Horizon Space Acquisition I Corp 8-K, filed Oct 13, 2026
Horizon Space Acquisition I Corp. (HSPOF)
About this 8-K
Horizon Space Acquisition I Corp filed this 8-K on October 13, 2026, reporting on events of October 12, 2026.
Items reported
- Item 1.01: Entered into a material agreement
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
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
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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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Item 1.01. Entry into a Material Definitive Agreement.
Business Combination Agreement
On October 12, 2026, Horizon Space Acquisition I Corp., a Cayman Islands exempted company (“HSPO” or “Acquiror”) entered into a business combination agreement (the “Business Combination Agreement”) with ArcheNova Technology Co., Ltd, a Cayman Islands exempted company (“PubCo”), ArcheNova International Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub I”), ArcheNova Global Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub II”), and ArcheNova Biotech Corp., a Cayman Islands exempted company limited by shares (the “Company”). Unless otherwise indicated in this Current Report on Form 8-K (“Report”), capitalized terms used in this Report but not otherwise defined herein have the meanings given to them in the Business Combination Agreement.
Pursuant to the Business Combination Agreement, among other things, (i) Merger Sub I will merge with and into HSPO, with HSPO surviving the merger and becoming a wholly-owned subsidiary of PubCo (the “First Merger”), and (ii) following the First Merger, Merger Sub II will merge with and into the Company, with the Company surviving the merger and becoming a wholly-owned subsidiary of PubCo (the “Second Merger,” and together with the First Merger, the “Mergers” and the Mergers together with the other transactions contemplated by the Business Combination Agreement, the “Transactions”). Upon Closing of the Mergers, each of HSPO and the Company will be a wholly-owned subsidiary of PubCo, and HSPO’s shareholders and the Company’s shareholders will receive ordinary shares, par value US$0.0001 per share, of PubCo (“PubCo Ordinary Shares”) as consideration and become the shareholders of PubCo. Upon consummation of the Transactions, PubCo will become a publicly traded company and PubCo Ordinary Shares are expected to be listed and traded on the on the Nasdaq Stock Market LLC (“Nasdaq”), all upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with applicable law.
Pursuant to the Business Combination Agreement, (i) at the First Merger Effective Time, (a) each Acquiror Unit issued and outstanding immediately prior to the First Merger Effective Time will be automatically detached and the holder thereof will be deemed to hold one Acquiror Ordinary Share, one Acquiror Warrant and one Acquiror Right in accordance with the terms of the applicable Acquiror Unit (the “Unit Separation”); (b) each Acquiror Right issued and outstanding immediately prior to the First Merger Effective Time will be automatically converted into one-tenth of an Acquiror Ordinary Share (the “Acquiror Right Conversion”); and (c) immediately following the Unit Separation and Acquiror Right Conversion, each Acquiror Ordinary Share (which, for the avoidance of doubt, includes the Acquiror Ordinary Shares held as a result of the Unit Separation and the Acquiror Right Conversion) issued and outstanding immediately prior to the First Merger Effective Time will automatically be cancelled and cease to exist in exchange for the right to receive one newly issued PubCo Ordinary Share; and (d) each Acquiror Warrant (which, for the avoidance of doubt, includes the Acquiror Warrants held as a result of the Unit Separation) will be assumed by PubCo and converted into a warrant to purchase one PubCo Ordinary Share on substantially the same terms and conditions; and (ii) at the Second Merger Effective Time, each Company Exchanging Share will automatically be cancelled and converted into the right of each holder of the Company Exchanging Shares to receive, such number of newly issued PubCo Ordinary Shares, as determined in accordance with the Business Combination Agreement, based on an exchange ratio equal to the quotient of (a) $2.0 billion divided by $10.00 per share, divided by (b) the number of Company Ordinary Shares issued and outstanding immediately prior to the Second Merger Effective Time. No fractional PubCo Ordinary Shares will be issued; fractional entitlements will be aggregated by holder and rounded down to the nearest whole PubCo Ordinary Share.
Representations and Warranties
The Business Combination Agreement contains customary representations and warranties of the Company, HSPO and the Acquisition Entities, including representations and warranties relating to organization and qualification, subsidiaries, authorization, non-contravention, governmental authorizations and consents, capitalization, financial statements and internal controls, undisclosed liabilities, litigation, compliance with laws, taxes, absence of certain changes, the proxy statement/registration statement, investment company status and brokers’ fees. The Company’s representations and warranties also address, among other matters, material contracts, employee benefit plans, labor relations, insurance, licenses, tangible and real property, intellectual property, privacy and cybersecurity, environmental matters, anti-corruption, anti-money laundering, sanctions and international trade compliance, vendors, government contracts and compliance with FDA laws. HSPO’s representations and warranties also address, among other matters, its SEC filings, trust account, business activities and OTC Markets quotation, which shall not survive the Closing. Many of the representations and warranties are qualified by materiality or material adverse effect. “Acquiror Material Adverse Effect” or “Company Material Adverse Effect” as used in the Business Combination Agreement means, with respect to any specified person, any event, state of facts, development , circumstance, occurrence or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (i) the business, assets, liabilities, results of operations and financial condition of such person (and its subsidiaries, if applicable, taken as a whole), or (ii) the ability of such person to consummate the Transactions, in each case subject to certain customary exceptions. Certain of the representations are subject to specified exceptions and qualifications contained in the Business Combination Agreement or in information provided pursuant to certain disclosure letters to the Business Combination Agreement.
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Covenants and Agreements of the Parties
The Business Combination Agreement contains joint covenants of the parties relating to, among other things, regulatory approvals and filings, preparation of the proxy statement/registration statement, HSPO and Company shareholder approvals, support of the Transactions, tax matters, cooperation and consultation, indemnification and insurance, public announcements, key person agreements, post-closing directors and officers of PubCo, and access to information and confidentiality. The covenants do not survive the Second Closing (other than those that are to be performed after the Second Closing).
The Business Combination Agreement also contains covenants of the Company and the Acquisition Entities relating to, among other things, operation of their businesses during the Interim Period, access and inspection, preparation and delivery of additional financial statements, alternative proposals, exchange listing of the PubCo Ordinary Shares, notice of developments, trading restrictions, shareholder litigation, employee matters, and shareholder proxies. HSPO’s covenants address, among other matters, the trust account proceeds and related available equity, continued OTC quotation, non-solicitation, operation of its business during the Interim Period, public filings, and shareholder litigation.
Conditions to Consummation of the Business Combination
Consummation of the Transactions is subject to the satisfaction or written waiver, where permitted, of a number of conditions, including receipt and continued effectiveness of the required approvals of HSPO’s shareholders and the Company’s shareholders.
Other conditions to each party’s obligations include, among other things: (i) the effectiveness of the proxy/registration statement, (ii) the approval of PubCo’s initial listing application with Nasdaq in connection with the Transactions, (iii) all regulatory approvals necessary to consummate the Transactions having been obtained, (iv) no governmental authority having enacted, issued, promulgated, enforced or entered any law or governmental order that is then in effect and which has the effect of making the closing of the Transactions illegal or which otherwise prevents or prohibits consummation of the closing of the Transactions, (v) all third party consents necessary to consummate the Transactions having been obtained, (vi) no Company Material Adverse Effect of any of the Company or the Acquisition Entities and no Acquiror Material Adverse Effect of HSPO, and (vii) all Transaction Documents having been executed and delivered by the other parties thereto and been in full force and effect in accordance with the terms thereof as of the closing of the Transactions, as applicable.
Additionally, the conditions to each party’s obligations for the First Closing include, among other things, (i) the Acquiror Fundamental Representations and certain other of the Acquiror’s representations and warranties being true and correct at and as of the First Closing Date, subject to the applicable materiality standards contained in the Business Combination Agreement, (ii) the Company Fundamental Representations and certain other of the Company’s representations and warranties being true and correct at and as of the First Closing Date, subject to the applicable materiality standards contained in the Business Combination Agreement, (iii) each of the covenants of HSPO, the Company and the Acquisition Entities to be performed as of or prior to the First Closing having been performed in all material respects or waived in accordance to the Business Combination Agreement, (iv) each of the Company and the Acquisition Entities having delivered to HSPO a good standing certificate or similar documents for the Company and the relevant Acquisition Entities in its jurisdiction of incorporation or organization, (v) HSPO having delivered to the Company and the Acquisition Entities a good standing certificate of HSPO, (vi) each of the Company and the Acquisition Entities having delivered to HSPO a certificate signed by an authorized director or officer of each of the Company and the Acquisition Entities certifying that certain conditions for the First Closing specified in the Business Combination Agreement have been fulfilled, and (vii) HSPO having delivered to PubCo a certificate signed by an authorized director or officer of HSPO certifying that certain conditions for the First Closing specified in the Business Combination Agreement have been fulfilled.
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The conditions to each party’s obligations for the Second Closing, include, among other things, (i) the Company Fundamental Representations and certain other of the Company’s representations and warranties being true and correct at and as of the Second Closing Date, subject to the applicable materiality standards contained in the Business Combination Agreement, (ii) each of the covenants of the Company and the Acquisition Entities to be performed as of or prior to the Second Closing having been performed in all material respects or waived in accordance to the Business Combination Agreement, and (iii) the First Closing having occurred.
Termination
The Business Combination Agreement may be terminated by mutual written consent of the Company and HSPO and under certain circumstances, including, among other things, (i) by written notice from either the Company or HSPO to the other if any governmental authority has enacted, issued, promulgated, enforced or entered any law or governmental order that is then in effect and which has the effect of making the First Closing or Second Closing illegal or which otherwise prevents or prohibits consummation of the Transactions, other than any such restraint that is immaterial, (ii) by written notice to HSPO from the Company if the Acquiror Shareholder Approval has not been obtained by reason of the failure to obtain the required vote at the Acquiror Shareholders’ Meeting, (iii) by written notice to the Company from HSPO if there is any breach of any representation, warranty, covenant or agreement on the part of the Company, PubCo, Merger Sub I or Merger Sub II set forth in the Business Combination Agreement, except that, if such breach is curable by the Company, PubCo, Merger Sub I or Merger Sub II, as applicable, through the exercise of its reasonable best efforts within a certain period, (iv) by written notice from either the Company or HSPO to the other if the closing of the First Merger has not occurred on or before the last date required by the Acquiror Charter for HSPO to consummate a business combination, (v) by written notice to the Company from HSPO if the closing of the Second Merger has not occurred by the third business day following the closing of the First Merger, (vi) by written notice to the Company from HSPO if the Company Shareholder Approval has not been obtained by reason of (a) the failure to obtain the required vote at the Company Shareholders’ Meeting or (b) failure to obtain the written resolutions executed by all Company Shareholders entitled to vote thereon, or (vii) by written notice to HSPO from the Company if there is any breach of any representation, warranty, covenant or agreement on the part of HSPO set forth in the Business Combination Agreement, except that, if such breach is curable by HSPO through the exercise of its reasonable best efforts within a certain period.
In the event of the termination of the Business Combination Agreement, the Business Combination Agreement will forthwith become void and have no effect, without any liability on the part of any party thereto or its respective affiliates, officers, directors or shareholders, other than any liability of the Company, PubCo, HSPO, Merger Sub I or Merger Sub II, as the case may be, for any willful and material breach of the Business Combination Agreement occurring prior to the termination.
Governing Law and Dispute Resolution
The Business Combination Agreement, and all claims or causes of action based upon, arising out of, or related to it or the transactions contemplated thereby, is governed by, and construed in accordance with, the laws of the State of New York, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction.
A copy of the Business Combination Agreement is filed with this Report as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Business Combination Agreement does not purport to be complete and is subject to, and is qualified in its entirety by, the full text of the Business Combination Agreement.
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Related Agreements
This section describes the material provisions of certain additional agreements entered into or to be entered into pursuant to the Business Combination Agreement (the “Related Agreements”) but does not purport to describe all of the terms thereof. The following summary is qualified in its entirety by reference to the complete text of each of the Related Agreements, copies of each of which are attached hereto as exhibits. Shareholders and other interested parties are urged to read such Related Agreements in their entirety.
Company Shareholders Support Agreement
In connection with the execution of the Business Combination Agreement, certain shareholders of the Company (the “Requisite Company Shareholders”) executed and delivered to HSPO and PubCo a Company Shareholders Support Agreement (the “Company Shareholders Support Agreement”). Under that agreement, the Requisite Company Shareholders agreed, among other things, (i) not to transfer any Subject Shares (as defined in the Company Shareholder Support Agreement) until the Expiration Time (as defined in the Company Shareholder Support Agreement), (ii) to vote all the Subject Shares in favor of proposals in connection with the Transactions, and (iii) to vote all the Subject Shares against the proposals in connection with other alternative business combinations other than the Transactions with HSPO.
A copy of the Company Shareholders Support Agreement is filed with this Report as Exhibit 10.1 and is incorporated herein by reference. The foregoing description of the Company Shareholders Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Company Shareholders Support Agreement.
Sponsor Parties Support Agreement
In connection with the execution of the Business Combination Agreement, Horizon Space Acquisition I Sponsor Corp., a Cayman Islands limited liability company (the “Sponsor”) and certain directors and officers of HSPO (collectively, the “Sponsor Parties”) executed and delivered to the Company a Sponsor Parties Support Agreement (the “Sponsor Parties Support Agreement”). Under that agreement, the Sponsor Parties agreed, among other things, (i) not to transfer any Subject Shares (as defined in the Sponsor Parties Support Agreement) until the Expiration Time (as defined in the Sponsor Parties Support Agreement), (ii) to vote all the Subject Shares in favor of proposals in connection with the Transactions, and (iii) to vote all the Subject Shares against the proposals in connection with other alternative business combinations other than the Transactions with the Company.
A copy of the Sponsor Parties Support Agreement is filed with this Report as Exhibit 10.2 and is incorporated herein by reference. The foregoing description of the Sponsor Parties Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Sponsor Parties Support Agreement.
Form of Registration Rights Agreement
The Business Combination Agreement contemplates that, prior to the Second Merger Effective Time and to the extent that PubCo securities to be held by the Sponsor and certain other parties have not been registered under the proxy statement/registration statement, HSPO, the Sponsor and certain other parties will enter into a Registration Rights Agreement (the “Registration Rights Agreement”), pursuant to which PubCo will, among other things, be obligated to file a registration statement with the Securities and Exchange Commission (the “SEC”) to register the resale of certain securities of PubCo held by the Holders (as defined in the Registration Rights Agreement) following the closing of the Transactions. The Registration Rights Agreement will also provide the Holders with “piggy-back” registration rights, subject to certain requirements and customary conditions.
A copy of the form of Registration Rights Agreement is filed with this Report as Exhibit 10.3 and is incorporated herein by reference. The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the form of Registration Rights Agreement.
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Form of Lock-Up Agreement
In connection with the Transactions, on or before the First Merger Effective Time, the Sponsor, certain shareholders of the Company and PubCo will enter into a Lock-Up Agreement (the “Lock-Up Agreement”), pursuant to which, the Sponsor and such shareholders of the Company will irrevocably agree not to sell or transfer any Lock-Up Shares (as defined in the Lock-Up Agreement) or engage in any short sales with respect to any securities of PubCo during the Lock-Up Period (as defined in the Lock-Up Agreement), subject to early release in certain circumstances.
A copy of the form of the Lock-Up Agreement is filed with this Report as Exhibit 10.4 and is incorporated herein by reference. The foregoing description of the Lock-Up Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the form of the Lock-Up Agreement.
Form of Assignment Assumption and Amended & Restated Warrant Agreement
On or immediately before the First Merger Effective Time, PubCo, HSPO and the warrant agent will enter into an Assignment Assumption and Amended & Restated Warrant Agreement (the “A&R Warrant Agreement”). Under the A&R Warrant Agreement, each Acquiror Warrant outstanding immediately before the First Merger Effective Time will be assumed by PubCo and converted into a warrant to purchase one PubCo Ordinary Share on substantially the same terms and conditions, including applicable repurchase rights and cashless exercise provisions.
A copy of the form of A&R Warrant Agreement is filed with this Report as Exhibit 10.5 and is incorporated herein by reference. The foregoing description of the A&R Warrant Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the form of A&R Warrant Agreement.
Item 7.01 Regulation FD Disclosure.
On October 12, 2026, HSPO and the Company issued a joint press release announcing the execution of the Business Combination Agreement and the proposed Transactions, a copy of which is furnished as Exhibit 99.1 to this Report and incorporated into this Item 7.01 by reference.
The information in this Item 7.01, including Exhibit 99.1, is being furnished pursuant to Item 7.01 and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act. This Report should not be deemed an admission as to the materiality of any information contained in the press release. HSPO and the Company do not undertake any obligation to update the press release.
Forward-Looking Statements
This Report includes forward looking statements that involve risks and uncertainties. Forward-looking statements are statements that are not historical facts and may be accompanied by words that convey projected future events or outcomes, such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “design,” “intend,” “expect,” “could,” “plan,” “potential,” “predict,” “seek,” “target,” “aim,” “plan,” “project,” “forecast,” “should,” “would,” or variations of such words or by expressions of similar meaning. Such forward-looking statements, including, without limitation, statements regarding anticipated financial and operational results, projections of market opportunity and expectations, the estimated post-transaction enterprise value, the advantages and expected growth of PubCo, the cash position of PubCo following the consummation of the Transactions, the ability of HSPO and the Company to consummate the proposed Transactions and the timing of such consummation, are subject to risks and uncertainties, which could cause actual results to differ from the forward-looking statements. These risks and uncertainties include, but are not limited to, those risk factors described in the section entitled “Risk Factors” in HSPO’s Annual Report on Form 10-K for the year ended December 31, 2025 filed with the SEC on April 15, 2026 (the “Form 10-K”), and in other documents filed by HSPO with the SEC from time to time. Important factors that could cause PubCo’s actual results or outcomes to differ materially from those discussed in the forward-looking statements include: (i) HSPO’s or the Company’s limited operating history; (ii)general economic and market conditions impacting demand for the products and services of the Company; (iii) the inability to complete the Transactions; (iv) the inability to recognize the anticipated benefits of the Transactions, which may be affected by, among other things, the amount of cash available following any redemptions by HSPO’s shareholders; and (v) the ability of PubCo to obtain or maintain the listing of its securities on Nasdaq following the consummation of the Transactions; costs related to the Transactions; and such other risks and uncertainties as are discussed in the Form 10-K and the proxy statement/prospectus to be filed with the SEC relating to the Transactions. Other factors include the possibility that the Transactions do not close, including due to the failure to receive required security holder approvals or the failure to satisfy other closing conditions under the Business Combination Agreement.
