HAIAF 8-K
Healthcare AI Acquisition Corp. (HAIAF)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 14, 2023 (
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
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| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
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| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement
Letter Agreement
On June 12, 2023 as approved by its shareholders at an extraordinary general meeting held on June 9, 2023 (the “Special Meeting”), Healthcare AI Acquisition Corp. (the “Company”), its sponsor, Healthcare AI Acquisition LLC (the “Sponsor”), its officers and its directors (together with the Sponsor, the “Letter Agreement Parties”), entered into an amendment to the Letter Agreement (the “Letter Agreement”) dated December 14, 2021 (the “Letter Agreement Amendment”), to allow the transfer of Class B ordinary shares of the Company, $0.0001 par value per share (“Founder Shares”) by its initial shareholders, including the Sponsor, prior to the expiration of the applicable lock-up set forth therein.
On June 12, 2023, the Company instructed its trustee, Continental Stock Transfer & Trust Company (the “Trustee”), pursuant to the investment management trust agreement dated as of December 10, 2021, to extend the time to complete a business combination as approved by the Company’s shareholders in accordance with the Company’s amended and Amended and Restated Memorandum of Association and Articles of Association (the “Articles of Association”). At the Special Meeting, the shareholders of the Company approved a special resolution to th Articles of Association to extend the time to consummate a business combination until June 14, 2024, on a month-to-month basis by depositing $50,000 into the Company’s trust account for each one month extension (the “Extension”).
On June 8, 2023, the Company entered into a share purchase agreement in connection with the transfer from the Sponsor to Atticus Ale, LLC (the “Purchaser”) of 3,184,830 Founder Shares (the “Transfer”) which Transfer closed on June 12, 2023 (the “Closing”).
Sponsor Handover
On June 12, 2023, at the Closing, in connection with the Transfer, the Company, its officers and directors, the Sponsor and the Purchaser entered into additional agreements (altogether, the “Sponsor Handover”) whereby: (a) the Purchaser would sign a joinder agreement to become a party to the Letter Agreement and the Registration Rights Agreement dated December 14, 2021 (“Registration Rights Agreement”) in connection with the Company’s initial public offering (“IPO”), among the Company, the Sponsor and certain equityholders of the Company, which provides for customary demand and piggy-back registration rights for the Sponsor and such other equityholders, including the right to appoint three members to the Company’s board of directors after the consummation of the initial business combination; (b) the Sponsor and holders of the Class B Ordinary Shares of the Company, $0.0001 par value per share (“Founder Shares”) gave to Purchaser the irrevocable right to vote the Founder Shares on their behalf (the “POA Agreement”); (c) the Company entered into an agreement whereby at the time of the initial business combination, the Sponsor will surrender for cancelation 11,124,960 private placement warrants (the “Placement Warrants”) purchased at the time of the IPO pursuant to a Private Placement Warrants Purchase Agreement, dated December 9, 2021 (allowing the holder to acquire Class A Ordinary Shares of the Company, par value $0.0001 per share, referred to as the “Class A Shares”) in exchange for the Company issuing to the Sponsor 500,000 Class A Shares; and (d) the Company entered into an indemnity letter agreement (the “Indemnification Letter Agreement”) to continue its obligation to indemnify the resigning officers and directors of the Company pursuant to the Indemnity Agreement dated December 14, 2021 executed in connection with the IPO (the “Indemnity Agreement”). In addition, at the Closing, the Company’s IPO underwriters, Citigroup Global Markets Inc. and Jefferies LLC, waived their respective entitlement to the payment of any Deferred Discount (as such term is defined therein) to be paid under the terms of Section 2(c) and Section 5(bb) of the Underwriting Agreement dated December 9, 2021.
In connection with the Sponsor Handover, the following agreements were executed:
| · | A Joinder Agreement, dated June 12, 2023, between the Company and the Purchaser, whereby the Purchaser agreed to become a party to the Letter Agreement and the Registration Rights Agreement and transferring to Purchaser, following consummation of the Company’s initial business combination, the right to appoint three members to the board of directors; |
| · | A POA Agreement dated June 12, 2023 among the Purchaser and all holders of the Founder Shares, whereby holders of the Founder Shares gave Purchaser the irrevocable right to vote the Founder Shares on their behalf; |
| · | A Warrant Exchange Agreement, dated June 12, 2023, between the Sponsor and the Company whereby upon the consummation of the initial business combination, the Placement Warrants will be exchanged for 500,000 Class A Shares; |
| · | An Indemnification Letter Agreement, dated June 12, 2023, among the Company and the resigning officers and directors of the Company which states that the parties to the Indemnification Agreement agree that the Indemnification Agreement will remain in full force and effect even upon the resignation of the resigning officers and directors of the Company; |
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The foregoing descriptions of the Purchase Agreement, the Letter Agreement Amendment, the Joinder Agreement, the POA Agreement, the Warrant Exchange Agreement and the Indemnity Letter Agreement do not purport to be complete, are qualified in their entirety by reference to the full text of the applicable agreement, each of which is incorporated by reference herein and filed herewith as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5, and 10.6.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers, Compensatory Arrangements of Certain Officers.
Resignation of Officers and Directors
On June 12, 2023, effective immediately, the following officers and directors submitted the resignation of their respective offices: Simon Cottle, as director and Chief Executive Officer, Patrick Hargutt, as director and Chief Financial Officer, and each of James Brooks, Greg Caswill, Robert Piconi, Xavier Flinois and Elizabeth Weymouth as directors of the Company. Each officer and director informed the Company that he or she was resigning from his or her role, to pursue other opportunities. There were no disagreements between the Company and any officer or director on any matter related to the Company’s operations, policies or practices.
Appointment of Officers and Directors
On June 12, 2023, the holders of the Founder Shares appointed Zikang Wu as a non-independent director of the Company. Additionally, on June 12, 2023, Zikang Wu as the sole director of the Company, appointed Zikang Wu as Chief Executive Officer, effective June 12, 2023.
On June 12, 2023, Zikang Wu as the sole director of the Company appointed Weiyi Zheng, Hao Tian, Yuerong Tang and Zixun Jin as directors to join the Board of Directors of the Company (the “Board”). Each of Hao Tian, Yuerong Tang and Zixun Jin have been determined by Zikang Wu as the sole director of the Company to be an independent director under the listing rules of Nasdaq, and will serve on the audit, compensation and nominating committees. Mr. Tian will act as the “financial expert” and serve as chairman of the audit committee and will also serve as chairman of the compensation committee.
In connection with the appointment, the Company and Zikang Wu, Weiyi Zheng, Hao Tian, Yuerong Tang and Zixun Jin will enter into an indemnity agreement, the form of which was filed with the SEC on November 19, 2021 as Exhibit 10.4 to the Company's registration statement on Form S-1. There are no arrangements or understandings pursuant to which each of Weiyi Zheng, Hao Tian, Yuerong Tang and Zixun Jin were selected as a director. None of Weiyi Zheng, Hao Tian, Yuerong Tang and Zixun Jin have a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Zikang Wu will serve as our Chief Executive Officer and a director on our Board. Mr. Wu is the President of Atticus Ale, LLC, the Purchaser in the Sponsor Takeover. He is the founder and has been president of First Cover, Inc., a New York-based risk, compliance, and corporate services provider since April 2021. Additionally, Mr. Wu is the Chief Executive Officer of Tigerless Health, Inc., a leading US direct-to-consumer Insurtech company that he founded in September 2018. Being experienced in strategic planning, operations, and risk management, he assists corporate clients and individual customers in navigating complex insurance policies and cross-border transactions. Mr. Wu holds a Bachelor's degree in accounting and finance from Lehigh University and is certified as an insurance agent and broker by the New York State Department of Financial Services (NYDFS). The Company believes that Zikang Wu is well qualified to serve on its board of directors due to his extensive experience in strategic planning, operations and risk management.
Weiyi Zheng will serve as a director on our Board. Weiyi Zheng is the Senior Vice President of First Cover, Inc., a New York-based risk, compliance, and corporate services provider. Since 2019, Ms. Zheng has served as the Chief Marketing Officer at Tigerless Health, Inc., a leading US direct-to-consumer Insurtech company, where she establishes cooperative relationships and leads national marketing campaigns across all media types. Ms. Zheng holds a Master's degree in Strategic Communication from Columbia University and a Bachelor's degree from the University of California, Davis. The Company believes that Weiyi Zheng is well qualified to serve on its board of directors due to her extensive network and years of marketing experience.
Hao Tian will serve as an independent director on our Board. Hao Tian is a risk manager at Amazon.com, Inc. (“Amazon”) and brings professional experience in due diligence investigation, anti-money laundering, and sanctions compliance. Before joining Amazon in 2021, Mr. Tian was a lead associate at Kroll, LLC (formerly Duff & Phelps), a premier investigation and financial risk advisory firm headquartered in New York, based in its Toronto and Reston offices. He started his career with the corporate security division at the World Bank Group based in Washington D.C. Mr. Tian holds a Master’s degree from Georgetown University’s School of Foreign Service and a Bachelor’s degree in international relations and French studies from Lehigh University. The Company believes that Hao Tian is well qualified to serve on its board of directors due to his extensive experience in financial risk and compliance matters.
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Yuerong Tang will serve as an independent director on our Board. Yuerong Tang has been the Operation & Product Manager at Class Over Inc. since 2021, a tech education company in New York. Ms. Tang is also the Product Manager at Fortune Cookie Technologies Inc., a leading fintech company in Silicon Valley. Previously Ms. Tang served as an Economic Consultant at Ju Xing Enterprise Management Consulting Co., Ltd., where she analyzed business operations and providing economic insights. She was a business analyst at Tsingta, a comprehensive cultural and creative industry service provider. Ms. Tang holds a Bachelor's degree in Economics from Fordham University and a Master's degree in Technology Management from New York University. The Company believes that Yuerong Tang is well qualified to serve on its board of directors due to her diverse cultural and consulting experience.
Zixun Jin will serve as an independent director on our Board. Zixun Jin is experienced in operations management and data analysis. He has held the role of Operation Manager at European Dismantler Inc. since 2013, where his role is overseeing operations and implementing effective processes. Prior to his tenure at European Dismantler Inc., Mr. Jin worked as a Data Mining Analyst at Lehigh University, utilizing analytical skills to extract insights from complex datasets. His ability to uncover meaningful patterns and trends within the data contributed to improved decision-making and strategic planning. Mr. Jin holds a Master's degree in Industrial and System Engineering from Lehigh University, as well as a Bachelor's degree in Mechanical Engineering from Hefei University of Technology.. The Company believes that Zixun Jin is well qualified to serve on its board of directors due to his extensive experience in operations management and data analysis.
Committee Appointments
The Company already has an audit committee, compensation committee, and nominating and corporate governance committee. Each of these committees were comprised entirely of independent directors and acts under written charters, which more specifically sets forth their responsibilities and duties, as well as requirements for each committee’s composition and meetings. The charter of each of the committees, is available on the SEC’s website at sec.gov.
As a result of recent departures from the board, each of the audit committee, compensation committee, and nominating and corporate governance committee will consist of the following new board members:
· | Audit Committee: Hao Tian as Chairman; Hao Tian, Yuerong Tang and Zixun Jin as members. |
· | Compensation Committee: Hao Tian as Chairman; Hao Tian, Yuerong Tang and Zixun Jin as members. |
· | Nominating and Corporate Governance Committee: Hao Tian, Yuerong Tang and Zixun Jin as members. |
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As approved by its shareholders at the Special Meeting held on June 9, 2023, the following proposals were approved: (a) as a special resolution, giving the Company the right to extend the date by which it has to complete a business combination to June 14, 2024 by depositing into the Company’s trust account held by the Trustee (the “Trust Account”), the amount of $50,000 for each one-month extension (the “Extension Amendment Proposal”); (b) as a special resolution, an amendment to the Articles of Association to remove from the Articles of Association the limitation that the Company may not redeem Public Shares (as defined below) to the extent that such redemption would result in the Company having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended), of less than $5,000,001 (the “Redemption Limitation”) in order to allow the Company to redeem Public Shares irrespective of whether such redemption would exceed the Redemption Limitation (the “NTA Requirement Amendment Proposal”); and (c) as a special resolution, an amendment to the Articles of Association to provide for the right of a holder of the Company’s Class B Shares, to convert into Class A Shares (or “Public Shares”) on a one-for-one basis at any time and from time to time prior to the closing of a business combination at the election of the holder (the “Founder Share Amendment Proposal”). In addition, a proposal was approved as an ordinary resolution, an amendment to the Letter Agreement, to allow the Sponsor to transfer its holdings in the Company prior to the expiration of the applicable lock-up (the “Letter Agreement Amendment Proposal”).
Item 5.07. Submission of Matters to a Vote of Security Holders.
On June 9, 2023, the Company held the Special Meeting. On May 22, 2023, the record date for the Special Meeting, there were 26,953,001 ordinary shares entitled to be voted at the Special Meeting. This includes 21,562,401 Class A Shares, and 5,390,600 Class B Shares (together being the issued and outstanding ordinary shares of the Company, referred to as the “Shares”). At the meeting, 19,708,310 or 73.12% of such Shares were represented in person or by proxy.
