat the registered Holder of shares of Preferred Stock as the absolute owner thereof for the purpose of any conversion thereof and for all other purposes. Other than to Permitted Transferees, the Preferred Stock will not be transferable prior to the Business Combination Closing without the Corporation’s prior written consent (which consent will not be unreasonably withheld, conditioned or delayed). From and after the Business Combination Closing, the Preferred Stock may be transferred to Permitted Transferees without the consent of the Corporation and any other transfer of Preferred Stock shall require the prior written consent of the Corporation; provided that no such consent shall be required if an Event of Default has occurred and is continuing. In connection with any permitted transfer of the Preferred Stock, the Corporation shall register, or cause its Transfer Agent to register, the transfer of any shares of Preferred Stock in the Preferred Stock Register, upon surrender of the certificates evidencing such shares to be transferred, duly endorsed by the Holder thereof, to the Corporation at its address specified herein and after such Holder shall have provided to the Corporation such customary documentation (including any documentation required by the Transfer Agent with respect to such transfer) as the Corporation and its counsel may reasonably request in order to effectuate such transfer and issue legal opinions, if any are required. Upon the registration of such transfer, a new certificate (to the extent such shares are certificated) evidencing the shares of Preferred Stock so transferred shall be issued to the transferee and a new certificate evidencing the remaining portion of the shares not so transferred, if any, shall be issued to the transferring Holder, in each case, within three Business Days. The Board of Directors may provide by resolution or resolutions that some or all of the Preferred Stock shall be uncertificated shares. The Corporation shall not be required to register, or cause its Transfer Agent to register, or record any transfer of any shares of the Preferred Stock that was made in violation of this Section 2(b) or that would violate, conflict with, or fail to be in compliance with federal or state securities laws.
Section 3. Dividends.
(a) From and after the Closing, subject to the terms of this Section 3, cumulative dividends shall accrue on the Accrued Value of each share of Preferred Stock at the Annual Rate. Dividends on each share of Preferred Stock shall be cumulative and shall accrue daily from and after the Closing, but shall compound on a quarterly basis on each Quarterly-Annual Dividend Date (each, an “Accrued Dividend”) whether or not earned or declared, and whether or not there are earnings or profits, surplus, or other funds or assets of the Corporation legally available for the payment of dividends. Each Accrued Dividend shall, at the election of the Corporation, (i) be paid in cash only if, as and when declared by the Board of Directors (a “Cash Dividend”), or (ii) increase the Accrued Value of such share (a “Accreted Dividend”). For the avoidance of doubt, a dividend paid as a Cash Dividend does not increase the Accrued Value.
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(b) The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation ranking junior to the Preferred Stock (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required in this Certificate of Designation or the Corporation’s articles of incorporation) the holders of the Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Preferred Stock in an amount at least equal to the sum of (i) the amount of the aggregate Accrued Dividends then accrued on such share of Preferred Stock and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series of capital stock of the Corporation ranking junior to the Preferred Stock that is not convertible into Common Stock, at a rate per share of Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Accrued Value; provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation that is junior to the Preferred Stock, the dividend payable to the Holders of Preferred Stock pursuant to this Section 3 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Preferred Stock dividend.
(c) Subject to Section 5 and Section 7, the Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock (other than Accrued Dividends), on an as-converted basis, equal to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock.
Section 4. Voting Rights. Prior to the Business Combination Closing Date, the Preferred Stock shall not have voting rights.
(a) Commencing on the day after the Business Combination Closing Date and if the Business Combination Agreement is terminated:
(i) the Holders shall be entitled to notice of any meeting of stockholders of the Corporation and, except as otherwise required by law or as may be provided herein, shall vote together with the holders of Common Stock as a single class upon any matter submitted to the stockholders for a vote; and
(ii) on any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of the stockholders of the Corporation (or by written consent in lieu of a meeting), a Holder, together with its Attribution Parties, shall be entitled to the number of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such Holder, together with its Attribution Parties, as are convertible on the record date for determining stockholders entitled to vote on such matter (as adjusted from time to time pursuant to Section 7 hereof and subject to the Beneficial Ownership Limitation, if applicable), but without regard as to whether sufficient shares of Common Stock are available out of the Corporation’s authorized but unissued stock, for the purpose of effecting the conversion of the Preferred Stock.
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(b) Commencing on the day after the Business Combination Closing Date, as long as the Holder owns at least 20% of the Preferred Stock issued and outstanding as of the Business Combination Closing, the Corporation or any of its successors shall not, without the affirmative vote or action by written consent of the Holders of a majority of the Preferred Stock then outstanding:
(i) other than in connection with the Business Combination Closing, amend, alter or repeal the Corporation’s articles of incorporation or bylaws, this Certificate of Designation or any similar document of the Corporation in a manner that adversely affects, changes or alters the powers, preferences or rights given to the Preferred Stock;
(ii) increase or decrease the authorized number of shares of the Preferred Stock;
(iii) create any equity security, authorize the creation of any equity security, classify any equity security, reclassify any equity security, or issue any other security convertible into or exercisable for any equity security, unless such security ranks junior to the Preferred Stock with respect to its rights, preferences and privileges, including with respect to dividend rights and rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation; or
(iv) except as set forth in Section 3, purchase or redeem or pay any cash dividend on any capital stock of the Corporation ranking junior to the Preferred Stock prior to payment of such cash dividend on the Preferred Stock or purchase or redeem any capital stock of the Corporation ranking junior to the Preferred Stock, other than capital stock repurchased at cost from former employees in connection with the cessation of their service or pursuant to the terms of any equity incentive plan of the Corporation;
(c) Notwithstanding anything to the contrary herein, Section 6(d) may not be amended, modified or waived in any manner that materially and adversely affects a Holder of Preferred Stock without such Holder’s consent.
Section 5. Ranking; Liquidation.
(a) The Preferred Stock shall rank senior to all of the Common Stock and any class or series of capital stock of the Corporation currently existing, (collectively, “Junior Securities”), in each case, as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.
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(b) Preferential Payments to Holders of Preferred Stock; Distribution of Remaining Assets.
(i) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the Holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, and in the event of a Deemed Liquidation Event, the Holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the consideration payable to stockholders in such Deemed Liquidation Event or out of the Available Proceeds (as defined below), as applicable, before any payment shall be made to the holders of Common Stock or other Junior Securities by reason of their ownership thereof, an amount per share equal to the greater of (i) redemption price calculated pursuant to Section 8(a) or (ii) such amount per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 6 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event based on the then effective rate of conversion and without giving effect to the Beneficial Ownership Limitation or any other limitations on conversion set forth herein. If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the Holders of shares of Preferred Stock the full amount to which they shall be entitled under this Section 5(b), the Holders of shares of Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts that would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
(ii) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after the payment in full of all amounts required to be paid to the holders of shares of Preferred Stock pursuant to Section 5(b)(i), the remaining assets of the Corporation available for distribution to its stockholders or, in the case of a Deemed Liquidation Event, the consideration not payable to the holders of shares of Preferred Stock pursuant to Section 5(b)(i) or the remaining Available Proceeds, as the case may be, shall be distributed among the holders of the shares of Preferred Stock and Common Stock, pro rata based on the number of shares held by each such holder, treating for this purpose all such securities as if they had been converted to Common Stock pursuant to the terms of this Certificate of Designation immediately prior to such liquidation, dissolution or winding up of the Corporation and without giving effect to the Beneficial Ownership Limitation or any other limitations on conversion set forth herein. The aggregate amount which a holder of a share of Preferred Stock is entitled to receive under Sections 5(b)(i) and 5(b)(ii) is hereinafter referred to as the “Preferred Stock Liquidation Amount.”
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(c) Deemed Liquidation Events.
(i) In the event of a Deemed Liquidation Event, if the Corporation does not effect a dissolution of the Corporation under the Nevada Revised Statutes within ninety (90) days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each Holder of Preferred Stock no later than the ninetieth (90th) day after the Deemed Liquidation Event advising such Holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause to require the redemption of such shares of Preferred Stock, and (ii) if the Holders so request in a written instrument delivered to the Corporation not later than one hundred twenty (120) days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, or any other expenses associated with the Deemed Liquidation Event or the dissolution of the Corporation, in each case as determined in good faith by the Board of Directors of the Corporation), together with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Nevada law governing distributions to stockholders (the “Available Proceeds”), on the one hundred fiftieth (150th) day after such Deemed Liquidation Event, to redeem all outstanding shares of Preferred Stock at a price per share equal to the Preferred Stock Liquidation Amount. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding shares of Preferred Stock, the Corporation shall redeem a pro rata portion of each Holder’s shares of Preferred Stock to the fullest extent of such Available Proceeds, based on the respective amounts that would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds were sufficient to redeem all such shares, and shall redeem the remaining shares as soon as it may lawfully do so under Nevada law governing distributions to stockholders. The provisions of Section 8 shall apply, with such necessary changes in the details thereof as are necessitated by the context, to the redemption of the Preferred Stock pursuant to this Section 5(c)(i). Prior to the distribution or redemption provided for in this Section 5(c)(i), the Corporation shall not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection with such Deemed Liquidation Event.
(ii) In any Deemed Liquidation Event, if Available Proceeds are in a form of property other than in cash, the value of such distribution shall be deemed to be the fair market value of such property. The determination of fair market value of such property shall be made in good faith by the Board of Directors of the Corporation, provided that to the extent such property consists of securities, the fair market value of such securities shall be determined as follows:
For securities not subject to investment letters or other similar restrictions on free marketability covered by Section 5(c)(iii) below, the value shall be the VWAP of such securities.
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(iii) The method of valuation of securities subject to investment letters or other similar restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall take into account an appropriate discount (as determined in good faith by the Board of Directors of the Corporation) from the market value as determined pursuant to Section 5(c)(ii) above so as to reflect the approximate fair market value thereof.
(iv) If any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “Additional Consideration”), (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated in accordance with the foregoing Section 5(b) and this Section 5(c) as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Corporation in accordance with Sections 5(b) and 5(c) after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Section 5(c)(iv), consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be Additional Consideration.
Section 6. Conversion.
(a) Conversions at Option of Holder. Each share of Preferred Stock shall be convertible at any time and from time to time following the Business Combination Closing Date at the option of the Holder thereof, into that number of whole shares of Common Stock (subject to the limitations set forth in Section 6(d)) determined by dividing the Accrued Value of such share of Preferred Stock by the Conversion Price. Holders shall effect conversions by providing the Corporation with the form of conversion notice attached hereto as Annex A (a “Notice of Conversion”), unless the Corporation does not serve as its transfer agent, in which event the Notice of Conversion shall be delivered to the Corporation’s transfer agent. Each Notice of Conversion shall specify the number of shares of Preferred Stock to be converted, the number of shares of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred Stock owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be prior to the date the applicable Holder delivers by e-mail attachment or by a nationally recognized overnight courier service such Notice of Conversion to the Corporation (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error. To effect conversions of shares of Preferred Stock, a Holder shall not be required to surrender the certificate(s) representing the shares of Preferred Stock to the Corporation unless all of the shares of Preferred Stock represented thereby are so converted, in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion Date at issue. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued, and all rights (other than the right to receive the Conversion Shares) with respect to such shares will terminate. The Corporation’s stock ledger and transfer book shall serve as the exclusive record of outstanding shares of Preferred Stock.
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(b) Conversion Price. The initial conversion price is $1,000, subject to adjustment herein (the “Conversion Price”).
(c) Mechanics of Conversion
(i) Delivery of Conversion Shares Upon Conversion. Not later than the number of Trading Days comprising the Standard Settlement Period (as defined below) after each Conversion Date (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder (A) the number of Conversion Shares being acquired upon the conversion of the Preferred Stock, which on or after the earlier of (i) the one year anniversary of the Business Combination Closing Date or (ii) the Effective Date, shall be free of restrictive legends and trading restrictions (other than those which may then be required by federal securities laws, the Purchase Agreement or any other applicable lock-up agreement or similar agreement) and (B) cash in an amount equal to any accrued and unpaid dividends, if any. On or after the earlier of (i) the one year anniversary of the Business Combination Closing Date or (ii) the Effective Date, the Corporation shall deliver the Conversion Shares required to be delivered by the Corporation under this Section 6 electronically through the Depository Trust Company or another established clearing corporation performing similar functions. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Corporation’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Conversion.
(ii) Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as reasonably directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such conversion, in which event the Corporation shall promptly return to the Holder any original Preferred Stock certificate delivered to the Corporation and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice of Conversion.
(iii) Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion Shares upon conversion of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder. In the event a Holder shall elect to convert any or all of the Accrued Value of its Preferred Stock, the Corporation may not refuse conversion based on any claim that such Holder or anyone associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part of the Preferred Stock of such Holder shall have been sought and obtained, and the Corporation posts a surety bond for the benefit of such Holder in the amount of 150% of the Accrued Value of Preferred Stock which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such Holder to the extent it obtains judgment. In the absence of such injunction, the Corporation shall issue Conversion Shares and, if applicable, cash, upon a properly noticed conversion. If the Corporation fails to deliver to a Holder such Conversion Shares pursuant to Section 6(c)(i) by 10th Trading Day after the Share Delivery Date applicable to such conversion, the Corporation shall pay to such Holder, in cash, as liquidated damages and not as a penalty, for each $5,000 of Accrued Value of Preferred Stock being converted, $25 per Trading Day (increasing to $50 per Trading Day on the third Trading Day and increasing to $100 per Trading Day on the sixth Trading Day after such damages begin to accrue) for each Trading Day after the 10th Trading Day after the Share Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages for the Corporation’s failure to deliver Conversion Shares within the period specified herein and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.
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(iv) Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Holder, if the Corporation fails for any reason unrelated to the actions of the Holder or its Affiliates to deliver to a Holder the applicable Conversion Shares by the Share Delivery Date pursuant to Section 6(c)(i), and if after such Share Delivery Date such Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Corporation shall (A) pay in cash to such Holder (in addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) such Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (excluding any brokerage commissions) and (B) at the option of such Holder, either reissue (if surrendered) the shares of Preferred Stock equal to the number of shares of Preferred Stock submitted for conversion (in which case, such conversion shall be deemed rescinded) or deliver to such Holder the number of shares of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 6(c)(i). For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any applicable brokerage commissions) giving rise to such purchase obligation was a total of $10,000, under clause (A) of the immediately preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In and, upon the request of the Corporation, evidence of the amount of such loss. If a Holder purchases shares of Common Stock having a total purchase price of $9,000 to cover a Buy-In with respect to an attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any applicable brokerage commissions) giving rise to such purchase obligation was a total of $10,000, under clause (A) of the preceding sentence, the Corporation shall not be required to pay Holder any amount. For the avoidance of doubt, in the event of a Buy-In, the Holder shall use commercially reasonable efforts to purchase shares at the lowest available price, paying the lowest reasonably available brokerage commission. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Corporation’s failure to timely deliver Conversion Shares upon conversion of the shares of Preferred Stock as required pursuant to the terms hereof.
(v) Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other Holders of the Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of the then outstanding shares of Preferred Stock (assuming for such purpose a Conversion Price equal to $7.50 and any such conversions are made without regard to any limitations on conversion set forth herein). The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if a Registration Statement is then effective under the Securities Act, shall be registered for public resale in accordance with such Registration Statement (subject to such Holder’s compliance with its obligations under the Registration Rights Agreement).
(vi) Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share. Notwithstanding anything to the contrary contained herein, but consistent with the provisions of this subsection with respect to fractional Conversion Shares, nothing shall prevent any Holder from converting fractional shares of Preferred Stock.
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(vii) Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Preferred Stock shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.
(d) Beneficial Ownership Limitation. A Holder may notify the Corporation in writing in the event it elects to be subject to the provisions contained in this Section 6(d); however, no Holder shall be subject to this Section 6(d) unless he, she or it makes such election. If the election is made, (i) the Corporation shall not effect any conversion of the Preferred Stock, and such Holder shall not have the right to convert all or any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth on the applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of 4.9%, 9.9% or 19.9% of the Corporation’s Common Stock (the “Beneficial Ownership Limitation”) and (ii) the Corporation shall not permit the Holder to vote, and such Holder shall not have the right vote pursuant to Section 4(b) of this Certificate of Designation, all or any portion of the Preferred Stock that such Holder is not permitted to convert pursuant to the preceding clause (i) (provided, however, that such Holder shall retain the right to vote pursuant to Section 4(c) of this Certificate of Designation to the extent that retaining such right does not cause such Holder to be deemed to beneficially own Conversion Shares within the meaning of Rule 13d-3 promulgated under the Exchange Act). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of the Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Accrued Value of Preferred Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, the Preferred Stock or the Warrants) beneficially owned by such Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 6(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(d) applies, the determination of whether the Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and of how many shares of Preferred Stock are convertible shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the shares of Preferred Stock may be converted (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and how many shares of the Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Holder shall provide the Corporation with any information reasonably requested by the Corporation in connection with this Beneficial Ownership Limitation and the provisions related thereto, in each case with respect to the Corporation’s reporting obligations pursuant to the Securities Act, the Exchange Act, or other federal or state securities regulations. For purposes of this Section 6(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request (which may be via email) of a Holder, the Corporation shall within two Trading Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Preferred Stock, by such Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Corporation, a Holder may from time to time increase or decrease the Beneficial Ownership Limitation applicable to such Holder, provided, however, that any such increase in the Beneficial Ownership Limitation will not be effective until the sixty-first (61st) day after such notice is delivered to the Corporation. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor Holder of Preferred Stock.
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Section 7. Certain Adjustments.
(a) Stock Dividends and Stock Splits. If the Corporation, at any time while this Preferred Stock is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, this Preferred Stock or any cash distributions), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Corporation, then each of the Conversion Price and the Floor Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
(b) VWAP Reset. If on the twenty-first Trading Day ending on a Measurement Date, the VWAP (the “Measurement Price”) is less than the Conversion Price then in effect, then the Conversion Price then in effect shall be reduced to an amount equal to the greater of (x) the Measurement Price and (y) $7.50.
(c) Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever after the Business Combination Closing Date until the first date on which no shares of Preferred Stock are outstanding, the Corporation issues or sells, or in accordance with this Section 7(c) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Corporation), other than in connection with any Exempt Issuance, for a consideration per share (the “New Issuance Price”) less than the Conversion Price then in effect (the “Applicable Price”, and each such issue, sale or deemed issuance or sale, a “Dilutive Issuance”), then, immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price; provided, however, that such an adjustment to the Conversion Price shall not be made unless the Corporation has cumulatively issued more than $3,000,000 in one or more Dilutive Issuances. For all purposes of the foregoing (including, without limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section 7(c)), the following shall be applicable:
(i) Options and Convertible Securities. The consideration per share received by the Corporation for Common Stock deemed to have been issued pursuant to Section 7(c)(ii), relating to Options and Convertible Securities, shall be determined by dividing:
| a. | the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by |
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| b. | the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) deemed to be issued pursuant to Section 7(c)(ii) upon the issuance of such Options or Convertible Securities. |
(ii) Deemed Issuance of Options and Convertible Securities.
| a. | If the Corporation at any time or from time to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be outstanding and to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date. |
| b. | If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for Common Stock increases or decreases at any time (other than (i) proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 7(a) above and (ii) automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security which are not more favorable to the holder thereof than the anti-dilution and similar provisions set forth herein), the Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate (as the case may be) at the time initially granted, issued or sold. For purposes of this Section 7(c), if the terms of any Option or Convertible Security that was outstanding as of the date of first issuance of a share of Preferred Stock are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 7(c)(ii) shall be made if such adjustment would result in an increase of the Conversion Price then in effect. |
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(iii) Calculation of Consideration Received. In case any Option is issued in connection with the issue or sale of other securities of the Corporation, together comprising one integrated transaction, (x) the Options will be deemed to have been issued for the Option Value of such Options and (y) the other securities issued or sold in such integrated transaction shall be deemed to have been issued or sold for the difference of (I) the aggregate consideration received by the Corporation less any consideration paid or payable by the Corporation pursuant to the terms of such other securities of the Corporation, less (II) the Option Value. If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration other than cash received therefor will be deemed to be the net amount received by the Corporation therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Corporation will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Corporation will be the VWAP of such publicly traded securities on the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Corporation is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Corporation and the Required Holders. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Corporation and the Required Holders. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Corporation.