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HSPO, the Company, and PubCo each expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the expectations of HSPO, the Company or PubCo with respect thereto or any change in events, conditions or circumstances on which any statement is based, except as required by law.
Additional Information about the Transaction and Where to Find It
In connection with the proposed Transactions, PubCo intends to file with the SEC a registration statement on Form F-4, which will include a preliminary proxy statement of HSPO containing information about the Transactions and the respective businesses of the Company and HSPO, as well as a prospectus relating to the PubCo Ordinary Shares and PubCo Warrants to be issued in connection with the Transactions. After the registration statement is declared effective, HSPO will mail a definitive proxy statement/prospectus and other relevant documents to its shareholders as of the record date established for voting on the Transactions.
INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ, WHEN AVAILABLE, THE REGISTRATION STATEMENT, PROXY STATEMENT/PROSPECTUS AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE TRANSACTIONS AND THE PARTIES TO THE TRANSACTIONS. Investors and security holders will be able to obtain copies of the proxy statement/prospectus (if and when available) and other documents filed with the SEC free of charge at www.sec.gov.
Participants in the Solicitation
HSPO, the Company, PubCo and their respective directors and executive officers and other persons may be deemed to be participants in the solicitation of proxies from HSPO’s shareholders with respect to the Transactions. Information regarding HSPO’s directors and executive officers is available in HSPO’s filings with the SEC. Additional information regarding the persons who may, under the rules of the SEC, be deemed to be participants in the proxy solicitation relating to the Transactions and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement/prospectus when it becomes available.
No Offer or Solicitation
This Report does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor will there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities will be made except by means of a prospectus meeting the requirements of the Securities Act, as amended, or an exemption therefrom.
Item 9.01 Financial Statements and Exhibits.
Exhibit No. |
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| Company Shareholders Support Agreement dated October 12, 2026. | |
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| Form of Assignment Assumption and Amended & Restated Warrant Agreement. | |
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104 |
| Cover Page Interactive Data File (embedded within the Inline XBRL document) |
* The exhibits and schedules to this Exhibit have been omitted in accordance with Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish supplementally to the SEC a copy of all omitted exhibits and schedules upon its request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Horizon Space Acquisition I Corp. |
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Date: October 13, 2026 | By: | /s/ Mingyu (Michael) Li |
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| Name: | Mingyu (Michael) Li |
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| Title: | Director and Chief Executive Officer |
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EXHIBIT 2.1
BUSINESS COMBINATION AGREEMENT
by and among
HORIZON SPACE ACQUISITION I CORP.,
ArcheNova Technology Co., Ltd,
ArcheNova International Co., Ltd,
ArcheNova Global Co., Ltd,
and
ArcheNova Biotech Corp.
dated October 12, 2026
TABLE OF CONTENTS
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| ARTICLE I CERTAIN DEFINITIONS |
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| Section 1.1. | Definitions |
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| Section 1.2. | Construction |
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| Section 1.3. | Knowledge |
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| ARTICLE II THE MERGERS; MERGER CLOSING |
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| Section 2.1. | Pre-Closing Actions |
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| Section 2.2. | The First Merger |
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| Section 2.3. | The Second Merger |
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| Section 2.4. | Tax Free Reorganization Matters |
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| ARTICLE III EFFECTS OF THE MERGERS ON COMPANY AND ACQUIROR EQUITY SECURITIES |
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| Section 3.1. | Conversion of Acquiror and Company Securities |
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| Section 3.2. | Payment of Second Closing Consideration |
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| Section 3.3. | Withholding |
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| Section 3.4. | Dissenting Shares |
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| ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
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| Section 4.1. | Company Organization |
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| Section 4.2. | Subsidiaries |
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| Section 4.3. | Due Authorization |
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| Section 4.4. | No Conflict |
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| Section 4.5. | Governmental Authorities; Consents |
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| Section 4.6. | Capitalization of the Company. |
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| Section 4.7. | Capitalization of Subsidiaries |
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| Section 4.8. | Financial Statements; Internal Controls |
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| Section 4.9. | Undisclosed Liabilities |
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| Section 4.10. | Litigation and Proceedings |
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| Section 4.11. | Legal Compliance |
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| Section 4.12. | Contracts; No Defaults. |
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| Section 4.13. | Company Benefit Plans |
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| Section 4.14. | Labor Relations; Employees |
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| Section 4.15. | Taxes. |
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| Section 4.16. | Insurance. |
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| Section 4.17. | Licenses |
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| Section 4.18. | Equipment and Other Tangible Property |
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| Section 4.19. | Real Property |
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| Section 4.20. | Intellectual Property. |
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| Section 4.21. | Privacy and Cybersecurity |
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| Section 4.22. | Environmental Matters |
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| Section 4.23. | Absence of Changes |
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| Section 4.24. | Anti-Corruption Compliance |
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| Section 4.25. | Anti-Money Laundering, Sanctions and International Trade Compliance |
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| Section 4.27. | Vendors |
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| Section 4.28. | Government Contracts |
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| Section 4.29. | Investment Company |
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| Section 4.30. | Company Transaction Expenses |
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| Section 4.31. | Investigation |
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| Section 4.32. | Brokers Fees |
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| Section 4.33. | Compliance with FDA Laws |
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| Section 4.34. | No Outside Reliance |
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| Section 4.35. | No Additional Representation or Warranties |
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| ARTICLE V REPRESENTATIONS AND WARRANTIES OF ACQUIROR |
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|
|
|
|
|
| Section 5.1. | Company Organization |
| 37 |
|
|
| Section 5.2. | Due Authorization |
| 37 |
|
|
| Section 5.3. | No Conflict |
| 38 |
|
|
| Section 5.4. | Litigation and Proceedings |
| 38 |
|
|
| Section 5.5. | SEC Filings |
| 38 |
|
|
| Section 5.6. | Internal Controls; Listing; Financial Statements |
| 39 |
|
|
| Section 5.7. | Governmental Authorities; Consents |
| 40 |
|
|
| Section 5.8. | Trust Account |
| 40 |
|
|
| Section 5.9. | Investment Company Act; JOBS Act |
| 41 |
|
|
| Section 5.10. | Absence of Changes |
| 41 |
|
|
| Section 5.11. | No Undisclosed Liabilities |
| 41 |
|
|
| Section 5.12. | Capitalization of Acquiror |
| 41 |
|
|
| Section 5.13. | Brokers Fees |
| 42 |
|
|
| Section 5.14. | Indebtedness |
| 42 |
|
|
| Section 5.15. | Taxes. |
| 42 |
|
|
| Section 5.16. | Business Activities |
| 44 |
|
|
| Section 5.17. | OTC Markets Quotation |
| 44 |
|
|
| Section 5.18. | Proxy/Registration Statement |
| 45 |
|
|
| Section 5.19. | No Indemnification |
| 45 |
|
|
| Section 5.20. | No Outside Reliance |
| 45 |
|
|
| Section 5.21. | No Additional Representation or Warranties |
| 45 |
|
| iii |
| ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE ACQUISITION ENTITIES |
| 46 |
| ||
|
|
|
|
|
|
|
|
| Section 6.1. | Company Organization |
| 46 |
|
|
| Section 6.2. | Due Authorization |
| 46 |
|
|
| Section 6.3. | No Conflict |
| 46 |
|
|
| Section 6.4. | Litigation and Proceedings |
| 46 |
|
|
| Section 6.5. | Governmental Authorities; Consents |
| 47 |
|
|
| Section 6.6. | Capitalization of Acquisition Entities. |
| 47 |
|
|
| Section 6.7. | Brokers Fees |
| 48 |
|
|
| Section 6.8. | Business Activities |
| 48 |
|
|
| Section 6.9. | Consideration Shares |
| 48 |
|
|
| Section 6.10. | Foreign Private Issuer and Emerging Growth Company |
| 48 |
|
|
| Section 6.11. | Intended Tax Treatment |
| 48 |
|
|
| Section 6.12. | No Outside Reliance |
| 48 |
|
|
|
|
|
|
|
|
| ARTICLE VII COVENANTS OF THE COMPANY & THE ACQUISITION ENTITIES |
| 49 |
| ||
|
|
|
|
|
|
|
|
| Section 7.1. | Conduct of Business |
| 49 |
|
|
| Section 7.2. | Inspection |
| 52 |
|
|
| Section 7.3. | Preparation and Delivery of Company Financial Statements |
| 52 |
|
|
| Section 7.4. | Alternative Proposals |
| 53 |
|
|
| Section 7.5. | Exchange Listing |
| 53 |
|
|
| Section 7.6. | Notice of Developments |
| 53 |
|
|
| Section 7.7. | No Trading |
| 54 |
|
|
| Section 7.8. | Shareholder Litigation |
| 54 |
|
|
| Section 7.9. | Employee Matters |
| 54 |
|
|
| Section 7.10. | Shareholder Proxies |
| 54 |
|
|
| Section 7.11. | Transaction Documents |
| 54 |
|
|
| Section 7.12. | Reference to the Surviving Company |
| 55 |
|
|
|
|
|
|
|
|
| ARTICLE VIII COVENANTS OF ACQUIROR |
| 55 |
| ||
|
|
|
|
|
|
|
|
| Section 8.1. | Trust Account Proceeds and Related Available Equity |
| 55 |
|
|
| Section 8.2. | OTC Listing |
| 55 |
|
|
| Section 8.3. | No Solicitation by Acquiror |
| 55 |
|
|
| Section 8.4. | Acquiror Conduct of Business |
| 55 |
|
|
| Section 8.5. | Acquiror Public Filings |
| 57 |
|
|
| Section 8.6. | Shareholder Litigation |
| 57 |
|
|
| Section 8.7. | Section 16 Matters |
| 57 |
|
|
| Section 8.8. | Transaction Documents |
| 57 |
|
| iv |
| ARTICLE IX JOINT COVENANTS |
| 57 |
| ||
|
|
|
|
|
|
|
|
| Section 9.1. | Regulatory Approvals; Other Filings |
| 57 |
|
|
| Section 9.2. | Preparation of Proxy Statement/Proxy/Registration Statement; Acquiror Shareholders Meeting and Approvals; Company Shareholders Meeting and Approvals |
| 58 |
|
|
| Section 9.3. | Support of Transaction |
| 61 |
|
|
| Section 9.4. | Tax Matters. |
| 61 |
|
|
| Section 9.5. | Cooperation; Consultation |
| 62 |
|
|
| Section 9.6. | Indemnification and Insurance |
| 62 |
|
|
| Section 9.7. | Public Announcements |
| 63 |
|
|
| Section 9.8. | Key Person Agreements |
| 64 |
|
|
| Section 9.9. | Post-Merger Closing Directors and Officers of PubCo |
| 64 |
|
|
| Section 9.10. | Access to Information; Confidentiality |
| 64 |
|
|
|
|
|
|
|
|
| ARTICLE X CONDITIONS TO OBLIGATIONS |
| 64 |
| ||
|
|
|
|
|
|
|
|
| Section 10.1. | Conditions of Each Party s Obligations |
| 64 |
|
|
| Section 10.2. | Conditions to Obligations of the Parties at the First Closing |
| 65 |
|
|
| Section 10.3. | Conditions to Obligations of the Acquisition Entities and the Company at Second Closing |
| 67 |
|
|
| Section 10.4. | Frustration of Conditions |
| 67 |
|
|
|
|
|
|
|
|
| ARTICLE XI TERMINATION/EFFECTIVENESS |
| 67 |
| ||
|
|
|
|
|
|
|
|
| Section 11.1. | Termination |
| 67 |
|
|
| Section 11.2. | Effect of Termination |
| 68 |
|
|
|
|
|
|
|
|
| ARTICLE XII MISCELLANEOUS |
| 69 |
| ||
|
|
|
|
|
|
|
|
| Section 12.1. | Trust Account Waiver |
| 69 |
|
|
| Section 12.2. | Lock-Up Agreement and Insider Trading Policy |
| 69 |
|
|
| Section 12.3. | Waiver |
| 70 |
|
|
| Section 12.4. | Notices |
| 70 |
|
|
| Section 12.5. | Assignment |
| 71 |
|
|
| Section 12.6. | Rights of Third Parties |
| 71 |
|
|
| Section 12.7. | Expenses |
| 71 |
|
|
| Section 12.8. | Governing Law |
| 71 |
|
|
| Section 12.9. | Headings; Counterparts |
| 71 |
|
|
| Section 12.10. | Electronic Execution of the Agreement and Certain Other Documents |
| 72 |
|
|
| Section 12.11. | Company Disclosure Letter and Acquiror Disclosure Letter |
| 72 |
|
|
| Section 12.12. | Entire Agreement |
| 72 |
|
|
| Section 12.13. | Amendments |
| 72 |
|
|
| Section 12.14. | No Presumption Against Drafter |
| 72 |
|
|
| Section 12.15. | Publicity |
| 72 |
|
|
| Section 12.16. | Severability |
| 73 |
|
|
| Section 12.17. | Jurisdiction; Waiver of Jury Trial |
| 73 |
|
|
| Section 12.18. | Enforcement |
| 73 |
|
|
| Section 12.19. | Non-Recourse |
| 73 |
|
|
| Section 12.20. | Non-Survival of Representations, Warranties and Covenants |
| 74 |
|
|
| Section 12.21. | Conflicts and Privilege |
| 74 |
|
| v |
Exhibits
| Exhibit A Form of Plan of First Merger |
| Exhibit B Form of Plan of Second Merger |
| Exhibit C Form of PubCo Charter |
| Exhibit D Form of Articles of the Surviving Subsidiary |
| Exhibit E Form of Articles of the Surviving Company |
| Exhibit F Company Shareholders Support Agreement |
| Exhibit G Sponsor Parties Support Agreement |
| Exhibit H Form of Registration Rights Agreement |
| Exhibit I Form of Lock-Up Agreement |
| Exhibit J Form of A&R Warrant Agreement |
| vi |
INDEX OF DEFINED TERMS
| $ |
| Section 1.1 | ||
| Acquiror |
| Preamble | ||
| Acquiror Acquisition Proposal |
| Section 1.1 | ||
| Acquiror Authorization Notice |
| Section 2.3(b)(i) | ||
| Acquiror Board |
| Section 1.1 | ||
| Acquiror Board Recommendation |
| Section 9.2(b)(iii) | ||
| Acquiror Charter |
| Section 1.1 | ||
| Acquiror Cure Period |
| Section 11.1(h) | ||
| Acquiror Disclosure Letter |
| ARTICLE V | ||
| Acquiror Financial Statements |
| Section 5.6(c) | ||
| Acquiror Fundamental Representations |
| Section 1.1 | ||
| Acquiror Group |
| Section 12.20(a) | ||
| Acquiror Indemnified Parties |
| Section 9.6(a) | ||
| Acquiror Material Adverse Effect |
| Section 1.1 | ||
| Acquiror Ordinary Shares |
| Section 1.1 | ||
| Acquiror Public Shares |
| Section 1.1 | ||
| Acquiror Redemption Price |
| Section 1.1 | ||
| Acquiror Right Conversion |
| Section 3.1(b)(ii) | ||
| Acquiror Rights |
| Section 1.1 | ||
| Acquiror SEC Filings |
| Section 5.5(a) | ||
| Acquiror Share Redemption |
| Section 1.1 | ||
| Acquiror Shareholder Approval |
| Section 1.1 | ||
| Acquiror Shareholder Redemption Amount |
| Section 1.1 | ||
| Acquiror Shareholder Redemption Right |
| Section 1.1 | ||
| Acquiror Shareholders |
| Section 1.1 | ||
| Acquiror Shareholders’ Meeting |
| Section 9.2(b)(i) | ||
| Acquiror Transaction Expenses |
| Section 1.1 | ||
| Acquiror Unit |
| Section 1.1 | ||
| Acquiror Warrant Agreement |
| Section 1.1 | ||
| Acquiror Warrants |
| Section 1.1 | ||
| Acquiror Written Objection |
| Section 2.2(b)) | ||
| Acquisition Entities |
| Section 1.1 | ||
| Acquisition Entity Fundamental Representations |
| Section 1.1 | ||
| Action |
| Section 1.1 | ||
| Affiliate |
| Section 1.1 | ||
| Agreement |
| Preamble | ||
| Agreement End Date |
| Section 11.1(e) | ||
| Alternative Proposal |
| Section 1.1 | ||
| Anti-Bribery Laws |
| Section 1.1 | ||
| Anti-Money Laundering Laws |
| Section 1.1 | ||
| ArcheNova Group |
| Section 12.21(b) | ||
| Articles of the Surviving Company |
| Section 2.2(d) | ||
| Articles of the Surviving Subsidiary |
| Section 2.2(d) | ||
| Audit Delivery Date |
| Section 7.3(a) | ||
| Business Combination |
| Section 1.1 | ||
| Business Day |
| Section 1.1 | ||
| Cayman Companies Act |
| Recitals | ||
| Cayman Registrar |
| Section 1.1 | ||
| CFUS |
| Section 12.21(b) | ||
| Closing Filing |
| Section 9.7(b) | ||
| Closing Press Release |
| Section 9.7(b) | ||
| vii |
| Code |
| Recitals | ||
| Company |
| Preamble | ||
| Company Authorization Notice |
| Section 2.2(b)(i) | ||
| Company Benefit Plan |
| Section 1.1 | ||
| Company Board |
| Section 1.1 | ||
| Company Board Recommendation |
| Section 9.2(c)(ii) | ||
| Company Charter |
| Section 1.1 | ||
| Company Cure Period |
| Section 11.1(d) | ||
| Company Disclosure Letter |
| ARTICLE IV | ||
| Company Exchanging Share |
| Section 1.1 | ||
| Company Financial Statements | Section 7.3(b) | |||
| Company Fundamental Representations |
| Section 1.1 | ||
| Company Shareholders Support Agreement |
| Recitals | ||
| Company Indemnified Parties |
| Section 9.6(a) | ||
| Company Material Adverse Effect |
| Section 1.1 | ||
| Company Ordinary Shares |
| Section 1.1 | ||
| Company Registered Intellectual Property |
| Section 4.20(a) | ||
| Company Related Party |
| Section 1.1 | ||
| Company Shareholder |
| Section 1.1 | ||
| Company Shareholder Approval |
| Section 1.1 | ||
| Company Shareholders’ Meeting |
| Section 9.2(c)(i) | ||
| Company Shareholder Spreadsheet |
| Section 3.2(b) | ||
| Company Shares |
| Section 1.1 | ||
| Company Transaction Expenses |
| Section 1.1 | ||
| Company Written Objection |
| Section 2.2(b) | ||
| Confidentiality Clause |
| Section 4.32 | ||
| Contracts |
| Section 1.1 | ||
| Copyleft License |
| Section 1.1 | ||
| D&O Indemnified Parties |
| Section 9.6(a) | ||
| Disclosure Letter |
| Section 1.1 | ||
| Dissenting Acquiror Shareholders |
| Section 3.4(a) | ||
| Dissenting Acquiror Shares |
| Section 3.4(a) | ||
| Dissenting Company Shareholders |
| Section 3.4(b) | ||
| Dissenting Company Shares |