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The final results for each of the matters submitted to a vote of the Company’s shareholders at the Special Meeting are as follows:
1. Extension Amendment Proposal
Shareholders approved the proposal to amend the Company’s Articles of Association as a special resolution, giving the Company the right to extend the date by which it has to complete a business combination to June 14, 2024 by depositing into the Company’s Trust Account, the amount of $50,000 for each one-month Extension. Approval of the Extension Amendment Proposal required a special resolution under Cayman Islands law, being a resolution passed by a majority of not less than two-thirds (2/3) of such holders of the issued and outstanding Ordinary Shares voted in person or by proxy at the Extraordinary General Meeting or any adjournment thereof. The Extension Amendment Proposal received the following votes:
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17,994,347 |
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| 1,713,963 |
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The Minutes of the Special Meeting which show the approval of the Extension Amendment Proposal in the form of the .
2. Redemption Limitation Amendment Proposal
Shareholders approved the proposal to amend the Company’s Articles of Association as a special resolution, an amendment to the Articles of Association to remove from the Articles of Association the limitation that the Company may not redeem Public Shares (as defined below) to the extent that such redemption would result in the Company having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended), of less than $5,000,001 in order to allow the Company to redeem Public Shares irrespective of whether such redemption would exceed the Redemption Limitation. Approval of the Redemption Limitation Amendment Proposal required a special resolution under Cayman Islands law, being a resolution passed by a majority of not less than two-thirds (2/3) of such holders of the issued and outstanding Ordinary Shares voted in person or by proxy at the Extraordinary General Meeting or any adjournment thereof. The Redemption Limitation Amendment Proposal received the following votes:
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| ABSTAIN |
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| BROKER NON-VOTES |
17,994,347 |
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| 1,713,963 |
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3. Founder Share Amendment Proposal
Shareholders approved the proposal to amend the Company’s Articles of Association as a special resolution, an amendment to the Articles of Association to provide for the right of a holder of the Company’s Class B Shares, to convert into Class A Shares on a one-for-one basis at any time and from time to time prior to the closing of a business combination at the election of the holder. Approval of the Founder Share Amendment Proposal required a special resolution under Cayman Islands law, being a resolution passed by a majority of not less than two-thirds (2/3) of such holders of the issued and outstanding Ordinary Shares voted in person or by proxy at the Extraordinary General Meeting or any adjournment thereof. The Founer Share Amendment Proposal received the following votes:
FOR |
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| ABSTAIN |
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17,994,347 |
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4. Letter Agreement Amendment Proposal
Shareholders approved the proposal to amend the Letter Agreement, as an ordinary resolution, to allow the holders of the Class B Ordinary Shares, to directly or indirectly, transfer their Class B Ordinary Shares to a third party prior to the expiration of the applicable lock-up period. Approval of the Letter Agreement Amendment Proposal required an ordinary resolution under Cayman Islands law, being a resolution passed by a simple majority of the votes cast by the holders of the Ordinary Shares present at the Extraordinary General Meeting and entitled to vote thereon. The Letter Agreement Amendment Proposal received the following votes:
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| ABSTAIN |
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| BROKER NON-VOTES |
17,994,347 |
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| 0 |
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Item 8.01. Other Events.
In connection with the shareholders’ vote at the Special Meeting of shareholders held by the Company on June 9, 2023, 19,824,274 shares were tendered for redemption. As a result, approximately $208,992,255 (approximately $10.54 per share) will be removed from the Company’s trust account to pay such holders, without taking into account additional allocation of payments to cover any tax obligation of the Company since that date. Following redemptions, the Company will have 1,738,127 Class A Shares outstanding, and approximately $18,323,752 will remain in the Company’s trust account.
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Item 9.01. Financial Statements and Exhibits
(c) Exhibits:
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| Amendment to Amended and Restated Memorandum of Association and Articles of Association | |
| Share Purchase Agreement among the Company, the Sponsor and Atticus Ale, LLC dated June 8, 2023 | |
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104 |
| Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| HEALTHCARE AI ACQUISITION CORP. |
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Dated: June 14, 2023 | By: | /s/ Zikang Wu |
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| Name: Zikang Wu |
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| Title: Chief Executive Officer |
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EXHIBIT 3.1
Registrar of Companies
Government Administration Building
133 Elgin Avenue
George Town
Grand Cayman
Healthcare AI Acquisition Corp. (ROC #371585) (the “Company”)
TAKE NOTICE that by Minutes of the Extraordinary General Meeting held virtually on June 09, 2023, the following special resolution was passed:
The Extension Amendment Proposal
“RESOLVED, as a special resolution, THAT:
The text of Article 163 of the Amended and Restated Memorandum of Association and Articles of Association of the Company be deleted in its entirety and replaced by the following:
(a) In the event that either the Company does not consummate a Business Combination by 18 (or up to 30 months if the Company elects to extend the time to complete a Business Combination pursuant to Article 163(b), below) months after the closing of the IPO, the Company shall: (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem the Public Shares, at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Fund, including interest earned on the Trust Fund and not previously released to the Company to pay income taxes, if any, (less up to $100,000 of interest to pay winding up and dissolution expenses), divided by the number of Public Shares then in issue, which redemption will completely extinguish public Members’ rights as Members (including the right to receive further liquidation distributions, if any); and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining Members and the Directors, liquidate and dissolve, subject in the case of sub-articles (ii) and (iii), to its obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements of applicable law.
(b) The Company may extend the time available to complete a Business Combination beyond 18 months up to twelve (12) times for one month each time by depositing $50,000 (each, an “Extension Payment”) in the Trust Fund prior to the Company’s then applicable deadline. Each Extension Payment will be deposited in the Trust Fund no later than the beginning of the additional extension period (or portion thereof).
(c) If any amendment is made to Article 163(a) that would modify the substance or timing of the Company’s obligation to provide holders of our Class A Shares the right to have their shares redeemed in connection with our initial Business Combination or to redeem 100% of our Public Shares if the Company does not complete its initial Business Combination within 18 months (or up to 30 months if extended pursuant to Article 163(b)) from the closing of the IPO or with respect to any other provision relating to the rights of holders of our Class A Shares, each holder of Public Shares shall be provided with the opportunity to redeem their Public Shares upon the approval of any such amendment at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Fund, including interest earned on the Trust Fund and not previously released to the Company to pay its income taxes, if any, divided by the number of Public Shares then in issue.
The NTA Requirement Amendment Proposal
RESOLVED, as a special resolution, THAT, Article 157(b) of the Amended and Restated Memorandum of Association and Articles of Association of the Company be amended by the deletion of the words “; provided that the Company shall not repurchase Public Shares in an amount that would cause the Company’s net tangible assets to be less than US$5,000,001”.
RESOLVED, as a special resolution, THAT, Article 160 of the Amended and Restated Memorandum of Association and Articles of Association of the Company be amended by the deletion of the words “, provided that the Company shall not consummate a Business Combination unless the Company would have net tangible assets of at least US$5,000,001 upon consummation”.
RESOLVED, as a special resolution, THAT, Article 162 of the Amended and Restated Memorandum of Association and Articles of Association of the Company be amended by the deletion of the words “Notwithstanding the foregoing, the Company shall not redeem Public Shares that would cause the Company’s net tangible assets to be less than US$5,000,001 following such redemptions.”.
RESOLVED, as a special resolution, THAT, Article 163(b) of the Amended and Restated Memorandum of Association and Articles of Association of the Company be amended by the deletion of the words “Notwithstanding the foregoing, the Company shall not redeem Public Shares in connection with such amendment that would cause the Company’s net tangible assets to be less than US$5,000,001 following such redemptions.”.
The Founder Share Amendment Proposal
RESOLVED, as a special resolution, THAT:
The text of Article 165 Amended and Restated Memorandum of Association and Articles of Association of the Company be deleted in its entirety and replaced by the following: “Following the IPO, Prior to or in connection with the Company’s initial Business Combination, except that the holders of Class B Shares may convert their Class B Shares into Class A Shares at their option pursuant to Article 14, the Company shall not issue additional Shares or any other securities that would entitle the holders thereof to: (a) receive funds from the Trust Fund; or (b) vote as a class with the holders of Public Shares (i) on any Business Combination or any other proposal presented to the Shareholders prior to or in connection with the completion of a Business Combination or (b) to approve an amendment to the Articles to (x) extend the time that the Company has to consummate an initial Business Combination or (y) amend the foregoing provisions of this Article 165.
| /s/ Jerome Narcisse |
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| Corporate Administrator |
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| for and on behalf of |
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| Maples Corporate Services Limited |
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| Dated this 13th day of June 2023 |
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EXHIBIT 10.1
EXECUTION DRAFT
SHARE PURCHASE AGREEMENT
by and among
HEALTHCARE AI ACQUISITION LLC
the Sponsor
on the one hand as Seller
ATTICUS ALE, LLC
on the other hand as Buyer
and
HEALTHCARE AI ACQUISITION CORP.
Dated: June 8, 2023
This document is intended solely to facilitate discussions among the parties identified herein. It is not intended to create, and it will not be deemed to create, a legally binding or enforceable offer or agreement of any type or nature prior to the execution and delivery of this document by all of the parties hereto.
TABLE OF CONTENTS
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| Article I Definitions and Rules of Construction | 4 | |
| 1.1 | Definitions | 4 |
| 1.2 | Rules of Construction | 9 |
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| Article II Purchase and Sale of Founder Shares | 10 | |
| 2.1 | Transfer of Founder Shares. | 10 |
| 2.2 | Closing | 10 |
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| Article III Representations and Warranties of the Seller | 12 | |
| 3.1 | Authorization and Enforceability | 12 |
| 3.2 | Ownership of the Founder Shares | 12 |
| 3.3 | Consents and Approvals | 12 |
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| Article IV Representations and Warranties with respect to the SPAC | 12 | |
| 4.1 | Organization and Power | 13 |
| 4.2 | Capitalization | 13 |
| 4.3 | SEC Filings. | 13 |
| 4.4 | Trust Account. | 14 |
| 4.5 | Transactions with Affiliates | 14 |
| 4.6 | Litigation | 15 |
| 4.7 | Compliance with Applicable Law | 15 |
| 4.8 | Business Activities. | 15 |
| 4.9 | Internal Controls; Listing; Financial Statements. | 15 |
| 4.10 | No Undisclosed Liabilities | 17 |
| 4.11 | Tax Matters. | 17 |
| 4.12 | Material Contracts; No Defaults. | 18 |
| 4.13 | Absence of Changes | 19 |
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| Article V Representations and Warranties of Buyer | 19 | |
| 5.1 | Organization and Power | 19 |
| 5.2 | Authorization and Enforceability | 19 |
| 5.3 | No Violation | 19 |
| 5.4 | Anti-Money Laundering | 20 |
| 5.5 | Governmental Authorizations and Consents | 20 |
| 5.6 | Accredited Investor; Investment Purpose | 20 |
| 5.7 | Information | 20 |
| 5.8 | Acknowledgement of Risks | 21 |
| 5.9 | No Inducement or Reliance; Independent Assessment | 21 |
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| Article VI Covenants | 22 | |
| 6.1 | Operating Expenses | 22 |
| 6.2 | Sponsor and SPAC Transition Reporting | 22 |
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| 6.3 | Public Announcements | 22 |
| 6.4 | SPAC Shareholders Meeting. | 22 |
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| Article VII Closing Conditions | 23 | |
| 7.1 | Conditions to the Obligations of the Parties | 23 |
| 7.2 | Conditions to the Obligations of Buyer. | 23 |
| 7.3 | Conditions to the Obligations of the Seller and the SPAC. | 24 |
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| Article VIII Miscellaneous | 25 | |
| 8.1 | Expenses | 25 |
| 8.2 | Notices | 25 |
| 8.3 | Governing Law | 26 |
| 8.4 | Entire Agreement; No Other Representations | 26 |
| 8.5 | Severability | 26 |
| 8.6 | Amendment | 26 |
| 8.7 | Effect of Waiver or Consent | 27 |
| 8.8 | Parties in Interest; Limitation on Rights of Others | 27 |
| 8.9 | Assignability | 27 |
| 8.10 | Jurisdiction; Court Proceedings; Waiver of Jury Trial | 27 |
| 8.11 | No Other Duties | 28 |
| 8.12 | Reliance on Counsel and Other Advisors | 28 |
| 8.13 | Specific Performance | 28 |
| 8.14 | Release | 28 |
| 8.15 | Counterparts | 29 |
| 8.16 | Further Assurance | 30 |
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Exhibits
EXHIBITS
| Exhibit A |
| Warrant Exchange Agreement |
| Exhibit B |
| Joinder Agreement |
| Exhibit C |
| Indemnification Agreement |
| Exhibit D |
| Power of Attorney of Class B Ordinary Shareholders |
| Schedule I |
| List of Resigning Officers and Directors |
| Schedule II |
| Seller Expenses |
| Schedule III |
| Buyer Expenses |
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this “Agreement”), dated as of June 8, 2023 (the “Effective Date”), is made by and between Healthcare AI Acquisition Corp. (the “SPAC” or the “Company”), HEALTHCARE AI ACQUISITION LLC (the “Seller”), which is also the current sponsor of the Company (the “Sponsor”),and ATTICUS ALE, LLC (the “Buyer”). Each of Buyer, the SPAC and the Seller are referred to herein as a “Party” and together as the “Parties.”