(iv) Record Date. If the Corporation takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
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(v) Expiration or Termination of Options or Convertible Securities. Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Securities (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Conversion Price pursuant to the terms of Section 7(c), the Conversion Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Securities (or portion thereof) never been issued.
(d) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 7(a) or Section 7(b) or Section 7(c) above, if at any time the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holders will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that the issue price of such Purchase Rights would result in an adjustment of the Conversion Price pursuant to Section 7(c), such adjustment shall not occur to the extent the Holders participate in such offering of Purchase Rights and acquire their pro rata portion of such Purchase Rights on the applicable terms.
(e) Pro Rata Distributions. During such time as this Preferred Stock is outstanding, if the Corporation declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), in each such case, the Holders shall be entitled to participate in such Distribution to the same extent that the Holders would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Preferred Stock (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever such grant, issuance or sale, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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(f) Fundamental Transaction. If, at any time after the Business Combination Closing while this Preferred Stock is outstanding, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Corporation, (iv) the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a stock split, combination or reclassification of shares of Common Stock covered by Section 7(a)), or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the common equity of the Corporation (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Preferred Stock, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 6(d) on the conversion of this Preferred Stock), the number of shares of capital stock of the successor or acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Preferred Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(d) on the conversion of this Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 7(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holders and approved by the Holders (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder of this Preferred Stock, deliver to the Holder in exchange for this Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Preferred Stock (without regard to any limitations on the conversion of this Preferred Stock) prior to such Fundamental Transaction, and with a conversion price which applies the Conversion Price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Preferred Stock immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holders. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Certificate of Designation and the other Transaction Documents referring to the “Corporation” shall refer instead to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Corporation herein.
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(g) Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.
(h) Notice to the Holders.
(i) Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation shall promptly deliver to each Holder by facsimile or email a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
(ii) Notice to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer of all or substantially all of the assets of the Corporation (and all of its Subsidiaries, taken as a whole), or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of this Preferred Stock, and shall cause to be delivered by email to each Holder at its email address as it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Corporation or any of the Subsidiaries, the Corporation shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K, unless determined by the Board of Directors of the Corporation that such filing would be harmful to the Corporation at such time, in which case the Corporation shall file such 8-K as soon as is reasonably practicable in its discretion. For the avoidance of doubt, and without limiting the conversion rights of any Holder, each Holder shall remain entitled to convert the Accrued Value of this Preferred Stock (or any part hereof) during the twenty (20)-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 8. Redemption.
(a) Redemption by the Corporation. Subject to the provisions of this Section 8 and unless prohibited by applicable law governing distributions to stockholders, the Corporation may, in its sole discretion, redeem all or a portion of the outstanding shares of Preferred Stock:
(i) on or after the Business Combination Closing but prior to the first anniversary of the Business Combination Closing, at a redemption price per share equal to 150% of the Accrued Value;
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(ii) on or after the first anniversary of the Business Combination Closing but prior to the second anniversary of the Business Combination Closing, at a redemption price per share equal to 140% of the Accrued Value;
(iii) on or after the second anniversary of the Business Combination Closing but prior to the third anniversary of the Business Combination Closing, at a redemption price per share equal to 130% of the Accrued Value;
(iv) on or after the third anniversary of the Business Combination Closing but prior to the fourth anniversary of the Business Combination Closing, at a redemption price per share equal to 120% of the Accrued Value;
(v) on or after the fourth anniversary of the Business Combination Closing but prior to the fifth anniversary of the Business Combination Closing, at a redemption price per share equal to 110% of the Accrued Value; and
(vi) on or after the fifth anniversary of the Business Combination Closing, at a redemption price per share equal to 100% of the Accrued Value.
If, on the date of such redemption, applicable law governing distributions to stockholders prevents the Corporation from redeeming all shares of Preferred Stock scheduled to be redeemed, the Corporation shall be entitled to ratably redeem the maximum number of shares that it may redeem consistent with such law and any Preferred Stock not so redeemed shall remain outstanding. The Corporation shall provide written notice (the “Corporation Notice”) by e-mail and first class mail postage prepaid, to each Holder of record (determined at the close of business on the Business Day next preceding the day on which the Corporation Notice is given) of the Preferred Stock to be redeemed, at the address last shown on the records of the Corporation for such Holder, notifying such Holder of the redemption to be effected, specifying the number of shares to be redeemed from such Holder, specifying the date of such redemption, the redemption price, the place at which payment may be obtained and calling upon such Holder to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares to be redeemed; provided that the date of redemption shall be not less than 15 days from the date of the Corporation Notice. Except as otherwise provided herein, on or after the applicable date of redemption, each Holder of Preferred Stock to be redeemed shall surrender to the Corporation the certificate or certificates representing such shares, in the manner and at the place designated in the Corporation Notice, and thereupon the price of redemption of such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be cancelled. In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. Notwithstanding anything herein to the contrary, each Holder shall remain entitled to convert its Preferred Stock (or any part thereof) during the 15-day period commencing on the date of the Corporation Notice through the applicable date of redemption at the then-current Conversion Price.
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(b) Redemption by the Holders.
(i) Unless prohibited by applicable law governing distribution to stockholders, shares of Preferred Stock shall be redeemed by the Corporation at a purchase price equal to the Accrued Value (the “Redemption Price”), if at any time and from time to time after the fifth (5th) anniversary of the Business Combination Closing, the Holder delivers to the Corporation a written notice demanding redemption of some or all of its shares of Preferred Stock (the “Redemption Request”). Upon receipt of a Redemption Request, the Corporation shall use commercially reasonable efforts to apply all of its assets to pay any such Redemption Price, and to no other corporate purpose, until the Redemption Price has been paid in full, except to the extent prohibited by Nevada law governing distributions to stockholders.
(ii) Not more than 5 days after the date of receipt of the Redemption Request, the Corporation shall send written notice of the mandatory redemption (the “Redemption Notice”) to each Holder of record of Preferred Stock. The 20th day after the date of the Redemption Notice shall be referred to as the “Redemption Date.” The Redemption Notice shall state:
| a. | the number of shares of Preferred Stock held by the Holder that the Corporation shall redeem on the Redemption Date; |
| b. | the Redemption Date and the Redemption Price; |
| c. | the date upon which the Holder’s right to convert such shares terminates; and |
| d. | for Holders of shares in certificated form, that the Holder is to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares of Preferred Stock to be redeemed. |
(iii) On the Redemption Date, the Corporation shall redeem the Preferred Stock owned by each Holder. If on the Redemption Date Nevada law governing distributions to stockholders prevents the Corporation from redeeming all shares of Preferred Stock to be redeemed, the Corporation shall ratably redeem the maximum number of shares that it may redeem consistent with such law, and shall redeem the remaining shares as soon as it may lawfully do so under such law. In the event that any portion of the Redemption Price has not been paid within five (5) Business Days following the Redemption Date, interest on such unpaid portion of the Redemption Price shall accrue thereon until such amount is paid in full at a rate equal to the lesser of (i) 15.0% per annum and (ii) the maximum rate permitted under applicable law (the “Additional Interest”). Such Additional Interest shall be paid by the Corporation, in its sole discretion, in cash or in shares of Common Stock; provided that (i) for the avoidance of doubt, any principal or interest paid by the Corporation with respect to a redemption pursuant to Section 8(c) shall be payable solely in cash; (ii) the Corporation cannot elect to pay any such Additional Interest in shares of Common Stock if such issuance would result in any Holder exceeding the Beneficial Ownership Limitation; and (iii) the Corporation cannot elect to pay such Additional Interest in shares of Common Stock unless such shares of Common Stock have been registered for resale under the Securities Act substantially concurrently to such issuance to the applicable Holders or an exemption from registration under the Securities Act is available for a public resale.
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(c) Mandatory Redemption if BCA Terminated. If, prior to the Business Combination Closing, the Business Combination Agreement is terminated in accordance with its terms for any reason (a “BCA Termination”), then the Corporation shall (i) as soon as practicable thereafter, deliver to the Holders written notice of the BCA Termination (the “BCA Termination Notice”), which notice shall include the information set forth in Section 8(b)(ii)(a), (b), and (d) above, except that the Redemption Date stated therein shall be not later than twenty (20) Business Days after the date of the BCA Termination, and (ii) redeem the Preferred Stock in its entirety on the Redemption Date set forth in the BCA Termination Notice. The provisions of Section 8(b)(iii) shall apply to a redemption under this Section 8(c). The Corporation’s obligation to redeem the Preferred Stock under this Section 8(c) shall be guaranteed by the Parent Guarantee. Notwithstanding the foregoing, if, prior to any BCA Termination, all the closing conditions to the Business Combination Agreement are satisfied or (except with respect to the Minimum Cash Condition (as defined in the Business Combination Agreement)) waived, and the Holder is in breach of its PIPE Financing Obligation, then the Corporation shall not be required to redeem the Preferred Stock pursuant to this Section 8(c).
(d) Fundamental Transaction Redemption Offer. Following the Business Combination Closing, if the Corporation proposes to enter into a Fundamental Transaction, then it shall offer to redeem all of the Preferred Stock upon consummation of such Fundamental Transaction for cash equal to the greater of (i) the applicable redemption price calculated pursuant to Section 8(a) and (ii) the amount of Alternate Consideration the Holders would receive in the Fundamental Transaction. The redemption procedures under Sections 8(b)(ii) and 8(b)(iii) shall apply to this Section 8(d).
(e) Rights Subsequent to Redemption. Upon the redemption of shares of Preferred Stock pursuant to Section 8(a), Section 8(b), Section 8(c) or Section 8(d), all rights with respect to such shares of Preferred Stock shall immediately terminate, except with respect to the right of the Holders to receive the applicable redemption price with respect to such shares of Preferred Stock in accordance with Section 8(a), Section 8(b), Section 8(c) or Section 8(d), as applicable.
Section 9. Miscellaneous.
(a) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by e-mail, or sent by nationally recognized overnight courier service, addressed to the Corporation, at the address or email address most recently provided to Holders by the Corporation for purposes of notice hereunder Attention: Ian Rogers, 241 Ridge Street, Suite 210, Reno, Nevada 89501, e-mail address: [email protected], or such other e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 9. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Corporation, or if no such facsimile number, e-mail address or address appears on the books of the Corporation, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
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(b) Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.
(c) Lost or Mutilated Preferred Stock Certificate. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall issue or cause to be issued, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation (which shall not include the posting of any bond). The applicant for a new certificate under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement certificate.
(d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles of conflict of laws thereof. All legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Certificate of Designation (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in Clark County, Nevada (City of Las Vegas) (the “Nevada Courts”). The Corporation and each Holder hereby irrevocably submits to the exclusive jurisdiction of the Nevada Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such Nevada Courts, or such Nevada Courts are improper or inconvenient venue for such proceeding. The Corporation and each Holder hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. The Corporation and each Holder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If the Corporation or any Holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
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(e) Amendment. This Certificate of Designation (or any provision hereof) may be amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance with the Nevada Revised Statutes, of the Holders, voting separately as a single class, and with such other stockholder approval, if any, as may then be required pursuant to the NRS and the Corporation’s articles of incorporation; provided, however, and notwithstanding anything in this Certificate of Designation to the contrary, no provision of this Certificate of Designation shall be amended to the extent any such amendment would disproportionately, materially and adversely modify any rights of any Holder (as compared to the rights of the other Holders) that holds more than two percent of the issued and outstanding Preferred Stock, unless any such Holder shall have previously consented in writing to such amendment or voted to approve such amendment at a meeting; provided that if any securities are issued and sold pursuant to the “Private Placement” contemplated in the Business Combination Agreement, whether prior to or at the Business Combination Consummation, with any term more favorable to the purchaser thereof than the terms set forth in this Certificate of Designation, the Purchase Agreement, the Warrants, the Registration Rights Agreement, and the exhibits and schedules thereto, applicable to the Holder (including, without limitation, valuation, conversion price or mechanics, discount, warrant coverage, liquidation preference, anti-dilution protection, or other economic or governance right), then the Corporation shall, at the option of the Holder, promptly amend any applicable Transaction Document, including this Certificate of Designation, to incorporate such more favorable term or terms (the “MFN Amendment Requirement”).
(f) Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing.
(g) Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.
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(h) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.
(i) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.
(j) Status of Converted or Redeemed Preferred Stock. Shares of Preferred Stock may only be issued pursuant to the Purchase Agreement. If any shares of Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as 12.0% Series A Cumulative Convertible Preferred Stock.
(k) Tax Withholding. The Corporation agrees that, provided that each Holder delivers to the Corporation a properly executed IRS Form W-9 or other certification satisfactory to the Corporation certifying as to such Holder’s status (or the status of such Holder’s beneficial owner(s)) as a United States person (within the meaning of Section 7701(a)(30) of the Code) and such Holder’s (or such beneficial owners’) eligibility for complete exemption from backup withholding (“U.S. Person Certification”), under current law the Corporation (including any paying agent of the Corporation) shall not be required to, and shall not, withhold on any payments or deemed payments to any such Holder. Subject to Section 9(l), in the event that any Holder fails to deliver to the Corporation such properly executed U.S. Person Certification, the Corporation reasonably believes that a previously delivered U.S. Person Certification is no longer accurate and/or valid, or there is a change in law that affects the withholding obligations of the Corporation, the Corporation and its paying agent shall be entitled to withhold taxes on all payments made to the relevant Holder in the form of cash or otherwise treated, in the Corporation’s reasonable discretion, as a dividend for U.S. federal tax purposes or to request that the relevant Holder promptly pay the Corporation in cash any amounts required to satisfy any withholding tax obligations, in each case, to the extent the Corporation or its paying agent determines in good faith it is required to deduct and withhold tax on payments to the relevant Holder under applicable law; provided, that the Corporation shall use commercially reasonable efforts to notify the relevant Holder of any required withholding tax reasonably in advance of the date of the relevant payment and give such Holder reasonable opportunity to establish an exemption from, or a reduced rate of, withholding prior to making such payment.
(l) Tax Treatment. Each holder of Preferred Stock and the Corporation shall not treat the Preferred Stock as “preferred stock” within the meaning of Section 305 of the Code and Treasury Regulation Section 1.305-5 for United States federal income tax and withholding tax purposes, and the Corporation and each holder of Preferred Stock that no holder of Preferred Stock nor any of its Affiliates shall be required to include in income any dividend income for U.S. federal income Tax purposes by reason of the application of Section 305 of the Code to the Preferred Stock except to the extent of the amount of any dividends accruing on the Preferred Stock that are declared and paid in cash. Absent a change in law or a contrary determination (as defined in Section 1313(a) of the Internal Revenue Code, as amended (the “Code”)), no holder of Preferred Stock nor the Corporation shall not take any position (including on any IRS Form 1099) inconsistent for applicable tax purposes with such treatment.
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IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Chief Executive Officer this 9th day of April, 2026.
| By: | /s/ Lindsay Dudfield | |
| Name: | Lindsay Dudfield | |
| Title: | President |
ANNEX A
NOTICE OF CONVERSION
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF 12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK)
The undersigned hereby elects to convert the number of shares of 12.0% Series A Cumulative Convertible Preferred Stock, no par value per share (the “Preferred Stock”), indicated below into shares of common stock, no par value per share (the “Common Stock”), of HiTech Minerals Inc., a Nevada corporation (the “Corporation”), according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such customary certificates as may be required by the Corporation and its counsel in accordance with the Purchase Agreement in order to effectuate such transaction and cause its counsel to issue any required legal opinions. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.
Conversion calculations:
|
Date to Effect Conversion: |
|
| Number of shares of Preferred Stock owned prior to Conversion: | |
| Number of shares of Preferred Stock to be Converted: | |
| Accrued Value of shares of Preferred Stock to be Converted: | |
| Number of shares of Common Stock to be Issued: | |
| Applicable Conversion Price: | |
| Number of shares of Preferred Stock subsequent to Conversion: | |
| Address for Delivery: |
or
DWAC Instructions:
Broker no:
Account no:
| [HOLDER] | ||
| By: | ||
| Name: | ||
| Title | ||
Annex A
Exhibit B
Form of Warrant
Exhibit 10.6
Execution Version
Form of Warrant
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
US Elemental Inc.
| Warrant Shares: [_______]1 | Initial Exercise Date: [_______], 202[●] |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, [_____________] or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on [_____], 202[●]2 (the “Termination Date”) but not thereafter, to subscribe for and purchase from US Elemental Inc., a Delaware corporation (the “Company”), up to [______] shares (as subject to adjustment hereunder, the “Warrant Shares”) of common stock, par value $0.0001 per share, of the Company (the “Common Stock”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement (the “Purchase Agreement”), dated as of April 9, 2026, by and among the Company, HiTech Minerals, Inc., a Nevada corporation, and the purchaser signatory thereto, including the Certificate of Designation attached as Exhibit A thereto.
Section 2. Exercise.
(a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company (or such other office or agency that the Company may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company), as applicable, of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Not later than the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver to the Company the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
| 1 | To be a number equal to the Accrued Value (as defined in the Certificate of Designation) divided by the Conversion Price (as defined in the Certificate of Designation), in each case, measured as of the date of the Business Combination Consummation. |
| 2 | To be the date that is five years from the date of the Business Combination Consummation. |
(b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $11.50, subject to adjustment hereunder (the “Exercise Price”).
(c) Cashless Exercise. This Warrant may also be exercised, in whole or in part, at any time after the Initial Exercise Date by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing ((A-B) multiplied by (X)) by (A), where:
(A) = as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;
(B) = the Exercise Price of this Warrant, as adjusted hereunder; and
(X) = the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for the 20 Trading Days preceding such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for the 20 Trading Days preceding such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the average of the highest closing bid price per share and the lowest closing ask price per share of the Common Stock for the 20 Trading Days preceding such date, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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Notwithstanding anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c). Furthermore, if (A-B) is less than zero, then the number of Warrant Shares to be delivered to the Holder shall equal zero.
(d) Mechanics of Exercise.
(i) Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system if the Company is then a participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder, and otherwise by physical delivery of a certificate, (or reasonable evidence of issuance by book entry of ownership of the Warrant Shares) registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the later of (i) the Standard Settlement Period after the delivery to the Company of the Notice of Exercise, and (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”); provided, however, in any event, the Company shall not be obligated to deliver Warrant Shares until it has received the aggregate Exercise Price therefor (other than in the case of a cashless exercise). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received no later than the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
(ii) Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
(iii) Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date (subject to receipt of the aggregate Exercise Price for the applicable exercise (other than in the case of a cashless exercise)), then the Holder will have the right to rescind such exercise prior to the delivery of the Warrant Shares.
(iv) No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
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(v) Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares pursuant to the terms of this Warrant.
(vi) Closing of Books. The Company will not close its stockholder books or records in any manner intended to prevent the timely exercise of this Warrant, pursuant to the terms hereof.
(e) Holder’s Exercise Limitations. The Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 2(e); however, the Holder shall not be subject to this Section 2(e) unless he, she or it makes such election. If the election is made, the Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of 4.9%, 9.9% or 19.9% of the Company’s Common Stock (as specified in the Holder’s notice pursuant to which the Holder elects to be subject to this Section) (the “Beneficial Ownership Limitation”). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder, its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and, of which portion of this Warrant is exercisable up to the Beneficial Ownership Limitation shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s good faith determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case, subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of this Warrant that are not in compliance with the Beneficial Ownership Limitation. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two (2) Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Beneficial Ownership Limitation applicable to the Holder, provided, however, that any such increase in the Beneficial Ownership Limitation will not be effective until the sixty-first (61st) day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
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Section 3. Certain Adjustments.
(a) Stock Dividends and Stock Splits. If the Company at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant or any cash distributions), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
(b) VWAP Reset. If on the twenty-first Trading Day ending on a Measurement Date, the VWAP (the “Measurement Price”) is less than the Exercise Price then in effect, then the Exercise Price then in effect shall be reduced to an amount equal to the greater of (x) the Measurement Price and (y) $7.50.