| Section 3.4(b) | ||
| DTC |
| Section 1.1 | ||
| Environmental Laws |
| Section 1.1 | ||
| Equity Securities |
| Section 1.1 | ||
| ERISA |
| Section 1.1 | ||
| ERISA Affiliate |
| Section 1.1 | ||
| Events |
| Section 1.1 | ||
| Exchange Act |
| Section 1.1 | ||
| Exchange Ratio |
| Section 1.1 | ||
| Executive-level Employee |
| Section 1.1 | ||
| FDA |
| Section 1.1 | ||
| FDA Laws |
| Section 1.1 | ||
| Financial Statements |
| Section 4.8(b) | ||
| First Closing |
| Section 2.2(a) | ||
| First Closing Date |
| Section 2.2(a) | ||
| First Merger |
| Recitals | ||
| First Merger Consideration Shares |
| Section 1.1 | ||
| First Merger Effective Time |
| Section 2.2(a) | ||
| Form 8-K |
| Section 12.1 | ||
| GAAP |
| Section 1.1 | ||
| Governing Documents |
| Section 1.1 | ||
| Government Official |
| Section 1.1 | ||
| Governmental Authority |
| Section 1.1 | ||
| viii |
| Governmental Authorization |
| Section 4.5 | ||
| Governmental Order |
| Section 1.1 | ||
| 2026 Interim Financial Statements |
| Section 7.3(a) | ||
| Hazardous Material |
| Section 1.1 | ||
| IND |
| Section 1.1 | ||
| Indebtedness |
| Section 1.1 | ||
| Intellectual Property |
| Section 1.1 | ||
| Intended Tax Treatment |
| Recitals | ||
| Interim Period |
| Section 7.1 | ||
| International Trade Laws |
| Section 1.1 | ||
| Investment Company Act |
| Section 1.1 | ||
| IPO |
| Section 5.8 | ||
| IRS |
| Section 1.1 | ||
| JOBS Act |
| Section 1.1 | ||
| Law |
| Section 1.1 | ||
| Leased Real Property |
| Section 1.1 | ||
| Legal Proceedings |
| Section 4.10 | ||
| Licenses |
| Section 1.1 | ||
| Lien |
| Section 1.1 | ||
| Lock-Up Agreement |
| Recitals | ||
| Merger Sub I |
| Preamble | ||
| Merger Sub I Share |
| Section 6.6(a) | ||
| Merger Sub II |
| Preamble | ||
| Merger Sub II Share |
| Section 6.6(a) | ||
| Mergers |
| Recitals | ||
| Multiemployer Plan |
| Section 4.13(c) | ||
| Nasdaq |
| Section 7.5 | ||
| Non-Recourse Parties |
| Section 12.18(b) | ||
| Open Source License |
| Section 1.1 | ||
| Open Source Materials |
| Section 1.1 | ||
| OTC |
| Section 5.17 | ||
| Paracrine Financial Statements | Section 4.8(a) | |||
| PCAOB |
| Section 1.1 | ||
| Permitted Liens |
| Section 1.1 | ||
| Person |
| Section 1.1 | ||
| Plan of First Merger |
| Section 1.1 | ||
| Plan of Second Merger |
| Section 1.1 | ||
| Pre-Closing PubCo Ordinary Shares |
| Section 6.6(a) | ||
| Pro Forma Financial Statements |
| Section 7.3(a) | ||
| Prospectus |
| Section 12.1 | ||
| Proxy/Registration Statement |
| Section 9.2(a)(i) | ||
| PubCo |
| Preamble | ||
| PubCo Charter |
| Section 2.1 | ||
| PubCo Ordinary Shares |
| Section 1.1 | ||
| Public Shareholders |
| Section 12.1 | ||
| RC |
| Section 12.20(a) | ||
| Real Property Leases |
| Section 4.19(a)(ii) | ||
| Redeeming Acquiror Shares |
| Section 1.1 | ||
| Registration Rights Agreement |
| Recitals | ||
| Regulatory Approvals |
| Section 9.1(a) | ||
| Related Party Agreements |
| Section 4.12(a)(vi) | ||
| Released Claims |
| Section 12.1 | ||
| Remaining Trust Fund Proceeds |
| Section 8.1 | ||
| Representatives |
| Section 1.1 | ||
| Required Financial Statements |
| Section 7.3(a) | ||
| Requisite Company Shareholders |
| Section 1.1 | ||
| ix |
| restraint |
| Section 10.1(f) | ||
| Restricted Person |
| Section 1.1 | ||
| Sanctioned Jurisdiction |
| Section 1.1 | ||
| Sanctioned Person |
| Section 1.1 | ||
| Sanctions |
| Section 1.1 | ||
| Sarbanes-Oxley Act |
| Section 1.1 | ||
| SEC |
| Section 1.1 | ||
| Second Closing |
| Section 2.3(a) | ||
| Second Closing Date |
| Section 2.3(a) | ||
| Second Merger |
| Recitals | ||
| Second Merger Consideration Shares |
| Section 1.1 | ||
| Second Merger Effective Time |
| Section 2.3(a) | ||
| Securities Act |
| Section 1.1 | ||
| Signing Filing |
| Section 9.7(b) | ||
| Signing Press Release |
| Section 9.7(b) | ||
| Sponsor |
| Section 1.1 | ||
| Sponsor Parties |
| Recitals | ||
| Sponsor Parties Support Agreement |
| Recitals | ||
| Subsidiary |
| Section 1.1 | ||
| Surviving Company |
| Recitals | ||
| Surviving Company Share |
| Section 1.1 | ||
| Surviving Subsidiary |
| Recitals | ||
| Tax |
| Section 1.1 | ||
| Tax Return |
| Section 1.1 | ||
| Taxes |
| Section 1.1 | ||
| Terminating Acquiror Breach |
| Section 11.1(h) | ||
| Terminating Company Breach |
| Section 11.1 | ||
| Title IV Plan |
| Section 4.13(c) | ||
| Top Vendors |
| Section 4.27(a) | ||
| Transaction Document |
| Section 1.1 | ||
| Transaction Proposals |
| Section 9.2(a)(i) | ||
| Transactions |
| Section 1.1 | ||
| Treasury Regulations |
| Section 1.1 | ||
| Trust Account |
| Section 12.1 | ||
| Trust Agent |
| Section 1.1 | ||
| Trust Agreement |
| Section 5.8 | ||
| Trustee |
| Section 5.8 | ||
| Unit Separation |
| Section 3.1(a)(i) | ||
| x |
BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement, dated October 12, 2026 (this “Agreement”), is made and entered into by and among Horizon Space Acquisition I Corp., a Cayman Islands exempted company limited by shares (“Acquiror”), ArcheNova Technology Co., Ltd, a Cayman Islands exempted company limited by shares (“PubCo”), ArcheNova International Co., Ltd, a Cayman Islands exempted company limited by shares and a direct wholly-owned Subsidiary of PubCo (“Merger Sub I”), ArcheNova Global Co., Ltd, a Cayman Islands exempted company limited by shares and a direct wholly-owned Subsidiary of PubCo (“Merger Sub II”) and ArcheNova Biotech Corp., a Cayman Islands exempted company limited by shares (the “Company”).
RECITALS
WHEREAS, Acquiror is a blank check company incorporated as a Cayman Islands exempted company and incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities;
WHEREAS, PubCo is a newly incorporated Cayman Islands exempted company, incorporated for the purpose of making acquisitions and investments, with the objective of acting as the publicly traded holding company for its subsidiaries;
WHEREAS, each of Merger Sub I and Merger Sub II is a newly incorporated Cayman Islands exempted company limited by shares, wholly-owned by PubCo, and each was formed for the purpose of effectuating the Mergers;
WHEREAS, the parties hereto desire and intend to effect a business combination transaction whereby (a) Merger Sub I will merge with and into the Acquiror (the “First Merger”), with Acquiror being the surviving entity and becoming a wholly-owned Subsidiary of PubCo (Acquiror is hereinafter referred to, for the periods from and after the First Merger Effective Time (as defined below), as the “Surviving Subsidiary”), and (b) following the First Merger, Merger Sub II will merge with and into the Company (the “Second Merger” and together with the First Merger, the “Mergers”), with the Company being the surviving entity and a wholly-owned Subsidiary of PubCo (the Company is hereinafter referred to for the periods from and after the Second Merger Effective Time (as defined below) as the “Surviving Company”), with each of the Mergers to occur upon the terms and subject to the conditions of this Agreement and in accordance with the Companies Act (As Revised) of the Cayman Islands (the “Cayman Companies Act”);
WHEREAS, upon the First Merger Effective Time, (i) all of the issued and outstanding securities of Acquiror immediately prior to the First Merger Effective Time shall no longer be issued and outstanding and shall automatically be cancelled, in exchange for the right of the holders thereof to receive certain securities of PubCo, and (ii) each share of Merger Sub I issued and outstanding as of immediately prior to the First Merger Effective Time shall automatically be converted into one (1) Surviving Subsidiary Share, in each case, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the provisions of the Cayman Companies Act and other applicable laws.
WHEREAS, upon the Second Merger Effective Time, (i) each Company Exchanging Share shall automatically be cancelled and converted into, and shall thereafter represent the right of each holder of the Company Exchanging Shares to receive, such number of newly issued PubCo Ordinary Shares as determined in accordance with this Agreement, and immediately following completion of item (i) herein, (ii) each share of Merger Sub II issued and outstanding as of immediately prior to the Second Merger Effective Time shall automatically be converted into one (1) Surviving Company Share and accordingly, the Surviving Company shall become a wholly-owned subsidiary of PubCo;
WHEREAS, each of the parties hereto intends that, for U.S. federal income tax purposes, (i) taken together, and pursuant to an integrated plan and a single binding scheme, the Mergers will qualify as a transaction under Section 351 of the U.S. Internal Revenue Code of 1986 (the “Code”) and the Treasury Regulations promulgated thereunder, (ii) the Second Merger qualifies as a “reorganization” within the meaning of Section 368(a)(1) of the Code, and (iii) this Agreement constitutes a separate “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) with respect to the Second Merger for purposes of Sections 354, 361 and 368 of the Code (the “Intended Tax Treatment”);
| 1 |
WHEREAS, the sole director of PubCo has (i) determined that it is advisable for PubCo to enter into this Agreement and the documents contemplated hereby, (ii) approved the execution and delivery of this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby, and (iii) recommended the adoption and approval of this Agreement and the other documents contemplated hereby (including the Plan of First Merger and the Plan of Second Merger) and the transactions contemplated hereby and thereby by PubCo’s sole shareholder;
WHEREAS, the Acquiror Board (as defined below) has (i) determined that it is advisable for Acquiror to enter into this Agreement and the documents contemplated hereby (including, without limitation, the Plan of First Merger), (ii) approved the execution and delivery of this Agreement and the documents contemplated hereby (including, without limitation, the Plan of First Merger) and the transactions contemplated hereby and thereby (including, without limitation, the First Merger), and (iii) recommended the adoption and approval of this Agreement and the other documents contemplated hereby (including the Plan of First Merger) and the transactions contemplated hereby and thereby (including the First Merger) by the Acquiror Shareholders;
WHEREAS, the Company Board (as defined below) has (i) determined that it is advisable for the Company to enter into this Agreement and the documents contemplated hereby (including, without limitation, the Plan of Second Merger), (ii) approved the execution and delivery of this Agreement and the documents contemplated hereby (including, without limitation, the Plan of Second Merger) and the transactions contemplated hereby and thereby (including, without limitation, the Second Merger), and (iii) recommended the adoption and approval of this Agreement and the other documents contemplated hereby (including the Plan of Second Merger) and the transactions contemplated hereby and thereby (including the Second Merger) by the Company Shareholders;
WHEREAS, the sole director of Merger Sub I has (i) determined that it is advisable for Merger Sub I to enter into this Agreement and the documents contemplated hereby (including, without limitation, the Plan of First Merger), (ii) approved the execution and delivery of this Agreement and the documents contemplated hereby (including the Plan of First Merger) and the transactions contemplated hereby and thereby (including the First Merger), and (iii) recommended the adoption and approval of this Agreement and the other documents contemplated hereby (including the Plan of First Merger) and the transactions contemplated hereby and thereby (including, without limitation, the First Merger) by the sole shareholder of Merger Sub I;
WHEREAS, the sole director of Merger Sub II has (i) determined that it is advisable for Merger Sub II to enter into this Agreement and the documents contemplated hereby (including, without limitation, the Plan of Second Merger), (ii) approved the execution and delivery of this Agreement and the documents contemplated hereby (including, without limitation, the Plan of Second Merger) and the transactions contemplated hereby and thereby (including the Second Merger), and (iii) recommended the adoption and approval of this Agreement and the other documents contemplated hereby (including, without limitation, the Plan of Second Merger) and the transactions contemplated hereby and thereby (including the Second Merger) by the sole shareholder of Merger Sub II;
WHEREAS, in furtherance of the Mergers and in accordance with the terms hereof, Acquiror shall provide an opportunity to its shareholders to have their issued and outstanding Acquiror Public Shares redeemed on the terms and subject to the conditions set forth in this Agreement and Acquiror’s Governing Documents (as defined below) in connection with obtaining the Acquiror Shareholder Approval (as defined below);
WHEREAS, as a condition and inducement to Acquiror’s and PubCo’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, the Requisite Company Shareholders (as defined below) have each executed and delivered to Acquiror and PubCo the Company Shareholders Support Agreement in the form attached hereto as Exhibit F (the “Company Shareholders Support Agreement”), pursuant to which the Requisite Company Shareholders have agreed, among other things, to (i) appear at the Company Shareholders’ Meeting for purposes of constituting a quorum, (ii) vote (whether pursuant to a duly convened meeting of the shareholders of the Company or to approve by way of a written resolution of the shareholders of the Company) in favor of the adoption and approval of this Agreement and the other documents contemplated hereby (including, without limitation, the Plan of Second Merger) and the transactions contemplated hereby and thereby (including, without limitation, the Second Merger), (iii) vote all Company Shares held by any of them against any proposals that would or would be reasonably likely to in any material respect impede the Transactions and the other transactions contemplated hereby or thereby, (iv) not to transfer any Company Shares held by such Company Shareholders, (v) to unconditionally and irrevocably waive the dissenters’ rights pursuant to the Cayman Companies Act in respect of all Company Shares held by the Requisite Company Shareholders with respect to the Second Merger, to the extent applicable, and (vi) release, effective as of and from the Second Merger Effective Time, Acquiror, PubCo, the Company and their respective Subsidiaries from all claims in respect of or relating to the period prior to the Second Closing that would or would be reasonably likely to in any material respect impede the Transactions and the other transactions contemplated hereby and thereby;
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WHEREAS, as a condition and inducement to the Company’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, the Sponsor and directors and officers of Acquiror (each, a “Sponsor Party,” collectively, the “Sponsor Parties”), have each executed and delivered to the Company the Sponsor Parties Support Agreement and Deed in the form attached hereto as Exhibit G (the “Sponsor Parties Support Agreement”) pursuant to which each Sponsor Party has agreed, among other things, (i) to appear at the Acquiror Shareholders’ Meeting for purposes of constituting a quorum, (ii) to vote to adopt and approve this Agreement and the other documents contemplated hereby (including the Plan of First Merger) and the transactions contemplated hereby and thereby, (iii) to vote all Acquiror Ordinary Shares held by such Sponsor Party against any proposals that would or would be reasonably likely to in any material respect impede the Transactions or any other Transaction Proposal, (v) not to redeem any Acquiror Ordinary Shares held by such Sponsor Party, (vi) except as otherwise set forth in the Sponsor Parties Support Agreement, not to amend that certain letter agreement between Acquiror, Sponsor and certain other parties thereto, dated as of December 21, 2022, (vii) to unconditionally and irrevocably waive the dissenters’ rights pursuant to the Cayman Companies Act in respect of all Acquiror Ordinary Shares held by such Sponsor Party with respect to the First Merger, to the extent applicable, and (viii) to release, effective as of and from the Second Merger Effective Time, Acquiror, PubCo, the Company and their respective Subsidiaries from all claims in respect of or relating to the period prior to the Second Closing that would or would be reasonably likely to in any material respect impede the Transactions and the other transactions contemplated hereby and thereby;
WHEREAS, prior to the Second Merger Effective Time, to the extent that the securities of PubCo to be held by the Sponsor and certain other parties have not been registered under the Proxy/Registration Statement (as defined herein below), Acquiror, Sponsor and certain other parties thereto shall have entered into a registration rights agreement substantially in the form attached hereto as Exhibit H (the “Registration Rights Agreement”);
WHEREAS, on or before the First Merger Effective Time, PubCo shall enter into a lock-up agreement (the “Lock-Up Agreement”) with each Company Shareholder who will hold 5% or more of PubCo Ordinary Shares immediately after the Second Merger Effective Time, the Sponsor, and certain persons, in the form of Exhibit I, which shall include, among other provisions, restrictions on transfer of the shares of PubCo Ordinary Shares issued in connection with the First Merger and Second Merger hereunder;
WHEREAS, on or immediately prior to the First Merger Effective Time, PubCo, Acquiror and the warrant agent thereunder shall have entered into an Assignment Assumption and Amended & Restated Warrant Agreement in the form attached hereto as Exhibit J (the “A&R Warrant Agreement”); and
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, Acquiror, PubCo, Merger Sub I, Merger Sub II and the Company agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Definitions. As used herein, the following terms shall have the following meanings:
“$” means lawful money of the United States.
“Acquiror Acquisition Proposal” means (i) any Business Combination, in one transaction or a series of transactions, involving Acquiror or any of its current or future controlled Affiliates or involving all or a material portion of the assets, equity securities or businesses of Acquiror or its current or future controlled Affiliates (whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, purchase of assets, tender offer or otherwise); or (ii) any equity or similar investment in or by Acquiror and/or any of its controlled Affiliates, in each case, other than the Transactions.