RECITALS
WHEREAS, Seller owns 5,290,600 shares of Class B Ordinary Shares of the SPAC, par value $0.0001 per share (“Founder Shares”), and 11,124,960 warrants to acquire shares of Class A Ordinary Shares of the SPAC, par value $0.0001 per share (the “Class A Shares”), purchased in a private placement contemporaneously with the SPAC’s initial public offering (the “Placement Warrants”);
WHEREAS, Buyer desires to acquire from Seller 3,184,830 of such Founder Shares on the following terms and conditions;
WHEREAS, the Seller desires to sell the Founder Shares to Buyer on the following terms and conditions; and
WHEREAS, as an inducement to enter into this Share Purchase Agreement, the Seller shall enter into a Warrant Exchange Agreement with the SPAC to exchange the Placement Warrants for Class A Shares, a form of which is attached hereto as Exhibit A.
NOW THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties hereto agree as follows:
ARTICLE I
Definitions and Rules of Construction
1.1 Definitions.
As used in this Agreement, the following terms shall have the meanings set forth below:
“Affiliate” means (a) as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person or (b) as to any Person that is a natural Person, any such Person’s spouse, parents, children and siblings, whether by blood, adoption or marriage, residing in such Person’s home or any trust or similar entity for the benefit of any of the foregoing Persons. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise; provided, however, that the term “Person” shall exclude an investor in a publicly traded Affiliate. Except as otherwise provided herein, the Sponsor and each of the Sponsor Subsidiaries shall be deemed for purposes of this Agreement to be an Affiliate of Buyer from and after the Closing.
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“Agreement” means this Share Purchase Agreement, as it may be amended from time to time.
“Ancillary Documents” means the documents, agreements, statements or certificates being executed and delivered in connection with this Agreement and the transactions contemplated hereby.
“Business Combination” means any merger, capital stock exchange, asset acquisition, stock purchase, reorganization or other similar business combination with one or more businesses, involving the SPAC.
“Business Day” means any day other than a Saturday, Sunday or day on which banks are closed in New York, New York. If any period expires on a day which is not a Business Day or any event or condition is required by the terms of this Agreement to occur or be fulfilled on a day which is not a Business Day, such period shall expire or such event or condition shall occur or be fulfilled, as the case may be, on the next succeeding Business Day.
“Buyer” has the meaning set forth in the Preamble.
“Chosen Courts” has the meaning set forth in Section 8.10.
“Closing” has the meaning set forth in Section 2.4(a).
“Closing Date” means the date on which the Closing occurs.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Material Adverse Effect” means any event, change, development, effect, condition, circumstance, matter, occurrence, or state of fact that has had or is reasonably expected to have a material adverse effect on (a) the business, operations or financial condition of SPAC, taken as a whole, or (b) the ability of the Seller to perform its obligations under this Agreement or to consummate the Contemplated Transactions; provided, that none of the following events, changes, developments, effects, conditions, circumstances, matters, occurrences or states of facts, whether alone or in combination, shall be taken into account in determining whether there has been or may be a Company Material Adverse Effect: any adverse event, change, development, effect, condition, circumstance, matter, occurrence or state of facts attributable to (i) any general, regional, global or national economic, monetary or financial condition, including changes or developments in prevailing interest rates, credit markets, securities markets, general economic or business conditions or currency exchange rates, or political or regulatory conditions, (ii) operating, business, regulatory or other conditions generally affecting the industry in which SPAC operates, (iii) any change in Law or GAAP, or (iv) the negotiation, execution, delivery, performance or announcement of this Agreement or the Contemplated Transactions (it being understood that the facts and circumstances giving rise or contributing to any such failure may, unless otherwise excluded by another clause in this definition of “Company Material Adverse Effect,” be taken into account in determining whether a “Company Material Adverse Effect” has occurred or could reasonably be expected to occur), so long as in the case of clauses (i), (ii) and (iii), such events, changes, developments, effects, conditions, circumstances, matters, occurrences or state of facts do not materially and adversely affect the SPAC, taken as a whole, in a materially disproportionate manner relative to other participants in the industry in which SPAC, taken as a whole, operate.
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“Company Parties” has the meaning set forth in Section 5.9.
“Contemplated Transactions” means the transactions contemplated by this Agreement and the Ancillary Documents.
“D&O Indemnity” has the meaning set forth in Section 2.3.
“Effective Date” has the meaning set forth in the Preamble.
“Founder Shares” has the meaning set forth in the Recitals.
“Fraud” means, as determined by a court of law upon hearing on merits, with respect to any Person, the making of a statement of fact with intent to deceive another Person and requires (a) a false representation of material fact; (b) with knowledge that such representation is false; (c) with an intention to induce the party to whom such representation is made to act or refrain from acting in reliance upon it; (d) causing that party, in justifiable reliance upon such false representation, to take or refrain from taking action; and (e) causing such party to suffer damage by reason of such reliance.
“Fundamental Representations” means and refers to Section 3.1 (Authorization and Enforceability), Section 3.2 (Ownership of Founder Shares), Section 3.3 (Consents and Approvals), Section 4.1 (Organization and Power) and Section 4.2 (Capitalization).
“GAAP” means United States generally accepted accounting principles and practices in effect from time to time consistently applied.
“Governmental Authority” means any nation or government, any supranational, foreign or domestic federal, state, county, municipal or other political instrumentality or subdivision thereof and any supranational, foreign or domestic entity or body exercising executive, legislative, judicial, regulatory, administrative functions of or pertaining to government, including any court.
“Indemnification Agreement” has the meaning of the indemnification agreement in the form of Exhibit C, attached hereto, between the SPAC and each of the resigning officers and directors listed on Schedule I.
“Indemnitee” shall means any Buyer Indemnitees or Seller Indemnitees, as the case may be.
“Indemnitor” means any Person(s) against whom a claim for indemnification is being asserted under any provision of Article VII herein.
“Insiders” has the meaning of those holders of Founder Shares.
“IRS” means the Internal Revenue Service.
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“Joinder Agreement” has the meaning of the agreement to be executed at Closing whereby Buyer shall become a party to the Letter Agreement and the Registration Rights Agreement in the form attached hereto as Exhibit B.
“Laws” means all laws, Orders, statutes, codes, regulations, ordinances, judgments, decrees, rules, or other requirements or pronouncement with similar effect of any Governmental Authority.
“Letter Agreement” has the meaning of the Letter Agreement, dated as of December 14, 2021 among the SPAC and the Insiders in connection with the SPAC’s initial public offering, as amended on June 9, 2023.
“Lien” means any lien, mortgage, deed of trust, security interest, pledge, charge, encumbrance, hypothecation, claim, contractual restriction, easement, right-of-way, option, right of first refusal or first offer, preemptive right, limitation, defects in title, restrictive covenants or other similar restriction or encumbrance.
“Loss” means any direct or indirect liability, claim, loss, damage, suit, obligation, judgment, fine, cost, expense or penalty (including reasonable attorneys’ fees and expenses).
“Orders” means all judgments, orders, rulings, determinations, writs, injunctions, decisions, rulings, decrees, settlement agreements, stipulations, and awards of any Governmental Authority.
“Organizational Documents” means, with respect to any Person (other than an individual), (i) the certificate of formation or incorporation or articles of incorporation, organization or association and any joint venture, limited liability company, operating or partnership agreement and other similar documents adopted or filed in connection with the creation, formation or organization of such Person and (ii) all bylaws, memoranda of association, regulations, voting agreements and similar documents, instruments or agreements relating to the organization or governance of such Person, in each case, as amended or supplemented.
“Party” or “Parties” have the meanings set forth in the Preamble.
“Permitted Lien” means any (a) Lien in respect of Taxes not yet due and payable or which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, as reflected in the Financial Statements, (b) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business in respect of obligations that are not yet delinquent, or that are being contested in good faith and for which appropriate reserves have been established in accordance with GAAP, (c) in the case of real property, any matters, restrictions, covenants, conditions, limitations, rights, rights of way, encumbrances, encroachments, reservations, easements, agreements and other matters of fact or record which an accurate, recent survey or inspection of the property would reveal and which, individually or in the aggregate, do not materially impair the value or the continued or proposed use and operation of the assets or properties to which they relate, (d) limitations on the rights of the Sponsor under any Contract that are expressly set forth in such Contract, (e) any licenses or grants to use any Sponsor intellectual property, (f) any other Liens that, individually or in the aggregate, do not materially impair the value or the continued or proposed use and operation of the assets or properties to which they relate, and (g) Liens imposed by applicable Law (including but not limited to zoning, entitlement, building and or other land use regulations), which, individually or in the aggregate, do not materially impair the value or the continued or proposed use and operation of the assets or properties to which they relate.
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“Person” means any individual, person, entity, general partnership, limited partnership, limited liability partnership, limited liability company, private limited company, corporation, joint venture, trust, business trust, cooperative, association, foreign trust or foreign business organization.
“Pre-Closing Period” means any Tax period ending on or prior to the Closing Date.
“Placement Warrants” has the meaning set forth in the Recitals.
“POA” has the meaning of the irrevocable power of attorney executed by the holders of Class B Ordinary Shares of the SPAC in the form of the Power of Attorney attached hereto as Exhibit D.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of December 14, 2021, among the SPAC, the Sponsor and other equityholders named therein.
“Representatives” means, with respect to any Person, its officers, directors, management board members, employees, accountants, consultants, investment bankers, legal counsel, agents, commercial proxies, proxies and other advisors and representatives.
“Required SPAC Shareholder Approvals” means the approval of each of the proposals set out in the definitive proxy statement of the SPAC filed with the SEC on May 30, 2023 by the affirmative vote of the holders of the requisite number of SPAC shares entitled to vote thereon, whether in person or by proxy at the Shareholders Meeting (or any adjournment or postponement thereof), in accordance with the Organizational Documents of the SPAC and applicable Law.
“SEC” has the meaning set forth in Section 6.3(b).
“SEC Reports” means all disclosures publicly filed or furnished by the SPAC on the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (or successor thereto) (EDGAR).
“Securities Act” means the Securities Act of 1933, as amended.
“SPAC” has the meaning set forth in the Recitals.
“SPAC Related Party Transaction” has the meaning set forth in Section 4.5.
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“Tax” or “Taxes” means any (i) foreign, federal, state or local income, gross receipts, occupation, environmental, customs, duties, registration, alternative or add-on minimum, estimated, withholding, payroll, employment, unemployment insurance, social security (or similar), excise, sales, use, value-added, franchise, real property, personal property, business and occupation, capital stock, stamp or documentary, transfer, workman’s compensation or other tax, governmental fee or imposition of any kind whatsoever, including any interest, penalties, additions, assessments or deferred liability with respect thereto, whether disputed or not; (ii) transferee or other secondary liability for the payment of any amount of a type described in clause (i) above; and (iii) liability for the payment of any amount of a type described in clause or clause (ii) above as a result of any contractual or other obligation to indemnify or otherwise assume or succeed to the liability of any other Person.
“Tax Authority” means any domestic, foreign, federal, national, state, county or municipal or other local government, any subdivision, agency, commission, Governmental Authority, or other authority thereof, or any quasi-governmental body exercising Tax regulatory authority.
“Tax Return” means any report, return, form, estimate, declaration, information return or statement filed or required to be filed in connection with any Taxes, including any schedule or attachment thereto, and including any amendment or supplement thereof.
“Tax Sharing Agreement” means any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar contract or arrangement, whether written or unwritten (including, without limitation, any such agreement, contract or arrangement included in any purchase or sale agreement, merger agreement, joint venture agreement or other document).
“Treasury” has the meaning set forth in Section 5.4.
“Treasury Regulations” means the Treasury regulations promulgated under the Code, as such Treasury Regulations may be amended from time to time. Any reference herein to a particular provision of the Treasury Regulations means, where appropriate, the corresponding successor provision.
“Warrant Exchange Agreement” has the meaning of the Warrant Exchange Agreement between the Sponsor and the SPAC executed at the Closing whereby the Placement Warrants will be exchanged for Class A Ordinary Shares of the SPAC.
1.2 Rules of Construction.
Unless the context otherwise requires:
(a) a capitalized term has the meaning assigned to it in this Agreement;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) references in the singular or to “him,” “her,” “it,” “itself,” or other like references, and references in the plural or the feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the masculine or feminine reference, as the case may be;
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(d) references to Articles, Sections, Schedules and Exhibits shall refer to articles, sections, schedules and exhibits of this Agreement, unless otherwise specified;
(e) the headings in this Agreement are for convenience and identification only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision thereof;
(f) this Agreement shall be construed without regard to any presumption or other rule requiring construction against the party that drafted and caused this Agreement to be drafted;
(g) all monetary figures shall be in U.S. dollars unless otherwise specified;
(h) references to “including” in this Agreement shall mean “including, without limitation,” whether or not so specified;
(i) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other theory extends and such phrase shall not mean “if;” and
(j) the word “or” is not exclusive and the words “will” and “will not” are expressions of command and not merely expressions of future intent or expectation.
ARTICLE II
Purchase and Sale of Founder Shares
2.1 Transfer of Founder Shares.
Upon the terms and subject to the conditions of this Agreement, on the Closing Date, the Seller shall sell, assign, transfer, and convey to Buyer, and Buyer shall purchase, acquire, and accept from the Seller, all right, title, and interest in and of 3,184,830 Founder Shares, free and clear of all Liens, other than Liens pursuant to applicable securities Laws and Liens disclosed in the SEC Reports 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.
2.2 Closing.
(a) Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place remotely via the electronic exchange of documents and signatures, on the Monday, June 12, 2023. The Parties intend that the Closing shall be effected, to the extent practicable, by conference call, the electronic delivery of documents and the prior physical exchange of certificates and certain other documents and instruments to be held in escrow by outside counsel to the recipient party pending authorization by the delivering party (or their outside counsel) of their release at the Closing.