(c) Adjustment Upon Issuance of Common Stock. If and whenever after the Closing Date, the Company issues or sells, or in accordance with this Section 3(c) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company), other than in connection with any Exempt Issuance, for a consideration per share (the “New Issuance Price”) less than the Exercise Price then in effect (the “Applicable Price”, and each such issue, sale or deemed issuance or sale, a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price; provided, however, that such an adjustment to the Conversion Price shall not be made unless the Company has cumulatively issued more than $3,000,000 in one or more Dilutive Issuances.
For purposes of determining the adjusted Exercise Price under this Section 3(c), the following shall be applicable:
(i) Options and Convertible Securities. The consideration per share received by the Company for Common Stock deemed to have been issued pursuant to Section 3(c)(ii), relating to Options and Convertible Securities, shall be determined by dividing: (x) the total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (y) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) deemed to be issued pursuant to Section 3(c)(ii) upon the issuance of such Options or Convertible Securities.
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(ii) Deemed Issuance of Options and Convertible Securities. If the Company at any time or from time to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be outstanding and to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.
(iii) Change in Option Price. If, after the Initial Exercise Date, the purchase or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for Common Stock increases or decreases at any time, (other than (x) proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 3(a) above and (y) automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security which are not more favorable to the holder thereof than the anti-dilution and similar provisions set forth herein), the Exercise Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price, which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 3(c)(iii), if the terms of any Option or Convertible Security that was outstanding as of the Initial Exercise Date are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 3(c) shall be made if such adjustment would result in an increase of the Exercise Price then in effect.
(iv) Calculation of Consideration Received. In case any Option is issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction, (x) the Options will be deemed to have been issued for the Option Value of such Options and (y) the other securities issued or sold in such integrated transaction shall be deemed to have been issued or sold for the difference of (I) the aggregate consideration received by the Company less any consideration paid or payable by the Company pursuant to the terms of such other securities of the Company, less (II) the Option Value. If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration other than cash received therefor will be deemed to be the net amount received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company will be the closing sale price of such publicly traded securities on the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and a majority in interest of the Securities then outstanding. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Company and a majority in interest of the Securities then outstanding. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.
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(v) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(vi) Expiration or Termination of Options or Convertible Securities. Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Securities (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Exercise Price pursuant to the terms of Section 3(b), the Exercise Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Securities (or portion thereof) never been issued.
(d) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a), (b) and (c) above, if at any time after the Initial Exercise Date the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, any applicable Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding any applicable Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding any applicable Beneficial Ownership Limitation). To the extent that the issue price of such Purchase Rights would result in an adjustment of the Exercise Price pursuant to Section 3(c) above, such adjustment shall not occur to the extent the Holder participates in such offering of Purchase Rights and acquires its pro rata portion of such Purchase Rights on the applicable terms.
(e) Pro Rata Distributions. During such time after the Initial Exercise Date as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, any applicable Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding any applicable Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding any applicable Beneficial Ownership Limitation).
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(f) Fundamental Transaction. If, at any time after the Initial Exercise Date while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a stock split, combination or reclassification of shares of Common Stock covered by Section 3(a)), or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person whereby such other Person acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock or ordinary shares of the Successor Entity (which Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(f), (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(f) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
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(g) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
(h) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to Section 3(a), the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately so that after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein).
(i) Notice to Holder.
(i) Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
(ii) Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided to the Holder in accordance with the terms of this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K, unless determined by the board of directors of the Company that such filing would be harmful to the Company at such time, in which case the Company shall file such 8-K as soon as is reasonably practicable in its discretion. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
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(j) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section 4. Transfer of Warrant.
(a) Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
(b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
(c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
(d) Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
(e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.
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Section 5. Miscellaneous.
(a) No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3.
(b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
(c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business Day.
(d) Authorized Shares.
(i) The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant (without regard to any limitation on exercise set forth herein and assuming an Exercise Price equal to the lower of (i) $7.50 and (ii) the Exercise Price then in effect). The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
(ii) Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its Certificate of Incorporation (or any Certificate of Designation thereto) or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
(iii) Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
(e) Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement.
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(f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
(g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
(h) Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions of the Purchase Agreement.
(i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
(j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
(k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
(l) Amendment. This Warrant may be modified, waived or amended or the provisions hereof waived with the written consent of the Company and the Holder.
(m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.
| US ELEMENTAL INC. | Address for Notice: | ||
| By: | |||
| Name: | |||
| Title: | Email: | ||
| With a copy to (which shall not constitute notice): | |||
IN WITNESS WHEREOF, the undersigned have caused this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser:
Name of Authorized Signatory:
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription Amount:
Shares of Preferred Stock:
Warrant Shares:
EIN Number:
EXHIBIT A
NOTICE OF EXERCISE
| To: | |
| Attn: | |
| Email: |
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
| ☐ | in lawful money of the United States; or |
| ☐ | if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c). |
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following DWAC Account Number:
(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
| Name of Investing Entity:___________________________________________________________________ |
| Signature of Authorized Signatory of Investing Entity:________________________________________________ |
| Name of Authorized Signatory:_________________________________________________________________ |
| Title of Authorized Signatory:___________________________________________________________________ |
| Date:__________________________________________________________________________________________ |
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: | |
| (Please Print) | |
| Address: | |
| (Please Print) | |
| Phone Number: | |
| Email Address: | |
| Dated: _______________ __, ______ | |
| Holder’s Signature: |
Holder’s Address:
Exhibit 10.7
Execution Version
PARENT GUARANTEE
This PARENT GUARANTEE, dated as of April 9, 2026 (this “Guarantee”), is made and entered into by Jindalee Lithium Limited, an Australian public company (the “Guarantor”), in favor of Endurance Antarctica Partners II, LLC, a Delaware limited liability company (the “Purchaser”), in connection with the transactions contemplated by that certain Securities Purchase Agreement (the “Purchase Agreement”), dated as of the date hereof, by and among the Guarantor, the Purchaser and HiTech Minerals Inc., a Nevada corporation (the “Company”). Capitalized terms used but not defined in this Guarantee shall have the meanings ascribed to such terms in the Purchase Agreement.
WHEREAS, pursuant to the Purchase Agreement, the Company has agreed to issue and sell to the Purchaser, and the Purchaser has agreed to purchase from the Company the Preferred Stock, subject to the terms and conditions set forth therein;
WHEREAS, the terms of the Preferred Stock are set forth in the Certificate of Designation;
WHEREAS, the Company is a wholly-owned subsidiary of the Guarantor;
WHEREAS, Section 8(c) of the Certificate of Designation contemplates that if, prior to the Business Combination Consummation, the Business Combination Agreement is terminated in accordance with its terms, then the Company will redeem the Preferred Stock and any Accrued Value in its entirety (the “BCA Termination Redemption”) and that the Company’s obligation to redeem such Preferred Stock in connection with the BCA Termination Redemption will be guaranteed by Guarantor;
WHEREAS, the Guarantor will obtain benefits as a result of the execution and performance of the Purchase Agreement by the Company and the Purchaser, and, as an inducement for the Company and the Purchaser to enter into and effect the transactions contemplated by the Purchase Agreement, the Guarantor has agreed to enter into this Guarantee.
NOW, THEREFORE, in consideration of the premises and in consideration of the Company and the Purchaser entering into the Purchase Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), and intending to be legally bound hereby, the Guarantor hereby agrees as follows:
(1) The Guarantor hereby absolutely, fully, unconditionally and irrevocably guarantees, to the Purchaser the performance by the Company of its obligations with respect to the BCA Termination Redemption if, as and when such performance becomes due under the terms of the Certificate of Designation and the Purchase Agreement (the “Guaranteed Obligations”).
(2) Notwithstanding anything to the contrary, the Guarantor’s obligations hereunder shall arise only if (a) a Guaranteed Obligation has become due and payable in accordance with the Purchase Agreement and the Certificate of Designation, (b) the Company has failed to pay or perform such Guaranteed Obligation when due, and (c) such failure continues beyond twenty (20) Business Days following the date of the BCA Termination Notice. No later than the twenty-first (21st) Business Day following the date of the BCA Termination Notice (the “Payment Due Date”), the Guarantor shall promptly perform, or cause to be performed, or pay, or cause to be paid, to the Purchaser such unpaid or unperformed Guaranteed Obligations in the manner prescribed in the Purchase Agreement and Certificate of Designation as if the Guarantor was the Company.
(3) This Guarantee is an absolute, unconditional and continuing guarantee of the full and punctual performance by the Company of the Guaranteed Obligations, notwithstanding any amendment, modification or supplementation of the Purchase Agreement or any other circumstances that might constitute a defense available to the Guarantor (other than (i) the defense that the Guaranteed Obligations have been indefeasibly paid or performed in full in accordance with the terms of the Purchase Agreement and the Certificate of Designation or (ii) the defense that the BCA Termination Redemption has not become due and payable in accordance with Section 8(c) of the Certificate of Designation). For the avoidance of doubt, the Guarantor shall not be entitled to assert any defense, set-off, counterclaim, or reduction that may be available to the Company arising out of or relating to (a) any breach by the Purchaser or the Company of their respective representations, warranties, or covenants under the Purchase Agreement, or (b) any condition to closing under the Purchase Agreement that has not been satisfied or waived, in each case, except to the extent such defense directly relates to the calculation of the amount of the Guaranteed Obligations or the determination that the BCA Termination Redemption has become due and payable. No waiver of any breach of any provision shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other provision, nor shall any waiver be implied from any course of dealing. No extension of time for performance of any obligations or other acts hereunder shall be deemed to be an extension of the time for performance of any other obligations or any other acts. The Guarantor hereby unconditionally and irrevocably waives, to the fullest extent permitted by applicable law: (a) any defense based upon or arising by reason of any lack of authority of the officers, directors or any agents of the Company or the Guarantor; (b) promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest, notice of protest, notice of dishonor, and any other notice with respect to any of the Guaranteed Obligations and this Guarantee; (c) any right to require the Purchaser to proceed against the Company, or pursue any other remedy in the Purchaser’s power before proceeding against the Guarantor; (d) any defense based upon or arising by reason of the application of the statute of limitations to any claim against the Company or the Guarantor; and (e) any right of subrogation and any right to enforce any remedy which the Purchaser now has or may hereafter have against the Company. The Guarantor agrees that the foregoing waivers are of the essence of the transaction contemplated by the Purchase Agreement, and that, but for this Guarantee and such waivers, the Purchaser would not have entered into the Purchase Agreement. Any breach of the covenants set forth in this Section shall constitute a default under this Guarantee, and the Purchaser shall be entitled to exercise all rights and remedies available hereunder, under the Purchase Agreement, the Certificate of Designation or at law or in equity.
(4) The Guarantor hereby represents, warrants and covenants to the Purchaser as follows: (i) the Guarantor has all requisite power, authority and legal capacity to execute and deliver this Guarantee and perform its obligations hereunder; (ii) the execution and delivery of this Guarantee has been duly authorized by all required action by the Guarantor and is the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting or relating to creditors’ rights generally and general equitable principles; (iii) neither the Guarantor’s execution and delivery of this Guarantee nor the performance by the Guarantor of its obligations hereunder will violate or conflict with (a) the organizational documents of the Guarantor, (b) violate any Law applicable to, binding upon or enforceable against the Guarantor, (c) result in any material breach of, or constitute a material default (or an event which would, with the passage of time or the giving of notice or both, constitute a material default) under, or give rise to a right of payment under or the right to terminate any contract to which the Guarantor is a party or is bound, (d) result in the creation or imposition of any lien or encumbrance upon any of the material property or material assets of the Guarantor or (e) require the consent or approval of any governmental authority or any other person; and (iv) the Guarantor shall maintain, at all times, consolidated net assets (as determined in accordance with Australian Accounting Standards) of not less than value of the Guaranteed Obligations (the “Minimum Net Worth”). The Guarantor shall promptly notify the Purchaser in writing if the Guarantor’s consolidated net assets fall below the Minimum Net Worth. The Guarantor expressly acknowledges and agrees that the Guarantor’s obligations hereunder is not subject to any condition or contingency with respect to any financing or funding by any third party.
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(5) The Guarantor hereby acknowledges that the Purchaser has entered into the Purchase Agreement in reliance on the Guarantor’s execution and delivery of this Guarantee.
(6) If the Guarantor fails to pay any Guaranteed Obligation on or before the Payment Due Date, then, in addition to and not in limitation of any other rights or remedies available to the Purchaser hereunder, at law or in equity, the Guarantor shall reimburse the Purchaser for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees, court costs, and disbursements) incurred by the Purchaser as a result of the collection of any overdue Guaranteed Obligations and the enforcement of this provision or any other provision of this Guarantee, whether or not any legal Proceeding is commenced.
(7) All questions concerning the construction, validity, enforcement and interpretation of this Guarantee shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Guarantee (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the State of Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Delaware for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under the Purchase Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of this Guarantee the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
(8) IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(9) The Guarantor agrees that this Guarantee is intended to be legally binding and specifically enforceable pursuant to its terms, that the Purchaser would be irreparably harmed if any of the provisions of this Guarantee are not performed in accordance with their specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly, in addition to any other remedy to which the Purchaser may be entitled at Law, the Purchaser shall be entitled to injunctive relief without the posting of any bond to prevent breaches of this Guarantee and to specifically enforce the terms and provisions hereof. The Guarantor further waives any defense that a remedy at Law would be adequate in any action or legal Proceeding for specific performance or injunctive relief hereunder.
(10) The rights and obligations of this Guarantee may not be assigned by the Guarantor without the prior written consent of the Purchaser.
(11) Purchaser may assign this Guarantee, in whole or in part, to any Permitted Transferee; provided that no such assignment shall be effective against the Guarantor unless and until the Guarantor has received written notice of such assignment, including the identity and contact information of such Permitted Transferee.
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(12) None of the terms or provisions of this Guarantee may be waived, amended, supplemented or otherwise modified except in writing by the parties hereto.
(13) This Guarantee may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Guarantee by electronic mail transmission of a “.pdf” or other similar data file shall be effective as delivery of a manually executed counterpart to this Guarantee.
(14) This Guarantee, and all obligations of the Guarantor hereunder, shall automatically terminate upon the earlier of: (i) the full, complete and indefeasible payment and performance of the Guaranteed Obligations in accordance with the Purchase Agreement and the Certificate of Designation (whether by the Company or the Guarantor) and (ii) the Business Combination Consummation, and thereafter no person shall have any further rights or claims against the Guarantor under this Guarantee, provided that this Guarantee shall remain in full force and effect notwithstanding any prior termination, release, discharge or satisfaction if all or any part of any payment made by the Company or the Guarantor with respect to the Guaranteed Obligations is rescinded, set aside, avoided, invalidated, declared to be fraudulent or preferential, or otherwise required to be returned, repaid, disgorged or restored to the Company, the Guarantor, a trustee, receiver, liquidator, custodian or other similar official, or any other person or entity, under any bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance, preference or similar law or equitable cause of action pursuant to a final, non-appealable order of a court of competent jurisdiction, then (a) this Guarantee, and the Guarantor’s obligations hereunder, shall automatically be reinstated solely with respect to the amount so affected, and (b) the Guarantor shall be liable to the Purchaser for the full amount so rescinded, set aside, avoided, invalidated, returned, repaid, disgorged or restored, plus all reasonable and documented costs and expenses (including attorneys’ fees) incurred by the Purchaser in connection therewith.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed by its officer thereunto duly authorized, as of the date of the Agreement.
| JINDALEE LITHIUM LIMITED | ||
| By: | /s/ Ian Rodger | |
| Name: Ian Rodger | ||
| Title: Chief Executive Officer | ||
[Signature Page to Parent Guarantee]
| Acknowledged and agreed: | ||
| ENDURANCE ANTARCTICA PARTNERS II, LLC | ||
| By: Antarctica Endurance Manager, LLC, its Managing Member | ||
| By: | /s/ Chandra R. Patel | |
| Name: | Chandra R. Patel | |
| Title: | Authorized Signatory | |
[Signature Page to Parent Guarantee]
Exhibit 99.1
US Elemental, a U.S. Lithium Development Company, to List on NASDAQ Through Business Combination with Constellation Acquisition Corp. I
US Elemental will hold the McDermitt Lithium Project, one of the largest lithium resources in the United States, with approximately 21.5 million tonnes of lithium carbonate equivalent (LCE).
Focused on advancing domestic lithium supply to support growing U.S. demand for batteries, electrification and energy storage.
NASDAQ listing expected to expand access to U.S. institutional investors and development capital.
Transaction sponsored by Antarctica Capital, a global investment manager with over $10 billion of assets under management.
Existing HiTech Mineral’s owners and management will roll 100% of their interests into the combined company, which reflects their support for the combination, as well as confidence in the go-forward prospects for the combined entity.
Business combination implies a pro forma enterprise value of approximately $571M.
New York, New York, April 9, 2026 – HiTech Minerals Inc. (“HiTech Minerals”), a wholly owned subsidiary of Jindalee Lithium Limited (“Jindalee”) (ASX: JLL), a public company listed in Australia, and Constellation Acquisition Corp. I (“Constellation”) (OTCPK: CSTAF), a special purpose acquisition company sponsored by affiliates of Antarctica Capital, LLC (“Antarctica”), today announced that they have entered into a definitive business combination agreement that would result in the common stock of US Elemental Inc. (“US Elemental” or the “Company”), a newly formed U.S. lithium development company, expected to be publicly listed on Nasdaq under the ticker “ULIT.”
Upon closing, US Elemental will hold the U.S. lithium assets currently owned by HiTech Minerals. These assets include the McDermitt Lithium Project in Oregon (the “McDermitt Project”) and the Clayton North Project in Nevada.
The proposed transaction (the “Transaction”) is expected to position US Elemental to advance large-scale domestic lithium resources at a time of increasing demand for critical minerals within the United States.
COMPANY AND ANNOUNCEMENT HIGHLIGHTS
Large-Scale U.S. Lithium Resource
| ● | US Elemental will hold the McDermitt Project, which contains a mineral resource of approximately 21.5 million tonnes LCE and is expected to support a multi-decade project life of approximately 63 years, positioning it among the largest lithium deposits in the United States. |
Compelling Project Economics
| ● | According to the McDermitt Project’s pre-feasibility study, McDermitt is expected to generate an estimated $3.2 billion NPV (8%) and 17.9% post-tax IRR, with planned production of approximately 47,500 tonnes per year of lithium carbonate during the first decade of operations. |
Positioned Within the U.S. Critical Minerals Supply Chain
| ● | The McDermitt Project aligns with U.S. policy priorities to develop domestic sources of lithium and strengthen supply chains supporting electric vehicles, battery storage and advanced manufacturing. |
Clear Pathway to U.S. Public Markets
| ● | The Transaction is expected to create a U.S.-listed lithium development company, expanding access to U.S. institutional investors and capital to support continued technical advancement and development of the company’s assets. |
Majority Ownership by Jindalee
| ● | Jindalee Lithium is expected to roll over 100% of its equity interest in the U.S. assets and retain a majority ownership position in US Elemental following completion of the Transaction. |
Transaction Value
| ● | The proposed business combination implies a pro forma enterprise value of approximately $571 million, with consideration payable to Jindalee primarily in shares of US Elemental. |
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MANAGEMENT COMMENTS
“Establishing US Elemental as a U.S.-listed company represents an important milestone in unlocking the value of our U.S. lithium assets,” commented Ian Rodger, Chief Executive Officer of Jindalee and incoming Chief Executive Officer of US Elemental.
“We believe the McDermitt Project is one of the largest lithium resources in the United States, and this Transaction is expected to position the Company to access the capital and strategic partnerships needed to advance development. We believe a U.S. listing provides stronger alignment with investors, policy initiatives and industrial partners focused on building a secure domestic critical minerals supply chain,” Rodger concluded.
Chandra Patel, Chairman and Chief Executive Officer of Constellation and Managing Partner of Antarctica Capital, said:
“We believe US Elemental offers investors exposure to a significant U.S. lithium resource at an important time for the industry. Demand for battery materials continues to grow and there is increasing emphasis on developing domestic sources of supply. The McDermitt Project, combined with the team’s experience and the scale of the resource, creates a strong platform for long-term growth. In addition, we believe our track record as a constructive and value-added sponsor makes us compelling partners to enable the Company to successfully execute its public listing and become an industry leader.”