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“Acquiror Board” means the board of directors of Acquiror effective in existence in accordance with the Acquiror Charter immediately prior to the First Merger Effective Time, for the purposes of approving the execution and delivery of this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby as a Business Combination and the Acquiror Board Recommendation.
“Acquiror Charter” means the amended and restated memorandum and articles of association of Acquiror registered on December 20, 2022, as amended by special resolutions dated September 25, 2023, March 22, 2024, December 23, 2024 and April 20, 2026.
“Acquiror Fundamental Representations” means the representations and warranties made pursuant to Section 5.1 (Company Organization), Section 5.2 (Due Authorization), Section 5.3 (No Conflict), Section 5.7 (Governmental Authorities; Consents), Section 5.12 (Capitalization of Acquiror); and Section 5.13 (Brokers’ Fees).
“Acquiror Material Adverse Effect” means any event, state of facts, development, circumstance, occurrence or effect (collectively, “Events”) that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets and liabilities, results of operations or financial condition of Acquiror, taken as a whole or (ii) does or would reasonably be expected to, individually or in the aggregate, prevent or materially adversely affect the ability of Acquiror to consummate the Transactions; provided that in no event would any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, an Event under clause (i) of the definition of an “Acquiror Material Adverse Effect”: (a) any change in interest rates or economic, political, business or financial market conditions generally, (b) the taking of any action required to be taken under this Agreement, (c) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), cyberattacks, epidemic or pandemic, acts of nature or change in climate, (d) any matter set forth in the Acquiror Disclosure Letter which is stated therein as constituting an Acquiror Material Adverse Effect (disregarding this clause (d)), (e) any action taken by, or at the request of, the Company; (f) the announcement of this Agreement and consummation of the Transactions, resulting in any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on Acquiror’s relationships, contractual or otherwise, with third parties (other than such impact on licenses with Governmental Authorities, which impact shall not be excluded) or (i) any change in the trading price or volume of the Acquiror Units, Acquiror Ordinary Shares, Acquiror Rights or Acquiror Warrants (provided that the underlying causes of such changes referred to in this clause (i) may be considered in determining whether there is an Acquiror Material Adverse Effect except to the extent such cause is otherwise excluded under any of clauses (a) through (h) of this definition). Notwithstanding the foregoing, with respect to Acquiror, the number of Acquiror Shareholders who exercise their Acquiror Shareholder Redemption Right, the number of Dissenting Acquiror Shares or the failure to obtain Acquiror Shareholders’ Approval shall be deemed not to be an Acquiror Material Adverse Effect.
“Acquiror Ordinary Shares” means ordinary shares, par value $0.0001 per share, of Acquiror.
“Acquiror Public Shares” means the Acquiror Ordinary Shares issued and outstanding that were initially sold in the initial public offering of Acquiror (including the offering in connection with the exercise of the over-allotment option).
“Acquiror Redemption Price” means a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the First Closing, or such other time as agreed by Acquiror and the Company in writing including interest earned on the Trust Account (such interest shall be net of taxes payable) and not previously released to the Acquiror to pay its taxes, divided by the number of then issued Acquiror Public Shares, in connection with obtaining Acquiror Shareholder Approval.
“Acquiror Rights” means the rights to receive one-tenth of one (1) Acquiror Ordinary Share issued prior to the date of this Agreement.
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“Acquiror Share Redemption” means the election of an eligible (as determined in accordance with Acquiror’s Governing Documents) holder of Acquiror Public Shares to redeem all or a portion of the Acquiror Public Shares held by such holder at the Acquiror Redemption Price.
“Acquiror Shareholder Approval” means (a) the approval of the Business Combination, this Agreement and the Transaction Documents by Ordinary Resolution (as defined in the Acquiror Charter), (b) the approval of the Plan of First Merger and the First Merger by special resolution (as defined in the Acquiror Charter) and (c) the approval of any other proposals as the SEC and OTC (or staff member thereof) indicate (i) are necessary in its comments to the Proxy/Registration Statement or correspondence related thereto and (ii) are required to be approved by the shareholders of Acquiror in order for the transactions contemplated hereby to be consummated.
“Acquiror Shareholder Redemption Amount” means the aggregate amount payable with respect to all Redeeming Acquiror Shares.
“Acquiror Shareholder Redemption Right” means the right of an eligible (as determined in accordance with Acquiror’s Governing Documents) holder of Acquiror Public Shares to redeem all or a portion of the Acquiror Public Shares held by such holder at a per-share price, payable in cash, equal to a pro rata share of the aggregate amount on deposit in the Trust Account (including any interest earned on the funds held in the Trust Account) (as determined in accordance with Acquiror’s Governing Documents) in connection with the Transaction Proposals.
“Acquiror Shareholders” means the holders of Acquiror Ordinary Shares as of the record date for the purpose of Acquiror Shareholder Approval.
“Acquiror Transaction Expenses” means any and all reasonable and documented out-of-pocket fees and expenses paid or payable by Acquiror (whether or not billed or accrued for) as a result of or in connection with Acquiror’s negotiation, documentation and consummation of the Transactions, including (a) all fees (excluding (i) fees of the underwriters of the IPO with respect to deferred underwriting commissions, and (ii) fees deposited into the Trust Account to extend the period of time Acquiror has to consummate its initial business combination in accordance with Acquiror’s Governing Documents), costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, fairness opinion providers, data room administrators, attorneys, accountants and other advisors and service providers, including consultants and public relations firms and (b) any and all filing fees to Governmental Authorities in connection with the Transactions.
“Acquiror Unit” means collectively (i) the units issued by Acquiror in the IPO (including pursuant to the exercise of the underwriters’ overallotment option), each consisting of one Acquiror Ordinary Share, one Acquiror Warrant, and one Acquiror Right and (ii) the units issued by Acquiror to the Sponsor in a private placement in conjunction with its IPO (including pursuant to the exercise of the underwriters’ overallotment option).
“Acquiror Warrant Agreement” means the Warrant Agreement, dated December 21, 2022, between Acquiror and Continental Stock Transfer & Trust Company.
“Acquiror Warrants” means the warrants to purchase one (1) Acquiror Ordinary Share at an exercise price of $11.50 issued prior to the date of this Agreement.
“Acquisition Entities” means PubCo, Merger Sub I and Merger Sub II and “Acquisition Entity” means any of them.
“Acquisition Entity Fundamental Representations” means the representations and warranties made pursuant to Section 6.1 (Company Organization), Section 6.2 (Due Authorization), Section 6.3 (No Conflict), Section 6.5 (Governmental Authorities; Consents), Section 6.6 (Capitalization of Acquisition Entities) and Section 6.7 (Brokers’ Fees).
“Action” means any claim, action, suit, audit, examination, assessment, arbitration, mediation or formal inquiry, or any proceeding or investigation, by or before any Governmental Authority.
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“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, whether through one or more intermediaries or otherwise, provided, however, that for purposes of this Agreement, (i) Sponsor and Acquiror shall be deemed not to be Affiliates of the Company; and (ii) Affiliates of Acquiror and Affiliates of Sponsor shall be deemed to only refer to Sponsor, Acquiror and, if applicable, their respective directors and officers. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.
“Alternative Proposal” means, with respect to the Company and its Subsidiaries, other than the transactions contemplated hereby, (i) any acquisition or purchase by any third party, directly or indirectly, of 20% or more of any shares of any class or equity securities of the Company or any of its Subsidiaries, or any tender offer (including a self-tender) or exchange offer that, if consummated, would result in any third-party beneficially owning 20% or more of any shares of any class or equity securities of the Company or any of its Subsidiaries, (ii) any merger, acquisition, amalgamation, consolidation, business combination, joint venture or other similar transaction involving the Company or any of its Subsidiaries, the business of which constitutes 20% or more of the net revenues, net income or assets of the Company or any of its Subsidiaries, (iii) retaining advisors, selecting underwriters, or otherwise commencing any work in relation to an initial public offering, or resolving to make, or making, any filing or submission for an initial public offering with any stock exchange or regulator or (iv) any liquidation, dissolution, recapitalization, extraordinary dividend or other significant corporate reorganization of the Company or any of its Subsidiaries, the business of which constitutes 20% or more of the net revenues, net income or assets of the Company or any of its Subsidiaries.
“Anti-Bribery Laws” means the anti-bribery and accounting provisions of the Foreign Corrupt Practices Act of 1977, as amended, and all other applicable anti-corruption and bribery Laws.
“Anti-Money Laundering Laws” means, the applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions in which the Company or any of its Subsidiaries operates, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any relevant Governmental Authority.
“Business Combination” has the meaning set forth in Article 1.1 of the Acquiror Charter as in effect on the date hereof.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York or Governmental Authorities in the Cayman Islands or Singapore are authorized or required by Law to close.
“Cayman Registrar” means the Registrar of Companies in the Cayman Islands.
“Commercial or Transactional Contracts” means transactional Contracts, customary commercial Contracts, or Contracts entered into in the ordinary course of business that, in each case, are not primarily related to Taxes.
“Company Benefit Plan” means an “employee benefit plan” as defined in Section 3(3) of ERISA or any similar plan subject to laws of a jurisdiction outside of the United States (whether or not subject to ERISA), or any other plan, policy, program, practice, or agreement (including any employment, bonus, incentive or deferred compensation, or employee loan, note or pledge agreement, and any equity or equity-based compensation, profit-sharing, severance, retention, retirement, supplemental retirement, pension scheme, disability, death benefit, fringe benefit, insurance, change in control or similar plan, policy, program, practice or agreement) providing compensation or other benefits to any current or former (solely to the extent of any ongoing liability) director, officer, individual consultant, worker or employee, or other individual service provider, which are maintained, sponsored or contributed to by the Company, or to which the Company or any of the Company’s Subsidiaries is a party or has or would reasonably be expected to have any liability, and in each case whether or not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program, practice or arrangement that is required under applicable law and maintained by any Governmental Authority.
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“Company Board” means the board of directors of the Company in existence in accordance with the Governing Documents of the Company immediately prior to the Second Merger Effective Time, for the purposes of approving the execution and delivery of this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby.
“Company Charter” means, as the context requires, the memorandum and articles of association of the Company adopted at incorporation or the amended and restated memorandum and articles of association of the Company in effect immediately prior to the Second Merger Effective Time.
“Company Equity Value” means USD Two Billion ($2.0 billion).
“Company Exchanging Share” means each Company Ordinary Share issued and outstanding immediately prior to the Second Merger Effective Time, but excluding any Company Shares referred to in Section 3.1(b)(ii) and any Dissenting Company Shares.
“Company Fundamental Representations” means the representations and warranties made pursuant to the Section 4.1 (Company Organization), Section 4.2 (Subsidiaries), Section 4.3 (Due Authorization), Section 4.4 (No Conflict), Section 4.5 (Governmental Authorities; Consents), Section 4.6 (Capitalization of the Company), Section 4.7 (Capitalization of Subsidiaries), and Section 4.32 (Brokers’ Fees).
“Company Material Adverse Effect” means any event, state of facts, development, circumstance, occurrence or effect (collectively, “Events”) that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets and liabilities, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole or (ii) does or would reasonably be expected to, individually or in the aggregate, prevent or materially adversely affect the ability of the Company to consummate the Transactions; provided that in no event would any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, an Event under clause (i) of the definition of a “Company Material Adverse Effect”: (a) any change in interest rates or economic, political, business or financial market conditions generally, (b) the taking of any action required to be taken under this Agreement, (c) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), cyberattacks, epidemic or pandemic, acts of nature or change in climate, (d) any failure in and of itself of the Company to meet any projections or forecasts (provided that the exception in this clause (d) shall not prevent or otherwise affect a determination that any Event underlying such failure has resulted in or contributed to a Company Material Adverse Effect except where such Event is otherwise excluded under any of clauses (a) through (c) or clauses (e) through (h) of this definition), (e) any Events generally applicable to the industries or markets in which the Company and its Subsidiaries operate, (f) any action taken by, or at the request of, Acquiror; (g) the announcement of this Agreement and consummation of the Transactions, resulting in any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on the Company’s and its Subsidiaries’ relationships, contractual or otherwise, with third parties (other than such impact on licenses with Governmental Authorities, which impact shall not be excluded) or (h) any matter set forth on the Company Disclosure Letter which is stated therein as constituting a Company Material Adverse Effect (disregarding this clause (h)).
“Company Ordinary Shares” means the ordinary shares, par value US$0.01 per share, of the Company.
“Company Related Party” means any (a) member, shareholder or equity interest holder who, together with its Affiliates, directly or indirectly holds, or holds the right to acquire no less than 5% of the total issued and outstanding share capital of the Company or any of its Subsidiaries, or (b) any director (including any nominee and alternative director), executive officer or Executive-level Employee of the Company or any of its Subsidiaries or higher or any immediate family member of the foregoing Persons, in the case of clauses (a) and (b), excluding the Company and any of its Subsidiaries.
“Company Shares” means the Company Ordinary Shares.
“Company Shareholder” means any holder of any Company Ordinary Shares.
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“Company Shareholder Approval” means (a) the authorization and approval of this Agreement, the other Transaction Documents, the Transactions, any other proposal as necessary or appropriate in connection with the consummation of the Transactions contemplated hereby and thereby, and (b) the authorization and approval of any other proposals as the SEC (or staff member thereof) indicates (i) are necessary in its comments to the Proxy Statement or correspondence related thereto and (ii) are required to be approved by the Company Shareholders in order for the Transactions to be consummated, in each case with the requisite number of votes required under the Cayman Companies Act and the Company’s Governing Documents.
“Company Transaction Expenses” means any and all reasonable and documented out-of-pocket fees and expenses payable by the Company or any of its Subsidiaries (whether or not billed or accrued for) as a result of or in connection with the negotiation, documentation and consummation of the Transactions, including (a) all fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers, including consultants and public relations firms, and (b) any and all filing fees payable by the Company or any of its Subsidiaries or Affiliates to Governmental Authorities in connection with the Transactions.
“Contracts” means any legally binding (whether written or verbal) contracts, deeds, agreements, subcontracts, leases, licenses, sublicenses, insurance policies, purchase orders or undertakings of any nature that have any outstanding rights or obligations.
“Copyleft License” means any license that requires, as a condition of use, modification and/or distribution of software subject to such license, that such software subject to such license, or other software incorporated into, derived from, or used or distributed with such software subject to such license (i) in the case of software, be made available or distributed in a form other than binary (e.g., source code form), (ii) be licensed for the purpose of preparing derivative works, (iii) be licensed under terms that allow the Company’s or any Subsidiary of the Company’s products or portions thereof or interfaces therefor to be reverse engineered, reverse assembled or disassembled (other than by operation of Law) or (iv) be redistributable at no license fee. Copyleft Licenses include the GNU General Public License, the GNU Lesser General Public License, the Mozilla Public License, the Common Development and Distribution License, the Eclipse Public License and all Creative Commons “sharealike” licenses.
“Disclosure Letter” means, as applicable, the Company Disclosure Letter or the Acquiror Disclosure Letter.
“DTC” means Depository Trust Company.
“Environmental Laws” means any and all applicable Laws relating to Hazardous Materials, pollution, or the protection or management of the environment or natural resources, or protection of human health (with respect to exposure to Hazardous Materials).
“Equity Securities” means, with respect to any Person, any capital stock, equity interests, membership interests, partnership interests or registered capital, joint venture or other ownership interests in such Person and any options, warrants or other securities (for the avoidance of doubt, including debt securities) that are directly or indirectly convertible into, or exercisable or exchangeable for, such capital stock, equity interests, membership interests, partnership interests or registered capital, joint venture or other ownership interests (whether or not such derivative securities are issued by such Person).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any Affiliate or business, whether or not incorporated, that together with the Company would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Ratio” means a ratio equal to the quotient of (A) Company Equity Value divided by $10.00 per share, divided by (B) the number of Company Ordinary Shares issued and outstanding immediately prior to the Second Merger Effective Time.
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“Executive-level Employee” means (i) the chief executive officer, chief financial officer, chief technology officer, chief marketing officer and chief operating officer, if any, of the Company or any Subsidiary of the Company, including employees acting in similar capacities, or (ii) any employee of the Company or any Subsidiary of the Company with an annual base salary payable by the Company or any Subsidiary of the Company exceeding $200,000.
“FDA” means the U.S. Food and Drug Administration (or any successor Governmental Authority).
“FDA Laws” means the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) and its implementing regulations and guidance documents and the Public Health Service Act (42 U.S.C. § 201 et seq.) and its implementing regulations and guidance documents.
“First Merger Consideration Shares” means the PubCo Ordinary Shares receivable by Acquiror Shareholders pursuant to Section 3.1(a).
“GAAP” means generally accepted accounting principles in the United States as in effect from time to time, and consistently applied.
“Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern(s) its internal affairs. For example, the “Governing Documents” of a corporation (other than a Cayman Islands exempted company limited by shares) are its certificate of incorporation and bylaws, the “Governing Documents” of a limited partnership (other than a Cayman Islands limited liability company) are its limited partnership agreement and certificate of limited partnership, the “Governing Documents” of a Cayman Islands exempted company limited by shares are its memorandum and articles of association and the “Governing Documents” of a Cayman Islands limited liability company are its limited liability company agreement.
“Government Official” means any officer, cadre, civil servant, employee or any other person acting in an official capacity for any Governmental Authority (including any political party or official thereof), any candidate for political office, or any employee of a government owned or controlled entity.
“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, taxing, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court or tribunal.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority.
“Hazardous Material” means any (i) pollutant, contaminant, chemical, (ii) industrial, solid, liquid or gaseous toxic or hazardous substance, material or waste, (iii) petroleum or any fraction or product thereof, (iv) asbestos or asbestos-containing material, (v) polychlorinated biphenyl, (vi) chlorofluorocarbons, or (vii) other substance, material or waste, in each case, which are regulated under any Environmental Law or as to which liability may be imposed pursuant to Environmental Law.
“IND” means investigational new drug application for FDA authorization to administer an investigational drug to humans.
“Indebtedness” means with respect to any Person, without duplication, any obligations, contingent or otherwise, in respect of (a) the principal of and premium (if any) in respect of all indebtedness for borrowed money, including accrued interest and any per diem interest accruals, (b) the principal and interest components of capitalized lease obligations under IFRS, (c) amounts drawn (including any accrued and unpaid interest) on letters of credit, bank guarantees, bankers’ acceptances and other similar instruments (solely to the extent such amounts have actually been drawn), (d) the principal of and premium (if any) in respect of obligations evidenced by bonds, debentures, notes and similar instruments, (e) the termination value of interest rate protection agreements and currency obligation swaps, hedges or similar arrangements (without duplication of other indebtedness supported or guaranteed thereby), (f) the principal component of all obligations to pay the deferred and unpaid purchase price of property and equipment which have been delivered, including “earn outs” and “seller notes” and (g) breakage costs, prepayment or early termination premiums, penalties, or other fees or expenses payable as a result of the consummation of the transactions contemplated hereby in respect of any of the items in the foregoing clauses (a) through (f), and (h) all Indebtedness of another Person referred to in clauses (a) through (g) above guaranteed or for which the Company or any of its Subsidiaries has given assurance, comfort, keep-well or any similar undertaking, directly or indirectly, jointly or severally.