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(b) Closing Deliverables of Seller and the SPAC.
The Seller and the SPAC shall deliver or cause to be delivered to Buyer at the Closing:
(i) Book entry interests evidencing the Seller’s ownership of the Founder Shares set forth in Section 2.1, free and clear of all Liens, other than Permitted Liens, in a form and substance satisfactory to Buyer and an instruction from the Seller to the SPAC to cause the book entry interests evidencing the Founder Shares being sold under this Agreement to be transferred to Buyer;
(ii) Written resignations of the officers and directors of the SPAC as identified on Schedule I attached hereto;
(iii) Executed Indemnification Agreements by the officers and directors of the SPAC as identified on Schedule I attached hereto;
(iv) Executed POAs from all the holders of Class B Ordinary Shares;
(v) The Warrant Exchange Agreement in the form attached hereto as Exhibit A, duly executed by the Sponsor and the SPAC; and
(vi) Waivers from the underwriters of the SPAC’s initial public offering waiving their right to receive the deferred underwriting fee in its entirety pursuant to the Underwriting Agreement dated December 14, 2021.
(c) Closing Deliverables of Buyer.
The Buyer shall deliver or cause to be delivered to Seller at the Closing:
(i) An executed Joinder Agreement to become a party to the Letter Agreement and the Registration Rights Agreement;
(ii) Executed Indemnification Agreement; and
(iii) evidence of the transfer of $50,000 into the Trust Account of the SPAC.
(d) At the Closing, SPAC shall have paid all outstanding invoices of the SPAC incurred prior to the Effective Date, which are included on Schedule II attached hereto, or such invoices have otherwise been waived.
(e) At the Closing, SPAC shall deliver to each of the resigning officers and directors listed on Schedule I an Indemnification Agreement.
(f) At the Closing, Buyer shall be responsible for outstanding invoices of the SPAC incurred prior to the Effective Date, which are included on Schedule III attached hereto and shall be responsible for all invoices incurred following the Effective Date.
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ARTICLE III
Representations and Warranties of the Seller
The Seller hereby represents and warrants to Buyer that the following statements are true and correct as of the date hereof (except for such representations and warranties made only as of a specific date) and at the Closing:
3.1 Authorization and Enforceability.
Seller has the requisite power and authority to execute and deliver this Agreement and the Ancillary Documents to which such Seller is (or will be) a party and to perform such Seller’s obligations thereunder. The execution and delivery of this Agreement and the Ancillary Documents to which Seller is a party and the performance by Seller of the Contemplated Transactions that are required to be performed by Seller has been duly authorized by Seller, and no other corporate proceedings on the part of Seller are necessary to authorize the execution, delivery and performance of this Agreement and the Ancillary Documents to which Seller is a party or the consummation of the Contemplated Transactions that are required to be performed by Seller. This Agreement and each of the Ancillary Documents to be executed and delivered at the Closing by Seller will be, at the Closing, duly authorized, executed and delivered by Seller and assuming that this Agreement is a valid and legally binding obligation of the other parties hereto or thereto, constitutes, or as of such Closing Date will constitute, a valid and legally binding agreement of Seller, enforceable against Seller, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights.
3.2 Ownership of the Founder Shares.
Seller is the legal, record and beneficial owner and holder of the quantity of the Founder Shares and has good and marketable title to such Founder Shares, free and clear of any and all Liens, other than Liens pursuant to applicable securities Laws and Permitted Liens. The Seller is not a party to any option, warrant, equity right, purchase right or other contract or commitment that would require Seller to offer, sell, transfer or otherwise offer or dispose of the Founder Shares, other than this Agreement. Upon the consummation of the Contemplated Transactions and in accordance with the terms hereof, at the Closing, Buyer (1) will acquire good and valid title to the Founder Shares, free and clear of all Liens, other than Liens created by Buyer and Permitted Liens, and (2) Seller shall have entered into the Warrant Exchange Agreement whereby Seller agrees to relinquish Seller’s rights to the Placement Warrants in exchange for Class A Ordinary Shares when and as provided therein.
3.3 Consents and Approvals.
The execution and delivery by Seller of this Agreement and the Ancillary Documents to which Seller is a party, the consummation of the Contemplated Transactions by Seller and compliance with the terms of this Agreement and the Ancillary Documents to which Seller is a party do not (i) conflict with or violate any provision of the Organizational Documents of Seller or the SPAC, (ii) conflict with, violate, result in any breach of, constitute a default under (or an event that with notice or passage of time or both would constitute a breach or default), give rise to a right of acceleration, termination or cancellation of, or result in the creation of any obligation under or loss of any benefit of, or require any notice to or consent, approval or other action by any Governmental Authority or other third party under any Law, Order, contract or other agreement applicable to either Seller or the SPAC, or (iii) result in the creation of any Lien on any of the Founder Shares other than Permitted Liens, except in the case of any of clause (ii) or (iii) above, as would not have a Company Material Adverse Effect or materially delay or materially impair the consummation of the Contemplated Transactions.
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ARTICLE IV
Representations and Warranties with respect to the SPAC
The SPAC hereby represents and warrants to Buyer that the following statements are true and correct as of the date hereof (except for such representations and warranties made only as of a specific date) and the Closing:
4.1 Organization and Power.
The SPAC is duly organized, validly existing and in good standing in its jurisdiction of organization. The SPAC is not in violation of any of the provisions of its Organizational Documents.
4.2 Capitalization.
All outstanding Founder Shares are duly authorized, fully paid, validly issued, non-assessable, have not been or were not issued in violation of any preemptive or similar rights and were issued in compliance with applicable securities Laws or exemptions therefrom.
Other than as disclosed in the SEC Reports or as required by any loan obligations between the Sponsor and the SPAC, there are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to any equity interests in the SPAC.
4.3 SEC Filings.
The SPAC has filed or furnished all statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC by Law since its IPO (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the “SEC Reports”). Each of the SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, complied in all material respects with the applicable requirements of Law (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder) applicable to the SEC Reports. As of their respective dates of filing, the SEC Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made or will be made, as applicable, 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 the SEC Reports.
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4.4 Trust Account.
(a) As of the date of this Agreement, SPAC has an amount in cash in the Trust Account established at the time of the SPAC’s initial public offering for the benefit of the holders of the Class A Shares (the “Trust Account”) of at least $226,900,000. The funds held in the Trust Account are (i) invested in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act, having a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act that invest only in direct U.S. government treasury obligations and (ii) held in trust pursuant to that certain Investment Management Trust Agreement, dated as of December 14, 2021 (the “Trust Agreement”), by and between SPAC and Continental Stock Transfer and Trust, as trustee (the “Trustee”). There are no separate agreements, side letters or other agreements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the SEC Reports to be inaccurate in any material respect or that would entitle any Person to any portion of the funds in the Trust Account (other than (x) in respect of deferred underwriting commissions or Taxes, (y) the SPAC stockholders who shall have elected to redeem their shares pursuant to the Governing Documents of SPAC or (z) with respect to interest earned on the proceeds in the Trust Account (i) to pay income taxes from any interest income earned in the Trust Account and (2) up to $100,000 of interest on such proceeds to pay dissolution expenses if SPAC fails to complete a Business Combination within the allotted time period set forth in the Governing Documents of SPAC and liquidates the Trust Account. Prior to the closing of a Business Combination, none of the funds held in the Trust Account are permitted to be released, except in the circumstances described in the Governing Documents of SPAC and the Trust Agreement. SPAC has performed all material obligations required to be performed by it to date under, and is not in material 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. There are no claims or Proceedings pending with respect to the Trust Account. Since May 19, 2023, SPAC has not released any money from the Trust Account (other than interest income earned on the funds held in the Trust Account as permitted by the Trust Agreement).
(b) Assuming the accuracy of the representations and warranties of contained herein and the compliance with the 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 SPAC on the closing of the Business Combination (after disbursements in respect of Taxes, and to the SPAC stockholders who shall have elected to redeem their shares pursuant to the Governing Documents of SPAC, not including deferred underwriting commissions, which will have been waived).
4.5 Transactions with Affiliates. The SEC Reports include all contracts between (a) SPAC, on the one hand, and (b) any officer, director, employee, partner, member, manager, direct or indirect equityholder (including Sponsor), warrant holder or Affiliate of either SPAC or any member of the Sponsor, on the other hand (each Person identified in this clause (b), a “SPAC Related Party”). Except as provided in the SEC Reports, no SPAC Related Party owes any material amount to, or is owed material any amount by, SPAC. All contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 4.5 are referred to herein as “SPAC Related Party Transactions”.
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4.6 Litigation. There is (and since its incorporation, there has been) no proceeding pending or, to the knowledge of SPAC, threatened, against or affecting SPAC or its assets, including any condemnation or similar Proceedings that, if adversely decided or resolved, would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither SPAC nor any of its properties or assets is subject to any order from any Governmental Authority. As of the date of this Agreement, there are no material proceedings by SPAC pending against any other Person. There is no unsatisfied judgment or any open injunction binding upon SPAC that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
4.7 Compliance with Applicable Law. SPAC is (and since its incorporation, has been) in compliance with all applicable Laws, except as would not have a Company Material Adverse Effect. SPAC has not received any written notice from any Governmental Authority of a violation of any applicable Law by SPAC at any time since its formation, which violation would reasonably be expected to have a material adverse effect on the ability of SPAC to enter into, perform its obligations under any Business Combination.
4.8 Business Activities.
(a) Since its IPO, SPAC has held all IPO proceeds in the Trust Account (other than any amounts permitted to be disbursed under the terms of the Trust Agreement and as described in the SPAC Prospectus). Except as set forth in SPAC’s Governing Documents, to the knowledge of SPAC there is no contract binding upon SPAC or to which SPAC is a party that has or would reasonably be expected to have a material adverse effect on SPAC’s ability to complete a Business Combination.
(b) 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, and (ii) other than this Agreement and the Transactions, SPAC has no interests, rights, obligations or liabilities with respect to, or is party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any contract or transaction that is, or could reasonably be interpreted as constituting, a Business Combination.
4.9 Internal Controls; Listing; Financial Statements.
(a) Except as is not required in reliance on exemptions from various reporting requirements by virtue of SPAC’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act, or “smaller reporting company” within the meaning of the Exchange Act, since its IPO, and except as has been disclosed in the SEC Reports (i) SPAC has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of SPAC’s financial reporting and the preparation of the SPAC financial statements for external purposes in accordance with GAAP and (ii) SPAC has established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to ensure that material information relating to SPAC is made known to SPAC’s principal executive officer and principal financial officer by others within SPAC. To the knowledge of SPAC, such disclosure controls and procedures are effective in timely alerting SPAC’s principal executive officer and principal financial officer to material information required to be included in the SPAC financial statements included in SPAC’s periodic reports required under the Exchange Act.
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(b) SPAC has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act. There are no outstanding loans or other extensions of credit made by SPAC to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of SPAC.
(c) Since its IPO, SPAC has complied in all material respects with all applicable listing and corporate governance rules and regulations of Nasdaq. The issued and outstanding SPAC Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq. The issued and outstanding SPAC Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq. The issued and outstanding SPAC Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq. As of the date of this Agreement, there is no Proceeding pending or, to the knowledge of SPAC, threatened against SPAC by Nasdaq or the SEC with respect to any intention by such entity to deregister the SPAC Units, SPAC Shares or SPAC Warrants or prohibit or terminate the listing of the SPAC Units, SPAC Shares or SPAC Warrants on Nasdaq. Neither SPAC nor any of its Affiliates has taken any action that is designed to terminate the registration of the SPAC Units, SPAC Shares or SPAC Warrants under the Exchange Act except as contemplated by this Agreement.
(d) SPAC has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for SPAC’s assets. SPAC maintains and, for all periods covered by the SPAC financial statements, has maintained books and records of SPAC in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of SPAC in all material respects.
(e) Since its incorporation, SPAC has not received any written complaint, allegation, assertion or claim that there is (i) other than as disclosed in in the SEC Reports a “significant deficiency” in the internal controls over financial reporting of SPAC, (ii) other than as disclosed in in the SEC Reports a “material weakness” in the internal controls over financial reporting of SPAC or (iii) fraud, whether or not material, that involves management or other employees of SPAC who have a significant role in the internal controls over financial reporting of SPAC.
(f) To the knowledge of SPAC, none of the SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.
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4.10 No Undisclosed Liabilities. Except for the Liabilities (a) that are incurred in connection with or incident or related to SPAC’s incorporation or continuing corporate existence, which are immaterial in nature, (b) that are incurred in connection with activities that are administrative or ministerial, in each case, which are immaterial in nature, (c) set forth or disclosed in the SPAC financial statements included in the SEC Reports, (d) set forth or disclosed on Schedule II or Schedule III, or (e) set forth or disclosed in the Disclosure Schedules delivered herewith, SPAC has no Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
4.11 Tax Matters.1
(a) Except as set forth in Section 4.11(a) of the Disclosure Schedule, SPAC has timely filed, or caused to be timely filed, all income and other material Tax Returns required to be filed by it (taking into account all available extensions) and such Tax Returns true, accurate, correct and complete in all material respects. SPAC has timely paid, or caused to be paid, all material Taxes required to be paid, other than such Taxes for which adequate reserves have been established.