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TRANSACTION OVERVIEW
The Transaction values US Elemental at an implied pro forma enterprise value of approximately $571 million. Under the terms of the agreement:
| ● | HiTech Minerals, which holds Jindalee’s U.S. projects, will become a wholly owned subsidiary of US Elemental. |
| ● | Jindalee Lithium will roll over 100% of its equity interest in the U.S. assets and is expected to hold approximately 80% or more of US Elemental following the closing, subject to customary adjustments, including shareholder redemptions by Constellation and additional financing being raised. |
| ● | The transaction contemplates a capital raise of approximately $20-30 million, including a $4 million PIPE investment from affiliates of Antarctica Capital and additional potential third-party investors. |
| ● | The combined Company is expected to have approximately $15 million of cash on the balance sheet at closing, after Transaction related expenses. |
Cash sources are expected to include proceeds from Constellation’s trust account that is not redeemed and proceeds from any PIPE financing or other financing arrangements that may be pursued prior to closing. The boards of directors of both companies have approved the Transaction.
The transaction is expected to close in H2 2026, subject to regulatory and customary closing conditions, including approval by shareholders of Constellation and Jindalee and satisfaction of a minimum cash condition ($14 million net of certain transaction expenses).
Additional information about the Transaction, including a copy of the business combination agreement and the investor presentation, will be provided in a Current Report on Form 8-K to be filed by Constellation with the U.S. Securities and Exchange Commission (the “SEC”) and available at www.sec.gov.
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STRATEGIC RATIONALE
US Elemental is being established to create a U.S.-focused platform dedicated to advancing domestic lithium resources. The Transaction is intended to position the Company closer to U.S. capital markets, strengthen alignment with national priorities around critical minerals supply and support the continued development of its projects, including the McDermitt and Clayton North assets.
By creating a U.S.-listed company, US Elemental is expected to broaden access to institutional investors and potential strategic partners while improving the Company’s ability to fund the next phase of technical work, feasibility studies and permitting. The structure also allows the Company to operate within the rapidly developing U.S. supply chain for battery materials and energy storage.
Key elements of the strategy include:
| ● | Establishing a U.S.-listed platform dedicated to advancing large-scale domestic lithium resources, including the McDermitt Project and Clayton North project |
| ● | Expanding access to U.S. institutional investors and capital markets through a NASDAQ listing |
| ● | Aligning the Company with U.S. initiatives aimed at strengthening domestic supply chains for critical minerals |
| ● | Supporting continued project advancement, including drilling, technical studies, permitting and development activities |
The McDermitt Project has been included in federal transparency initiatives supporting strategic mineral development in the United States. Following completion of the Transaction, US Elemental is expected to remain closely aligned with Jindalee, which is anticipated to retain a significant ownership position while the Company operates as an independent U.S.-listed entity focused on advancing its portfolio.
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CONFERENCE CALL INFORMATION
US Elemental and Constellation will host a live investor webcast on April 16, 2026 at 10:00 AM Eastern Time to discuss the proposed business combination, anticipated Nasdaq listing and plans to develop the McDermitt Lithium Project. The webcast will include a Q&A session.
Investors may register in advance at the following link: Conference Zoom Link
ADVISORS
Cohen & Company Capital Markets, a division of Cohen & Company Securities, LLC, is acting as capital markets advisor and placement agent in connection with the Transaction and associated PIPE financing.
Alliance Advisors, LLC has been engaged to provide investor relations and communications support in connection with the Transaction, including investor messaging, market engagement and announcement execution support.
Perkins Coie LLP are acting as US legal counsel to Jindalee. Piper Alderman are acting as Australian legal counsel to Jindalee. Kirkland & Ellis LLP are acting as US legal counsel to Constellation.
ABOUT US ELEMENTAL
US Elemental Inc. is a U.S. lithium development company focused on advancing large-scale domestic lithium resources. The Company’s portfolio includes the McDermitt Lithium Project in Oregon and the Clayton North Project in Nevada, which are positioned to support growing demand for battery materials and critical minerals in the United States.
ABOUT JINDALEE
Jindalee Lithium is an Australian company focused on developing the McDermitt Lithium Project, one of the largest lithium resources in the U.S. With 100% ownership and unencumbered offtake rights, Jindalee is strategically positioned to support America’s energy security and domestic supply of critical minerals. The Company recently completed a Pre-Feasibility Study (PFS) confirming McDermitt’s scale, long-life, and low-cost production potential, with strong engagement from US government agencies, including the Department of Energy.
ABOUT CONSTELLATION ACQUISITION CORP. I AND ANTARCTICA CAPITAL
Constellation Acquisition Corp. I (“CSTA”) is a special purpose acquisition company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or similar business combination. CSTA is led by executives of Antarctica Capital, an international investment firm headquartered in New York with $10 billion of assets under management as of December 31, 2025. Antarctica Capital is dedicated to investments in public and private markets and the establishment of long-term capital vehicles to leverage this investment focus. For more information about CSTA, visit https://constellationacquisition.com. For more information about Antarctica Capital, visit https://antarcticacapital.com.
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NO OFFER OR SOLICITATION
This press release does not constitute an offer to sell, or a solicitation of an offer to buy, or a recommendation to purchase, any securities in any jurisdiction, or the solicitation of any vote, consent or approval in any jurisdiction in connection with the Transaction or any related transactions, nor shall there be any sale, issuance or transfer of any securities in any jurisdiction where, or to any person to whom, such offer, solicitation or sale may be unlawful under the laws of such jurisdiction. This press release does not constitute either advice or a recommendation regarding any securities. No offering of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended, or an exemption therefrom.
ADDITIONAL INFORMATION AND WHERE TO FIND IT
In connection with the Transaction, Constellation, Jindalee, the Company and HiTech Minerals (together, the “Contracting Parties”) are expected to prepare a registration statement on Form S-4 (the “Registration Statement”) to be filed with the SEC by the Company and Constellation, which will include preliminary and definitive proxy statements to be distributed to Constellation’s shareholders in connection with Constellation’s solicitation for proxies for the vote by Constellation’s shareholders in connection with the Transaction and other matters as described in the Registration Statement, as well as the prospectus relating to the offer of the securities of the Company or Constellation in connection with the completion of the Transaction. After the Registration Statement has been filed and declared effective, Constellation will mail a definitive proxy statement and other relevant documents to its shareholders as of the record date to be established for voting on the Transaction. Constellation’s shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto, and the definitive proxy statement/prospectus, in connection with Constellation’s solicitation of proxies for its extraordinary general meeting of shareholders to be held to approve, among other things, the Transaction, because these documents will contain important information about the Contracting Parties and the Transaction. Shareholders may also obtain a copy of the preliminary or definitive proxy statement, once available, as well as other documents filed with the SEC regarding the Transaction and other documents filed with the SEC by Constellation and the Company, without charge, at the SEC’s website located at www.sec.gov or by directing a request to Constellation Acquisition Corp I, 1290 Avenue of the Americas, New York, NY 10104.
This press release is not a substitute for the Registration Statement or for any other document that Constellation and/or the Company may file with the SEC in connection with the Transaction. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION.
7
FORWARD LOOKING STATEMENTS
Certain statements included in this press release are not historical facts but are forward-looking statements, including for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “project,” “forecast,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook,” “target,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include, but are not limited to (1) statements regarding estimates and forecasts of financial, performance and operational metrics, projections of market opportunity, anticipated size of the lithium resources, expected support from Jindalee, expected NPV or post-tax IRR, and planned production per year; (2) references with respect to the anticipated benefits of the Transaction and the projected future financial and operational performance of the Company following the Transaction, which may be affected by, among other things, competition, the ability of the Company to grow and manage growth profitably, maintain relationships and retain its management and key employees; (3) the sources and uses of cash of the Transaction; (4) the anticipated capitalization and enterprise value of the Company following the consummation of the Transaction; (5) statements regarding the Company’s operations following the Transaction; (6) the amount of redemption requests made by Constellation’s public shareholders; (7) current and future potential commercial relationships; (8) plans, intentions or future operations of the Company or HiTech Minerals, including relating to the finalization, completion of any studies, feasibility studies or other assessments or relating to attainment, retention or renewal of any assessments, permits, licenses or other governmental notices or approvals, or the commencement or continuation of any construction or operations of plants or facilities; (9) the ability of the Company or Constellation to issue equity or equity-linked securities in the future or raise additional capital in a PIPE financing; (10) the outcome of any legal proceedings that may be instituted against Contracting Parties; (11) changes to the proposed structure of the Transaction that may be required or appropriate as a result of applicable laws or regulations; (12) the ability to meet stock exchange listing standards following the Transaction; (13) the risk that the Transaction disrupts current plans and operations of the Constellation, the Company or HiTech Minerals; (14) the availability of federal, state or local government support, and risks related to extensive regulation, compliance obligations and rigorous enforcement by federal, state, and non-U.S. governmental authorities; and (15) expectations related to the terms and timing of the Transaction and the ability of the parties to successfully consummate the Transaction. These statements are based on various assumptions, whether or not identified in the press release, and on the current expectations of the Contracting Parties’ management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of the Contracting Parties. These forward-looking statements are subject to a number of risks and uncertainties, as set forth in the slide entitled “Risk Factors” in the investor presentation published on the date hereof and and those set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements and Risk Factor Summary” in Constellation’s Annual Report on Form 10-K for the year ended December 31, 2024 (the “Annual Report”), and in those other documents that Constellation has filed, or that the Company and Constellation will file, with the SEC. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. The risks and uncertainties above are not exhaustive, and there may be additional risks that none of the Contracting Parties presently know or that they currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward looking statements reflect relevant Contracting Parties’ expectations, plans or forecasts of future events and views as of the date of the press release. Each of the Contracting Parties anticipate that subsequent events and developments will cause those assessments to change. However, while the Contracting Parties may elect to update these forward-looking statements at some point in the future, each of the Contracting Parties specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing any of the Contracting Parties’ assessments as of any date subsequent to the date of the press release. Accordingly, undue reliance should not be placed upon the forward-looking statements.
8
PARTICIPANTS IN THE SOLICITATION
Constellation, Jindalee and the Company and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies of Constellation’s shareholders in connection with the Transaction. Investors and security holders may obtain more detailed information regarding Constellation’s directors and executive officers in Constellation’s filings with the SEC, including the Annual Report and the other documents filed by Constellation with the SEC from time to time. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to Constellation’s shareholders in connection with the Transaction, including a description of their direct and indirect interests, which may, in some cases, be different than those of Constellation’s shareholders generally, will be set forth in the Registration Statement. Shareholders, potential investors and other interested persons should read the Registration Statement carefully when it becomes available before making any voting or investment decisions. Free copies of any documents described in the foregoing may be obtained as described under “Additional Information And Where To Find It.”
Contacts:
US Elemental:
Investors
Bryan Baritot
Alliance Advisors IR
[email protected]
Media
Fatema Bhabrawla
Constellation:
Investors/Media
[email protected]
9
Exhibit 99.2
 |  |
9 April 2026
Jindalee Signs BCA to List McDermitt on NASDAQ
| ● | Binding Business Combination Agreement executed between Jindalee’s wholly owned US subsidiary, HiTech Minerals Inc., and Constellation Acquisition Corp I |
| ● | Transaction expected to establish US Elemental Inc. as a NASDAQ-listed company holding Jindalee’s US assets, including the McDermitt Lithium Project |
| ● | Proposed transaction implies a pro forma enterprise value of approximately US$571M |
| ● | Transaction contemplates a capital raise of approximately US$20-30M, including a binding US$4M commitment from affiliates of Constellation’s sponsor, Antarctica Capital LLC |
| ● | Funding agreement with affiliates of Antarctica Capital provides approximately US$1.5M immediately, with a further US$2.5M funded at completion |
| ● | Jindalee expected to retain a majority interest in US Elemental upon completion |
Engage with this announcement at the Jindalee Investor Hub.
Transaction Overview
Jindalee Lithium Limited (Jindalee, the Company; ASX: JLL, OTCQX: JNDAF) is pleased to announce that its wholly owned United States (US) operating subsidiary, HiTech Minerals, Inc. (HiTech), has entered into a binding Business Combination Agreement (BCA) with Constellation Acquisition Corp I (Constellation) (OTCPK: CSTAF), a publicly traded special purpose acquisition company (SPAC), sponsored by Antarctica Capital, LLC (Antarctica), pursuant to which newly-formed US Elemental Inc. (US Elemental) is expected to become a NASDAQ listed company holding Jindalee’s US assets (Transaction).
Upon completion, HiTech will become a wholly owned subsidiary of US Elemental, which will own the McDermitt Lithium Project in Oregon, one of the largest lithium resources in the US1 (McDermitt Project, Project). Jindalee is expected to retain a majority interest of 80% or more in US Elemental at completion, subject to customary adjustments including financing outcomes and Constellation shareholder redemptions.
The Transaction implies a pro forma enterprise value for US Elemental of approximately US$571 million, including an implied equity valuation of US$500 million for Jindalee’s US assets (see Annexure C). The Transaction also contemplates a capital raise of approximately US$20-30 million, which includes a binding US$4.0 million commitment from an affiliate of Antarctica, of which approximately US$1.5 million to be funded immediately upon signing of the BCA and a further US$2.5 million is committed for funding at completion, pursuant to a funding agreement executed in connection with the BCA (see summary of terms in Annexure A).
| Jindalee Lithium Limited | www.jindaleelithum.com | ||
| ABN 52 064 121 133 | E: [email protected] | ||
| Level 2, 9 Havelock Street, West Perth, WA, 6005 | P: +61 9321 7550 |  | |
| PO Box 1033, West Perth, WA 6872 | F: +61 9321 7950 |
Completion of the Transaction is subject to customary regulatory and closing conditions, including approval by Constellation shareholders, approval of the Transaction by Jindalee’s shareholders for the purpose of ASX Listing Rule 11.4, and satisfaction of the minimum cash condition (US$14M net of certain expenses).
Upon completion of the Transaction, US Elemental is expected to be listed on NASDAQ and provide a US-listed platform to support advancement of the McDermitt Project and the broader US Elemental strategy. The Transaction will be implemented through a series of mergers involving Constellation, US Elemental, and merger subsidiaries.
Commenting on the execution of the BCA, Jindalee’s Managing Director and CEO Ian Rodger said:
“Execution of the Business Combination Agreement represents a key milestone in advancing our strategy to access US capital markets to support development of the McDermitt Project. The proposed Transaction and US listing of US Elemental is expected to improve our ability to fund the next phase of work, including infill drilling, advanced metallurgical optimisation and feasibility level studies.
Since signing the Letter of Intent with Constellation2 late last year, lithium market conditions have improved, supported by growing demand from battery energy storage systems, while US Government support for critical minerals development has continued to build momentum. Investor interest in US Elemental has been strong, alongside the previously announced non-binding term sheet for an up to US$100M Equity Line of Credit to be provided by L1 Capital Global Opportunities Master Fund3, reinforcing our confidence in both the timing and strategic rationale for the Transaction.
Importantly, the Transaction is structured so that Jindalee retains majority ownership of the Project, while establishing a funding pathway aligned with its scale and long-term development.
Our focus remains on advancing the McDermitt Project in a disciplined and technically robust manner, with capital directed toward clearly defined work programs that underpin permitting, engineering confidence and long-term development decisions.”
Commenting on the execution of the BCA, Chandra Patel, Chairman and Chief Executive Officer of Constellation and Managing Partner of Antarctica Capital, said:
“We believe US Elemental offers investors exposure to a significant US lithium resource at an important time for the industry. Demand for battery materials continues to grow and there is increasing emphasis on developing domestic sources of supply. The McDermitt Project, combined with the US Elemental team’s experience and the scale of the resource, creates a strong platform for long-term growth. In addition, we believe our track record as a constructive and value-added sponsor makes us compelling partners to enable US Elemental to successfully execute its public listing and become an industry leader.”
Key Terms of the BCA
A copy of the BCA, which sets out the terms and conditions of the Transaction, is attached to this announcement.
In summary, the Transaction will be implemented through a two-step merger structure whereby Constellation will merge with a wholly owned subsidiary of US Elemental, and HiTech will subsequently merge with a separate subsidiary of US Elemental, with HiTech surviving as a wholly owned subsidiary of US Elemental following completion. The proforma corporate structure is included in Annexure B.
| Jindalee Signs BCA to List McDermitt on NASDAQ – April 2026 | 2 | |
Under the terms of the BCA, HiTech ordinary shareholders, being Jindalee, will receive 50 million common shares in US Elemental as consideration for the acquisition of HiTech. These ordinary shares are initially valued at US$10 per share, equating to an implied equity value of US$500 million. Jindalee is expected to retain a majority equity interest in US Elemental following completion, with precise ownership outcomes subject to customary adjustments, including Constellation shareholder redemptions and actual equity issued pursuant to financing arrangements.
The Transaction contemplates a capital raise of US$20-30 million, with proceeds expected to fund certain transaction costs, US Elemental working capital and Project activities, including a large infill drill program and feasibility study work streams. In connection with signing of the BCA, a binding Funding Agreement has been executed with an affiliate of Constellation’s sponsor, Antarctica, providing approximately US$1.5 million immediately and a further US$2.5 million committed for funding at completion. The key terms of the Funding Agreement are summarised in Annexure A.
Completion of the Transaction is subject to satisfaction of a minimum cash condition of US$14 million net of certain transaction expenses, which is intended to ensure US Elemental has sufficient funding available at completion. The minimum cash condition is expected to be met through additional capital raising (described above). Certain loans advanced by Jindalee to HiTech prior to completion will be converted to US Elemental warrants and certain other loans by Jindalee may, at Jindalee’s election, be repaid in cash or converted into equity in US Elemental on agreed terms at completion.
Upon completion of the Transaction, the board of directors of US Elemental is expected to comprise nominees of both Jindalee and Constellation, reflecting customary governance arrangements for a de-SPAC transaction. Jindalee will have majority representation on the post-completion board, ensuring ongoing involvement in the strategic direction and oversight of US Elemental.
Completion of the Transaction is subject to various regulatory and closing conditions, including approval by Constellation shareholders, approval by Jindalee shareholders (including for the purposes of ASX Listing Rule 11.4), listing approval by NASDAQ, receipt of applicable regulatory approvals, completion of audited and Securities and Exchange Commission(SEC) compliant financial statements, effectiveness of the relevant US registration statement, satisfaction of the minimum cash condition (which may be waived by Jindalee), and the absence of material adverse change events (for both Jindalee and the SPAC).
The BCA includes customary exclusivity, representations and warranties, and covenants for a transaction of this nature. It also includes provisions permitting Jindalee to consider a superior proposal, subject to customary fiduciary out and matching right provisions. In certain circumstances where the Transaction does not proceed following a superior proposal, a capped reimbursement of Constellation’s transaction costs may be payable. Either party may terminate the BCA if the transaction is not completed within 9 months of its execution.
The BCA also contains customary 12-month lock-up arrangements in respect of certain US Elemental securities held by Jindalee and Antarctica following completion.
Strategic Rationale and Unanimous Recommendation of the Board
The board of Jindalee (Board) believes the Transaction represents a strategically important step in advancing the Company’s previously announced strategy to position its US assets within a US domiciled, US listed corporate structure. Establishing US Elemental as the holding company for the McDermitt Project is intended to create better alignment with US capital markets, policy priorities and investor bases that are increasingly focused on domestic critical minerals supply.
| Jindalee Signs BCA to List McDermitt on NASDAQ – April 2026 | 3 | |
The proposed NASDAQ listing of US Elemental is expected to enhance access to US institutional and strategic capital, which the Board considers critical to supporting the next phase of project advancement. The McDermitt Project has reached a stage where significant capital is required to fund infill drilling, advance metallurgical optimisation and feasibility level studies, and the Transaction is intended to improve funding of these activities in a manner consistent with the scale and strategic importance of the Project.