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“Intellectual Property” means any rights in or to intellectual property of any type or nature, throughout the world, including all: (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof; (ii) registered and unregistered trademarks, logos, service marks, trade dress and trade names, slogans, pending applications therefor, and internet domain names and social media handles, together with the goodwill of the Company or any of its Subsidiaries or their respective businesses symbolized by or associated with any of the foregoing; (iii) registered and unregistered copyrights, and applications for registration of copyright, including such corresponding rights in software and other works of authorship; and (iv) trade secrets, know-how, and other confidential information or proprietary rights.
“International Trade Laws” means all export, import, customs, anti-boycott, and other trade Laws or programs administered, enacted or enforced by any relevant Governmental Authority, including but not limited to: (a) the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and the import Laws and regulations administered by U.S. Customs and Border Protection; (b) the anti-boycott Laws administered by the U.S. Departments of Commerce and Treasury; and (c) any other similar export, import, customs, anti-boycott, or other trade Laws or programs in any relevant jurisdiction to the extent they are applicable to the Company or any of its Subsidiaries.
“Investment Company Act” means the Investment Company Act of 1940, as amended.
“IRS” means the U.S. Internal Revenue Service.
“JOBS Act” means the Jumpstart Our Business Startups Act of 2012, as amended.
“Law” means any statute, law, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority, or any provisions or interpretations of the foregoing by the competent Governmental Authorities, including general principles of common and civil law and equity.
“Leased Real Property” means all real property leased, licensed, subleased or otherwise used or occupied by the Company or any of its Subsidiaries.
“Licenses” means any approvals, authorizations, consents, licenses, registrations, permits or certificates of a Governmental Authority.
“Lien” means all liens, mortgages, deeds of trust, pledges, hypothecations, encumbrances, security interests, adverse claim, options, rights of preemption, leases, subleases, licenses, restrictions, claims or other liens of any kind whether consensual, statutory or otherwise, and whether filed, recorded or perfected under applicable Law (including any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset, but in any event excluding transfer restrictions under applicable securities Laws).
“Open Source License” means any license meeting the Open Source Definition (as promulgated by the Open Source Initiative as set forth on www.opensource.org.) or the Free Software Definition (as promulgated by the Free Software Foundation as set forth on https://www.fsf.org/), or any substantially similar license, including any license approved by the Open Source Initiative or any Creative Commons License. “Open Source Licenses” shall include Copyleft Licenses.
“Open Source Materials” means any software subject to an Open Source License.
“PCAOB” means the U.S. Public Company Accounting Oversight Board.
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“Permitted Liens” means (i) mechanic’s, materialmen’s and similar Liens arising in the ordinary course of business with respect to any amounts (A) not yet due and payable or which are being contested in good faith through appropriate proceedings and (B) for which adequate accruals or reserves have been established in accordance with GAAP or other generally accepted accounting principles, (ii) Liens for Taxes (A) not yet due and payable or (B) which are being contested in good faith through appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP or other generally accepted accounting principles (with respect to the Company or any of its Subsidiaries) or GAAP (with respect to Acquiror), (iii) defects or imperfections of title, easements, encroachments, covenants, rights-of-way, conditions, matters that would be apparent from a physical inspection or current, accurate survey of such real property, restrictions and other similar charges or encumbrances that do not, in the aggregate, materially impair the value or materially interfere with the use of the Leased Real Property, (iv) with respect to any Leased Real Property (A) the interests and rights of the respective lessors with respect thereto, including any statutory landlord liens and any Lien thereon, (B) any Lien permitted under a Real Property Lease, and (C) any Liens encumbering the underlying fee title of the real property of which the Leased Real Property is a part, (v) zoning, building, entitlement and other land use and environmental regulations promulgated by any Governmental Authority that do not, in the aggregate, materially interfere with the current use of, or materially impair the value of, the Leased Real Property, (vi) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business consistent with past practice, (vii) ordinary course purchase money Liens and Liens securing rental payments under operating or capital lease arrangements for amounts not yet due or payable, (viii) other Liens arising in the ordinary course of business consistent with past practice with respect to the borrowing of money in connection with workers’ compensation, unemployment insurance or other types of social security, (ix) reversionary rights in favor of landlords under any Leased Real Property with respect to any of the buildings or other improvements owned by the Company or any of its Subsidiaries or the Acquiror, and (x) other Liens incurred in the ordinary course of business consistent with past practice that do not, individually or in the aggregate, materially and adversely affect the use of the property affected by such Lien, or materially disrupt, the ordinary course operation of the businesses of the Company and its Subsidiaries, taken as a whole, or the Acquiror (as applicable).
“Person” means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, Governmental Authority or instrumentality or other entity of any kind.
“Plan of First Merger” means the plan of merger, in respect of the First Merger, substantially in the form attached hereto as Exhibit A and any amendment or variation thereto made in accordance with the provisions of the Cayman Companies Act and the terms thereof.
“Plan of Second Merger” means the plan of merger, in respect of the Second Merger, substantially in the form attached hereto as Exhibit B and any amendment or variation thereto made in accordance with the provisions of the Cayman Companies Act and the terms thereof.
“PubCo Ordinary Shares” means the ordinary shares, par value US$0.0001 per share, of PubCo, having the rights and subject to the restrictions set out in the PubCo Charter.
“PubCo Warrants” means the warrants issuable by PubCo in exchange of Acquiror Warrants at the First Merger Effective Time.
“Redeeming Acquiror Shares” means Acquiror Public Shares in respect of which the eligible (as determined in accordance with the Acquiror Charter) holder thereof has validly exercised (and not validly revoked, withdrawn or lost) his, her or its Acquiror Shareholder Redemption Right.
“Representatives” of a Person means, collectively, officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives of such Person or its Affiliates.
“Requisite Company Shareholders” means, for the purposes of obtaining the Company Shareholder Approval: (a) where the Company Shareholder Approval is to be obtained by way of a resolution passed at a general meeting of the Company, the Company Shareholders holding, in the aggregate, not less than two-thirds (2/3) of all issued and outstanding Company Shares; or (b) where the Company Shareholder Approval is to be obtained by way of a written resolution, all of the Company Shareholders entitled to vote at a general meeting of the Company.
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“Restricted Person” means any Person identified on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List or the U.S. Department of State’s Debarred List.
“Sanctioned Jurisdiction” means any country or territory subject to comprehensive Sanctions (at the time of this Agreement, including Cuba, Iran, North Korea, Russia, Syria, Venezuela, and the Crimea region of Ukraine and non-government controlled areas of the Zaporizhzhia and Kherson regions of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic).
“Sanctioned Person” means any Person that is (a) organized under the Laws of, or resident or located in, any Sanctioned Jurisdiction, (b) included on any list of Persons subject to Sanctions (including, but not limited to, the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List and the Sectoral Sanctions Identification List; or any similar list maintained or administered by the United Nations Security Council, HM Treasury of the United Kingdom, the European Union, any European Union member states, or any other Governmental Authority where the Company or any of its Subsidiaries operates), or (c) owned fifty percent (50%) or more, directly or indirectly, controlled by, or acting on behalf or at the direction of any Person or Persons described in clauses (a) or (b).
“Sanctions” means those trade, economic and financial sanctions Laws, embargoes, and restrictive measures administered, enacted or enforced from time to time by (a) the United States (including through the U.S. Department of the Treasury’s Office of Foreign Assets Control or the Department of State), (b) the European Union or any European Union member states, (c) the United Nations Security Council, (d) His Majesty’s Treasury of the United Kingdom, or (e) any other Governmental Authority where the Company or any of its Subsidiaries operates.
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002, as amended.
“SEC” means the United States Securities and Exchange Commission.
“Second Merger Consideration Shares” means the sum of PubCo Ordinary Shares receivable by Company Shareholders pursuant to Section 3.1(b).
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Sponsor” means Horizon Space Acquisition I Sponsor Corp., a Cayman Islands limited liability company.
“Subsidiary” means, with respect to a Person, a corporation or other entity of which more than fifty percent (50%) of the voting power of the Equity Securities or equity interests is owned, directly or indirectly, by such Person and, in case of a limited partnership, limited liability company or similar entity, such Person is a general partner or managing member or has the power to direct the policies, management and affairs of such entity, and a Subsidiary is a “wholly-owned Subsidiary” of such Person when substantially all of the voting power of its Equity Securities or equity interests is owned or controlled by such Person.
“Surviving Company Share” means an ordinary share, par value of US$0.01 per share, of the Surviving Company.
“Tax” or “Taxes” means any and all federal, state, local, foreign or other taxes imposed by any Governmental Authority, including relating to all income, gross receipts, license, payroll, recapture, net worth, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, ad valorem, value added, inventory, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, governmental charges, duties, levies and other similar charges imposed by a Governmental Authority in the nature of a tax, alternative or add-on minimum, or estimated taxes, and including any interest, penalty, or addition thereto.
“Tax Return” means any return, declaration, report, form, statement, information statement or other document filed or required to be filed with any Governmental Authority with respect to Taxes, including any claims for refunds of Taxes, any information returns and any schedules, attachments, amendments or supplements of any of the foregoing.
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“Transaction Documents” means, collectively, this Agreement, the Plan of First Merger, the Plan of Second Merger, the Company Shareholders Support Agreement, the Sponsor Parties Support Agreement, the A&R Warrant Agreement, the Registration Rights Agreement, and any other agreements, documents or certificates entered into or delivered pursuant hereto or thereto, and the expression “Transaction Document” means any one of them.
“Transactions” means, collectively, the Mergers and each of the other transactions contemplated by this Agreement or any of the other Transaction Documents.
“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of the Treasury (whether in final, proposed or temporary form), as the same may be amended from time to time.
“Trust Agent” means Continental Stock Transfer & Trust Company.
Section 1.2. Construction.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement; (iv) the terms “Article” or “Section” refer to the specified Article or Section of this Agreement; (v) the word “including” shall mean “including, without limitation” and (vi) the word “or” shall be disjunctive but not exclusive.
(b) Unless the context of this Agreement otherwise requires, references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
(c) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified.
(d) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.
Section 1.3. Knowledge. As used herein, (a) the phrase “to the knowledge” of the Company shall mean the knowledge of the individuals identified on Section 1.3 of the Company Disclosure Letter, (b) the phrase “to the knowledge” of Acquiror shall mean the actual knowledge of the individuals identified on Section 1.3 of the Acquiror Disclosure Letter, in each case, as such individuals would have acquired in the exercise of reasonable inquiries of direct reports and (c) the phrase “to the knowledge” of an Acquisition Entity shall mean the actual knowledge of the directors of the respective Acquisition Entities.
ARTICLE II
THE MERGERS; MERGER CLOSING
Section 2.1. Pre-Closing Actions. Prior to the First Merger Effective Time, shareholder approvals and/or board approvals of PubCo (as applicable) shall have been obtained which shall approve that (i) PubCo’s currently effective memorandum and articles of association, as in effect immediately prior to the First Merger Effective Time, shall be amended and restated and replaced in their entirety with the form of amended and restated memorandum and articles of association of PubCo attached hereto as Exhibit C (the “PubCo Charter”), and, as so amended and restated, the PubCo Charter shall be the memorandum and articles of association of PubCo, until thereafter amended in accordance with the terms thereof and the Cayman Companies Act; (ii) directors of the board and officers of Acquiror shall be the directors of the board and officers of PubCo upon and following the First Merger Effective Time; (iii) upon and following the Second Merger Effective Time, the board of directors of PubCo shall consist of two (2) directors nominated by the Company and reasonably acceptable to the Acquiror, and one (1) additional director nominated by Acquiror and reasonably acceptable to the Company; and (iv) officers of the Company immediately before the Second Merger Effective Time shall be the officers of PubCo, who shall serve in such capacity in accordance with the terms of PubCo’s Governing Documents following the Second Merger Effective Time.
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Section 2.2. The First Merger.
(a) First Merger. Subject to Section 2.2(b), on the date which is no later than three (3) Business Days after the first date on which all conditions set forth in Section 10.1 and Section 10.2 shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the First Closing, but subject to the satisfaction or waiver thereof), or at such other time or in such other manner as shall be agreed upon by Acquiror and the Company in writing (which shall not be a date later than the 90th day after the Plan of First Merger is filed and registered), the closing of the Transactions contemplated by this Agreement with respect to the First Merger (the “First Closing”) shall take place remotely by conference call and exchange of documents and signatures in accordance with Section 12.10. At the First Closing, Merger Sub I shall merge with and into Acquiror, with Acquiror being the surviving company in the First Merger (the day on which the First Closing occurs, the “First Closing Date”). PubCo, Acquiror and Merger Sub I shall execute and cause to be filed with the Cayman Registrar, the Plan of First Merger (substantially in the form attached hereto as Exhibit A) and such other documents as may be required in accordance with the applicable provisions of the Cayman Companies Act or by any other applicable Law to make the First Merger effective. The First Merger shall become effective on the date when the Plan of First Merger is registered by the Cayman Registrar or at such later date permitted by the Cayman Companies Act as may be agreed by Merger Sub I and Acquiror in writing and specified in the Plan of First Merger, provided that such later date shall not be a date later than the second (2nd) Business Day after the date when the Plan of First Merger is filed and registered with the Cayman Registrar (the “First Merger Effective Time”).
(b) Notice to Acquiror Shareholders Delivering Written Objection. If any Acquiror Shareholder gives to Acquiror, before the Acquiror Shareholders’ Approval is obtained at the Acquiror Shareholders’ Meeting, written objection to the First Merger (each, an “Acquiror Written Objection”) in accordance with Section 238(2) of the Cayman Companies Act:
(i) Acquiror shall, in accordance with Section 238(4) of the Cayman Companies Act, within twenty (20) days following the date on which the Acquiror Shareholders’ Approval is obtained, promptly give written notice of the authorization of the First Merger (the “Acquiror Authorization Notice”) to each such Acquiror Shareholder who has made an Acquiror Written Objection, and
(ii) unless Acquiror and the Company elect by agreement in writing to waive this Section 2.2(b)(ii) or unless there remains fewer than twenty-one (21) days prior to the Agreement End Date, no party shall be obligated to commence the First Closing, and the Plan of First Merger shall not be filed with the Cayman Registrar until at least twenty (20) days shall have elapsed since the date on which the Acquiror Authorization Notice is given (being the period allowed for written notice of an election to dissent under Section 238(5) of the Cayman Companies Act, as referred to in Section 239(1) of the Cayman Companies Act), but in any event subject to the satisfaction or waiver of all of the conditions set forth in Section 10.1 and Section 10.2.
(c) Effects of the First Merger. At and after the First Merger Effective Time, the First Merger shall have the effects set forth in this Agreement, the Plan of First Merger and the applicable provisions of the Cayman Companies Act. Without limiting the generality of the foregoing, and subject thereto, at the First Merger Effective Time, all the property, rights, privileges, agreements, powers and franchises, liabilities and duties of Acquiror and Merger Sub I shall vest in and become the property, rights, privileges, agreements, powers and franchises, liabilities and duties of Acquiror as the Surviving Subsidiary (including all rights and obligations with respect to the Trust Account), which shall include the assumption by Acquiror of any and all agreements, covenants, duties and obligations of Acquiror and Merger Sub I set forth in this Agreement and the other Transaction Documents to which Acquiror or Merger Sub I is a party, and Acquiror shall thereafter exist as a wholly-owned subsidiary of PubCo and the separate corporate existence of Merger Sub I shall cease.
(d) Governing Documents of the Surviving Subsidiary. At the First Merger Effective Time, the Acquiror Charter, as in effect immediately prior to the First Merger Effective Time, shall be amended and restated and replaced in its entirety with the form of the second amended and restated memorandum and articles of association of Acquiror attached hereto as Exhibit D (the “Articles of the Surviving Subsidiary”) and, as so amended and restated, shall be the memorandum and articles of association of the Surviving Subsidiary, until thereafter amended in accordance with the terms thereof and the Cayman Companies Act.
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(e) Directors and Officers of the Surviving Subsidiary. At the First Merger Effective Time, the board of directors and officers of the Surviving Subsidiary shall consist of the persons designated by the Company, and the existing directors and officers of Acquiror immediately prior to the First Merger Effective Time shall resign and cease to hold office in the Surviving Subsidiary.
(f) PubCo Ordinary Shares held by the sole shareholder of PubCo. At the First Merger Effective Time and immediately following the issuance of one or more PubCo Ordinary Shares comprising the First Merger Consideration Shares, the sole shareholder of PubCo immediately prior to the First Merger Effective Time shall surrender the Pre-Closing PubCo Ordinary Shares (as defined below) that were issued and outstanding immediately prior to the First Merger Effective Time for no consideration to PubCo and all such surrendered Pre-Closing PubCo Ordinary Shares shall be cancelled by PubCo.
Section 2.3. The Second Merger.
(a) Second Merger. After all conditions set forth in Section 10.1 and Section 10.3 shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Second Closing, but subject to the satisfaction or waiver thereof) and no later than one (1) Business Day after the First Closing (or, if not on the same day, the First Merger Effective Time), or at such other time or in such other manner as shall be agreed upon by Acquiror and the Company in writing (which shall not be a date later than the 90th day after the Plan of Second Merger is filed and registered), the closing of the Transactions contemplated by this Agreement with respect to the Second Merger (the “Second Closing”) shall take place remotely by conference call and exchange of documents and signatures in accordance with Section 12.10. At the Second Closing, Merger Sub II shall merge with and into the Company, with the Company being the surviving company of the Second Merger (the day on which the Second Closing occurs, the “Second Closing Date”). PubCo, the Company and Merger Sub II shall execute and cause to be filed with the Cayman Registrar the Plan of Second Merger (substantially in the form attached hereto as Exhibit B) and such other documents as may be required in accordance with the applicable provisions of the Cayman Companies Act or by any other applicable Law to make the Second Merger effective. The Second Merger shall become effective on the date when the Plan of Second Merger is registered by the Cayman Registrar or at such later date permitted by the Cayman Companies Act as may be agreed by Acquiror, Merger Sub II and the Company in writing and specified in the Plan of Second Merger, provided that such later date shall not be a date later than the second (2nd) Business Day after the date when the Plan of Second Merger is filed and registered with the Cayman Registrar (the “Second Merger Effective Time”).