(b) SPAC has complied in all material respects with all applicable Tax Laws relating to withholding and remittance of all material amounts of Taxes and all material amounts of Taxes required by applicable Tax Laws to be withheld by SPAC have been withheld and timely paid over to the appropriate governmental entity.
(c) To the knowledge of SPAC, there are no material claims, assessments, audits, examinations, investigations or other similar actions pending or in progress against SPAC, in respect of any material Tax, and SPAC has not been notified in writing of any material proposed Tax claims or assessments against SPAC (other than, in each case, claims or assessments for which adequate reserves have been established).
(d) There are no material Liens with respect to any Taxes upon any of SPAC’s assets, other than Permitted Liens. SPAC has no outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes. There are no outstanding requests by SPAC for any extension of time within which to file any Tax Return or within which to pay any Taxes shown to be due in any Tax Return.
(e) SPAC has no Liability for the Taxes of another Person pursuant to Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Tax Law) or as a transferee or successor or by contract, indemnity or otherwise. SPAC is not a party to or bound by any Tax indemnity agreement, Tax Sharing Agreement, Tax allocation agreement or similar agreement, arrangement or practice with respect to Taxes (including closing agreement or other agreement relating to Taxes with any governmental entity) (other than any customary commercial contract entered into in the ordinary course of business and the principal purpose of which does not relate to Taxes).
1 Note to Loeb: Subject to K&E tax review.
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(f) SPAC is not and has never been a member of any consolidated, combined, unitary or affiliated group of corporations for any Tax purposes.
(g) SPAC has not engaged in or entered into a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any similar provision of state, local or non-U.S. Tax Law.
(h) During the two (2)-year period ending on the date of this Agreement, SPAC was not a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(i) SPAC is Tax resident only in its jurisdiction of incorporation.
(j) SPAC is not and has not been during the last five (5) years a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
4.12 Material Contracts; No Defaults.
(a) SPAC has filed as an exhibit to the SEC Reports all “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than confidentiality and non-disclosure agreements, this Agreement and the Ancillary Documents) to which, as of the date of this Agreement, SPAC is a party or by which any of its respective assets are bound.
(b) The SEC Reports contain true, correct and complete copies of the applicable SPAC’s financial statements for the periods covered therein. The SPAC financial statements (i) fairly present in all material respects the financial position of SPAC as at the respective dates thereof, and the results of its operations, shareholders’ equity and cash flows for the respective periods then ended (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of footnotes), (ii) were prepared in conformity with GAAP applied on a consistent basis (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 (none of which is expected to be material) and the absence of footnotes), (iii) in the case of the audited SPAC financial statements, were audited in accordance with the standards of the PCAOB and (iv) 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 thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Each contract of a type required to be filed as an exhibit to the SEC Reports, whether or not filed, was entered into at arm’s length. Such contracts (i) are in full force and effect and represent the legal, valid and binding obligations of SPAC, and the other parties thereto, and are enforceable by SPAC to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a Proceeding in equity or at law), (ii) SPAC and the counterparties thereto, are not in material breach of or material default (or would be in material breach, violation or default but for the existence of a cure period) under any such contract, (iii) SPAC has not received any written or oral claim or notice of material breach of or material default under any such contract, (iv) no event has occurred which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such contract by SPAC or any other party thereto (in each case, with or without notice or lapse of time or both) and (v) SPAC has not received written notice from any other party to any such contract that such party intends to terminate or not renew any such contract.
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4.13 Absence of Changes. Since the date of SPAC’s incorporation, (a) no Company Material Adverse Effect has occurred and (b) except for actions expressly contemplated by this Agreement or any Ancillary Document or taken in connection with the Transactions, (i) SPAC has conducted its business in the ordinary course in all material respects and (ii) SPAC has not taken any action that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
ARTICLE V
Representations and Warranties of Buyer
Buyer hereby represents and warrants to the Seller as follows on the date hereof and at the Closing:
5.1 Organization and Power.
Buyer is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware and has full power and authority to execute and deliver this Agreement and the Ancillary Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Contemplated Transactions.
5.2 Authorization and Enforceability.
The execution and delivery of this Agreement and the Ancillary Documents to which Buyer is a party and the performance by Buyer of the Contemplated Transactions have been duly authorized by Buyer, and no other corporate proceedings on the part of Buyer (including, without limitation, any stockholder vote or approval) are necessary to authorize the execution, delivery and performance of this Agreement and the Ancillary Documents to which Buyer is a party or the consummation of the Contemplated Transactions. This Agreement is, and each of the Ancillary Documents to be executed and delivered at each Closing by Buyer will be at each Closing, duly authorized, executed and delivered by Buyer, and constitute, or as of the Closing Date will constitute, valid and legally binding agreements of Buyer, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
5.3 No Violation.
The execution and delivery by Buyer of this Agreement and the Ancillary Documents to which Buyer is a party, consummation of the Contemplated Transactions and compliance with the terms of this Agreement and the Ancillary Documents to which Buyer is a party will not (a) conflict with or violate any provision of the Organizational Documents of Buyer, or (b) assuming that all consents, approvals and authorizations contemplated by Section5.5 have been obtained and all filings described therein have been made, conflict with or violate in any material respect any Law applicable to Buyer or by which Buyer’s properties are bound.
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5.4 Anti-Money Laundering.
Buyer is in compliance with the regulations administered by the U.S. Department of the Treasury (“Treasury”) Office of Foreign Assets Control; (ii) such Buyer, its parents, subsidiaries, affiliated companies, officers, directors and partners, its stockholders, owners, employees, and agents, are not on the List of Specially Designated Nationals and Blocked Persons maintained by Treasury and have not been designated by Treasury as a financial institution of primary money laundering concern subject to special measures under Section 311 of the USA PATRIOT Act, Pub. L. 107-56; (iii) the funds to be used to acquire the Founder Shares are not derived from activities that contravene applicable anti-money laundering laws and regulations; (iv) such Buyer is in compliance in all material respects with applicable anti money laundering laws and regulations and has implemented anti money laundering procedures that are designed to comply with applicable anti-money laundering laws and regulations, including, as applicable, the requirements of the Bank Secrecy Act, as amended by the USA PATRIOT Act, Pub. L. 107 56; and (v) none of the funds to be provided by such Buyer are being tendered on behalf of a person or entity who has not been identified to such Buyer.
5.5 Governmental Authorizations and Consents.
No Governmental Consents are required to be obtained or made by Buyer in connection with the execution, delivery and performance, validity and enforceability of this Agreement or any Ancillary Documents to which it is, or is to be, a party, or the consummation by Buyer of the Contemplated Transactions.
5.6 Accredited Investor; Investment Purpose; No General Solicitation or Advertising.
Buyer is an “accredited investor” as such term is defined in Rule 501(a) under the Securities Act. Buyer is acquiring the Founder Shares solely for the purpose of investment, for Buyer’s own account and not with a view to, or for offer or resale in connection with, any distribution thereof other than in compliance with all applicable Laws, including United States federal securities Laws. Buyer agrees that the Founder Shares may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any applicable state securities Laws, except pursuant to an exemption from such registration under the Securities Act and such Laws. Buyer did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act. Buyer is able to bear the economic risk of holding its investment in the Founder Shares for an indefinite period (including total loss of its investment), and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment.
5.7 Information.
Buyer acknowledges that it has had the opportunity to review the SEC Reports and Buyer and its advisors, if any, have been furnished with materials relating to the business, finances and operations of the Sponsor and the SPAC and materials relating to Founder Shares sufficient in its view to enable it to evaluate its investment. Buyer and its advisors, if any, have been afforded the opportunity to ask questions as it has deemed necessary of, and to receive answers from, representatives of the Seller concerning the terms and conditions of the Contemplated Transactions and the merits and risks of investing in the Founder Shares.
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5.8 Acknowledgement of Risks.
Buyer acknowledges and understands that its investment in the Founder Shares involve a significant degree of risk, including, without limitation: (i) the SPAC may not successfully complete a business combination transaction prior to the deadline disclosed in the SEC Reports; (ii) an investment in the SPAC is speculative, and only Persons who can afford the loss of their entire investment should consider investing in the SPAC; (iii) the Buyer may not be able to liquidate its investment; (iv) transferability of the Founder Shares is extremely limited; (v) in the event of a disposition of the Founder Shares, the Buyer could sustain the loss of its entire investment; (vi) the SPAC has no paid any distributions or dividends on the Founder Shares since inception and does not anticipate the payment of dividends in the foreseeable future; and (vii) that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Founder Shares or the fairness or suitability of the investment in the Founder Shares nor have such authorities passed upon or endorsed the merits of the Contemplated Transactions.
5.9 No Inducement or Reliance; Independent Assessment.
Buyer has not been induced by and has not relied upon any representations, warranties or statements, whether express or implied, made by the Seller, the SPAC or any of their respective Affiliates, officers, managers, directors, employees, agents or Representatives (collectively, the “Company Parties”), except for the representations and warranties of the Seller and the SPAC expressly set forth in Article III and Article IV, whether or not any such representations, warranties or statements were made in writing or orally. Buyer represents and warrants that no Company Party has made, and that Buyer has not relied or is not relying upon, any representation or warranty, express or implied, oral or written, as to the accuracy or completeness of any information regarding the Companies or the Contemplated Transactions except for the representations and warranties of the Seller and the SPAC expressly set forth in Article III and Article IV, and, absent Fraud, none of the Company Parties will have or be subject to any liability to Buyer or any other Person resulting from the distribution to Buyer or its Representatives, or the use by Buyer or its Representatives, of any information, including publications, any confidential information memorandum or data room information provided to Buyer or its Representatives, or any other document or information in any form provided to Buyer or its Representatives in connection with the Contemplated Transactions. Buyer acknowledges that it has inspected and conducted, to its satisfaction, its own independent investigation of the Companies and, in entering into this Agreement, Buyer has relied on the results of its own independent investigation and analysis. Buyer further represents that it has no need for liquidity in its investment in the Founder Shares for the foreseeable future and is able to bear the risks attendant to the transactions contemplated hereby for an indefinite period.
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ARTICLE VI
Covenants
6.1 Operating Expenses.
Seller shall be responsible for paying or arranging for the waiver of all costs, fees and expenses of the Sponsor and the SPAC contained on Schedule II prior to the Closing. The Buyer shall be responsible for all other ongoing costs, fees and expenses of the Sponsor and the SPAC, including, but not limited to those costs, fees and expenses contained on Schedule III. For the avoidance of doubt, neither Seller nor any of their Affiliates shall be responsible in any way for costs, fees and expenses of the SPAC after the Effective Date.
6.2 Sponsor and SPAC Transition Reporting.
(a) Immediately upon signing of this Agreement, the Buyer shall take, or shall cause the Sponsor and the SPAC to take, all commercially reasonable steps to change the address of the Sponsor and the SPAC to that of Buyer.
(b) Within four (4) Business Days after the Effective Date, the Buyer shall cause SPAC to file with the Securities and Exchange Commission (“SEC”) a Current Report on Form 8-K disclosing the following in the manner required by rules promulgated by the SEC:
(i) the completion of the Contemplated Transactions;
(ii) the resignation and appointment of new officers and directors of the SPAC which have resigned or been appointed prior to such date;
(iii) the change in the SPAC’s strategy for sourcing and funding a business combination target; and
(iv) such other material information required to be publicly disclosed pursuant to the rules and regulations of the SEC and the Nasdaq stock exchange.
6.3 Public Announcements.
The initial press release regarding this Agreement and the Contemplated Transactions shall be made at such time and in such form as Buyer and the Seller agree. None of the Buyer, the Seller or the Companies (nor any of their respective Affiliates) will issue or make any prior or subsequent press release or public statement with respect to this Agreement or the Contemplated Transactions without the prior consent of the other Parties, except as may be required by Law or stock exchange listing requirements.
6.4 SPAC Shareholders Meeting.
SPAC shall duly convene and hold a meeting of its shareholders (the “Shareholders Meeting”) in accordance with the Organizational Documents of the SPAC, for the purposes of obtaining the Required SPAC Shareholder Approvals and providing the SPAC shareholders with the opportunity to elect to effectuate a redemption of Class A Shares in connection therewith.
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ARTICLE VII
Closing Conditions
7.1 Conditions to the Obligations of the Parties.
The obligations of the Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Party for whose benefit such condition exists of the following conditions:
(i) no Order or Law issued by any court of competent jurisdiction or other governmental entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement shall be in effect;
(ii) the Required SPAC Shareholder Approvals shall have been obtained.
7.2 Conditions to the Obligations of Buyer.
The obligation of the Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Buyer of the following further conditions:
(i) the Fundamental Representations shall be true and correct in all material respects as of the date of this Agreement and as of the Closing, as though made on and as of the Closing;
(ii) the representations and warranties of set forth in Article III and Article IV (other than the Fundamental Representations) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing, as though made on and as of the Closing (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a Company Material Adverse Effect;
(iii) the SPAC and the Seller shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the SPAC and the Sponsor under this Agreement at or prior to the Closing, as applicable; and
(iv) the Seller and the SPAC shall have delivered:
(A) book entry interests evidencing the Seller’s ownership of the Founder Shares set forth in Section 2.1, free and clear of all Liens, other than Permitted Liens, in a form and substance satisfactory to Buyer and an instruction from the Seller to the SPAC to cause the book entry interests evidencing the Founder Shares being sold under this Agreement to be transferred to Buyer;
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(B) written resignations of each of the officers and directors of the SPAC as identified on Schedule I attached hereto;
(C) executed Indemnification Agreement from each of the resigning officers and directors listed on Schedule I hereto;
(D) executed and delivered POAs from all holders of Class B Ordinary Shares.