The Board also considers the Transaction to be well aligned with the evolving US regulatory and policy environment, with Lithium and Magnesium designated as critical minerals and in an environment where there is increasing government support for domestic supply chains. Structuring the Project within a NASDAQ listing is expected to strengthen US Elemental’s position with respect to government agencies, potential funding programs and strategic counterparties.
Importantly, the Transaction is structured to allow Jindalee shareholders to retain meaningful exposure to the long-term value of the McDermitt Project, with Jindalee expected to retain a majority ownership interest in US Elemental following completion, providing continued participation in project upside, whilst accessing the benefits of a US public listing.
Overall, the Board believes the Transaction provides a pathway to accelerate development of the McDermitt Project, enhance funding optionality and maintain alignment between Jindalee and its shareholders as the Project progresses toward feasibility and potential development.
Each member of the Board considers that the Transaction is in the best interests of Jindalee shareholders and intends to vote all Shares they own or control in favour of the Transaction.
Additionally, Jindalee has received a binding commitment from each of Mr Lindsay Dudfield, Mr Dudfield and Mrs Yvonne Dudfield (as trustees of the LD Dudfield Pension Fund) and Jopan Management Pty Ltd, a company owned by Mr Dudfield’s wife, which as at the date of this announcement, together hold or control approximately 20,094,514 Shares or 19.61% of Jindalee’s issued capital on an undiluted basis, that they each intend to vote, or cause to be voted, all Shares that they hold or control in favour of the Transaction in the absence of a Superior Proposal or an Intervening Event (as those terms are defined in the BCA).
Shareholder Approvals
Jindalee intends to convene a general meeting to seek shareholder approval for the Transaction for the purpose of Listing Rule 11.4.
A notice of meeting for the Transaction and its related matters will be circulated to shareholders in due course.
Jindalee shareholders do not need to take any action at this time.
Indicative Timelines
| Action | Indicative timing | |
| Business combination agreement signed | 09 April 2026 | |
| Jindalee shareholder approval | Q2 2026 | |
| Listing of US Elemental on NASDAQ | H2 2026 |
Advisors
Cohen & Company Capital Markets, a division of Cohen & Company Securities, LLC, is acting as financial and capital markets advisor and placement agent in connection with the Transaction and associated Private Investment in Public Equity (PIPE) financing.
| Jindalee Signs BCA to List McDermitt on NASDAQ – April 2026 | 4 | |
Alliance Advisors, LLC has been engaged to provide investor relations and communications support in connection with the Transaction, including investor messaging, market engagement and post announcement execution support.
Perkins Coie LLP are acting as US legal counsel to Jindalee. Piper Alderman are acting as Australian legal counsel to Jindalee. Kirkland & Ellis LLP are acting as US legal counsel to Constellation.
Authorised for release by the Jindalee Board of Directors. For further information please contact:
| IAN RODGER | LINDSAY DUDFIELD | ||
| Managing Director & Chief Executive Officer | Executive Director | ||
| T: | + 61 8 9321 7550 | T: | + 61 8 9321 7550 |
| E: | [email protected] | E: | [email protected] |
References
| 1. | Jindalee Lithium ASX announcement 19/11/2024: “McDermitt Lithium Project Pre-Feasibility Study” |
| 2. | Jindalee Lithium ASX announcement 09/09/2025: “JLL Signs Non-Binding LOI to List McDermitt on a US Exchange” |
| 3. | Jindalee Lithium ASX announcement 20/10/2025: “Successful $8M Placement & SPP to Advance McDermitt & SPAC” |
About Jindalee
Jindalee Lithium is an Australian company focused on developing the McDermitt Lithium Project, one of the largest lithium resources in the U.S. With 100% ownership and unencumbered offtake rights, Jindalee is strategically positioned to support America’s energy security and domestic supply of critical minerals. The Company completed a Pre-Feasibility Study2 (PFS) in November 2024 confirming McDermitt’s scale, long-life, and low-cost production potential, with strong engagement from US government agencies, including the Department of Energy. As a deeply undervalued lithium developer, Jindalee presents a compelling investment opportunity ahead of the next lithium market upcycle.
Forward-Looking Statements
This document may contain certain forward-looking statements. Forward-looking statements include but are not limited to statements concerning Jindalee Lithium Limited’s (Jindalee’s) current expectations, estimates and projections about the industry in which Jindalee operates, and beliefs and assumptions regarding Jindalee’s future performance. When used in this document, the words such as “anticipate”, “could”, “plan”, “estimate”, “expects”, “seeks”, “intends”, “may”, “potential”, “should”, and similar expressions are forward-looking statements. Although Jindalee believes that its expectations reflected in these forward-looking statements are reasonable, such statements are subject to known and unknown risks, uncertainties and other factors, some of which are beyond the control of Jindalee and no assurance can be given that actual results will be consistent with these forward-looking statements.
| Jindalee Signs BCA to List McDermitt on NASDAQ – April 2026 | 5 | |
Annexure A – Antarctica Funding Agreement – Key Terms
| Antarctica Funding Agreement – Key Terms | ||
| Investor | Endurance Antarctica Partners II, LLC (an affiliate of Antarctica Capital, LLC) | |
| Issuer | HiTech Minerals, Inc (“HiTech”) to be transferred to US Elemental (“PubCo”) on completion of the Transaction (“BC Closing”). | |
| Total Commitment | US$4.05 million, funded in two tranches. | |
| First Tranche | US$1.55 million funded on signing of the BCA1. | |
| Second Tranche | US$2.50 million funded at BC Closing as participation in the closing financing to satisfy the minimum cash condition (“Closing Financing”), on the same terms as other Closing Financing participants. | |
| First Tranche Instrument | Convertible Preferred Shares (“Convertible Preferred”) in the Issuer. | |
| Conditions to Second Tranche | Binding commitment, subject solely to satisfaction (or waiver) of BC Closing conditions, provided that the Investor is not required to fund the Second Tranche if, together with the amount of the Second Tranche, the Minimum Cash Condition (as defined in the BCA) would not be satisfied. | |
| Coupon (on First Tranche only) | Quarterly in arrears: 10% p.a. cash or capitalised at 12% p.a., at HiTech/PubCo election. Steps up to 15% p.a. if in breach of a material term (until cured). Interest compounded quarterly. | |
| Termination Protection (First Tranche) | If the BCA is terminated before BC Closing, HiTech must repay Accrued Value² within 20 business days, backed by a Jindalee parent guarantee. However, if all BC Closing conditions have been satisfied (or waived where permitted) and the investor fails to fund the Second Tranche, HiTech/Jindalee is not required to repurchase or redeem the First Tranche under this clause. | |
| Conversion (First Tranche) | Convertible only after BC Closing into PubCo common shares, at the Investor’s option. Initial conversion price: US$12.00 per share for the first 6 months after De-SPAC close, subject to anti-dilution provisions. Thereafter, the conversion price may reset at 6, 9, 12, 15, 18, 21 and 24 months post-close to the greater of (i) the relevant 20-day VWAP of PubCo shares and (ii) a US$7.50 floor, which may increase dilution if PubCo trades below US$12.00. | |
| Warrant coverage (First Tranche only) | The Investor will be entitled to be issued such number of warrants to purchase PubCo common shares equal to the number of shares initially issuable on conversion of the Convertible Preferred, with a US$11.50 exercise price and expiring 5-years after BC Closing. Warrants will also include customary anti-dilution protections on the same terms as the Convertible Preferred Shares. | |
| PubCo call (redemption) right (First Tranche) | Following BC Closing, PubCo may redeem the First Tranche Convertible Preferred on 15 days’ notice for cash at a premium to Accrued Value: 150% (prior to 1st anniversary of BC Closing), then 140% / 130% / 120% / 110% in years 2–5, and 100% from the 5th anniversary of BC Closing onwards. On receipt of a call notice, the Investor may elect to convert to PubCo common shares instead of being redeemed. |
| Jindalee Signs BCA to List McDermitt on NASDAQ – April 2026 | 6 | |
| Investor put right /change of control (First Tranche) | Investor may require redemption at 100% of Accrued Value at any time after the 5th anniversary of BC Closing. On a change of control of PubCo, the Convertible Preferred is redeemable at the greater of (i) the applicable call premium and (ii) the value the investor would receive had they been converted to PubCo common shares. | |
| Most Favoured Nation (First Tranche only) | If, prior to or in connection with BC Closing, HiTech/PubCo issues securities to any third party on terms more favourable than any term of the First Tranche (including economic or governance terms), the investor may elect to amend the First Tranche to include that more favourable term. | |
| Minority protections / consent rights (First Tranche) | While any Convertible Preferred is on issue, investor consent is required to: change Convertible Preferred rights; issue further Convertible Preferred; issue senior or pari passu preferred; or make adverse changes to constitutional documents. | |
| Use of proceeds | General corporate and working capital purposes. |
Notes to the table:
| 1) | HiTech must reimburse the investor up to US$50,000 of documented out-of-pocket expenses, netted against the First Tranche funding amount. |
| 2) | “Accrued Value” = principal + capitalised interest + accrued/unpaid dividends. |
| Jindalee Signs BCA to List McDermitt on NASDAQ – April 2026 | 7 | |
Annexure B – Change in Corporate Structure
| Jindalee Signs BCA to List McDermitt on NASDAQ – April 2026 | 8 | |
Annexure C – Transaction Overview
Exhibit 99.3
INVESTOR PRESENTATION April 2026 Securing America’s Lithium Supply
INVESTOR PRESENTATION | 2 U.S. Disclaimers Basis of Presentation This confidential presentation (together with oral statements made in connection herewith, the “Presentation Materials”) are provided for informational purposes only and have been prepared to assist interested parties in making their own evaluation with respect to a potential business combination among Jindalee Lithium Limited (“ Jindalee ”), its wholly owned subsidiary, HiTech Minerals, Inc . (the “Company”), Constellation Acquisition Corp I (“Constellation”), US Elemental (“ NewCo ”) and the other parties thereto (collectively, the “Contracting Parties”), and related transactions (the “Potential Business Combination”) and for no other purpose . These Presentation Materials and information contained herein constitutes confidential information and is provided to you on the condition that you agree that you will hold it in strict confidence and not reproduce, disclose, forward or distribute it in whole or in part without the prior written consent of Jindalee , the Company and Constellation and is intended for the recipient hereof only . By accepting, reviewing or reading these Presentation Materials, you will be deemed to have agreed to the obligations and restrictions set out below . In addition, these Presentation Materials are intended solely for investors that are, and by proceeding to receive these Presentation Materials you confirm that you are, qualified institutional buyers or institutions that are accredited investors (as such terms are defined under the rules of the Securities and Exchange Commission (the “SEC”) . These Presentation Materials supersede and replace all previous oral or written communications relating to the subject matter hereof . Jindalee , the Company and Constellation reserve the right to negotiate with one or more parties and to enter into a definitive agreement relating to one or more capital raising transactions at any time and without prior notice to the recipient of these Presentation Materials or any other person or entity . Jindalee , the Company and Constellation also reserve the right, at any time and without prior notice and without assigning any reason therefor ( i ) to terminate the further participation by the recipient or any other person or entity in the consideration of, and proposed process relating to, a capital raising transaction, (ii) to modify any of the rules or procedures relating to such consideration and proposed process and (iii) to terminate entirely such consideration and proposed process . The recipient acknowledges that Jindalee , the Company and Constellation and their respective directors, officers, employees, affiliates, agents, advisors or representatives are under no obligation to accept any offer or proposal by any person or entity regarding a capital raising transaction . None of Jindalee , the Company and Constellation or any of their respective directors, officers, employees, affiliates, agents, advisors or representatives has any legal, fiduciary or other duty to any recipient with respect to the manner in which any capital raising process is conducted . By your acceptance of these Presentation Materials, you acknowledge that applicable securities laws restrict a person who has received material non - public information concerning a company from purchasing or selling securities of such company and from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities . Certain information included herein describes or assumes the terms that are or will be included in the agreements between the parties to the Potential Business Combination . Such agreements and terms are subject to change . The consummation of the Potential Business Combination is subject to other various risks and contingencies, including customary closing conditions . There can be no assurance that the Potential Business Combination will be entered into or consummated on the terms summarized herein or otherwise . As such, the subject matter of these Presentation Materials is evolving and is subject to further change by Jindalee , the Company and Constellation in their joint and absolute discretion . No Offer or Solicitation These Presentation Materials do not constitute an offer to sell, or a solicitation of an offer to buy, or a recommendation to purchase, any securities in any jurisdiction, or the solicitation of any vote, consent or approval in any jurisdiction in connection with the Potential Business Combination or any related transactions, nor shall there be any sale, issuance or transfer of any securities in any jurisdiction where, or to any person to whom, such offer, solicitation or sale may be unlawful under the laws of such jurisdiction . These Presentation Materials do not constitute either advice or a recommendation regarding any securities . No offering of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933 , as amended (the “Securities Act”) or an exemption therefrom . No Representations and Warranties No representations or warranties, express, implied or statutory are given in, or in respect of, these Presentation Materials, and no person may rely on the information contained in these Presentation Materials . Any data on past performance or modeling contained herein is not an indication as to future performance . This data is subject to change . Each recipient agrees and acknowledges that these Presentation Materials are not intended to form the basis of any investment decision by such recipient and do not constitute investment, tax or legal advice . Recipients of these Presentation Materials are not to construe its contents, or any prior or subsequent communications from or with any of the Contracting Parties or their respective representatives as investment, legal or tax advice . Each recipient should seek independent third party legal, regulatory, accounting and/or tax advice regarding these Presentation Materials . In addition, these Presentation Materials do not purport to be all - inclusive or to contain all of the information that may be required to make a full analysis of the Potential Business Combination . Recipients of these Presentation Materials should each make their own evaluation of the Company and NewCo , and of the relevance and adequacy of the information and should make such other investigations as they deem necessary . Information disclosed in these Presentation Materials is current as of the date of publication, and none of the Contracting Parties assume any obligation to update the information in these Presentation Materials . Each recipient also acknowledges and agrees that the information contained in these Presentation Materials ( i ) is preliminary in nature and is subject to change, and any such changes may be material and (ii) should be considered in the context of the circumstances prevailing at the time and has not been, and will not be, updated to reflect material developments which may occur after the date of these Presentation Materials . To the fullest extent permitted by law, in no circumstances will any of the Contracting Parties or any of their respective subsidiaries, stockholders, affiliates, representatives, partners, directors, officers, employees, advisers or agents be responsible or liable for any direct, indirect or consequential loss or loss of profit arising from the use of these Presentation Materials, its contents, its omissions, reliance on the information contained within it or on opinions communicated in relation thereto or otherwise arising in connection therewith . These Presentation Materials discuss trends and markets that the Company’s or NewCo’s leadership team believes will impact the development and success of the Company or NewCo based on its current understanding of the marketplace and each recipient acknowledges this information is preliminary in nature and subject to change . Neither the SEC nor any securities commission of any other U . S . or non - U . S . jurisdiction has approved or disapproved of the Potential Business Combination described herein or determined that these Presentation Materials are truthful or complete . Forward - Looking Statements Certain statements included in these Presentation Materials are not historical facts but are forward - looking statements, including for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995 . Forward - looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “project,” “forecast,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook,” “target,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward - looking . These forward - looking statements include, but are not limited to, ( 1 ) statements regarding estimates and forecasts of financial, performance and operational metrics and projections of market opportunity ; ( 2 ) references with respect to the anticipated benefits of the Potential Business Combination and the projected future financial and operational performance of NewCo following the Potential Business Combination, which may be affected by, among other things, competition, the ability of NewCo to grow and manage growth profitably, maintain relationships and retain its management and key employees ;; ( 3 ) the sources and uses of cash of the Potential Business Combination ; ( 4 ) the anticipated capitalization and enterprise value of NewCo following the consummation of the Potential Business Combination ; ( 5 ) statements regarding NewCo’s operations following the Potential Business Combination ; ( 6 ) the amount of redemption requests made by Constellation’s public shareholders ; ( 7 ) current and future potential commercial relationships ; ( 8 ) plans, intentions or future operations of NewCo or the Company, including relating to the finalization, completion of any studies, feasibility studies or other assessments or relating to attainment, retention or renewal of any assessments, permits, licenses or other governmental notices or approvals, or the commencement or continuation of any construction or operations of plants or facilities ;
INVESTOR PRESENTATION | 3 U.S. Disclaimers Continued Forward - Looking Statements Continued ( 9 ) the ability of NewCo to issue equity or equity - linked securities in the future ; ( 10 ) the outcome of any legal proceedings that may be instituted against the Contracting Parties ; ( 11 ) changes to the proposed structure of the Potential Business Combination that may be required or appropriate as a result of applicable laws or regulations ; ( 12 ) the ability to meet stock exchange listing standards following the Potential Business Combination ; ( 13 ) the risk that the Potential Business Combination disrupts current plans and operations of the Company ; ( 14 ) the availability of federal, state or local government support, and risks related to extensive regulation, compliance obligations and rigorous enforcement by federal, state, and non - U . S . governmental authorities ; and ( 15 ) expectations related to the terms and timing of the Potential Business Combination and the ability of the parties to successfully consummate the Potential Business Combination . These statements are based on various assumptions, whether or not identified in these Presentation Materials, and on the current expectations of the Contracting Company’s management and are not predictions of actual performance . These forward - looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability . Actual events and circumstances are difficult or impossible to predict and will differ from assumptions . Many actual events and circumstances are beyond the control of the Contracting Parties . These forward - looking statements are subject to a number of risks and uncertainties, as set forth in the slide entitled “Risk Factors” in the appendix to these Presentation Materials and those set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward - Looking Statements and Risk Factor Summary” in Constellation’s Annual Report on Form 10 - K for the year ended December 31 , 2024 , and in those other documents that Constellation has filed, or that Constellation and NewCo will file, with the U . S . Securities and Exchange Commission (the “SEC”) . If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward - looking statements . The risks and uncertainties above are not exhaustive, and there may be additional risks that none of the Contracting Parties presently know or that they currently believe are immaterial that could also cause actual results to differ from those contained in the forward - looking statements . In addition, forward looking statements reflect relevant Contracting Parties’ expectations, plans or forecasts of future events and views as of the date of these Presentation Materials . Each of the Contracting Parties anticipate that subsequent events and developments will cause those assessments to change . However, while the Contracting Parties may elect to update these forward - looking statements at some point in the future, each of the Contracting Parties specifically disclaim any obligation to do so . These forward - looking statements should not be relied upon as representing any of the Contracting Parties’ assessments as of any date subsequent to the date of these Presentation Materials . Accordingly, undue reliance should not be placed upon the forward - looking statements . Use of Projections The projections, estimates and targets in these Presentation Materials are forward - looking statements that are based on assumptions that are inherently subject to significant uncertainties and contingencies, many of which are beyond any of the Contracting Party's control . See "Forward - Looking Statements" above . The assumptions and estimates underlying the projected, expected or target results are inherently uncertain and are subject to a wide variety of significant business, economic, regulatory, competitive, technological and other risks and uncertainties that could cause actual results to differ materially from those contained in such projections, estimates and targets . The projections are for illustrative purposes only and should not be relied upon as being necessarily indicative of future results . The assumptions and estimates underlying the prospective information 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 prospective information . While all projections, estimates and targets are necessarily speculative, each of the Contracting Parties believe that the preparation of prospective information involves increasingly higher levels of uncertainty the further out the projection, estimate or target extends from the date of preparation . Accordingly, there can be no assurance that prospective results are indicative of future performance or that actual results will not differ materially from any results presented or indicated in the prospective information . The inclusion of projections, estimates and targets in these Presentation Materials should not be regarded as an indication that any of the Contracting Parties, or their representatives, considered or consider the financial projections, estimates and targets to be a reliable prediction of future events . Neither the independent auditors of Constellation nor the independent registered public accounting firm or mining consultants or engineers of the Jindalee , NewCo or the Company has audited, reviewed, compiled or performed any procedures with respect to the projections for the purpose of their inclusion in these Presentation Materials, and accordingly, neither of them expressed an opinion or provided any other form of assurance with respect thereto for the purpose of these Presentation Materials . Non - GAAP Measures These Presentation Materials include certain financial measures not presented in accordance with United States generally accepted accounting principles (“GAAP”) . These non - GAAP financial measures are not measures of financial performance in accordance with GAAP and may exclude items are significant in understanding and assessing the Company’s financial results . Therefore, these measures should not be considered in isolation or as an alternative to net income, cash flows from operations or other measures of profitability, liquidity or performance under GAAP . You should be aware that the Company’s presentation of these measures may not be comparable to similarly - titled measures used by other companies . Jindalee and the Company believe these non - GAAP measures of financial results provide useful information to management and investors regarding certain financial and business trends relating to the Company’s financial condition and results of operations . These Presentation Materials also include certain projections of non - GAAP financial measures . Due to the high variability and difficulty in making accurate forecasts and projections of some of the information excluded from these projected measures, together with some of the excluded information not being ascertainable or accessible, Jindalee and the Company are unable to quantify certain amounts that would be required to be included in the most directly comparable GAAP financial measures without unreasonable effort . Consequently, no disclosure of estimated comparable GAAP measures is included and no reconciliation of the forward - looking non - GAAP financial measures is included . Important Information and Where to Find It In connection with a Potential Business Combination, Constellation, Jindalee , the Company and NewCo are expected to prepare a registration statement on Form S - 4 (the “Registration Statement”) to be filed with the SEC by NewCo , which will include preliminary and definitive proxy statements to be distributed to Constellation’s shareholders in connection with Constellation’s solicitation for proxies for the vote by Constellation’s shareholders in connection with the Potential Business Combination and other matters as described in the Registration Statement, as well as the prospectus relating to the offer of the securities of NewCo in connection with the completion of the Potential Business Combination . After the Registration Statement has been filed and declared effective, Constellation will mail a definitive proxy statement and other relevant documents to its shareholders as of the record date to be established for voting on the Potential Business Combination . Constellation’s shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto, and the definitive proxy statement/prospectus, in connection with Constellation’s solicitation of proxies for its extraordinary general meeting of shareholders to be held to approve, among other things, the Potential Business Combination, because these documents will contain important information about Constellation, Jindalee , the Company, NewCo and the Potential Business Combination . Shareholders may also obtain a copy of the preliminary or definitive proxy statement, once available, as well as other documents filed with the SEC regarding the Potential Business Combination and other documents filed with the SEC by Constellation and NewCo , without charge, at the SEC’s website located at www . sec . gov or by directing a request to Constellation Acquisition Corp I, 1290 Avenue of the Americas, New York, NY 10104 . These Presentation Materials are not a substitute for the Registration Statement or for any other document that Constellation and/or NewCo may file with the SEC in connection with the Potential Business Combination . INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION .
INVESTOR PRESENTATION | 4 U.S. Disclaimers Continued Participants in Solicitation Constellation, Jindalee , the Company and NewCo and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies of Constellation’s shareholders in connection with the Potential Business Combination . Investors and security holders may obtain more detailed information regarding Constellation’s directors and executive officers in Constellation’s filings with the SEC, including Constellation’s Annual Report on Form 10 - K and the other documents filed by Constellation with the SEC . Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to Constellation’s shareholders in connection with the Potential Business Combination, including a description of their direct and indirect interests, which may, in some cases, be different than those of Constellation’s shareholders generally, will be set forth in the Registration Statement . Shareholders, potential investors and other interested persons should read the Registration Statement carefully when it becomes available before making any voting or investment decisions . Trademarks These Presentation Materials contain trademarks, service marks, trade names and copyrights of third parties, which are the property of their respective owners . The use or display of third parties’ trademarks, service marks, trade names or products in these Presentation Materials are not intended to, and do not imply, a relationship with any Contracting Party, an endorsement or sponsorship by or of any Contracting Party, or a guarantee that any Contracting Party will work or will continue to work with such third parties . Solely for convenience, the trademarks, service marks, trade names and copyrights referred to in these Presentation Materials may appear without the TM, SM, ® or © symbols, but such references are not intended to indicate, in any way, that any Contracting Party or the any third - party will not assert, to the fullest extent under applicable law, their rights or the right of the applicable licensor to these trademarks, service marks, trade names and copyrights . Industry and Market Data Industry and market data used in these Presentation Materials has been obtained from third - party industry publications and sources as well as from research reports prepared for other purposes . Neither Constellation, NewCo , the Company nor Jindalee has independently verified the data obtained from these sources and cannot assure you of the reasonableness of any assumptions used by these sources or the data’s accuracy or completeness . No Incorporation by Reference The contents of any websites or other citations referenced in these Presentation Materials is not incorporated by reference herein . No Incorporation by Reference The contents of any websites or other citations referenced in these Presentation Materials is not incorporated by reference herein . Risk Factors For a non - exhaustive description of the risks relating to an investment in a private placement in connection with the Potential Business Combination please review “Risk Factors” in Appendix 2 to these Presentation Materials .
INVESTOR PRESENTATION | 5 Australian | Non - U.S. Disclaimers These Presentation Materials have been prepared by the Contracting Parties to assist interested parties in making their own evaluation with respect the “Potential Business Combination” . These Presentation Materials provide general background information about the Contracting Parties’ activities . That information is current at the date of these Presentation Materials and remains subject to change without notice . Certain information in these Presentation Materials has been derived from third parties and though the Contracting Parties have no reason to believe that it is not accurate, reliable, or complete, it has not been independently audited or verified by the Contracting Parties . Except to the extent required by law, the Contracting Parties make no representation or warranty as to the accuracy, reliability, or completeness of information in this document and do not take responsibility for updating any information or correcting any errors or omissions which may become apparent after these Presentation Materials are released . These Presentation Materials are for information purposes only and is a summary and does not purport to be complete nor does it contain all the information which would be required in, nor is it, a prospectus, product disclosure statement, or other disclosure document under Australian law or any other law (and will not be lodged with the Australian Securities and Investments Commission or any foreign regulator) and is not, and does not constitute, an invitation or offer of securities for subscription, purchase, or sale in any jurisdiction . The Pre - Feasibility Study, including the production target and the forecast financial information derived from the production target, referred to in these Presentation Materials (PFS) was first released to the ASX by Jindalee (ASX : JLL) on 19 November 2024 (PFS Announcement) . These Presentation Materials include summary excerpts from the PFS and do not purport to be all - inclusive or complete and should be read together with the PFS Announcement . Jindalee confirms that all material assumptions and technical parameters underpinning the production target and the forecast financial information derived from the production target, in the PFS Announcement continue to apply and have not materially changed . Shareholders and prospective investors should be aware that the PFS and these Presentation Materials do not include any forecast financial information in respect of the period after the initial 40 years of the Processing Schedule (post single commission and ramp up year), as the Contracting Parties cannot, at this stage, provide forecast financial information for that subsequent period . These Presentation Materials contain certain forward - looking statements, including forecast financial information . Forward - looking statements include but are not limited to statements concerning the Contracting Parties’ current expectations, estimates, and projections about the industry in which Contracting Parties’ operate and beliefs and assumptions regarding the Contracting Parties’ future performance . When used in this document, the words such as “anticipate,” “could,” “plan,” “estimate,” “expects,” “seeks,” “intends,” “may,” “potential,” “should,” and similar expressions are forward - looking statements . Although the Contracting Parties’ believe that that they has a reasonable basis for those forward looking statements and forecast financial information, including the use of a flat U . S . $ 24 , 000 /t lithium carbonate price in the PFS, the production target set out in these Presentation Materials and the financial information based on it, such statements are subject to known and unknown risks, uncertainties, and other factors, some of which are beyond the control of Contracting Parties’ and no assurance can be given that actual results will be consistent with these forward - looking statements . The basis for that conclusion is contained throughout the PFS Announcement and all material assumptions, including the JORC modifying factors, upon which the forward - looking statements and forecast financial information are based, are disclosed in the PFS Announcement and these Presentation Materials should be read together with the PFS Announcement . To achieve the range of outcomes indicated in the PFS, the PFS estimates that funding in the order of $ 3 . 02 B in construction capital will be required . Shareholders and investors should be aware that there is no certainty that Jindalee / US Elemental will be able to raise the required funding when needed and it is possible that such funding may only be available on terms that may be highly dilutive or otherwise adversely affect Jindalee and US Elemental’s shareholders’ exposure to the McDermitt Lithium Project (the “Project”) economics . Specifically, as outlined in the PFS Announcement, Jindalee / US Elemental intends to pursue potential third - party partnerships (with parties who have the potential to be joint venture partners in the Project) to advance the Project and may pursue other value realization strategies such as a sale or partial sale of the Project or underlying future commodity streams . If it does so, such arrangements may materially reduce Jindalee / US Elemental’s proportionate ownership of the Project and/ or adversely affect Jindalee and US Elemental shareholders’ exposure to the Project economics . Statements in these Presentation Materials regarding the Company’s business, which are not historical facts, are forward - looking statements that involve risks and uncertainties . These include, among others, risks and uncertainties related to Mineral Resource and Ore Reserve estimates, production targets, forecast financial information, lithium carbonate prices, capital and operating costs, risks related to results of current or planned exploration activities, changes in market conditions, obtaining appropriate approvals to undertake exploration activities in the portfolio of projects, changes in exploration programs and budgets based upon the results of exploration, future prices of minerals resources ; grade or recovery rates ; accidents, labour disputes, and other risks of the mining industry ; delays in obtaining government approvals or financing or in the completion of development or construction activities ; movements in the share price of investments and the timing and proceeds realized on future disposals of investments, force majeure events, as well as those factors detailed in the PFS Announcement or, from time to time, in Jindalee’s interim and annual financial statements and reports, all of which are available for review on ASX at asx . com . au and OTC Markets at otcmarkets . com . Although the Contracting Parties have attempted to identify important factors that could cause actual actions, events or results to differ materially from those described in forward - looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements . Accordingly, readers should not place undue reliance on forward - looking statements . To the extent permitted by law, the Contracting Parties and their officers, employees, related bodies corporate and agents disclaim all liability, direct, indirect or consequential (and whether or not arising out of the negligence, default, or lack of care of the Contracting Parties and/or any of their agents) for any loss or damage suffered by a recipient or other persons out of, or in connection with, any use or reliance on these Presentation Materials or information . These Presentation Materials do not constitute investment advice and have been prepared without taking into account any investor's particular investment objectives, financial circumstances or particular needs and the opinions and recommendations in these Presentation Materials are not intended to represent recommendations of particular investments to particular persons . You should seek professional advice when deciding if an investment is appropriate . All securities transactions involve risks, which include (among others) the risk of adverse or unanticipated market, financial or political developments . The information in these Presentation Materials that relates to the Maiden Ore Reserves for the McDermitt Lithium Project has been extracted from Jindalee’s ASX announcement on 19 November 2024 titled “McDermitt PFS – Multi Decade Source of US Lithium Carbonate” . The information in this report that relates to the Mineral Resource Estimate for the McDermitt Lithium Project has been extracted from Jindalee’s ASX announcement on 27 February 2023 titled “Resource at McDermitt increases to 21 . 5 Mt LCE” . A copy of these announcements is available to view on Jindalee’s website www . jindaleelithium . com or on the ASX platform www . asx . com . au . Jindalee confirms that it is not aware of any new information or data that materially affects the information included in the original market announcements referred to above and, in the case of estimates of Mineral Resources and Ore Reserves, that all material assumptions and technical parameters underpinning the estimates in the relevant market announcement continue to apply and have not materially changed .
INVESTOR PRESENTATION | 6 Today’s Speakers Ian Rodger CEO Lindsay Dudfield Executive Director Martyn Buttenshaw Advisor HITECH MINERALS INC. CONSTELLATION ACQUISITION CORP. Tristan Garthe CFO Chandra R. Patel Chairman & CEO Jarett Goldman CFO INVESTOR PRESENTATION | 6
INVESTOR PRESENTATION | 7 Antarctica Capital SPAC SPONSOR OVERVIEW Specialized in Private Markets, Real Assets, and Insurance Extensive Experience in Private, Growth Equity, and SPAC Transactions Global Presence with headquarters in New York Decades of Experience Advising and Investing in Companies Internationally $10B 16+ 8+ 2 AUM 1 Investments 2 Exits 2 Completed De - SPACs 2 1. Antarctica Investment Advisors, LLC Form ADV & Winthrop Capital Management, LLC Form ADV 2. Source: ( i ) Form ADV, dated September 18, 2025, of Antarctica Investment Advisors, LLC, and (ii) Form ADV, dated March 25, 2025, of Winthrop Capital Management, LLC. INVESTOR PRESENTATION | 7
INVESTOR PRESENTATION | 8 Strategic U.S. Lithium Asset Positioned for Success Aligned with U.S. Government Critical Minerals Priority One of first ten FAST - 41 Transparency Projects 1 Partnered with DOE (Department of Energy) to advance domestic lithium supply through DOE - funded process optimization efforts 2 US Elemental McDermitt Project: Advantaged Tier 1 U.S. Lithium Resource With 5 - Year Payback and 60+ Year Project Life 1. The White House: https://www.whitehouse.gov/articles/2025/04/trump - administration - advances - first - wave - of - critical - mineral - production - projects/ 2. ASX Announcement on DOE Partnership: https://investorhub.jindaleelithium.com/announcements/6528835 3. Bloomberg Intelligence: Lithium: Finally Turning the Corner, viewed on 3 December 2025. 4. Refer to chart titled VanEck Rare Earth & Strategic Metals ETF (REMX) on slide 10 of this presentation. 5. ASX Announcement on Mg By - Product: https://investorhub.jindaleelithium.com/announcements/7221091 Market Re - Rating of Lithium & Strategic Metals Underway 3 Emerging Upside Catalysts Lithium equities and U.S. minerals ETF seeing increased trading volumes 4 as policy and defense demand drive scarcity premium alongside improving Lithium market fundamentals Magnesium by - product optionality 5 and structural BESS demand tailwinds poised to enhance already - compelling forecasted project economics INVESTOR PRESENTATION | 8
INVESTOR PRESENTATION | 9 Why Now: U.S. Drive to Secure Domestic Lithium Supply A MAJOR GLOBAL SUPPLIER U.S. STRATEGIC PRIORITY China controls ~70% Of global lithium processing 1 >90% Of LFP battery production capacity 1 U.S. imports 75%+ Of lithium - ion batteries (considered by many to be a national security vulnerability) 5 ~87% of total lithium is consumed by batteries 2 Batteries are critical for energy independence, national security, economic growth, AI and tech advancement Export controls imposed by China would significantly increase supply risk to U.S. 3 Lithium formally designated as a “critical mineral”, important to national security and economic resilience 6 Li “PRC does not adhere to the global norms on market access to critical minerals.” 4 Trump Administration Adds Key Mining Projects to FAST - 41 7 1. CNN https://www.cnn.com/2025/07/17/business/china - new - export - controls - ev - battery - intl - hnk as of July 17, 2025 2. USGS: https://pubs.usgs.gov/periodicals/mcs2025/mcs2025 - lithium.pdf 3. In 2024 as estimated by Global Times (October 9, 2025): https://www.globaltimes.cn/page/202510/1345242.shtml 4. Predatory Pricing: How the Chinese Communist Party Manipulates Global Mineral Prices to Maintain Its Dominance https://www.congress.gov/119/meeting/house/118668/documents/HHRG - 119 - ZS00 - 20251119 - SD001.pdf 5. Center for Climate & Security (Page 2): https://councilonstrategicrisks.org/wp - content/uploads/2025/05/75 - Devil - is - in - the - Details.pdf 6. U.S. DOE: https://www.energy.gov/eere/geothermal/lithium 7. The White House: https://www.whitehouse.gov/articles/2025/04/trump - administration - advances - first - wave - of - critical - mineral - production - projects/
INVESTOR PRESENTATION | 10 Policy Support Driving Investor Demand for U.S. Critical Minerals Exposure Executive Order signed March 20, 2025: “Immediate Measures to Increase American Mineral Production ” 1 Significantly increased tariffs on Chinese lithium - ion batteries 2 Lithium designated as a “critical mineral” 3 vital to national security and economic resilience by the U.S. government 4 DOE announced $500M funding opportunity to expand domestic critical mineral processing and battery materials manufacturing (March 2026) 6 DOE provided $2.26 billion of financing for the nearby Thacker Pass project 5 VanEck Rare Earth & Strategic Metals ETF (REMX) 9 1. The White House: https://www.whitehouse.gov/presidential - actions/2025/03/immediate - measures - to - increase - american - mineral - production/ 2. Energy Storage News: Trump's 1930s - era tariffs bring China battery tariff to 82% 3. U.S. DOE, assessed on November 26, 2025: https://www.energy.gov/cmm/what - are - critical - materials - and - critical - minerals 4. Dobson et al.: https://escholarship.org/uc/item/4x8868mf 5. U.S. DOE: https://www.energy.gov/lpo/thacker - pass 6. U.S. Department of Energy, Office of Critical Minerals and Energy Innovation, "Energy Department Announces $500 Million to Strengthen Domestic Critical Materials Processing and Manufacturing," March 13, 2026: https://www.energy.gov/articles/energy - department - announces - 500 - million - strengthen - domestic - critical - materials - processing 7. U.S. Export - Import Bank / White House, "Project Vault: U.S. Strategic Critical Minerals Reserve," February 2, 2026, reported by Supply Chain Dive: https://www.supplychaindive.com/news/trump - launches - critical - mineral - reserve - project - vault/811279/ 8. WSJ: https://www.wsj.com/business/rare - earth - companies - funding - 231d1c85 9. Factset data as of Feb 28, 2026 AVG Daily Trading Volume (K Shares) 8 0 500 1,000 1,500 2,000 2,500 U.S. launched "Project Vault" — a $12B Strategic Critical Minerals Reserve establishing a federally - backed civilian stockpile of essential raw materials (Feb 2026) 7 INVESTOR PRESENTATION | 10
INVESTOR PRESENTATION | 11 Lithium Demand Outlook Has Fundamentally Changed Lithium Demand by Usage 1 Demand from the energy storage sector (ESS) is expected to grow steadily from 2024 to 2030. Unit in 1,000 metric tons lithium carbonate equivalent (LCE) 1. Reuters / UBS / Guotai Junan Securities, "Energy Storage Boom Strengthens Demand Outlook for Beaten - Down Lithium," January 4, 2 026 : article link 2. Benchmark Mineral Intelligence 2026 3. SEIA / Benchmark Mineral Intelligence, "U.S. Energy Storage Market Outlook Q1 2026," reported in PV Magazine USA, February 23 , 2026: article link 4. CNESA DataLink , 2025 China Energy Storage Industry Annual Data Report, January 22, 2026, cited in PV Magazine, February 1, 2026: article link Accelerating Battery Energy Storage Systems (BESS) Demand Fueling Upside Growth Estimate Revisions Grid - scale energy storage has emerged as a powerful structural driver of lithium demand, accelerating alongside continued growth in electric vehicles and other battery applications. Lithium demand is now underpinned by multiple durable, policy - resilient growth engines Lithium demand for BESS projected to grow 55% in 2026 1 A significant shift driven by grid - scale storage, renewable integration, and AI data center power requirement Energy storage's share of total lithium demand increasing: 13% (2023) 2 → 23% (2025) → 31% (2026) 1 SEIA projecting a further jump to 70 GWh in 2026 as AI data center and grid modernization demand accelerates . Meanwhile, China commissioned a record ~189 GWh of new battery energy storage in 2025 alone 4 . Together, these two markets are driving an unprecedented surge in battery - grade lithium demand The U.S. installed a record 57.6 GWh of battery energy storage in 2025 (30% increase over 2024) 3 INVESTOR PRESENTATION | 11
INVESTOR PRESENTATION | 12 AI’s Power Surge & The Role of Lithium ~3% by data centers in 2030 1 1.5% by data centers in 2024 1 Driven by unprecedented growth in computing power, storage needs, and AI model training 2 Data centers are anticipated to see a 15% growth in electricity consumption every year from 2024 to 2030 1 2030 945 TWh 1 ~2.3x Increase in Data Center Electricity Consumption 2024 415 TWh 1 Data centers increasingly depend on lithium - ion battery storage instead of traditional lead - acid battery systems to counter grid instability and power outages 3 due to: • Higher energy density • Longer lifecycle and lower maintenance • Faster charging • Smaller footprint relative to lead - acid systems Lithium ion battery storage systems mitigate risks associated with grid dependency and promote resilience 4 1. IEA: https://iea.blob.core.windows.net/assets/601eaec9 - ba91 - 4623 - 819b - 4ded331ec9e8/EnergyandAI.pdf 2. Elements by Visual Capitalist: https://elements.visualcapitalist.com/charted - the - energy - demand - of - u - s - data - centers/ 3. Science Shot: https://scienceshot.com/post/lithium - ion - vs - lead - acid - batteries - the - right - choice - for - data - center 4. NREL: https://docs.nrel.gov/docs/fy21osti/79850.pdf Global Electricity Consumption Projected Global Electricity Consumption