(b) Notice to Company Shareholders Delivering Written Objection. If any Company Shareholder gives to the Company, before the Company Shareholder Approval is obtained at the Company Shareholders’ Meeting, written objection to the Second Merger (each, a “Company Written Objection”) in accordance with Section 238(2) of the Cayman Companies Act:
(i) The Company shall, in accordance with Section 238(4) of the Cayman Companies Act, within twenty (20) days following the date on which the Company Shareholder Approval is obtained, promptly give written notice of the authorization of the Second Merger and the Plan of Second Merger (the “Company Authorization Notice”) to each such Company Shareholder who has made a Company Written Objection, and
(ii) unless Acquiror and the Company elect by agreement in writing to waive this Section 2.3(b)(ii)or unless there remains fewer than twenty-one (21) days prior to the Agreement End Date, no party shall be obligated to commence the Second Closing, and the Plan of Second Merger shall not be filed with the Cayman Registrar until at least twenty (20) days shall have elapsed since the date on which the Company Authorization Notice is given (being the period allowed for written notice of an election to dissent under Section 238(5) of the Cayman Companies Act, as referred to in Section 239(1) of the Cayman Companies Act), but in any event subject to the satisfaction or waiver of all of the conditions set forth in Section 10.1 and Section 10.3.
(c) Effect of the Second Merger. At and after the Second Merger Effective Time, the Second Merger shall have the effects set forth in this Agreement, the Plan of Second Merger and the applicable provisions of the Cayman Companies Act. Without limiting the generality of the foregoing, and subject thereto, at the Second Merger Effective Time, all the property, rights, privileges, agreements, powers and franchises, liabilities and duties of the Company and Merger Sub II shall vest in and become the property, rights, privileges, agreements, powers and franchises, liabilities and duties of the Company as the Surviving Company, which shall include the assumption by the Company of any and all agreements, covenants, duties and obligations of the Company and Merger Sub II set forth in this Agreement and the other Transaction Documents to which the Company or Merger Sub II is a party, and the Company shall thereafter exist as a wholly-owned subsidiary of PubCo and the separate corporate existence of Merger Sub II shall cease.
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(d) Governing Documents of the Surviving Company. At the Second Merger Effective Time, the Company Charter, as in effect immediately prior to the Second Merger Effective Time, shall be amended and restated and replaced in its entirety with the form of the amended and restated memorandum and articles of association of the Company attached hereto as Exhibit E (the “Articles of the Surviving Company”), and, as so amended and restated, shall be the memorandum and articles of association of the Surviving Company, until thereafter amended in accordance with the terms thereof and the Cayman Companies Act.
(e) Directors and Officers of the Surviving Company. At the Second Merger Effective Time, the then existing sole director and officers of Merger Sub II shall cease to hold office, and the board of directors and officers of the Surviving Company shall consist of the board of the directors and officers of the Company immediately prior to the Second Merger Effective Time. Each director and officer of the Surviving Company shall hold office in accordance with the Articles of the Surviving Company until they are removed or resign in accordance with the Articles of the Surviving Company or until their respective successors are duly elected or appointed and qualified.
Section 2.4. Tax Free Reorganization Matters. No party to this Agreement shall take any action, or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent, impair or impede the Intended Tax Treatment. For U.S. federal income tax purposes (and for purposes of any applicable state or local Tax that follows the U.S. federal income tax treatment), the parties shall prepare and file all Tax Returns consistent with the Intended Tax Treatment, and shall not take any inconsistent position on any Tax Return, or during the course of any audit, litigation or other proceeding with respect to Taxes, except as otherwise required by a determination within the meaning of Section 1313(a) of the Code. This Agreement is hereby adopted as a separate “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g) and 1.368-3(a) with respect to the Second Merger, for purposes of Sections 354, 361 and 368 of the Code and the Treasury Regulations promulgated thereunder.
ARTICLE III
EFFECTS OF THE MERGERS ON COMPANY AND ACQUIROR EQUITY SECURITIES
Section 3.1. Conversion of Acquiror and Company Securities.
(a) At the First Merger Effective Time, by virtue of and as part of the agreed consideration for the First Merger and without any action on the part of any holder of securities of Acquiror or holder of securities of Merger Sub I:
(i) Acquiror Units. Each Acquiror Unit issued and outstanding immediately prior to the First Merger Effective Time shall be automatically detached and the holder thereof shall be deemed to hold one Acquiror Ordinary Share, one Acquiror Warrant, and one Acquiror Right in accordance with the terms of the applicable Acquiror Unit (the “Unit Separation”). The underlying Acquiror Ordinary Shares, the Acquiror Warrants and Acquiror Rights held or deemed to be held following the Unit Separation shall be converted in accordance with the applicable terms of this Section 3.1(a).
(ii) Acquiror Rights. Each Acquiror Right issued and outstanding immediately prior to the First Merger Effective Time shall be automatically converted into one-tenth (1/10) Acquiror Ordinary Share (the “Acquiror Right Conversion”); provided that no Acquiror Ordinary Share will be issued in connection with the Acquiror Right Conversion such that if a holder of Acquiror Rights would be entitled to receive a fractional Acquiror Ordinary Share upon the Acquiror Right Conversion, and the number of Acquiror Ordinary Shares to be issued to such holder upon the Acquiror Right Conversion shall be rounded down to the nearest whole number of Acquiror Ordinary Shares.
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(iii) Acquiror Ordinary Shares. Immediately following the Unit Separation and Acquiror Right Conversion in accordance with Section 3.1(a)(i) and Section 3.1(a)(ii), each Acquiror Ordinary Share (which, for the avoidance of doubt, includes the Acquiror Ordinary Shares held as a result of the Unit Separation and Acquiror Right Conversion) issued and outstanding immediately prior to the First Merger Effective Time (other than (1) any Acquiror Ordinary Shares referred to in Section 3.1(a)(v), (2) Redeeming Acquiror Shares and (3) Dissenting Acquiror Shares) shall automatically be cancelled and cease to exist in exchange for the right to receive one newly issued PubCo Ordinary Share. As of the First Merger Effective Time, each Acquiror Shareholder shall cease to have any other rights in and to such Acquiror Ordinary Shares, except as expressly provided herein.
(iv) Acquiror Warrants. Each Acquiror Warrant (which, for the avoidance of doubt, includes the Acquiror Warrants held as a result of the Unit Separation) issued and outstanding immediately prior to the First Merger Effective Time shall cease to be a warrant with respect to Acquiror Ordinary Shares and be assumed by PubCo and converted into a warrant to purchase one PubCo Ordinary Share (each, a “PubCo Warrant”). From and after the First Merger Effective Time, each PubCo Warrant shall continue to have and be subject to substantially the same terms and conditions as were applicable to such Acquiror Warrant immediately prior to the First Merger Effective Time (including any repurchase rights and cashless exercise provisions) in accordance with the provisions of the A&R Warrant Agreement. At or prior to the First Merger Effective Time, PubCo shall take all corporate action necessary to reserve for future issuance, and shall maintain such reservation for so long as any of the PubCo Warrants remain issued and outstanding, a sufficient number of PubCo Ordinary Shares for delivery upon the exercise of such PubCo Warrants.
(v) Acquiror Treasury Shares. Notwithstanding Section 3.1(a)(iii) above or any other provision of this Agreement to the contrary, if there are any Acquiror Ordinary Shares that are held by Acquiror as treasury shares or any Acquiror Ordinary Shares held by any direct or indirect Subsidiary of Acquiror immediately prior to the First Merger Effective Time, such Acquiror Ordinary Shares shall automatically be cancelled and shall cease to exist without any conversion thereof or payment or other consideration therefor.
(vi) Redeeming Acquiror Shares. Each Redeeming Acquiror Share issued and outstanding immediately prior to the First Merger Effective Time shall automatically be cancelled and cease to exist and shall thereafter represent only the right to be paid Acquiror Redemption Price per share in accordance with the Acquiror Charter.
(vii) Dissenting Acquiror Shares. Each Dissenting Acquiror Share issued and outstanding immediately prior to the First Merger Effective Time held by a Dissenting Acquiror Shareholder shall automatically be cancelled and cease to exist in accordance with Section 3.4 and shall thereafter represent only the right to be paid the fair value of such Dissenting Acquiror Share determined in accordance with Section 238 of the Cayman Companies Act and such other rights as are granted by the Cayman Companies Act.
(viii) Merger Sub I Share. The Merger Sub I Share (as defined below) issued and outstanding immediately prior to the First Merger Effective Time shall automatically be converted into one validly issued, fully paid and non-assessable ordinary share of the Surviving Subsidiary, which ordinary share shall constitute the only issued and outstanding share in the share capital of the Surviving Subsidiary.
(b) On the Second Closing Date and at the Second Merger Effective Time, by virtue of and as the agreed consideration for the Second Merger and without any action on the part of any holder of Company Shares, or holder of securities of Merger Sub II:
(i) Company Exchanging Shares. Each Company Exchanging Share shall automatically be cancelled and cease to exist in exchange for the right to receive such fraction of a newly issued PubCo Ordinary Share, that is equal to the Exchange Ratio, without interest, subject to rounding pursuant to Section 3.1(c). As of the Second Merger Effective Time, each holder of a Company Exchanging Share shall cease to have any other rights in and to the securities of the Company or the Surviving Company, except as expressly provided herein.
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(ii) Treasury Shares. Notwithstanding Section 3.1(b)(i) above or any other provision of this Agreement to the contrary, if there are any Company Shares that are held by the Company as treasury shares or any Company Shares held by any direct or indirect Subsidiary of the Company immediately prior to the Second Merger Effective Time, such Company Shares shall automatically be cancelled and shall cease to exist without any conversion thereof or payment or other consideration therefor.
(iii) Dissenting Company Shares. Each Dissenting Company Share issued and outstanding immediately prior to the Second Merger Effective Time held by a Dissenting Company Shareholder shall automatically be cancelled and cease to exist in accordance with Section 3.4 and shall thereafter represent only the right to be paid the fair value of such Dissenting Company Shares determined in accordance with Section 238 of the Cayman Companies Act and such other rights as are granted by the Cayman Companies Act.
(iv) Merger Sub II Share. The Merger Sub II Share (as defined below) issued and outstanding immediately prior to the Second Merger Effective Time shall automatically be converted into one validly issued, fully paid and non-assessable ordinary share of the Surviving Company, which ordinary share shall constitute the only issued and outstanding share in the share capital of the Surviving Company.
(c) Notwithstanding anything to the contrary contained herein, no fraction of a PubCo Ordinary Share will be issued by virtue of the Mergers or the other Transactions, and each Person who would otherwise be entitled to a fraction of a PubCo Ordinary Share (after aggregating all fractional PubCo Ordinary Shares that otherwise would be received by such holder) shall instead have the number of PubCo Ordinary Shares issued to such Person rounded down in the aggregate to the nearest whole PubCo Ordinary Share.
Section 3.2. Payment of Closing Consideration.
(a) At least two (2) business days prior to the First Closing, to the extent available, Acquiror shall deliver to the Company, the calculation of the Acquiror Redemption Price, prepared by the Trust Agent in good faith in accordance with the Trust Agreement and the Acquiror Charter. The calculation of the Acquiror Redemption Price delivered by Acquiror hereunder shall be subject to reasonable review and comment by the Company, and shall comport with the provisions of this Agreement.
(b) At least three (3) business days prior to the Second Closing, the Company shall deliver to PubCo a spreadsheet (as finalized pursuant to this Section 3.2, the “Company Shareholder Spreadsheet”), prepared by the Company in good faith in accordance with this Agreement and setting forth the following, in each case, as of immediately prior to the Second Merger Effective Time, based, when relevant, on assumptions reasonably acceptable to Acquiror which are described in detail in the Company Shareholder Spreadsheet (i) the name and address of record of each holder of and the number of Company Ordinary Shares held by each including the Dissenting Company Shares and (ii) the allocation of Second Merger Consideration payable to each Company Shareholder. The contents of the Company Shareholder Spreadsheet delivered by the Company hereunder shall be subject to reasonable review and comment by Acquiror, and shall comport with the provisions of this Agreement, but the Company shall, in all events, remain solely responsible for the contents of the Company Shareholder Spreadsheet. The parties agree that PubCo shall be entitled to rely on the Company Shareholder Spreadsheet when issuing the Second Merger Consideration Shares.
(c) For the purpose of clarification, nothing contained in this Section 3.2 or in the Company Shareholder Spreadsheet shall be construed or deemed to: (i) modify the Company’s obligations pursuant to Section 7.1(j) or Section 7.1(n) to obtain Acquiror’s prior consent to the issuance of any securities; or (ii) alter or amend the definition of the Second Merger Consideration.
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Section 3.3. Withholding. Notwithstanding any other provision of this Agreement, each of Acquiror, PubCo and the Company, as applicable, shall be entitled to deduct and withhold from any amount payable pursuant to this Agreement such Taxes as may be required to be deducted and withheld from such amounts under the Code or any other applicable Tax Law (as reasonably determined by Acquiror, PubCo, or the Company, respectively). To the extent that any amounts are so deducted and withheld, such deducted and withheld amounts shall be (a) timely remitted to the appropriate Governmental Authority and (b) treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Section 3.4. Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to the contrary and to the extent available under the Cayman Companies Act, Acquiror Ordinary Shares that are issued and outstanding immediately prior to the First Merger Effective Time and that are held by Acquiror Shareholders who shall have validly exercised their dissenters’ rights for such Acquiror Ordinary Shares in accordance with Section 238 of the Cayman Companies Act and otherwise complied with all of the provisions of the Cayman Companies Act relevant to the exercise and perfection of dissenters’ rights (the “Dissenting Acquiror Shares,” and the holders of such Dissenting Acquiror Shares being the “Dissenting Acquiror Shareholders”) shall not be converted into, and such Dissenting Acquiror Shareholders shall have no right to receive, the applicable shares and securities of PubCo unless and until such Dissenting Acquiror Shareholder fails to perfect or withdraws or otherwise loses his, her or its right to dissenters’ rights under the Cayman Companies Act. The Acquiror Ordinary Shares owned by any Acquiror Shareholder who fails to perfect or who effectively withdraws or otherwise loses his, her or its dissenters’ rights pursuant to the Cayman Companies Act shall cease to be Dissenting Acquiror Shares and shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the First Merger Effective Time, the right to receive the applicable shares and securities of PubCo, without any interest thereon in accordance with Section 3.1(a)(iii).
(b) Notwithstanding any provision of this Agreement to the contrary and to the extent available under the Cayman Companies Act, Company Shares that are issued and outstanding immediately prior to the Second Merger Effective Time and that are held by Company Shareholders who shall have validly exercised their dissenters’ rights for such Company Shares in accordance with Section 238 of the Cayman Companies Act and otherwise complied with all of the provisions of the Cayman Companies Act relevant to the exercise and perfection of dissenters’ rights (the “Dissenting Company Shares,” and the holders of such Dissenting Company Shares being the “Dissenting Company Shareholders”) shall not be converted into, and such Dissenting Company Shareholders shall have no right to receive, the applicable Second Merger Consideration Shares unless and until such Dissenting Company Shareholder fails to perfect or withdraws or otherwise loses his, her or its right to dissenters’ rights under the Cayman Companies Act. The Company Shares owned by any Company Shareholder who fails to perfect or who effectively withdraws or otherwise loses his, her or its dissenters’ rights pursuant to the Cayman Companies Act shall cease to be Dissenting Company Shares and shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Second Merger Effective Time, the right to receive the applicable Second Merger Consideration Shares, without any interest thereon in accordance with Section 3.1(b)(i).
(c) Prior to the First Closing Acquiror shall give the Company, and prior to the Second Closing the Company shall give Acquiror, prompt written notice of any demands for dissenters’ rights made in accordance with the Cayman Companies Act and received by the Company from Company Shareholders and by Acquiror from its shareholders, respectively, and any withdrawals of such demands and the Company and Acquiror shall each have complete control over their own negotiations and proceedings with respect to such dissenters’ rights of its shareholders, except that neither the Company nor the Acquiror shall make or commit or agree to make any payment with respect to any exercise by its shareholders of its rights to dissent from the First Merger or Second Merger (as applicable) or commit or agree to settle or compromise any demands for appraisal, without the prior written consent of the Acquiror (in the case of the Company) or the Company (in the case of the Acquiror), in any such case with such consent not to be unreasonably withheld.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (a) as set forth in the disclosure letter delivered to Acquiror by the Company on the date of this Agreement (the “Company Disclosure Letter”) which may be supplemented by the Company immediately prior to the Second Closing (each section of which, subject to Section 12.11, qualifies the correspondingly numbered and lettered representations and warranties in this Article IV), and (b) as otherwise explicitly contemplated by this Agreement, the other Transaction Documents or in connection with the Transactions, the Company represents and warrants to Acquiror as of the date hereof, as of the First Closing and as of the Second Closing as follows:
Section 4.1. Company Organization. The Company has been duly incorporated, formed or organized and is validly existing under the Laws of its jurisdiction of incorporation or organization, and has the requisite company or corporate power, as applicable, and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. The Governing Documents of the Company, as amended to the date of this Agreement and as previously made available by or on behalf of the Company to Acquiror, are true, correct and complete. The Company is duly licensed or qualified and in good standing as a foreign or extra-provincial corporation (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not, individually or in the aggregate, have, or reasonably be expected to have, a Company Material Adverse Effect.
Section 4.2. Subsidiaries. A complete list, as of the date of this Agreement, of each Subsidiary of the Company and its jurisdiction of incorporation, formation or organization, outstanding Equity Securities, and holders of Equity Securities (including respective numbers and percentages), as applicable, is set forth on Section 4.2 of the Company Disclosure Letter. The Subsidiaries of the Company have been duly formed or organized and are validly existing under the Laws of their jurisdiction of incorporation or organization and have the requisite power and authority to own, lease or operate all of their respective properties and assets and to conduct their respective businesses as they are now being conducted. True, correct and complete copies of the Governing Documents of the Company’s Subsidiaries, in each case, as amended to the date of this Agreement, have been previously made available to Acquiror by or on behalf of the Company. Each Subsidiary of the Company is duly licensed or qualified and in good standing as a foreign corporation (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not, individually or in the aggregate, have, or reasonably be expected to have, a Company Material Adverse Effect.
Section 4.3. Due Authorization.