(E) The Warrant Exchange Agreement in the form attached hereto as Exhibit A, duly executed by the Sponsor and the SPAC;
(F) Waivers from the underwriters of the SPAC’s initial public offering waiving their right to receive the deferred underwriting fee in its entirety pursuant to the Underwriting Agreement dated December 14, 2021; and
7.3 Conditions to the Obligations of the Seller and the SPAC.
The obligations of the Seller and the SPAC to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Seller of the following further conditions:
(i) the representations and warranties of the Buyer contained in Article V shall be true and correct in all material respects as of the date of this Agreement and as of the Closing, as though made on and as of the Closing (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, has not had or would not reasonably be expected to have material adverse effect on the ability of the Buyer to consummate the transactions contemplated hereby;
(ii) the Buyer shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the Investor under this Agreement at or prior to the Closing;
(iii) the Buyer shall have delivered to Seller:
(A) an executed Joinder Agreement to become a party to the Letter Agreement and the Registration Rights Agreement;
(B) Executed Indemnification Agreement; and
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(C) the Buyer shall have provided evidence of the transfer of $50,000 into the Trust Account of the SPAC.
ARTICLE VIII
Miscellaneous
8.1 Expenses.
Other than as set forth in Section 6.1, all fees and expenses incurred in connection with the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Contemplated Transactions are consummated, including, but not limited to, any legal fees owed by Seller to Kirkland & Ellis International LLP in connection with the Contemplated Transactions. Any legal fees owed to Walkers LLP in connection with the Contemplated Transactions shall be divided evenly between the Seller and the Buyer.
8.2 Notices.
All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and made (a) as of the date delivered, if delivered personally, (b) upon being transmitted by way of email to the email address shown in this Section 8.2; provided, that a copy must also be deposited in accordance with the procedures set forth in clauses (c) or (d) of this Section 8.2 on the same day as such transmission by email, (c) one (1) Business Day after being sent by overnight courier or delivery service, or (d) five (5) Business Days after having been deposited in the mail, certified or registered (with receipt requested) and postage prepaid, addressed at the address shown in this Section 8.2 for, or such other address as may be designated in writing hereafter by, such Party:
If to the Seller:
Attn: Patrick Hargutt
Email: [email protected]
With a copy (which shall not constitute notice) to:
Kirkland & Ellis International LLP
30 St Mary Axe,
London EC3A 8AF, United Kingdom
Attn: Cedric Van den Borren
E-mail: [email protected]
If to Buyer:
Atticus Ale, LLC
8 The Green
STE 15614
Dover, DE 19901
Attn: Zikang Wu
Email: [email protected]
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With a copy (which shall not constitute notice) to:
Loeb & Loeb LLP
345 Park Ave
New York NY 10154
Attn: Giovanni Caruso
Email: [email protected]
8.3 Governing Law.
All matters relating to the interpretation, construction, validity and enforcement of this Agreement, including all claims (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement or the transactions contemplated hereby (including any claim or cause of action based upon, arising out of, or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by and construed in accordance with the domestic Laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than the State of New York.
8.4 Entire Agreement; No Other Representations.
This Agreement, together with the exhibits hereto, the Disclosure Schedule, the Ancillary Documents and the Confidentiality Agreement, constitute the entire agreement of the Parties relating to the subject matter hereof and supersede all prior contracts or agreements, whether oral or written. To avoid doubt, the Confidentiality Agreement shall remain in full force and effect until the Closing and shall survive any termination of this Agreement.
8.5 Severability.
Should any provision of this Agreement or the application thereof to any Person or circumstance be held invalid or unenforceable to any extent: (a) such provision shall be ineffective to the extent, and only to the extent, of such unenforceability or prohibition and shall be enforced to the greatest extent permitted by Law, (b) such unenforceability or prohibition in any jurisdiction shall not invalidate or render unenforceable such provision as applied (i) to other Persons or circumstances or (ii) in any other jurisdiction, and (c) such unenforceability or prohibition shall not affect or invalidate any other provision of this Agreement.
8.6 Amendment.
This Agreement may be amended at any time, but subject to the limitations of applicable Law, only by an instrument signed by Buyer and the Seller. Any provision hereof may be waived only by an instrument signed by each Party benefited by such provision.
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8.7 Effect of Waiver or Consent.
No waiver or consent, express or implied, by any Party to or of any breach or default by any Party in the performance by such party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such party of the same or any other obligations of such Party hereunder. No single or partial exercise of any right or power, or any abandonment or discontinuance of steps to enforce any right or power, shall preclude any other or further exercise thereof or the exercise of any other right or power. Failure on the part of a Party to complain of any act of any Party or to declare any Party in default, irrespective of how long such failure continues, shall not constitute a waiver by such Party of its rights hereunder until the applicable statute of limitation period has run.
8.8 Parties in Interest; Limitation on Rights of Others.
The terms of this Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective legal Representatives, successors and permitted assigns. Nothing in this Agreement, whether express or implied, shall be construed to give any Person (other than the Parties and their respective legal Representatives, successors and permitted assigns and as expressly provided herein) any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenants, conditions or provisions contained herein, as a third party beneficiary or otherwise.
8.9 Assignability.
No assignment of this Agreement or of any rights or obligations hereunder may be made by any Party, directly or indirectly (by operation of Law or otherwise), without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void; provided, however, that Buyer shall be entitled to assign its rights and obligations hereunder to an Affiliate or Affiliate(s).
8.10 Jurisdiction; Court Proceedings; Waiver of Jury Trial.
Any Litigation involving any Party to this Agreement arising out of or in any way relating to this Agreement shall be brought exclusively in any state or federal court located in the State of New York (together with the appellate courts thereof, the “Chosen Courts”) and each of the Parties hereby submits to the exclusive jurisdiction of the Chosen Courts for the purpose of any such Litigation. Each Party irrevocably and unconditionally agrees not to assert (a) any objection which it may ever have to the laying of venue of any such Litigation in any Chosen Court, (b) any claim that any such Litigation brought in any Chosen Court has been brought in an inconvenient forum and (c) any claim that any Chosen Court does not have jurisdiction with respect to such Litigation. To the extent that service of process by mail is permitted by applicable Law, each Party irrevocably consents to the service of process in any such proceeding in such courts by the mailing of such process by registered or certified mail, postage prepaid, at its address for notices provided for herein.
Each Party irrevocably and unconditionally waives any right to a trial by jury in any Litigation arising out of or relating to this Agreement or the Contemplated Transactions, whether now existing or hereafter arising, and whether sounding in contract, tort or otherwise, and agrees that any of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained-for agreement among the Parties irrevocably to waive its right to trial by jury in any Litigation and that any Litigation relating to this Agreement or the Contemplated Transactions shall instead be tried in a court of competent jurisdiction by a judge sitting without a jury.
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8.11 No Other Duties.
The only duties and obligations of the Parties under this Agreement are as specifically set forth in this Agreement, and no other duties or obligations shall be implied in fact, law or equity, or under any principle of fiduciary obligation.
8.12 Reliance on Counsel and Other Advisors.
Each Party has consulted such legal, financial, technical or other expert as it deems necessary or desirable before entering into this Agreement. Each Party represents and warrants that it has read, knows, understands and agrees with the terms and conditions of this Agreement.
8.13 Specific Performance.
The Parties 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. Accordingly, the Parties agree that, in addition to any other remedies, each Party shall be entitled to enforce the terms of this Agreement by a decree of specific performance.
8.14 Release.
(a) Release of Seller. Each of SPAC and Buyer, for itself and each of its direct and indirect affiliates, parent corporations, subsidiaries, subdivisions, successors, predecessors, members, shareholders and assigns (collectively the “SPAC and Buyer Releasors”), hereby (i) releases, acquits and forever discharges the resigning directors and officer listed on Schedule I and Seller and each of its direct and indirect affiliates, parents, subsidiaries, subdivisions, successors, predecessors, members, shareholders, and assigns, and their present and former officers, directors, legal representatives, employees, agents and attorneys, and their heirs, executors, administrators, trustees, successors and assigns (the parties so released, herein each a “Seller Releasee” and collectively, the “Seller Releasees”) of and from any and all causes of actions, claims, suits, liens, losses, damages, judgments, demands, liabilities, rights, obligations, costs, expenses, and attorneys’ fees of every nature, kind and description whatsoever, at law or in equity, whether individual, class or derivative in nature, whether based on federal, state or foreign law or right of action, mature or unmatured, accrued or not accrued, known or unknown, fixed or contingent, which the SPAC and Buyer Releasors ever had, now have or hereafter can, shall or may have against any Seller Releasees relating to the SPAC that accrued or may have accrued prior to the date hereof (collectively, the “Seller Released Claims”) and (b) covenants not to institute, maintain or prosecute any action, claim, suit, complaint, proceeding or cause of action or any kind to enforce any of the Seller Released Claims; provided that nothing contained in this Section 8.14(a) shall release, waive, discharge, relinquish or otherwise affect the rights or obligations of any Person with respect to claims involving (x) Fraud, (y) gross negligence and (z) willful misconduct of a Seller Releasee with regard to any representation or warranty or the breach of any covenant of a Seller Releasee under this Agreement or the Ancillary Documents. In any litigation arising from or related to an alleged breach of this Section, this Agreement may be pleaded as a defense, counterclaim or crossclaim, and shall be admissible into evidence. Each SPAC and Buyer Releasor expressly covenants and agrees that the release granted by it in this Section shall be binding in all respects upon the SPAC and Buyer Releasors and shall inure to the benefit of the successors and assigns of the Seller Releasees, and agrees that the Seller Releasees shall have no further liabilities or obligations to the SPAC and Buyer Releasors, except as provided in this Agreement. Excluded from the foregoing releases are any claims relating to or arising from the enforcement of this Agreement.
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Release of Buyer. Seller, for itself and each of its direct and indirect affiliates, parent corporations, subsidiaries, subdivisions, successors, predecessors, members, shareholders and assigns (collectively the “Seller Releasors”), hereby (i) releases, acquits and forever discharges Buyer and each of its direct and indirect affiliates, parents, subsidiaries, subdivisions, successors, predecessors, members, shareholders, and assigns, and their present and former officers, directors, legal representatives, employees, agents and attorneys, and their heirs, executors, administrators, trustees, successors and assigns (the parties so released, herein each a “Buyer Releasee” and collectively, the “Buyer Releasees”) of and from any and all causes of actions, claims, suits, liens, losses, damages, judgments, demands, liabilities, rights, obligations, costs, expenses, and attorneys’ fees of every nature, kind and description whatsoever, at law or in equity, whether individual, class or derivative in nature, whether based on federal, state or foreign law or right of action, mature or unmatured, accrued or not accrued, known or unknown, fixed or contingent, which the Seller Releasors ever had, now have or hereafter can, shall or may have against any Buyer Releasees by reason of any matter, cause or thing whatsoever relating to the SPAC (collectively, the “Buyer Released Claims”) and (ii) covenants not to institute, maintain or prosecute any action, claim, suit, complaint, proceeding or cause of action or any kind to enforce any of the Buyer Released Claims; provided that nothing contained in this Section 8.14(b) shall release, waive, discharge, relinquish or otherwise affect the rights or obligations of any Person with respect to claims involving (x) Fraud, (y) gross negligence and (z) willful misconduct of a Buyer Releasee with regard to any representation or warranty or the breach of any covenant of a Buyer Releasee under this Agreement or the Ancillary Documents. In any litigation arising from or related to an alleged breach of this Section, this Agreement may be pleaded as a defense, counterclaim or crossclaim, and shall be admissible into evidence. Each Seller Releasor expressly covenants and agrees that the release granted by it in this Section shall be binding in all respects upon the Seller Releasors and shall inure to the benefit of the successors and assigns of the Buyer Releasees, and agrees that the Buyer Releasees shall have no further liabilities or obligations to the Seller Releasors, except as provided in this Agreement. Excluded from the foregoing releases are any claims relating to or arising from the enforcement of this Agreement.
8.15 Counterparts.
This Agreement may be executed in any number of counterparts (including counterparts transmitted via facsimile or in .pdf, DocuSign or similar format) with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.