INVESTOR PRESENTATION | 13 Market Revisiting Lithium Thesis US Elemental Opportunity Wall Street Is Back on the Lithium Train 1 Lithium entering its third major price cycle on strong structural demand and lagging supply response 2 – Feb 5, 2026 Deutsche Bank upgraded major lithium producers to Buy on constructive lithium market outlook 3 – Jan 13, 2026 “Energy Storage Demand to Pull Lithium Back Into Deficit” 4 – Nov 2025 Identified Lithium as a top commodities conviction pick for 2026 alongside uranium 5 – Dec 15, 2025 TIMING First production in early 2030s Aligned with accelerating BESS demand growth as energy storage becomes an increasingly dominant share of lithium consumption SCALE 63 - year project life, 47,500tpa Producing battery - grade lithium carbonate LOCATION Domestic U.S. Production Into a market where national security, critical mineral supply chains, and AI infrastructure demands are driving policy and capital allocation 1. Barron's, "Wall Street Is Back on the Lithium Train. What Investors Should Know," January 13, 2026: link 2. UBS Q - Series Research, "The Third Lithium Supercycle," February 5, 2026, reported by Yahoo Finance/Proactive: link 3. Deutsche Bank upgrades Albemarle and SQM to Buy on bullish lithium outlook, January 2026, reported by Seeking Alpha: link 4. J.P. Morgan Research, "Energy Storage Demand to Pull Lithium Back Into Deficit," November 2025, reported by LinkedIn/Surge Ba tt ery Metals: link 5. Morgan Stanley Asia Pacific Materials Research (Rachel Zhang et al.), December 15, 2025, summary via: link
INVESTOR PRESENTATION | 14 Converging Tailwinds Support Need for Domestic Supply Options 1. White House: https://www.whitehouse.gov/presidential - actions/2025/03/immediate - measures - to - increase - american - mineral - production/ 2. White House: https://www.whitehouse.gov/articles/2025/04/trump - administration - advances - first - wave - of - critical - mineral - production - projects/ 3. See slide 11. 4. Fast Markets: https://www.fastmarkets.com/insights/us - lithium - demand - to - grow - fastmarkets - provide - regional - price - transparency/ 5. Stockhead : https://stockhead.com.au/resources/high - voltage - jpmorgan - lifts - lithium - price - forecasts - as - big - batteries - drive - market - to - deficit/ 6. SupplyChain Digital: https://supplychaindigital.com/news/evs - batteries - how - much - lithium - is - needed - to - decarbonise 7. U.S. DOE: https://www.energy.gov/lpo/articles/doe - announces - 963 - billion - loan - blueoval - sk - further - expand - us - manufacturing - electric 8. SC Insights Webinar: https://www.youtube.com/watch?v=X3PsVE3heJ8 BESS Transforming Market Fundamentals Battery energy storage has emerged as a primary lithium demand driver alongside EVs, with BESS projected to grow 55% in 2026 and rise from 23% to 31% of total lithium consumption 3 Potential Global Supply Deficit from 2026 5 Global lithium production cannot scale fast enough to meet accelerating demand 6 Price Recovery Underway Supply constraints, accelerating BESS demand and continued investment are setting the stage for potential price recovery as demand expected to rise faster than supply 8 Surging Demand for U.S. Lithium U.S. lithium demand is projected to surge nearly 487% by 2030 , reaching almost 412,000 tonnes of lithium carbonate equivalent (LCE) 4 U.S. National Security Priority Executive orders 1 and programs such as FAST - 41 2 to enable faster federal permitting U.S. Government Funding U.S. Government funded projects, including a $9.63B+ loan from DOE 7 to BlueOval SK to build domestic battery manufacturing facilities, are expected to accelerate growth in domestic lithium capabilities INVESTOR PRESENTATION | 14
INVESTOR PRESENTATION | 15 US Elemental McDermitt Project
INVESTOR PRESENTATION | 16 FAST - 41: US Elemental McDermitt Project Policy Advantage What is FAST - 41 A U.S. federal framework intended to streamline permitting for projects of national strategic importance by • Improving transparency, predictability, and interagency coordination • Listing projects on the Federal Permitting Dashboard • Promoting faster decisions, reduces delays Why it Matters for the US Elemental McDermitt Project • One of only 6 Lithium related projects currently designated 3 • Underscores US Elemental McDermitt Project’s potential role in U.S. critical minerals strategy • Reinforces confidence in permitting pathway and strategic relevance • Supports advancement of federal permitting 4 Other FAST - 41 Projects 1,2 One of the First 10 Mining Projects Added as FAST - 41 Transparency Project 1 1. The White House: https://www.whitehouse.gov/articles/2025/04/trump - administration - advances - first - wave - of - critical - mineral - production - projects/ 2. Project operator sourced from S&P Global. 3. Federal Infrastructure Projects, accessed November 25, 2025: https://www.permits.performance.gov/projects/transparency - projects?page=0 4. Federal Infrastructure Projects as of November 25, 2025: https://www.permits.performance.gov/permitting - project/fast - 41 - transparency - projects/mcdermitt - exploration - project Resolution Copper Project Libby Exploration Project Silver Peak Lithium Mine South West Arkansas Project Michigan Potash Lisbon Valley Copper Project
INVESTOR PRESENTATION | 17 McDermitt Caldera Expected to be Premier U.S. Lithium Resource Potentially one of the world’s largest known accumulations of lithium mineralization , with potential for mining and processing to produce American made battery grade lithium carbonate 1 US Elemental’s McDermitt Project : • One of only two lithium Mineral Resources in the McDermitt Caldera • Large - scale, potentially globally significant project • Outstanding metallurgical properties 1 • JORC - Compliant Reserves & Resources 2,3 • +60% forecasted EBITDA margin 3 1. https://www.science.org/doi/10.1126/sciadv.adh8183 2. According to Mineral Resource Estimate (“MRE”) commissioned by Jindalee . Estimate as of December 31, 2022. Source: ASX Announcement (February 27, 2023): https://investorhub.jindaleelithium.com/announcements/4328576 3. Refer to Jindalee Lithium ASX announcement dated November 20,2024 for further information, including the assumptions underpinning the key metrics: https://investorhub.jindaleelithium.com/announcements/6637448 4. According to Lithium Americas’ MRE as of December 31, 2024. Source: Lithium Americas: https://lithiumamericas.com/thacker - pass/overview/default.aspx 5. Lithium Americas News Release: https://www.lithiumamericas.com/news/news - details/2025/Lithium - Americas - Receives - First - Drawdown - of - 435 - Million - from - U - S -- DOE - ATVM - Loan/default.aspx 6. U.S. DOE: https://www.energy.gov/articles/department - energy - restructures - lithium - americas - deal - protect - taxpayers - and - onshore OREGON NEVADA McDermitt Caldera US Elemental McDermitt Project 21.5 Mt LCE 2 Lithium Americas Thacker Pass Project 66.1Mt LCE 4 US government to take 5% stakes in Lithium Americas and its joint venture with General Motors 6 Lithium Americas Receives First Drawdown of $435 Million from US DOE ATVM Loan 5 21.5Mt LCE 63 YR Contained Resource 2 Project Life 3 INVESTOR PRESENTATION | 17
INVESTOR PRESENTATION | 18 Attractive Project Economics Post Tax / NPV (8%) 2 $3.23B Post Tax / IRR 2 17.9% EBITDA Margin Over the First 10 Years of Production 2 66% Bottom Half of Cost Curve 2 $8,080/t LCE Lithium Carbonate for First Decade 2 47,500 tpa Economic Evaluation Period, Total Project Life of 63 Years 2 +40 Years Project Payback from First Production 2 5 Years Ore Reserve (~10% of Resource) 2 2.34 Mt LCE Strong Cash Flows Expected Once in production, US Elemental McDermitt Project is expected to deliver resilient cash flows through lithium price cycles Ideal Timing Current development timeline expected to align US Elemental’s first lithium carbonate production with substantial supply deficits forecasted for the early 2030s 1 Made in the U.S. US Elemental McDermitt Project is expected to enable onsite production of American - made lithium carbonate, powering U.S. energy independence over multiple generations The Opportunity US Elemental McDermitt Project offers a strategic opportunity for investors and partners to capitalize on the global pivot toward localized critical mineral supply chains 1. Carbon Credits: https://carboncredits.com/lithium - market - in - 2025 - and - beyond - supply - deficit - looms - with - 116b - requirement/ 2. Refer to Jindalee Lithium ASX announcement dated November 20,2024 for further information, including the assumptions underpinning the key estim at ed metrics: https://investorhub.jindaleelithium.com/announcements/6637448 Key Estimated Metrics from 2024 Pre - Feasibility Study 2
INVESTOR PRESENTATION | 19 Potential Magnesium Upside From the US Elemental McDermitt Project If viable, this strategic by - product opportunity would position US Elemental McDermitt Project to contribute to U.S. domestic primary magnesium supply alongside battery grade lithium carbonate 1. U.S. DOE: https://www.energy.gov/cmm/what - are - critical - materials - and - critical - minerals 2. International Magnesium Association: https://www.youtube.com/watch?v=WNdTMQt33qk Officially designated as a critical mineral by the U.S. 1 due to its strategic importance to the economy and national security China accounts for almost 90% of the global supply 2 DEFENSE ROBOTICS AEROSPACE Magnesium is a Critical Mineral Vulnerable Supply Chain INVESTOR PRESENTATION | 19
INVESTOR PRESENTATION | 20 McDermitt Project Milestones: Accelerating Path to Commercialization 2018 Confirmed extensive lithium mineralization at McDermitt (this area had never been explored for lithium before) 1 2019 - 2020 Metallurgical test work confirmed excellent lithium recoveries 5 and new claims were staked to expand the Project area Extensive Lithium Mineralization Confirmed Drilling Leads to Robust Resource Estimates 1.6Mt LCE 4 2021 - 2022 Extensive environmental baseline studies commenced 3 Drilling: More Lithium Discovered 21.5Mt LCE 2 2023 Exploration Plan of Operations (EPO) 8 to enable major infill drilling program lodged with US Bureau of Land Management EPO & More Metallurgical Test Work 2024 PFS completed, indicating 63 - year Project with post - tax NPV of $3.23B and producing 47,500tpa LCE for first 10 years 5 Signed R&D agreement with Department of Energy 7 PFS Completed & DOE Agreement 2025 FAST - 41 Designation: McDermitt Project Recognized by U.S. Government 6 DISCOVERY & TESTING 2026 2031 COMMERCIALIZATION MILESTONES • 2026: SK - 1300 & Selection Studies • 2026 - 2027: Definitive Feasibility Study • 2026 - 2028: Permitting (Plan of Operations) • 2027 - 2029: Financing & Project Approval • 2028 - 2031: Project Execution, Commissioning & Production Antarctica Capital & Jindalee Lithium Announce Plans to Form US Elemental to accelerate development of McDermitt project Advanced technical, engineering, and economic studies to confirm critical project details Accelerated Feasibility Study Work 1. ASX Announcement (November 20, 2018): https://investorhub.jindaleelithium.com/announcements/3450183 2. ASX Announcement (February 27, 2023): https://investorhub.jindaleelithium.com/announcements/4328576 3. ASX Announcement (July 28, 2022): https://investorhub.jindaleelithium.com/announcements/4178653 4. ASX Announcement (November 19, 2019): https://investorhub.jindaleelithium.com/announcements/3564129 5. ASX Announcement (November 20, 2024): https://investorhub.jindaleelithium.com/announcements/6637448 6. Federal Infrastructure Projects as of November 25, 2025: https://www.permits.performance.gov/permitting - project/fast - 41 - transparency - projects/mcdermitt - exploration - project EPO Approved December 8, 2025 8 7. ASX Announcement (September 16, 2024): https://investorhub.jindaleelithium.com/announcements/6528835 8. United States Department of the Interior, Bureau of Land Management (December 8, 2025): https://eplanning.blm.gov/public_projects/2025844/200559254/20147789/251047769/DOI - BLM - ORWA - V000 - 2023 - 0045 - EA%20Decision%20Record%20for%20McDermitt%20Exploration%20signed.pdf Business Combination Agreement (BCA) Signed US Listing
INVESTOR PRESENTATION | 21 Merging for Momentum: Positioning McDermitt Project for Success Proposed business combination and U.S. Listing of US Elemental is expected to unlock direct access to U.S. institutional investors, enhance policy momentum, and maximize U.S. government funding potential • Proposed business combination between HiTech Minerals Inc., a wholly owned subsidiary of Jindalee Lithium Ltd (ASX:JLL), and Constellation Acquisition Corp., a U.S. Special Purpose Acquisition Company (SPAC) sponsored by Antarctica Capital, to form a new U.S. listed company “US Elemental”, focused on developing the McDermitt Lithium Project • US Elemental is intended to list on a national U.S. securities exchange • Post - transaction, JLL is expected to retain at least 80% ownership of US Elemental, maintaining majority control over this strategically vital asset CURRENT JINDALEE LITHIUM LTD. Listed on ASX HITECH MINERALS INC. ( HiTech ) MCDERMITT PROJECT 100% 100% PRO FORMA JINDALEE LITHIUM LTD. Listed on ASX US ELEMENTAL Listed on Nasdaq or NYSE MCDERMITT PROJECT 80% 100% SPAC SPONSOR / NEW INVESTORS / SPAC PUBLIC SHAREHOLDERS US $20 - $30M CAPITAL RAISE
INVESTOR PRESENTATION | 22 Illustrative Transaction Overview Key Highlights • HiTech Minerals Inc. ( HiTech ) equity valuation of $500M 1 • Transaction contemplates capital raise of $20 - 30M, with $4.05M to be committed by affiliates of Antarctica Capital • $15M of net cash on the pro forma balance sheet after transaction expenses • Jindalee will roll over 100% of its HiTech equity & own approximately 80%+ of the combined entity US Elemental at closing • Expected use of funds towards the development of the McDermitt Project & transaction expenses $M 58.6 Pro Forma Shares Outstanding 4 $10.0 Share Price $586.2 Pro Forma Equity Value $0.0 (+) Debt ($15.0) ( - ) Cash $571.2 Pro Forma Enterprise Value Pro Forma Valuation 2,3 $M Sources 3 500.0 Jindalee Rollover Equity 21.0 Third - Party PIPE 4.1 Antarctica PIPE 525.1 Total Sources $M Uses 500.0 Equity to Jindalee 15.0 Cash to Balance Sheet 10.1 Transaction Expenses 5 525.1 Total Uses Jindalee Rollover Equity Sponsor Shares 4 Third - Party PIPE Shares 6 Antarctica PIPE Shares 7 Sources & Uses Pro Forma Ownership at Closing 2,3 85.3% 9.8% 4.2% 0.7% 1. Assumes purchase price on a cash - free, debt - free basis 2. Excludes the impact of 10.33M public warrants and any additional warrants issued for sponsor / shareholder loans until closing 3. Assumes 100% redemptions 4. Assumes 5,725,312 Founder Shares retained by the Sponsor 5. Reflects an estimate of transaction expenses; actual transaction expenses may vary 6. Assumes a $21M third - party PIPE offered at a 15% discount to the $10.00 per share De - SPAC entry price 7. Assumes a $4.05M Antarctica PIPE. Assumes the first $1.55M of PIPE capital contributed will be funded at BCA signing, convertible at $12.00 per share (shown on an as - converted basis). Assumes the remaining $2.5M of PIPE capital contributed will be offered pari - passu to the 3rd party PIPE (assumed at a 15% discount to the $10.00 per share De - SPAC entry price)
INVESTOR PRESENTATION | 23 88.4% 82.3% 70.0% Ioneer US Elemental Lithium Americas 55.2x 26.6x 26.7x Ioneer US Elemental Lithium Americas $219M $572M $1,096M Ioneer US Elemental Lithium Americas US Elemental Pro Forma Valuation $571M Target Enterprise Value PEER COMPARISON 1 US ELEMENTAL MCDERMITT PROJECT EXPECTED NPV 2 • Assumes purchase price on a cash - free, debt - free basis • $25M target capital raise • $15M PF Net Cash $3.23B NPV (8%) of McDermitt • 17.9% post tax IRR • 21.5Mt LCE Contained resource • 63 - year Project life ~82% Discount • Attractive Entry Point into a High - Quality Lithium Asset • Provides significant upside to investors 1. Factset data as of March 20, 2026 2. Refer to Jindalee Lithium ASX announcement dated November 20,2024 for further information, including the assumptions underpinning the key metri cs : https://investorhub.jindaleelithium.com/announcements/6637448 Enterprise Value (1) EV / Mt LCE Discount to NAV
INVESTOR PRESENTATION | 24 Thank You Ian Rodger Chief Executive Officer [email protected]
INVESTOR PRESENTATION | 25 Appendix 1
INVESTOR PRESENTATION | 26 Near - Surface Ore with Stable Mining Profile 1 1. Jindalee Lithium: https://investorhub.jindaleelithium.com/announcements/6637448 Conventional truck & shovel mining Amenable to bulk mining methods Near - surface ore Stable mining Free dig mining Potential magnesium upside
INVESTOR PRESENTATION | 27 Processing Route Validated Through Testwork 1 1. Jindalee Lithium ASX News Release: https://cdn - api.markitdigital.com/apiman - gateway/ASX/asx - research/1.0/file/2924 - 02882493 - 6A1238245&v=undefined 2. Jindalee Lithium ASX News Release: https://cdn - api.markitdigital.com/apiman - gateway/ASX/asx - research/1.0/file/2924 - 02852890 - 6A1225457&v=undefined • Our processing flowsheet will utilize industry standard technology that has been validated through testwork on core samples from the US Elemental McDermitt Project. • US Elemental McDermitt Project is expected to be a fully integrated operation producing battery - grade Lithium Carbonate domestically for sale to the U.S. customers. • Designed maximum annual production of 47.5ktpa Lithium Carbonate (limited by selected acid plant capacity). Optimization opportunities will be studied under the recently announced cooperative research agreement with the U.S. Department of Energy (DoE) including 2 : By - product potential Ore upgrading Water use optimization Mg & Ca removal ~4.8 Mtpa Of ore feed ATTRITION SCRUBBING ACID LEACHING, NEUTRALIZATION Mg & Ca REMOVAL ION EXCHANGE, LI CRYSTALIZATION DRYING, PACKING Coarse gangue ~28% mass rejection Tailings storage ROM Ore Leach Feed Li Solution ~3.5 Mtpa feed ~72% mass recovery ~92% Li recovery Li Solution Li 2 CO 3 47.5 ktpa of product Total Recovery = ~85% Final Product Li 2 CO 3 Battery Grade Process Streams Process Steps Waste Streams Note: Figures quoted reflect averages over first 10 years of commercial production. INVESTOR PRESENTATION | 27 Optimization underway
INVESTOR PRESENTATION | 28 Unlocking McDermitt: Strategic Feasibility Roadmap Delivery of high - quality Feasibility Study with project and operational plans that are environmentally/socially sound and able t o secure permits in reasonable timelines, practically executable, and deliver strong business case that is able to secure financing and advanc e t o construction. Completion of critical tradeoff studies required to fully define the scope, and maximize the value of McDermitt Project Submit high - quality EIS on the fastest practical timeline Detailed project plans designed to minimize re - work and maintain momentum toward production Feasibility Study Baseline Data Collection Selection / Value Optimization Studies Deliver robust technical, engineering and economic studies for investment and permitting Completion of key studies and collection of critical environmental, cultural, and other background data to inform permitting and risk mitigation Completion of critical tradeoff studies to define key project details, confirm regulatory engagement requirements, and optimize overall project value Objective Q2 - 2026 through Q4 - 2027 Q4 - 2025 through 2027+ Q4 - 2025 through Q2 - 2026 Timelines • Advanced metallurgical and pilot plant testing to confirm process assumptions and plant capital/operating costs • Infill drilling to increase measured reserves and support detailed mine and process plan development • Advanced engineering for power, water supply, and all non - process infrastructure • Final reclamation and closure plans • Detailed supporting studies on labor, procurement, supply chain, and community development • Complete environmental, water, and wildlife studies - Collect geochemical, geotechnical, and hydrological data • Conduct social, community, and economic baseline studies • Support preparation of high - quality EIS • Flowsheet Optimization: Evaluate potential for valuable Magnesium byproduct • Optimize flowsheet, water, power and infrastructure location • Advance permitting and stakeholder engagement • Identify opportunities to reduce capital and operating costs Details
INVESTOR PRESENTATION | 29 McDermitt Reserve and Resource Tables McDermitt Project Mineral Resource Estimate (2023) 1 Indicated and Inferred Resource Inferred Resource Indicated Resource Cut - off Grade (ppm Li) LCE (Mt) Li Grade (ppm) Tonnage (Mt) LCE (Mt) Li Grade (ppm) Tonnage (Mt) LCE (Mt) Li Grade (ppm) Tonnage (Mt) 21.5 1,340 3,000 10.4 1,270 1,540 11.1 1,420 1,470 1,000 McDermitt Project Ore Reserve Estimate (2024) 1 Probable Reserve Cut - off Grade (ppm Li) LCE (Mt) Li Grade (ppm) Tonnage (Mt) 2.34 1,751 251 1,000 1. The information in this presentation that relates to the Maiden Ore Reserves for the McDermitt Project has been extracted fro m Jindalee Lithium (“ Jindalee ”) ASX announcement 19 November 2024 titled “McDermitt PFS - Multi - Decade Source of US Lithium Carbonate.” The information in this presentation that relates to the Mineral Resource Estimate for the McDermitt Project has been extract ed from Jindalee’s ASX announcement on the 27/02/2023 titled “Resource at McDermitt increases to 21.5 Mt LCE”. The PFS and the above announcements are available to view on the Jindalee Company’s website or www.asx.com.au (JLL). The Company confirms that it is not aware of any new information or data that materially affects the information included in the original market announcements referenced above and, in the case of estimates of the Mineral Resource and Ore Reserves estimat es for the McDermitt Lithium Project, that all material assumptions and technical parameters underpinning the Mineral Resource and Ore Reserves es tim ate in those announcements continue to apply and have not materially changed.