(a) Other than the Company Shareholder Approval, the Company has all requisite company or corporate power, as applicable, and authority to execute and deliver this Agreement and the other documents to which it is a party contemplated hereby and (subject to the approvals and actions described in Section 4.5) to consummate the transactions contemplated hereby and thereby and to perform all of its obligations hereunder and thereunder. The execution and delivery of this Agreement and the other documents to which the Company is a party contemplated hereby and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized and approved by the Company Board, and no other company or corporate proceeding on the part of the Company is necessary to authorize this Agreement and the other documents to which the Company is a party contemplated hereby. This Agreement has been, and on or prior to the Second Closing, the other documents to which the Company is a party contemplated hereby will be, duly and validly executed and delivered by the Company and this Agreement constitutes, and on or prior to the Second Closing, the other documents to which the Company is a party contemplated hereby will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws (currently in effect or enacted following the date hereof) affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
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(b) the approval and authorization of the Second Merger and the Plan of Second Merger (including, without limitation, the adoption of the Articles of the Surviving Company) shall require approval by a special resolution of the Company’s shareholders, being a resolution passed by not less than two-thirds (2/3) of the votes cast by such shareholders as, being entitled to do so, vote (in person or by proxy) at a general meeting of which notice specifying the intention to propose the resolution as a special resolution has been duly given, or approved in writing by all of the Company’s shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Company’s shareholders. The foregoing votes and any other votes subject to the Company Shareholder Approval are the only votes of any of the Company Shares necessary in connection with entry into this Agreement and the other Transaction Documents by the Company and the consummation of the transactions contemplated hereby and thereby, including the Second Closing.
(c) On or prior to the date of this Agreement, the Company Board has duly adopted resolutions (i) determining that this Agreement and the other Transaction Documents to which the Company is a party contemplated hereby and the transactions contemplated hereby and thereby are advisable and fair to, and in the best interests of, the Company and its shareholders, as applicable, and (ii) authorizing and approving the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which the Company is a party contemplated hereby and the transactions contemplated hereby and thereby.No other corporate action is required on the part of the Company to enter into this Agreement or the documents to which the Company is a party contemplated hereby or to approve the Transactions other than the Company Shareholder Approval.
Section 4.4. No Conflict. Subject to the receipt of the consents, approvals, authorizations and other requirements set forth in Section 4.5 and except as set forth on Section 4.4 of the Company Disclosure Letter, the execution and delivery by the Company of this Agreement and the other Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby do not and will not (a) violate or conflict with any provision of, or result in the breach of, or default under the Governing Documents of the Company, (b) violate or conflict with any provision of, or result in the breach of, or default under any Law or Governmental Order applicable to the Company or any of the Company’s Subsidiaries, (c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any Contract of the type described in Section 4.12 to which the Company or any of the Company’s Subsidiaries is a party or by which the Company or any of the Company’s Subsidiaries may be bound, or terminate or result in the termination of any such foregoing Contract, or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, except, in the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not, individually or in the aggregate, (i) have, or reasonably be expected to have, a material adverse effect on the ability of the Company to enter into and perform their respective obligations under this Agreement, or (ii) be or reasonably be expected to be material to the business of the Company and its Subsidiaries (taken as a whole).
Section 4.5. Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of Acquiror and the Acquisition Entities contained in this Agreement, no consent, waiver, approval or authorization of, or designation, declaration or filing with, or notification to, any Governmental Authority (each, a “Governmental Authorization”) or other Person is required on the part of the Company or its Subsidiaries with respect to the Company’s execution or delivery of this Agreement or the consummation by the Company of the transactions contemplated hereby, except (a) as otherwise listed in Section 4.5 of the Company Disclosure Letter, (b) for the Company Shareholder Approval, (c) for the filing of the Proxy/Registration Statement with the SEC, other filings with respect to the Transactions pursuant to the applicable state blue sky or other securities Laws, the registration of the Plan of Second Merger and filing of the related documentation with the Cayman Registrar, the filing of the Articles of the Surviving Company and the PubCo Charter with the Cayman Registrar, the filing of the updated register of directors and officers reflecting the directors and officers of PubCo and the Company in connection with the First Merger and Second Merger (as the case may be), and publication of notification of the Second Merger in the Cayman Islands Government Gazette, in each case in accordance with the Cayman Companies Act, and (d) for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not, individually or in the aggregate, (i) have, or reasonably be expected to have, a material adverse effect on the ability of the Company to enter into and perform its obligations under this Agreement, or (ii) be or reasonably be expected to be material to the business of the Company and its Subsidiaries (taken as a whole).
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Section 4.6. Capitalization of the Company.
(a) As of the date of this Agreement, the authorized share capital of the Company is US$50,000 divided into 5,000,000 ordinary shares of par value of US$0.01 each, of which 5,000,000 ordinary shares are issued and outstanding. Set forth in Section 4.6(a) of the Company Disclosure Letter is a true, correct and complete list of each record holder of Company Shares and the number of Company Shares held by each such holder as of the date of this Agreement, which in aggregate constitute the entire issued, outstanding and paid-up share capital of the Company as of the date of this Agreement. All of the issued and outstanding Company Shares (i) have been duly authorized and validly issued and allotted and are fully paid; (ii) have been offered and issued by the Company in compliance with applicable Law, including the Cayman Companies Act and federal and state securities Laws, and all requirements set forth in (1) the Governing Documents of the Company and (2) any other applicable Contracts governing the issuance or allotment of such securities to which the Company is a party or otherwise bound; (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the Governing Documents of the Company or any Contract to which the Company is a party or otherwise bound; and (iv) were issued free and clear of any Liens (other than the Company’s own Lien as provided for in the Company Charter). All filings and returns required by applicable Law to be delivered or made by the Company to the Cayman Registrar or Governmental Authorities in any other jurisdiction in respect of all issuances and transfers of Company Shares have been duly and correctly delivered or made on a timely basis, except that the failure of which would not, and could not be reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(b) Except as otherwise set forth in this Section 4.6(b) of the Company Disclosure Letter, the Company has not issued, granted, and is not otherwise bound by or subject to any outstanding subscriptions, options, restricted stock, restricted stock units, share appreciation rights, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for Company Shares, any other commitments, calls, conversion rights, rights of exchange or privilege (whether preemptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or other equity interests, or for the repurchase or redemption of shares or other equity interests of the Company or the value of which is determined by reference to shares or other equity interests of the Company, and there are no voting trusts, proxies or agreements of any kind which may obligate the Company to issue, purchase, register for sale, redeem or otherwise acquire any Company Shares.
Section 4.7. Capitalization of Subsidiaries.
(a) The issued and outstanding share capital or other Equity Securities of each of the Company’s Subsidiaries (for the purpose of this Section 4.7(a) only, excluding the Acquisition Entities) (i) have been duly authorized and validly issued and allotted, are, to the extent applicable, fully paid and non-assessable; (ii) have been offered and issued in compliance in all material respects with applicable Law, including federal and state securities Laws, and all requirements set forth in (A) the Governing Documents of each such Subsidiary, and (B) any other applicable Contracts governing the issuance or allotment of such securities by such Subsidiary; (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the Governing Documents of each such Subsidiary or any Contract to which any such Subsidiary is a party or otherwise bound; and (iv) were issued free and clear of any Liens (other than each Subsidiary’s own Lien as provided for in their respective Charter).
(b) The Company owns of record and beneficially all the issued and outstanding Equity Securities of such Subsidiaries free and clear of any Liens other than Permitted Liens.
(c) Except as set forth on Section 4.7(c) of the Company Disclosure Letter, there are no outstanding subscriptions, options, restricted stock, restricted stock units, stock appreciation rights, warrants, rights or other securities (including debt securities) exercisable or exchangeable for any Equity Securities of such Subsidiaries, any other commitments, calls, conversion rights, rights of exchange or privilege (whether preemptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or other equity interests, or for the repurchase or redemption of shares or other Equity Securities of such Subsidiaries or the value of which is determined by reference to shares or other equity interests of the Subsidiaries, and there are no voting trusts, proxies or agreements of any kind which may obligate any Subsidiary of the Company to issue, purchase, register for sale, redeem or otherwise acquire any of its Equity Securities.
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Section 4.8. Financial Statements; Internal Controls.
(a) The Company has previously provided to Acquiror true and complete copies of (i) the draft audited consolidated statement of financial position and consolidated statements of comprehensive income, changes in equity and cash flows of Paracrine Therapeutics Pte. Ltd (“Paracrine”), a Subsidiary of the Company which carries out substantially all of the substantive business operations of the Company, as of and for the years ended March 31, 2026 and March 31, 2025, together with the draft auditor’s reports thereon (the “Paracrine Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Paracrine Financial Statements (i) fairly present in all material respects the consolidated financial position of Paracrine and its consolidated Subsidiary, as at the respective dates thereof, and the consolidated results of their operations and comprehensive income, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended, (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (subject to normal year-end adjustment and the absence of footnotes), and (iii) were prepared from, and are in accordance in all material respects with, the books and records of Paracrine and its consolidated Subsidiary. The Company Financial Statements (as defined in Section 7.3(b), together with Paracrine Financial Statements, the “Financial Statements”) when delivered (i) shall fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations and comprehensive income, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended, (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (subject, in the case of the 2026 Interim Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Required Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the 2026 Interim Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) With respect to the Paracrine Financial Statements, neither Paracrine nor any director or officer of Paracrine or any of its Subsidiary nor, to the knowledge of Paracrine, any independent auditor of Paracrine or its Subsidiary, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by Paracrine or its Subsidiary, except as set forth on Section 4.8(c) of the Company Disclosure Letter, (ii) any fraud, whether or not material, that involves Paracrine’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Paracrine or its Subsidiary or (iii) any claim or allegation regarding any of the foregoing.
(d) With respect to the Company Financial Statements, when delivered, neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, except as set forth on Section 4.8(d) of the Company Disclosure Letter, (ii) any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) Each of the Company and Paracrine maintains a system of internal accounting controls which the Company or Paracrine reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The books and records of the Company and Paracrine have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements.
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(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Section 4.9. Undisclosed Liabilities. There is no other liability, debt (including Indebtedness) or obligation of, or claim or judgment against, the Company or any of the Company’s Subsidiaries (whether direct or indirect, absolute or contingent, accrued or unaccrued, known or unknown, liquidated or unliquidated, or due or to become due), except for liabilities, debts, obligations, claims or judgments (a) reflected or reserved for on the applicable Financial Statements or disclosed in the notes thereto, (b) that have arisen since the date of the most recent statement of financial position included in the applicable Financial Statements in the ordinary course of business, consistent with past practice, of the Company and its Subsidiaries, (c) that are executory obligations under any Contract to which the Company or any of its Subsidiaries is a party or by which it is bound incurred in the ordinary course of business consistent with past practice of the Company and its Subsidiaries, (d) arising under this Agreement or any other Transaction Document, (e) that will be discharged or paid off prior to or at the Second Closing or (f) which are not and would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole).
Section 4.10. Litigation and Proceedings. Except as set forth on Section 4.10 of the Company Disclosure Letter, as of the date hereof (a) there are no pending or, to the knowledge of the Company, threatened, lawsuits, claims, proceedings or any other Actions (including any investigations or formal inquiries pending or, to the knowledge of the Company, threatened at law or in equity by or before any Governmental Authority (collectively, “Legal Proceedings”)), against the Company or any of the Company’s Subsidiaries or their respective properties or assets involving an amount that exceeds $200,000; and (b) there is no outstanding Governmental Order specifically directed at and imposed upon the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, except, in each case, as would not, individually or in the aggregate, (i) have, or reasonably be expected to have, a material adverse effect on the ability of the Company to enter into and perform its obligations under this Agreement, or (ii) be or reasonably be expected to be material to the business of the Company and its Subsidiaries (taken as a whole).
Section 4.11. Legal Compliance.
(a) Except as disclosed on Section 4.11(a) of the Company Disclosure Letter, each of the Company and its Subsidiaries is in compliance with all applicable Laws in all material respects.
(b) In the past three (3) years, none of the Company or any of its Subsidiaries has received any written notice of, or been charged with, the violation of any Laws, by any Governmental Authority, except where such violation has not been and would not reasonably be expected to be material to the business of the Company and its Subsidiaries, taken as a whole.
(c) The Company and its Subsidiaries maintain a program of policies, procedures and internal controls reasonably designed and implemented to provide reasonable assurance that violation of applicable Law by any of the Company’s or its Subsidiaries’ directors, officers, or employees, acting on behalf of the Company or any of the Company’s Subsidiaries, will be prevented, detected and deterred.
Section 4.12. Contracts; No Defaults.
(a) Section 4.12(a) of the Company Disclosure Letter contains a true, correct, and complete list of all Contracts described in clauses (i) through (xvi) below, to which, as of the date of this Agreement, the Company or any of the Company’s Subsidiaries is a party or by which any of them is bound. True, correct and complete copies of all such Contracts, together with all amendments thereto, have previously been delivered to or made available to Acquiror or its Representatives.
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(i) Each Contract involving obligations (contingent or otherwise), payments or revenues in excess of $200,000 since January 1, 2025 or expected obligations (contingent or otherwise), payments or revenues in excess of $200,000 in the next twelve months after the date of this Agreement;
(ii) Each outstanding note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed by, or other Indebtedness of, the Company or any of the Company’s Subsidiaries, including any other agreement or commitment for future loans, credit or financing, in each case, in excess of $100,000 since January 1, 2025;
(iii) Each Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the last three (3) years, in each case, involving payments in excess of $200,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, or (B) solely between the Company and its wholly-owned Subsidiaries;
(iv) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or tangible personal property that involves aggregate payments in excess of $100,000 in any calendar year since the incorporation;
(v) Each Contract involving the formation, establishment, contribution to, or operation of a (A) partnership, (B) corporation, limited liability company or other entity, or (C) joint venture, alliance or similar entity, or involving a sharing of profits or losses (including joint development and joint marketing Contracts), or any investment in, loan to or acquisition or sale of the securities, Equity Securities or assets of any person involving payments of an amount higher than $100,000 (excluding, in the case of clauses (A) through (C), any wholly-owned Subsidiary of the Company);
(vi) Contracts between the Company and its Subsidiaries, on the one hand, and any Company Related Party, on the other hand, which are currently in force or under which any party thereto has outstanding obligations (collectively, “Related Party Agreements”) in excess of $100,000, other than (1) Company Benefit Plans and (2) travel booking Contracts entered into in the ordinary course of business consistent with past practice;
(vii) Contracts that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the transactions contemplated hereby, other than any Contracts involving payments of an amount not exceeding $200,000 annually or in the aggregate;
(viii) Contracts containing covenants of the Company or any of the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to engage in or compete with any Person in any line of business in any material respect or (B) prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person in any geographic area in any material respect;
(ix) Any collective bargaining agreement or similar labor-related Contract between the Company or any of the Company’s Subsidiaries, on one hand, and any labor union or other similar labor organization representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;
(x) Each Contract (including license agreements, coexistence agreements and agreements with covenants not to sue, but not including assignment or transfer agreements, non-disclosure agreements or incidental trademark or other licenses incident to marketing, printing or advertising or services or other agreements entered into in the ordinary course of business) pursuant to which the Company or any of the Company’s Subsidiaries (A) grants to a third Person the right to use Intellectual Property of the Company and its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole (other than non-exclusive licenses granted in the ordinary course of business consistent with past practice), or (B) is granted by a third Person the right to use Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole (other than Contracts granting non-exclusive rights to use commercially available off-the-shelf software and Open Source Licenses);
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(xi) Each Contract requiring capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $200,000 in any calendar year;
(xii) Any Contract that (A) grants to any third Person any “most favored nation rights”; or (B) grants to any third Person (except for the Company’s wholly-owned Subsidiaries) price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $500,000 in any calendar year;
(xiii) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests in the Company or any of the Company’s Subsidiaries or any material assets of the Company or any of its Subsidiaries;
(xiv) Contracts in connection with the waiver, compromise, or settlement of any Legal Proceedings involving payment of an amount greater than $100,000 that remains outstanding as of the date of this Agreement;
(xv) Contracts with a Governmental Authority or sole-source supplier of any product or service (other than utilities), in each case involving payments of an amount higher than $100,000; and
(xvi) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xv) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Second Closing Date, all of the Contracts are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the business of the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all material respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the twelve (12) months immediately preceding the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, has or would reasonably be expected to result in a breach of or a default under any such Contract by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both).
Section 4.13. Company Benefit Plans.
(a) Section 4.13(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, of each material Company Benefit Plan. With respect to each material Company Benefit Plan, the Company has made available to Acquiror, to the extent applicable, true, complete and correct copies of (A) such Company Benefit Plan (or, if not in writing, a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan descriptions, including any summary of material modifications, (C) the most recent annual reports (or equivalent filings or audits required to be made by applicable Law), if any, required by applicable Law to be filed with a Governmental Authority with respect to Taxes in connection with each Company Benefit Plan, (D) the most recent determination or opinion letter, or equivalent materials, from the applicable taxing authority with respect to each Company Benefit Plan, if any, and (E) the most recent actuarial report or other financial statement relating to such Company Benefit Plan. To the extent applicable, in each case of clause (b) through (f) below:
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(b) (i) Each Company Benefit Plan has been established, operated, funded, maintained and administered in compliance with its terms and all applicable Laws, including ERISA and the Code, except where failure to comply would not be or reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole; (ii) in all material respects, all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the applicable Financial Statements to the extent required by GAAP; (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, to the knowledge of the Company, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan.
(c) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is subject to Title IV of ERISA (“Title IV Plan”), a multiple employer plan (as described in Section 413(c) of the Code) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA), and neither the Company nor any of its ERISA Affiliates has sponsored or contributed to, been required to contribute to, or had any actual or contingent liability under any such plan at any time within the previous six (6) years. Neither the Company nor any of its ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA that has not been fully satisfied.
(d) With respect to each Company Benefit Plan, no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened, and to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary).
(f) Except as set forth on Section 4.13(f) of the Company Disclosure Letter, the consummation of the transactions contemplated hereby will not, either alone or in combination with another event (such as a termination of employment or service following the consummation of the transactions contemplated hereby), (i) entitle any current or former employee, officer or other individual service provider of the Company or any Subsidiary of the Company to any severance pay or any other compensation or benefits payable or to be provided by the Company or any Subsidiary of the Company or (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits due to any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company. The consummation of the transactions contemplated hereby will not, either alone or in combination with another event, result in any “excess parachute payment” under Section 280G of the Code (or any corresponding provision of state, local, or non-U.S. Tax Law). No Company Benefit Plan provides for a Tax gross-up, make whole or similar payment with respect to the Taxes imposed under Sections 409A or 4999 of the Code. Each Company Benefit Plan that constitutes, in whole or in part, a “nonqualified deferred compensation plan” subject to Section 409A of the Code has been documented and operated in compliance with Section 409A of the Code and the regulations thereunder in all material respects.