8.16 Further Assurance.
If at any time after the Closing any further action is necessary or desirable to fully effect the Contemplated Transactions, the Parties shall take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be duly executed and delivered in its name and on its behalf, all as of the day and year first above written.
| BUYER: | |||
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| ATTICUS ALE, LLC |
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| By: | /s/ Zikang Wu | ||
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| Name: | Zikang Wu | |
| Title: | MAnager | ||
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| SELLER: |
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| HEALTHCARE AI ACQUISITION LLC |
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| By: | /s/ Simon Lyall-Cottle |
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| Name: | Simon Lyall-Cottle |
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| Title: | Chief Executive Officer |
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| HEALTHCARE AI ACQUISITION CORP. |
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| By: | /s/ Simon Lyall-Cottle |
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| Name: | Simon Lyall-Cottle |
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| Title: | Chief Executive Officer |
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[Signature Page to Share Purchase Agreement]
EXHIBIT A
Warrant Exchange Agreement
EXHIBIT B
Joinder Agreement
EXHIBIT C
Indemnification Agreement
EXHIBIT D
Power of Attorney
SCHEDULE I
List of Resigning Officers and Directors
| Patrick Hargutt Chief Financial Officer and Director |
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| Simon Cottle Chief Executive Officer and Director |
| James Brooks Director | |
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Greg Caswill Director | |
| Robert Piconi Director
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| Xavier Flinois Director
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Elizabeth Weymouth
Director
| Elizabeth Weymouth |
SCHEDULE II
Seller Expenses
Seller shall be responsible for the settlement of the following payables from the balance cash available in the SPAC
| Service Provider Name |
| Invoices Billed through June 7, 2023 |
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| Continental |
| $ | 4,967.88 |
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| Calabrese |
| $ | 12,167.28 |
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| Marcum |
| $ | 20,600 |
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| Calabrese |
| $ | 6,000 |
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| HCAI |
| $ | 3,912.19 |
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| DFIN |
| $ | 1,085 |
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| SCP |
| $ | 907 |
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| TOTAL |
| $ | 49,639.35 |
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Schedule III
Buyer Expenses
Acquiror shall be responsible for the settlement of the following –
(A) SPAC Payables outstanding as of June 7, 2023
| Service Provider Name |
| Estimated Amount of Invoice/Expense as of June 7 2023 |
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| Discount Edgar & XBRL |
| $ | 4,000 |
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| Advantage Proxy, Inc. |
| $ | 8,500 |
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| Broadridge |
| $ | 3,000 |
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| Clear Trust |
| $ | 15,000 |
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| TOTAL |
| $ | 30,500 |
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*Amount as per EXTENSION PROXY and may vary as of June 7, 2023.
(B) Any other invoices related to ongoing services in relation to the operations of the SPAC post June 7, 2023.
EXHIBIT 10.2
AMENDMENT TO THE LETTER AGREEMENT
This AMENDMENT TO LETTER AGREEMENT (this “Amendment”), dated as of June 12, 2023, is entered into by and among Healthcare AI Acquisition Corp., a Cayman Islands exempted company (the “Company”), Healthcare AI Acquisition LLC (the “Sponsor”) and each of the undersigned (the “Insiders”). The Company, the Sponsor and the Insiders shall be referred to herein from time to time collectively as the “Parties” and individually as a “Party.”
RECITALS
WHEREAS, the Company, the Sponsor and the Insiders are party to that certain Letter Agreement, dated as of December 14, 2021 (the “Letter Agreement”);
WHEREAS, the Parties wish to amend the Letter Agreement as set forth herein.
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. Defined Terms and Rules of Interpretation. Except as otherwise expressly provided herein, capitalized terms used herein without definition shall have the same meanings herein as set forth in the Letter Agreement after giving effect to this Amendment.
2. Amendment to Transfer of Shares provision. A new Section 5(e) is hereby added to the Sponsor Letter Agreement as follows:
3. “Notwithstanding the foregoing, the Transfer of Founder Shares, directly or indirectly, shall not be restricted by this Section 5.”
4. Miscellaneous; Incorporation by Reference. Except to the extent specifically amended or superseded by the terms of this Amendment, all of the provisions of the Letter Agreement shall remain in full force and effect to the extent in effect on the date hereof. This Amendment shall be governed by, and otherwise construed in accordance with, the terms of the Letter Agreement, as though the other provisions of this Amendment were set forth in the Letter Agreement. The Letter Agreement, as modified by this Amendment, constitutes the complete agreement between the Parties and supersedes any prior written or oral agreements, writings, communications or understandings with respect to the subject matter hereof. This Amendment may be executed in counterparts (including by means of facsimile or scanned and emailed signature pages), any one of which need not contain the signatures of more than one Party, but all such counterparts taken together shall constitute one and the same agreement. Sections 17 (Governing Law) and Section 18 (Notices) of the Letter Agreement are hereby incorporated by reference into this Amendment mutatis mutandis.
[Remainder of page intentionally left blank.]
Sincerely,
HEALTHCARE AI ACQUISITION, LLC
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| By: | /s/ Simon Lyall-Cottle |
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| Name: Simon Lyall-Cottle |
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| Title: Chairman |
Signature Page to Insider Letter
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| /s/ Simon Lyall-Cottle |
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| Simon Lyall-Cottle |
Signature Page to Insider Letter
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| /s/ Patrick Hargutt |
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| Patrick Hargutt |
Signature Page to Insider Letter
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| /s/ James Brooks |
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| James Brooks |
Signature Page to Insider Letter
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| /s/ Greg Caswill |
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| Greg Caswill |
Signature Page to Insider Letter
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| /s/ Xavier Flinois |
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| Xavier Flinois |
Signature Page to Insider Letter
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| /s/ Robert Piconi |
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| Robert Piconi |
Signature Page to Insider Letter
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| /s/ Elizabeth Weymouth |
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| Elizabeth Weymouth |
Signature Page to Insider Letter
Acknowledged and Agreed:
HEALTHCARE AI ACQUISITION CORP.
| By: | /s/ Simon Lyall-Cottle |
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| Name: Simon Lyall-Cottle |
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| Title: Chief Executive Officer |
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| 3 |
EXHIBIT 10.3
JOINDER TO LETTER AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
June 12, 2023
Reference is made to that certain Share Purchase Agreement, dated as of June 12, 2023 (the “Agreement”), by and among Atticus Ale, LLC (“Investor”), Healthcare AI Acquisition Corp. (the “Company”) and Healthcare AI Acquisition LLC (the “Sponsor”), pursuant to which Investor shall be entitled to acquire securities of the Company from the Sponsor. Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Agreement.
By executing this joinder, Investor hereby agrees, as of the date first set forth above, that Investor (i) shall become a party to that certain Letter Agreement, dated December 14, 2021 (as it exists on the date of the Agreement, the “Letter Agreement”), by and among the Company, the Sponsor, officers and directors of the Company, and the other stockholders of the Company signatory thereto, and shall be bound by, and shall be subject to the restrictions set forth under, the terms and provisions of such section of the Letter Agreement as an Insider (as defined therein) solely with respect to its Founder Shares purchased pursuant to the Agreement (the “Assigned Securities”); and (ii) shall become a party to that certain Registration Rights Agreement, dated December 14, 2021 (as it exists on the date of the Agreement, the “Registration Rights Agreement”), by and among the Company, the Sponsor, and the other stockholders of the Company signatory thereto, and shall be bound by the terms and provisions of the Registration Rights Agreement as a Holder (as defined therein) and entitled to the rights of a Holder under the Registration Rights Agreement and the Assigned Securities (together with any other equity security of the Company issued or issuable with respect to any such Assigned Securities by way of a share dividend or share subdivision or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization) shall be “Registrable Securities” thereunder.
In addition, the Sponsor hereby transfers to the Investor its right to designate three individuals to be appointed or nominated, as the case may be, for election to the board of directors of the Company at any time after the Company consummates a business combination, as described in Article 5 of the Registration Rights Agreement.
For the purposes of clarity, it is expressly understood and agreed that each provision contained herein, in the Letter Agreement (to the extent applicable to Investor) and the Registration Rights Agreement is between the Company and Investor, solely, and not between and among Investor and the other shareholders of the Company signatory thereto.
This joinder may be executed in two or more counterparts, and by facsimile, all of which shall be deemed an original and all of which together shall constitute one instrument.
ATTICUS ALE, LLC
| By | /s/ Zikang Wu | |
| Name: Zikang Wu | ||
| Title: Manager |
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| ACKNOWLEDGED AND AGREED:
HEALTHCARE AI ACQUISITION CORP. |
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| By: | /s/ Patrick Hargutt | |
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| Name: Patrick Hargutt | ||
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| Title: Chief Financial Officer | ||
ACKNOWLEDGED AND AGREED:
HOLDERS:
HEALTHCARE AI ACQUISITION, LLC
| By: | /s/ Simon Lyall-Cotttle | |
| Name: | Simon Lyall-Cottle |
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EXHIBIT 10.4
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Dated June 12, 2023
I or We, HEALTHCARE AI ACQUISITION LLC (as the "Principal"), the holder of 2,105,770 Class B ordinary shares, par value US$0.0001 per share (the “Shares”) in the capital of Healthcare AI Acquisition Corp., an exempted company incorporated under the laws of the Cayman Islands with registration number 371585, with its registered office at [Walkers Corporate Limited, 190 Elgin Avenue, George Town], Cayman Islands (the “Company”), hereby irrevocably appoints Zikang Wu of Atticus Ale, LLC as the true and lawful attorney and proxy (the “Attorney”) with full power and authority, to do all or any of the following in the name of the Principal:
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| (a) | to attend and exercise the right to vote (or refrain from voting), consent or waive any rights relating to the Shares that the Principal is entitled to according to the provisions of applicable laws, memorandum and articles of association of the Company (as amended from time to time), at one or more general or extraordinary meetings of the shareholders of the Company (and any adjournments), with the same force and effect as it might or could do, and sign or execute any written shareholders resolutions or consents of the Company and to requisition and convene a meeting or meetings of the shareholders of the Company (including any meetings of any class of shareholders of the Company) for the purpose of considering, and if thought fit, approving (i) any transaction (a “Transaction”), as may be identified and approved by the board of directors of the Company, and on terms and conditions as the Attorney deems reasonable or desirable as set out in one or more share purchase agreements, and (ii) the execution and ratification of such execution by the Company of any such share purchase agreement and the adoption of the Memorandum and Articles, and any and all amendments to and restatements of any share purchase agreement and the Memorandum and Articles; and |
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| (b) | to make, execute, acknowledge and deliver all resolutions, contracts involving all the Class B Shares, orders, receipts, notices, requests, instructions and other writings, and in general, to do all things and to take all action hereunder from time to time as may in the opinion and discretion of the Attorney be necessary, appropriate or desirable for the purpose of implementing a Transaction (including the appointment or confirmation of the appointment of new directors in connection with a Transaction) and I, the undersigned, hereby ratify, approve and confirm all actions that the Attorney shall do or cause to be done by virtue of the foregoing authorization and arrangement. |
All conducts of the Attorney in accordance with the above authorization and arrangements should be deemed as my personal conducts. All the documents signed by the Attorney in accordance with the above authorization and arrangements should be deemed as signed by the Principal without need for agreement in advance. The Principal will accept all the conducts above. For the avoidance of doubt, this Power of Attorney and Irrevocable Proxy does not permit any forfeitures or transfers of any kind of the Shares held by the Principal if such forfeiture or transfer isn’t made pro-rata among all Class B Shares of the Company.
Principal further agrees that in the event of a shareholder meeting called by the Company, Principal shall execute any proxy required for such meeting, and solely for the purposes identified in paragraphs (a) and (b) above, in the name of Attorney, and agrees that Attorney will attend any such meeting in person or by proxy, in its stead. Any notice of shareholder meeting received by the Principal shall be reasonably promptly sent to Attorney by email or mail as set forth on the contact information on the signature page hereto.
This Power of Attorney and Irrevocable Proxy shall be irrevocable, commencing from the date of this Power of Attorney and Irrevocable Proxy set out above, and shall be governed by the laws of the State of New York. For the avoidance of doubt, Principal may not terminate the above authorization and arrangements without the prior written consent of the Attorney. Notwithstanding the foregoing, this Power of Attorney and Irrevocable Proxy must be executed by any future purchaser of the Shares as a condition precedent to the transfer of the Shares, unless expressly waived by Attorney in writing.
Principal hereby acknowledges and agrees that this Power of Attorney and Irrevocable Proxy will be deposited with the Company, a copy of which shall also be provided to Continental Stock & Transfer Company, the Company’s transfer agent, by no later than June 12, 2023.
IN WITNESS WHEREOF, this Power of Attorney and Irrevocable Proxy has been executed as a deed and unconditionally delivered on the date first written above.
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| Greg Caswill |
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| /s/ Greg Caswill |
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| Robert Piconi |
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| Xavier Flinois |
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| /s/ Xavier Flinois |
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| Elizabeth Weymouth |
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| /s/ Elizabeth Weymouth |
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| ATTICUS ALE, LLC | |||
| By: | /s/ Zikang Wu | ||
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| Name: Zikang Wu | |
| Title: Manager | |||
| 2 |
EXHIBIT 10.5
WARRANT EXCHANGE AGREEMENT
This Warrant Exchange Agreement (this “Agreement”) is entered into as of June 14, 2023, by and between Healthcare AI Acquisition Corp., a Cayman Islands limited liability company (the “Company”), and Healthcare AI Acquisition LLC (the “Sponsor”). The parties to this Agreement are referred to herein as the “Parties” or, each individually, as a “Party.” Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, the Company was incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses;
WHEREAS, substantially concurrently with the closing of the Company’s initial public offering of the Company’s Class A ordinary shares, par value $0.0001 per share (“Class A Shares”), the Company issued to the Sponsor, 11,124,960 private placement warrants for $1.00 per warrant, each of which is exercisable to purchase one Class A Share, at an exercise price of $11.50 per share (the “Private Placement Warrants”), pursuant to that certain Private Placement Warrants Purchase Agreement, effective as of December 14, 2021, between the Sponsor and the Company (the “Private Placement Warrant Agreement”);
WHEREAS, on June [*], 2023, the Sponsor entered into a purchase agreement (the “Purchase Agreement”) with Atticus Ale, LLC, a Delaware limited liability company (the “Purchaser”), whereby the Purchaser acquired from the Sponsor 3,184,830 Class B ordinary shares of the Company, $0.0001 par value (the “Founder Shares”);
WHEREAS, in connection with the transactions contemplated by the Purchase Agreement, the Parties wish to enter into this Agreement, pursuant to which simultaneously with, and contingent upon, the consummation of the Company’s initial business combination (the “Exchange Effective Time”), the Sponsor will exchange all of the 11,124,960 Private Placement Warrants held by the Sponsor with the Company for newly issued Class A Shares, at an exchange ratio of one (1) Private Placement Warrant for approximately 0.044944 of a Class A Share, resulting in the exchange of 11,124,960 Private Placement Warrants into 500,000 Class A Shares (the “Acquired Shares”), on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, representations, warranties and the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
AGREEMENT
1. Issuance and Exchange.
(a) At the Exchange Effective Time, and subject to the conditions set forth in this Agreement, the Sponsor shall surrender for cancellation to the Company all of the Sponsor’s 11,124,960 Private Placement Warrants, which shall be deemed automatically cancelled and retired in full, and the Private Placement Warrant Agreement shall be deemed automatically terminated and all rights, liabilities and obligations thereunder discharged in full, and in consideration therefor, the Company shall issue to the Sponsor the Acquired Shares for no additional consideration (the “Warrant Exchange Closing”).