INVESTOR PRESENTATION | 30 McDermitt Comparison with Thacker Pass Owners Thacker Pass (Updated Project Plan January 2025) 1,2,3,9,10 McDermitt Project PFS (November 2024) 4,5,8 Category 65% 64% EBITDA Margin Financial $8,039/t $8,673/t (Defined as C1 cash costs) Operating Cash Cost $8,691M $3,229M NPV8% (post tax) 20.0% 17.9% IRR (post tax) Phase 1: $2,930m LOM: $12,327m $3,021m (inclusive of U.S.$495m contingency) Development capital 2,538 ppm 1,967 ppm Average lithium Process Feed grade Operational 75 microns 125 microns Beneficiation separation size / course gangue rejects 80.4% 84.4% Average lithium recovery Phase 1 Capacity: 40ktpa 135ktpa (max capacity 160ktpa) 43.8ktpa (47.5ktpa capacity) Average Lithium Carbonate production $24,000/t $24,000/t Lithium price assumed 85 years 63 years Project Life Reserves: 14.3 Mt of contained LCE @ 3,180ppm Li Resource: 66.1 Mt of contained LCE 6,7 @ 2,175 ppm Li Reserves: 2.34 Mt of contained LCE @ 1,340ppm Li Resource: 21.5 Mt of contained LCE 6,7 @ 1,751ppm Li Reserves and Resource Other Nevada Oregon Location SGS, Sawtooth, NewFields , Bechtel and EXP Fluor Corporation and Cube Consulting Engineering Consultants Joint Venture (62% / 38%) Notes: 1. Lithium Americas’ recent update outlines a phased expansion plan across five stages, targeting a total capacity of 160 ktpa of lithium carbonate. 2. Phase 1, currently under development, has a planned capacity of 40ktpa of lithium carbonate, requiring development capital of U. S.$2,930m. The total development capital across all phases is U.S.$12,327m. 3. Lithium Americas reports financial, cost, and production metrics based on the full expansion plan over different time horizon s, incorporating all five phases, but does not provide standalone metrics for Phase 1. 4. Jindalee’s PFS, by contrast, considers a single development stage with a capacity of 47.5ktpa of lithium carbonate and does not assume a ny staged expansions. 5. Financial, cost and production for McDermitt are over the project’s Economic Evaluation Period alone, not the full 63 year pr oje ct life (PFS Economic Evaluation Period consists of construction, commissioning and ramp - up, followed by first 40 full years of production). 6. Metrics included in table are quoted on life of project basis unless otherwise denoted. 7. Inclusive of mineral reserves. Data Sources: 8. McDermitt: McDermitt PFS released by Jindalee Lithium on 19 November 2024 ( link ) 9. Thacker Pass: Thacker Pass project update 7 January 2025 ( link & link ) 10. Breakdown of Resources by category included in p27
INVESTOR PRESENTATION | 31 Peer Comparison Data: North American Lithium Deposits Source Contained LCE (Mt) 1 Cut - Off (ppm Li and % LiO2) Grade (ppm Li and % LiO2) Resource (Mt) Resource Category Stage Owner Deposit Company Website – Resource Update 2025 2 Link 8.0 858 ppm 2,680 ppm 561 Measured Construction TSX: LAC (62%) NYSE: GM (38%) Thacker Pass 36.5 2,150 ppm 3,225 Indicated 21.6 2,070 ppm 1,982 Inferred 66.1 2,175 ppm 5,768 Total Company Website 3 Link 1.29 5,000ppm boron cut - off for high boron – high lithium (HiB - Li) mineralization; $16.54/tonne net value cut - off for low boron (LoB - Li) mineralization 1,586 ppm 152 Measured Feasibility Study Complete ASX: INR Rhyolite Ridge 1.97 1,417 ppm 261 Indicated 0.71 1,388 ppm 97 Inferred 3.97 1,463 ppm 510 Total 1. Totals may vary due to rounding; Resources stated on 100% basis 2. https://lithiumamericas.com/news/news - details/2025/Lithium - Americas - Increases - Mineral - Resource - and - Reserve - for - Thacker - Pass/defa ult.aspx 3. https://www.ioneer.com/investors/reserves - resources/
INVESTOR PRESENTATION | 32 Appendix 2
INVESTOR PRESENTATION | 33 Risk Factors All references to the “company,” “we,” “us” or “our” refer to Jindalee Lithium Limited (“ Jindalee ”) and HiTech Minerals, Inc. (the “Company”) and their consolidated entities prior to the Potential Business Combination, and for periods following the closing of the Potential Business Combination refer to NewCo as the combined company and its subsidiaries. The risks presented below are non - exhaustive descriptions of certain of the general risks related to the business of the Company, Constellation and NewCo and the Potential Business Combination, and such list is not exhaustive. The list below has been prepared solely for purposes of inclusion in these Presentation Materials and not for any other purpose. You should carefully consider these risks and uncertainties and should carry out your own diligence and consult with your own financial and legal advisors concerning the risks presented by an investment in the Company and the Potential Business Combination. Risks relating to the business of Constellation, Jindalee , the Company, the Potential Business Combination and the business of NewCo will be disclosed in future documents filed or furnished by Constellation or NewCo with the SEC, including the documents filed or furnished in connection with the Potential Business Combination. The risks presented in such filings will be consistent with SEC filings typically relating to a public company, including wit h respect to the business and securities of Jindalee , the Company, Constellation and NewCo and the Potential Business Combination, and may differ significantly from, and be more extensive than, those presented below. Risks Related to Our Business and Our Industry • Our business operates in the mining exploration and development industry. Our project is at the development stage, and there are no guarantees that development of the project into a mine will occur or that such development will result in the commercial extraction of mineral deposits. In addition, even if an economic mineral deposit is mined, we may not realize profits from our development activities in the short, medium or long term. • The economic viability of our project and its development remains subject to various factors, including, in the near term, the delivery of a definitive feasibility study which supports the project economics. To date, we have received a positive preliminary feasibility study, which has a lower level of confidence than a definitive feasibility study, but which has resulted in the definitive feasibility study being commissioned in respect of the project. The information presented in in these Presentation Materials is based solely on the preliminary feasibility study. • There can be no assurance that we will deliver a definitive feasibility study that supports the economic viability of the project moving forward or that the assumptions used in the definitive feasibility study to underpin the viability of the project (including, but not limited to, the prices of lithium carbonate) will remain true and correct in the future. • Our future performance is difficult to evaluate because we have a limited operating history in the mining, energy and resources sector, including in the battery metals industry. • Our long - term success will depend ultimately on implementing our business strategy and operational plan, as well as our ability to generate revenue, achieve and maintain profitability and develop positive cash flows from our mining activities. • Our business strategy is to develop the McDermitt Project to produce lithium domestically. Consequently, our growth depends upon the continued growth in lithium demand and in lithium - ion batteries. • The development and adoption of new battery technologies that rely on inputs other than lithium compounds could significantly impact our prospects and future revenues. • Our long - term success depends, in part, on our ability to negotiate and enter into sales agreements with, and deliver our product to, third party customers on commercially viable terms. There can be no assurance that we will be successful in securing such agreements. • Exchange rate fluctuations may materially affect our results of operations and financial condition. • We may seek to raise further funds through equity or debt financing, joint ventures, production sharing arrangements or other means. Consequently, we depend on our ability to successfully access the capital and financial markets. Any inability to access the capital or financial markets may limit our ability to fund our ongoing operations, execute our business plan or pursue investments that we may rely on for future growth. • Changes in technology or other developments could adversely affect demand for lithium compounds or result in preferences for substitute products. • Our possible future revenues will be mainly derived from the sale of lithium and magnesium products. Consequently, our success largely depends on the market price of lithium remaining higher than our costs of any future production (assuming successful exploration and development of the project). • When compared to many industrial and commercial operations, mining exploration and development projects are high risk and subject to uncertainties. Each mineral resource is unique and the nature of the mineralization, and the occurrence and grade of the lithium, as well as its behavior during mining, can never be wholly predicted. Our mineral resource estimates may be materially different from mineral quantities we may ultimately recover, our life - of - mine estimates may prove inaccurate and market price fluctuations and changes in operating and capital costs may render mineral resources uneconomic to mine. • The industry in which we operate is subject to domestic and global competition. We have no influence or control over the activities or actions of our competitors, which activities or actions may negatively affect the operating and financial performance of our projects and business. • If we fail to retain our key personnel or if we fail to attract additional qualified personnel, we may not be able to achieve our anticipated level of growth and our business could suffer. • Any failure by management to manage growth properly could have a material adverse effect on our business, operating results and financial condition. • Land reclamation and mine closure may be burdensome and costly. • Our success depends on developing and maintaining relationships with local communities and stakeholders. • We are exposed to general economic conditions and the fluctuations of interest and inflation rates may have an adverse effect on our business. • Our business may be adversely affected by force majeure events outside our control, including labor unrest, civil disorder, war, subversive activities or sabotage, extreme weather conditions, fires, floods, explosions or other catastrophes, epidemics or quarantine restrictions. Note: All amounts are in U.S.$ unless stated otherwise.
INVESTOR PRESENTATION | 34 Risk Factors Risks Related to Legal, Compliance and Regulations • If we receive federal monies, we could become subject to additional federal regulations. This could delay timing and increase costs. • We will be required to obtain governmental permits and approvals to conduct development and mining operations, a process which is often costly and time - consuming. There is no certainty that all necessary permits and approvals for our planned operations will be granted. • Our failure to comply with applicable anti - corruption, anti - bribery, anti - money laundering and similar laws and regulations could negatively impact our reputation and results of operations. • Our operations are subject to environmental, health and safety regulations, which could impose additional costs and compliance requirements, and we may face claims and liability for breaches, or alleged breaches, of such regulations and other applicable laws. • The impacts of climate change may adversely affect our operations and/or result in increased costs to comply with changes in regulations. • We face opposition from organizations that oppose mining which may disrupt or delay our mining projects. • The requirements of being a public company in the U.S. may strain our resources and divert management’s attention, and the increases in legal, accounting and compliance expenses that will result from being a public company in the U.S. may be greater than we anticipate. • Our business could be adversely affected by trade tariffs or other trade barriers. • We are exposed to possible litigation risks, including mining permit disputes (including in respect of access and/or validity of tenure), environmental claims, occupational health and safety claims and employee claims. Further, we may be involved in disputes with other parties in the future that may result in litigation. Current or future litigation or administrative proceedings could have a material adverse effect on our business, financial condition and results of operations. Risks Related to Operations • The development of mining operations at the McDermitt Project is dependent on a number of factors, many of which are beyond our control. If we commence production at the project, our operations may be disrupted by a variety of risks and hazards that could have a material adverse effect on our future operating costs, financial condition and ability to develop and operate a mine. • The occurrence of significant events against which the Company may not be fully insured could have a material adverse effect on our business, financial condition and results of operations. • The threat of global economic, capital markets and credit disruptions pose risks to our business. Risks Related to Intellectual Property and Technology • Our failure to protect our intellectual property rights may undermine our competitive position, and litigation to protect our intellectual property rights may be costly. • We may need to defend ourselves against claims that we infringe, have misappropriated, or otherwise violate the intellectual property rights of others, which may be time - consuming and would cause us to incur substantial costs. • Any unauthorized access to, disclosure, or theft of personal information we gather, store, or use could harm our reputation and subject us to claims or litigation. • A failure of our information technology and data security infrastructure could adversely affect our business and operations. Risks Related to Future Performance and Resource Estimates • Actual capital costs, operating costs, production and economic returns may differ significantly from those we have anticipated and future development activities may not result in profitable mining operations. • Mining projects such as ours have no operating history on which to base estimates of future operating costs and capital requirements. Before operations commence, any projections we may produce are based upon estimates and assumptions made at the time they were prepared. If these estimates or assumptions prove to be incorrect or inaccurate, our actual operating results may differ materially from our forecasted results. • Our resource estimates may change significantly when new information or techniques become available. In addition, by their very nature, resource estimates are imprecise and depend to some extent on interpretations, which may prove to be inaccurate. As further information becomes available through additional fieldwork and analysis, our estimates, if any, are likely to change and these changes may result in a reduction in our resources. These changes may also result in alterations to our development and mining plans, which may, in turn, adversely affect our operations. Risk Related to Land Access • The Company may be required to negotiate access arrangements and pay compensation to land owners, local authorities, traditional land users and others who may have an interest in the area covered by tenure. The Company’s ability to resolve access and compensation issues may have a negative impact on the future success and financial performance of the Company’s operations. Risk Related to Tenures • In relation to tenures which the Company has an interest in or will in the future acquire, there may be areas of indigenous owned land. Where such rights exist, the ability of the Company to gain access to such tenures (through obtaining consent of any relevant landowner), or to progress such tenures from the exploration phase to the development and mining phases of operations may be adversely affected. Risk Related to Sediment - Hosted Lithium Deposit • The McDermitt Lithium Project is a sediment - hosted lithium deposit and the Company is not aware of any commercially operating lithium sediment presently anywhere in the world. Jindalee has completed a comprehensive metallurgical testwork program as part of the McDermitt Lithium Project Pre - Feasibility Study in November 2024, encompassing all major processing stages from beneficiation through to the production of battery - grade lithium carbonate. While the results of this work provide an increased level of confidence in the technical viability of the proposed flowsheet, further optimisation and pilot - scale testing will be required to finalise process design parameters and confirm the scalability of the flowsheet to commercial production. There remains no assurance that lithium production can ultimately be achieved on an economically viable basis or at all. Note: All amounts are in U.S.$ unless stated otherwise.
INVESTOR PRESENTATION | 35 Risk Factors Risks Related to Constellation and the Potential Business Combination • Constellation, Jindalee , the Company and NewCo may not enter into a binding or definitive agreement relating to the Potential Business Combination, and even if they do, the conditions to complete the Potential Business Combination may not be satisfied or may be waived. • In order for the Potential Business Combination to close, in addition to other regulatory and governmental approvals that must be obtained by each of Constellation, Jindalee , the Company and NewCo , among others, the shareholders of Jindalee will be required to approve the transaction on the terms set out in the definitive agreement in accordance with Australian corporate law and the listing rules of the Australian Securities Exchange. There can be no guarantee that such approval will be obtained. • Constellation Sponsor LP (the “Sponsor”) and certain Constellation shareholders affiliated with the Sponsor have agreed to vote in favor of the Potential Business Combination, regardless of how Constellation’s public shareholders vote. • The Sponsor, certain members of the Constellation Board and management have interests in the Potential Business Combination that are different from or are in addition to public shareholders, which may include direct or indirect ownership of Constellation’s founder shares and/or private placement warrants, each of which will lose their value if an initial business combination is not consummated. • Constellation’s Board has potential conflicts of interest in recommending that shareholders vote in favor of approval of the Potential Business Combination proposal and approval of the other proposals in connection therewith. • Our shareholders and Constellation’s shareholders will experience dilution as a consequence of the Potential Business Combination. • Future resales of NewCo’s outstanding shares may cause the market price of its securities to drop significantly, even if NewCo’s business is doing well. • We cannot assure you that NewCo’s or Constellation’s stock price will not decline or not be subject to significant volatility. • The ability of Constellation’s remaining public shareholders to exercise redemption rights with respect to Constellation’s outstanding public shares could increase the possibility that the Potential Business Combination would limit NewCo’s public float following the Potential Business Combination. • We and Constellation will be subject to business uncertainties and contractual restrictions once documentation for the Potential Business Combination is executed. • Constellation cannot assure you that its due diligence review of our business has identified all material issues or risks associated with us, our business, or the industry in which we operate. Additional information may later arise in connection with the preparation of the registration statement and proxy materials or after completion of the Potential Business Combination. If Constellation’s due diligence investigation of our business was inadequate, then stockholders of Constellation following the Potential Business Combination could lose some or all of their investment. • There can be no assurance that NewCo following the closing of the Potential Business Combination will be able to comply with the continued listing standards of Nasdaq. Further, there is no guarantee that an active and liquid public market for NewCo’s shares will develop. • If, following the Potential Business Combination, securities or industry analysts do not publish or cease publishing research or reports about NewCo , its business, or its market, or if they change their recommendations regarding NewCo’s shares adversely, then the price and trading volume of NewCo’s shares could decline. • NewCo may be unable to obtain additional financing to fund its operations or growth. • Constellation is an “emerging growth company” within the meaning of the Securities Act, and we believe that NewCo will qualify as an emerging growth company following the Potential Business Combination. Constellation and NewCo intend to take advantage of certain exemptions from disclosure requirements available to emerging growth companies, which could make their securities less attractive to investors and may make it more difficult to compare performance with other public companies. • We and Constellation will incur significant transaction costs in connection with the Potential Business Combination. • Following the Potential Business Combination, a small number of shareholders will own a substantial majority of our shares, giving them material influence over the outcome of matters requiring a shareholder vote, including the election of directors and the approval of material matters and their interests may not align with the interest of other shareholders. • In connection with the Potential Business Combination, Constellation’s sponsor and its officers, directors, advisors or their respective affiliates may elect to purchase Class A ordinary shares from public shareholders, which may reduce the public float of NewCo’s shares. • Other risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward - Looking Statements” in the registration statement on Form S - 4 to be filed in connection with the Potential Business Combination or in other documents filed by Constellation and NewCo with the SEC. Note: All amounts are in U.S.$ unless stated otherwise.
INVESTOR PRESENT