2. Delivery of Acquired Shares.
(a) The Company shall register the Sponsor as the owner of the Acquired Shares with the Company’s transfer agent by book entry on the date of the Warrant Exchange Closing. The rights, privileges and preferences of the Acquired Shares shall be those ascribed to the Company’s Class A Shares in the Company’s certificate of incorporation, bylaws or any other governing document of the Company, as shall be in effect from time to time (or such other common equity security of the Company or its successor for which the Class A Shares are exchanged at the Exchange Effective Time).
(b) The Acquired Shares shall contain a notation evidencing that the issuance of Acquired Shares has not been registered under the Securities Act of 1933, as amended (the “Securities Act”).
(c) The Company and the Sponsor are each party to that certain Registration Rights Agreement, dated as of December 14, 2021, by and among the Company, the Sponsor and the other parties signatory thereto (the “Existing Registration Rights Agreement”). At or prior to the Warrant Exchange Closing, the Sponsor, the Company and the other parties signatory thereto shall use their best efforts to amend and restate the Existing Registration Rights Agreement, to allow the Acquired Shares to constitute “Registrable Securities” for purposes of such agreement (the “Registration Rights”).
(d) The Sponsor and the Company acknowledge and agree that the Acquired Shares shall be subject to the same terms and conditions applicable to the Founder Shares (as defined in the Letter Agreement, dated December 14, 2021, by and among the Company, the Sponsor and the other parties signatory thereto (the “Letter Agreement”), as amended on June [*], 2023.
(e) Notwithstanding anything to the contrary contained in Section 5 of the Letter Agreement, prior to the Warrant Exchange Closing, Sponsor shall not, directly or indirectly, sell, assign, transfer or otherwise dispose of or hypothecate, or otherwise grant any interest in or to, the Private Placement Warrants other than pursuant to this Agreement.
3. Representations and Warranties of the Sponsor. The Sponsor represents and warrants to the Company as follows as of the date hereof:
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| (a) | Organization and Requisite Authority. The Sponsor possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement. |
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| (b) | Authorization; No Breach. |
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| (i) | This Agreement constitutes a valid and binding obligation of the Sponsor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equitable principles (whether considered in a proceeding in equity or law). |
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| (ii) | The execution and delivery by the Sponsor of this Agreement and the fulfillment of and compliance with the terms hereof by the Sponsor does not and shall not as of the Warrant Exchange Closing conflict with or result in a breach by the Sponsor of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree to which the Sponsor is subject. |
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| (c) | Investment Representations. |
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| (i) | The Sponsor is acquiring the Acquired Shares, for the Sponsor’s own account, for investment purposes only and not with a view towards, or for resale in connection with, any public sale or distribution thereof. |
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| (ii) | The Sponsor is an “accredited investor” as such term is defined in Rule 501(a)(3) of Regulation D under the Securities Act. |
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| (iii) | The Sponsor understands that the Acquired Shares will be issued in reliance on specific exemptions from the registration requirements of the United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Sponsor’s compliance with, the representations and warranties of the Sponsor set forth herein in order to determine the availability of such exemptions and the eligibility of the Sponsor to acquire the Acquired Shares. |
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| (iv) | The Sponsor did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act. |
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| (v) | The Sponsor has been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the transactions contemplated by this Agreement which have been requested by the Sponsor. The Sponsor has been afforded the opportunity to ask questions of the executive officers and directors of the Company. |
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| (vi) | The Sponsor understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Acquired Shares or the fairness or suitability of the investment in the Acquired Shares by the Sponsor nor have such authorities passed upon or endorsed the merits of the offering of the Acquired Shares. |
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| (vii) | The Sponsor understands that: (A) the issuance of the Acquired Shares has not been and is not being registered under the Securities Act or any state securities laws, and the Acquired Shares may not be offered for sale, sold, assigned or transferred unless (1) subsequently registered for resale or (2) sold in reliance on an exemption therefrom. In this regard, the Sponsor understands that the SEC has taken the position that promoters or affiliates of a blank check company and their transferees, both before and after a business combination transaction, are deemed to be “underwriters” under the Securities Act when reselling the securities of a blank check company. Based on that position, Rule 144 adopted pursuant to the Securities Act would not be immediately available for resale transactions of the Acquired Shares despite technical compliance with the requirements of such Rule, and the Acquired Shares can be resold only through a registered offering or in reliance upon another exemption from the registration requirements of the Securities Act until Rule 144 becomes available. |
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| (viii) | The Sponsor has such knowledge and experience in financial and business matters, and is capable of evaluating the merits and risks of an investment in the Acquired Shares. The Sponsor has adequate means of providing for its current financial needs and contingencies and will have no current or anticipated future needs for liquidity which would be jeopardized by the investment in the Acquired Shares. The Sponsor can afford a complete loss of its investment in the Acquired Shares. |
4. Representations and Warranties of the Company. The Company represents and warrants to the Sponsor as follows as of the date hereof.
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| (a) | Organization and Corporate Power. The Company is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement. |
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| (b) | Authorization; No Breach. |
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| (i) | The execution, delivery and performance of this Agreement, the exchange of the Private Placement Warrants and the issuance of the Acquired Shares has been duly authorized by the Company. This Agreement constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equitable principles (whether considered in a proceeding in equity or law). |
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| (ii) | The execution and delivery by the Company of this Agreement, the exchange of the Private Placement Warrants, the issuance of the Acquired Shares and the fulfillment of, and compliance with, the respective terms hereof and thereof by the Company, do not and will not as of the Warrant Exchange Closing (A) conflict with or result in a breach of the terms, conditions or provisions of, (B) constitute a default under, (C) result in the creation of any lien, security interest, charge or encumbrance upon the Company’s capital stock or assets under, (D) result in a violation of, or (E) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or administrative or governmental body or agency pursuant to the amended and restated memorandum and article of association of the Company (in effect as of the date hereof or as may be amended prior to the date of the Warrant Exchange Closing), or any material law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which the Company is subject, except for any filings required after the date hereof under federal or state securities laws. |
| 3 |
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| (c) | Title to Acquired Shares. Upon issuance in accordance with the terms hereof, the Acquired Shares will be duly and validly issued, fully paid and nonassessable. Upon issuance in accordance with the terms hereof, the Sponsor will have good title to the Acquired Shares, free and clear of all liens, claims and encumbrances of any kind, other than (i) transfer restrictions under the Letter Agreement, (ii) transfer restrictions under federal and state securities laws, and (iii) liens, claims or encumbrances imposed due to the actions of the Sponsor. |
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| (d) | Governmental Consents. No permit, consent, approval or authorization of, or declaration to or filing with, any Governmental Entity is required in connection with the execution, delivery and performance by the Company of this Agreement or the consummation by the Company of any other transactions contemplated hereby. |
5. Conditions of the Sponsor’s Obligations. The obligations of the Sponsor to the Company under this Agreement are subject to the fulfillment, on or before the Warrant Exchange Closing, of each of the following conditions:
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| (a) | Representations and Warranties. The representations and warranties of the Company contained in Section 4 hereof shall be true and correct at and as of the Warrant Exchange Closing as though then made. |
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| (b) | Performance. The Company shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Warrant Exchange Closing. |
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| (c) | No Injunction. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby, which prohibits the consummation of any of the transactions contemplated by this Agreement. |
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| (d) | Business Combination. The Company shall have have completed or will complete simultaneously with the Warrant Exchange Closing an initial business combination. |
6. Conditions of the Company’s Obligations. The obligations of the Company to the Sponsor under this Agreement are subject to the fulfillment, on or before the Warrant Exchange Closing, of each of the following conditions:
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| (a) | Representations and Warranties. The representations and warranties of the Sponsor contained in Section 3 hereof shall be true and correct at and as of the Warrant Exchange Closing as though then made. |
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| (b) | Performance. The Sponsor shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Sponsor on or before the Warrant Exchange Closing. |
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| (c) | No Injunction. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby, which prohibits the consummation of any of the transactions contemplated by this Agreement. |
7. Termination. This Agreement may be terminated only upon mutual written consent of the Company and the Sponsor.
8. Miscellaneous.
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| (a) | Successors and Assigns. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the Parties hereto shall bind and inure to the benefit of the respective successors of the Parties hereto whether so expressed or not. Notwithstanding the foregoing or anything to the contrary herein, the Parties may not assign this Agreement, other than assignments by the Sponsor to affiliates thereof. |
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| (b) | Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provisions shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. |
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| (c) | Counterparts. This Agreement may be executed simultaneously in two or more counterparts, none of which need contain the signatures of more than one Party, but all such counterparts taken together shall constitute one and the same agreement. |
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| (d) | Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. The use of the word “including” in this Agreement shall be by way of example rather than by limitation. |
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| (e) | Governing Law. This Agreement shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be construed in accordance with the internal laws of the State of New York. |
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| (f) | Amendments. This Agreement may not be amended, modified or waived as to any particular provision, except by a written instrument executed by all Parties. |
[Signature Page Follows]
| 5 |
IN WITNESS WHEREOF, each of the Company and the Sponsor has executed or caused this Agreement to be executed by its duly authorized representative as of the date first set forth above.
| SPONSOR: | |||
| Healthcare AI Acquisition LLC | |||
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| By: | /s/ Simon Lyall-Cottle | |
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| Name: Simon Lyall-Cottle | ||
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| Title: Chief Executive Officer |
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| COMPANY: | ||
| HEALTHCARE AI ACQUISITION CORP. | ||
| By: | /s/ Simon Lyall-Cottle | |
| Name: Simon Lyall-Cottle | ||
|
| Title: Chief Executive Officer |
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[Signature Page to Warrant Exchange Agreement]
| 6 |
EXHIBIT 10.6
INDEMNIFICATION LETTER AGREEMENT
June 12, 2023
This Indemnification Letter Agreement (“Letter Agreement”), is made by and among Healthcare AI Acquisition Corp., a Cayman Islands exempted company (the “Company”) and the Indemnitees whose names appear on the signature page hereto (the “Indemnitees”).
WHEREAS, Reference is made to that certain Indemnity Agreement, dated as of December 14, 2021 (the “Indemnity Agreement”), by and among Healthcare AI Acquisition Corp. (the “Company”) and the Indemnitees who served as an officer, director, advisor, key employee or in any other capacity of the Company from the date of the Indemnity Agreement (attached hereto as Exhibit A);
WHEREAS, the Company acknowledges the resignations dated June 12, 2023 of each of the Indemnitees, resigning their respective positions as officer, director, advisor, or key employee of the Company; and
WHEREAS, each of the Company and the Indemnitees desire to reiterate the terms of the Indemnity Agreement in its entirety by executing this Letter Agreement.
NOW, THEREFORE:
By executing this Letter Agreement, the Company and each Indemnitee hereby agrees, as of the date first set forth in the Indemnity Agreement, such Indemnity Agreement shall continue to be in full force and effect. The Company and the Indemnitees, having acted in their capacity as officers and directors of the Company, shall remain subject to the terms and provisions contained therein.
For the purposes of clarity, it is expressly agreed that the Indemnity Agreement shall continue to be binding and remain in full force and effect after Indemnitee has ceased to serve as a director, officer, advisor, key employee or in any other capacity of the Company, as provided in Section 1 thereto.
This Letter Agreement may be executed in two or more counterparts, and by facsimile, all of which shall be deemed an original and all of which together shall constitute one instrument.
| HEALTHCARE AI ACQUISITION CORP. | |||
| By: | /s/ Zikang Wu | ||
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| Name: Zikang Wu | |
| Title: Chief Executive Officer | |||
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| ACKNOWLEDGED AND AGREED: |
| |
| /s/ Patrick Hargutt |
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| Patrick Hargutt |
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| Chief Financial Officer and Director |
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| /s/ Simon Cottle |
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| Simon Cottle |
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| Chief Executive Officer and Director |
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| /s/ James Brooks |
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| James Brooks |
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| Director |
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| /s/ Greg Caswill |
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| Greg Caswill |
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| Director |
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| /s/ Robert Piconi |
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| Robert Piconi |
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| Director |
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| /s/ Xavier Flinois |
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| Xavier Flinois |
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| Director |
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| /s/ Elizabeth Weymouth |
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| Elizabeth Weymouth |
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| Director |
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| 2 |