Section 4.14. Labor Relations; Employees.
(a) Except as disclosed on Section 4.12(a) of the Company Disclosure Letter, (i) neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement, or any similar labor-related agreement with any labor union or similar labor organization representing employees of the Company or any of the Company’s Subsidiaries, and no such agreement is currently being negotiated by the Company or any of the Company’s Subsidiaries, and (ii) to the knowledge of the Company, no labor union or any other similar labor organization has a certification or representation petition currently pending before any applicable labor relations tribunal or similar Governmental Authority seeking to represent any of the employees of the Company or its Subsidiaries. To the knowledge of the Company, there has been no labor organizing activity involving any employees of the Company or any of its Subsidiaries in the past three (3) years. In the past three (3) years, there has been no actual or, to the knowledge of the Company, threatened strike, concerted slowdown, concerted work stoppage, lockout or other labor dispute against the Company or any Subsidiary of the Company, in each case except as would not be or reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries, taken as a whole.
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(b) Each of the Company and its Subsidiaries is and has been for the past three (3) years, in compliance with all applicable Laws respecting labor and employment including, but not limited to, all Laws respecting terms and conditions of employment, health and safety, wages and hours, holiday pay, working time, employee classification, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity and equal pay, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, and employee leave issues, except where the failure to comply would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries taken as a whole.
(c) In the past three (3) years, except as would not be or reasonably be expected to be material to the business of the Company and its Subsidiaries (taken as a whole), the Company and its Subsidiaries have not been party to (i) any unfair labor practice charge or labor complaint pending or, to the knowledge of the Company threatened, before the U.S. National Labor Relations Board or any other similar labor-related Governmental Authority against them, (ii) any complaints, grievances or arbitrations arising out of any collective bargaining agreement pending before any Governmental Authority, (iii) any material charge or complaint pending or to the knowledge of the Company threatened, before any Governmental Authority responsible for the prevention of unlawful employment practices brought by any employee of the Company or its Subsidiaries, (iv) to the knowledge of the Company, any investigation by any Governmental Authority responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health Laws relating to the Company’s labor or employment practices, or (v) any complaint or lawsuit pending or, to the knowledge of the Company, threatened before any Governmental Authority by or on behalf of any present or former employee of the Company or its Subsidiaries alleging violations of any applicable Law governing employment or the termination thereof involving an amount claimed against any of the Company or its Subsidiaries that exceeds $100,000.
(d) To the knowledge of the Company, no present employee of the Company or any of the Company’s Subsidiaries is in material violation of (i) any restrictive covenant or nondisclosure agreement with the Company or any of the Company’s Subsidiaries or (ii) any restrictive covenant or nondisclosure agreement with a former employer of such individual relating to (A) the right of any such individual to work for or provide services to the Company or any of the Company’s Subsidiaries or (B) the knowledge or use of trade secrets or proprietary information of such former employer, in each case except as would not be or reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries, taken as a whole.
(e) Neither the Company nor any of the Company’s Subsidiaries is party to a settlement agreement with outstanding obligations with a current or former officer or employee of the Company or any of the Company’s Subsidiaries that involves allegations of sexual harassment, sexual misconduct or unlawful discrimination against any current (i) officer of the Company or any of the Company’s Subsidiaries or (ii) Executive-level Employee of the Company or any of the Company’s Subsidiaries. To the knowledge of the Company, there are no material allegations of sexual harassment, sexual misconduct or unlawful discrimination against any current (y) officer of the Company or any of the Company’s Subsidiaries or (z) Executive-level Employee of the Company or any of the Company’s Subsidiaries, in each case made to or filed with the human resources department of the Company or the Company’s Subsidiaries by another employee of the Company or the Company’s Subsidiaries and currently pending or being investigated.
(f) In the past three (3) years, the Company and its Subsidiaries have not implemented any “mass layoffs” or “plant closings”, as such terms are defined under the Worker Adjustment and Retraining Notification Act, or implemented any group terminations, group layoffs or similar workforce actions that required notices be provided to employees of the Company or its Subsidiaries pursuant to any similar state or foreign Law where any material liability remains outstanding.
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Section 4.15. Taxes.
(a) (i) All income Tax Returns and all other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions) and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and (ii) all material Taxes due and payable (whether or not shown on any Tax Return) have been fully and timely paid, except in each case of (i) and (ii), such failure would not, or could not be reasonably expected to, individually or in the aggregate. Have a Company Material Adverse Effect.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no material Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no Tax audit or other examination of the Company or any of its Subsidiaries with respect to material Taxes presently in progress, nor has the Company or any of its Subsidiaries been notified of any request or threat for such an audit or other examination. There are no waivers, extensions or requests for any waivers or extensions of any statute of limitations currently in effect with respect to any Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a material closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and Commercial or Transactional Contracts).
(h) Neither the Company nor any of its Subsidiaries has been a party to any transaction treated by the parties as a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law, or as a transferee or successor or by Contract (other than a Commercial or Transactional Contract) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(j) No written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(k) Neither the Company nor any of its Subsidiaries has, or has ever had, a permanent establishment in any country other than the country of its organization, or is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(l) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
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(m) The Company has not been, is not, and immediately prior to the First Merger Effective Time will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(n) Neither the Company nor any of its Subsidiaries will be required to include any item of income or exclude any item of deduction for any taxable period ending after the Second Closing Date as a result of: (i) adjustment under Section 481 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law) by reason of a change in method of accounting for a taxable period ending on or before the Second Closing Date; (ii) any “closing agreement” described in Section 7121 of the Code (or similar provision of state, local or non-U.S. income Tax Law) executed on or before the Second Closing Date; (iii) any installment sale or open sale transaction disposition made on or before the Second Closing Date; or (iv) any prepaid amount received on or before the Second Closing Date outside the ordinary course of business.
(o) Neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment.
(p) The Company is not, and immediately after the Second Merger Effective Time will not be, treated as an “investment company” within the meaning of Section 351(e) of the Code and Treasury Regulation Section 1.351-1(c)(1).
Section 4.16. Insurance. Section 4.16 of the Company Disclosure Letter contains a list of, as of the date hereof, all material policies or binders of property, fire and casualty, product liability, workers’ compensation, and other forms of insurance held by, or for the benefit of, the Company or any of the Company’s Subsidiaries as of the date of this Agreement. True, correct and complete copies of such insurance policies as in effect as of the date hereof have previously been made available to Acquiror. All such policies are in full force and effect, all premiums due have been paid, and no notice of cancellation or termination has been received by the Company or any of the Company’s Subsidiaries with respect to any such policy. Except as disclosed on Section 4.16 of the Company Disclosure Letter, no insurer has denied or disputed coverage of any material claim under an insurance policy during the last three (3) years.
Section 4.17. Licenses. The Company and its Subsidiaries have obtained, and maintain, all of the material Licenses reasonably required to permit the Company and its Subsidiaries to acquire, originate, own, operate, use and maintain their assets substantially in the manner in which they are now operated and maintained and to conduct the business of the Company and its Subsidiaries as currently conducted in all material respects. Each material License held by the Company or any of the Company’s Subsidiaries is in full force and effect. Neither the Company nor any of its Subsidiaries (a) is in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of any material License to which it is a party, (b) is or has been the subject of any pending or, to the knowledge of the Company, threatened Action by a Governmental Authority seeking the revocation, suspension, termination, modification, or impairment of any material License, or (c) has received any notice that any Governmental Authority that has issued any material License intends to cancel, terminate, materially modify the terms of, or not renew any such material License, except to the extent such material License may be amended, replaced, or reissued as a result of and as necessary to reflect the transactions contemplated hereby, or except that such default, violation, Action or notice in each case of clauses (a), (b) or (c) above would not, and could not be reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, or as otherwise disclosed in Section 4.17 of the Company Disclosure Letter. Section 4.17 of the Company Disclosure Letter sets forth a true, correct and complete list of all material Licenses held by the Company or its Subsidiaries.
Section 4.18. Equipment and Other Tangible Property. The Company or each of its Subsidiaries owns and has good title to, and has the legal and beneficial ownership of or a valid leasehold interest in or right to use by license or otherwise, all material machinery, equipment and other material tangible property reflected on the books of the Company and its Subsidiaries as owned by the Company or each of its Subsidiaries, free and clear of all Liens other than Permitted Liens. All material personal property and leased personal property assets of the Company and its Subsidiaries are structurally sound and in good operating condition and repair (ordinary wear and tear expected) and are suitable for their present use.
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Section 4.19. Real Property.
(a) Section 4.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the date of this Agreement of (w) the street address of each parcel of Leased Real Property, (x) the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of Leased Real Property, (y) the terms and rental payment amounts pertaining to each such parcel of Leased Real Property and (z) the current use of each such parcel of Leased Real Property. Neither the Company nor its Subsidiaries owns any real property. Except as would not be or reasonably be expected to be material to the business of the Company and its Subsidiaries (taken as a whole), with respect to each parcel of Leased Real Property:
(i) The Company or one of its Subsidiaries holds a good and valid leasehold estate in such Leased Real Property, free and clear of all Liens, except for Permitted Liens.
(ii) The Company and its Subsidiaries have delivered to Acquiror true, correct and complete copies of all material leases, lease guaranties, subleases, agreements for the leasing, use or occupancy of, or otherwise granting a right in and to the Leased Real Property by or to the Company or any of its Subsidiaries, including all amendments, terminations and modifications thereof (collectively, the “Real Property Leases”), and none of such Real Property Leases has been modified in any material respect, except to the extent that such modifications have been disclosed by the copies delivered to Acquiror.
(iii) The Company’s and its Subsidiaries’, as applicable, possession and quiet enjoyment of the Leased Real Property under such Real Property Leases has not been materially disturbed and, there are no material disputes pending or to the knowledge of the Company threatened with respect to such Real Property Leases.
(iv) To the knowledge of the Company, no party, other than the Company or its Subsidiaries, has any right to use or occupy the Leased Real Property or any portion thereof.
(v) Neither the Company nor any of its Subsidiaries has received written notice of any condemnation proceeding or proposed similar Action or agreement for taking in lieu of condemnation with respect to any portion of the Leased Real Property. No defaults by (A) the Company or its Subsidiaries or (B) to the knowledge of the Company, any landlord or sub-landlord, as applicable, presently exists under any Real Property Lease, except for such defaults that would not, and could not be reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
Section 4.20. Intellectual Property.
(a) Section 4.20(a) of the Company Disclosure Letter lists each item of Intellectual Property that is registered or applied-for with a Governmental Authority and is material to the Company’s and the Subsidiaries’ business taken as a whole, and is owned by the Company or any of the Company’s Subsidiaries as of the date of this Agreement (“Company Registered Intellectual Property”), and material proprietary software owned by the Company or the Subsidiaries. The Company or one of the Company’s Subsidiaries is the sole and exclusive beneficial and record owner of all of the items of Company Registered Intellectual Property, and all such Company Registered Intellectual Property is subsisting and, to the knowledge of the Company, is valid and enforceable.
(b) Except as would not or could not be expected to be material to the Company and its Subsidiaries, taken as a whole, the Company or one of its Subsidiaries owns, free and clear of all Liens (other than Permitted Liens), or has a valid right to use, all Intellectual Property necessary for the continued conduct of the business of the Company and its Subsidiaries in substantially the same manner as such business has been operated during the twelve (12) months prior to the date hereof (it being understood that the foregoing representation shall not be construed as a representation of non-infringement of third party Intellectual Property rights, which is addressed solely in subsection (c)).
(c) Except as set forth on Section 4.20(c) of the Company Disclosure Letter, (i) the Company and its Subsidiaries have not, within the last three (3) years, infringed upon, misappropriated or otherwise violated and, as of the date of this Agreement, are not infringing upon, misappropriating or otherwise violating any Intellectual Property of any third Person, and (ii) as of the date hereof, there is no action pending before any Governmental Authority to which the Company or any of the Company’s Subsidiaries is a named party, or, to the knowledge of the Company, that is threatened against the Company or its Subsidiaries, alleging the Company’s or its Subsidiaries’ infringement, misappropriation or other violation of any Intellectual Property of any third Person, except that in each case of clauses (i) and (ii) above, such infringement or action would not, and could not be reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
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(d) Except as set forth on Section 4.20(d) of the Company Disclosure Letter, to the knowledge of the Company (i) no Person is infringing upon, misappropriating or otherwise violating any material Intellectual Property owned by the Company or any of the Company’s Subsidiaries in any material respect, and (ii) the Company and its Subsidiaries have not sent to any Person within the last three (3) years any written notice, charge, complaint, claim or other written assertion against such third Person claiming infringement or violation by or misappropriation of any material Intellectual Property owned by the Company or any of the Company’s Subsidiaries.
(e) The Company and its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of trade secrets and other confidential information included in their Intellectual Property that are material to the business of the Company and its Subsidiaries taken as a whole. To the knowledge of the Company, there has not been any unauthorized disclosure of or unauthorized access to any such material trade secrets or such other material confidential information of the Company or any of the Company’s Subsidiaries to or by any Person in a manner that has resulted or may reasonably be expected to result in the misappropriation of, or loss of such trade secret or other rights in and to such information.
(f) No government funding, nor any facilities of a university, college, other educational institution or research center, was used in the development of the material Intellectual Property owned by the Company or any of the Company’s Subsidiaries and used in connection with their business.
(g) With respect to the material software used or held for use in the business of the Company and its Subsidiaries, the Company and its Subsidiaries take commercially reasonable measures to prevent the introduction into such software of any undisclosed or hidden device or feature designed to disrupt, disable, or otherwise impair the functioning of any software or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” or other malicious code or routines that permit unauthorized access or the unauthorized disablement or erasure of such or other software or information or data (or any parts thereof) of the Company or its Subsidiaries.
(h) The Company’s and its Subsidiaries’ use and distribution of (i) software developed by or on behalf of the Company or any Subsidiary, and (ii) Open Source Materials, in each case of such software and materials that are material to the business of the Company and its Subsidiaries, taken as a whole, is in compliance with all Open Source Licenses applicable thereto in all material respects. Neither the Company nor any Subsidiary has used any Open Source Materials in a manner that requires any software or Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole, and owned by the Company or any of the Company’s Subsidiaries to be subject to Copyleft Licenses.
(i) Neither the Company nor its Subsidiaries has delivered, licensed or made available, and the Company and its Subsidiaries have no duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available, the source code for any software owned by the Company or its Subsidiaries and material to the business of the Company and its Subsidiaries, taken as a whole, to any escrow agent or other third Person (other than business partners, contractors or consultants in the course of performing services for the Company and its Subsidiaries and that are subject to non-disclosure agreements).
Section 4.21. Privacy and Cybersecurity.
(a) The Company and its Subsidiaries maintain and are in compliance with, and during the last three (3) years have taken reasonable steps to maintain and comply with, (i) all applicable Laws relating to the privacy and/or security of personal information (including, to the extent constituting such applicable Laws, all related implementing rules, regulations, guidelines and circulars of data privacy regulators implementing or enforcing such Laws), (ii) the Company’s and its Subsidiaries’ posted or publicly facing privacy policies, and (iii) the Company’s and its Subsidiaries’ contractual obligations concerning cybersecurity, data security and the security of the Company’s and each of its Subsidiaries’ information technology systems; in each case of (i)-(iii) above, other than any non-compliance that, individually or in the aggregate, has not been or would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole. There are no Actions by any Person (including any Governmental Authority) pending to which the Company or any of the Company’s Subsidiaries is a named party or, to the knowledge of the Company, threatened in writing against the Company or its Subsidiaries alleging a violation of any third Person’s privacy or personal information rights by the Company or its Subsidiaries in connection with the foregoing, except as would not reasonably be expected to be material to the business of the Company and its Subsidiaries taken as a whole.
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(b) (i) During the last three (3) years, there have been, no breaches of the security of the information technology systems of the Company and its Subsidiaries, and (ii) during the last twelve (12) months, there have been no disruptions in any such information technology systems; in each case, that materially adversely affected the Company’s and its Subsidiaries’ business or operations, taken as a whole and any such disruptions have been remedied in all material respects. The Company and its Subsidiaries take commercially reasonable measures (and any other measures required by applicable Law) designed to protect personally identifiable information in its possession or control against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards. Except as would not reasonably be expected to be material to the business of the Company and its subsidiaries, taken as a whole, during the last three (3) years, neither the Company nor any Subsidiary of the Company has (A) experienced any material incident in which such information was stolen or improperly accessed, including in connection with a breach of security, or (B) received any written notice or complaint from any Person with respect to any of the foregoing incidents, nor to the knowledge of the Company has any such notice or complaint been threatened in writing against the Company or any of the Company’s Subsidiaries.
Section 4.22. Environmental Matters. The Company and its Subsidiaries are and, except for matters which have been fully resolved, have to their knowledge been in compliance with all Environmental Laws in all material respects and neither the Company nor any of its Subsidiaries is, as of the date hereof, subject to any current Governmental Order relating to any material non-compliance with Environmental Laws, in each case except as would not or could not reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries, taken as a whole. To the Company’s knowledge, there has been no material release of any Hazardous Materials by the Company or its Subsidiaries at, in, on or under any Leased Real Property or in connection with the Company’s and its Subsidiaries’ operations off-site of the Leased Real Property. No material Legal Proceeding is pending or, to the knowledge of the Company, threatened with respect to the Company’s and its Subsidiaries’ compliance with or liability under Environmental Laws, and, to the knowledge of the Company, there are no facts or circumstances which could reasonably be expected to form the basis of such a material Legal Proceeding.
Section 4.23. Absence of Changes. Since the date of the most recent statement of financial position included in the applicable Financial Statements, (i) there has not been any Company Material Adverse Effect; and (ii) the Company and its Subsidiaries have, in all material respects, conducted their respective businesses and operated their respective properties in the ordinary course of business consistent with past practice.
Section 4.24. Anti-Corruption Compliance.
(a) Neither the Company nor its Subsidiaries, nor any of their directors or officers, nor to the knowledge of the Company, any of the Company or its Subsidiaries’ respective employees, agents, Representatives or other Persons acting for or on behalf of the Company or any of its Subsidiaries has: (i) made any bribe, influence payment, kickback, payoff, benefits or any other type of payment (whether tangible or intangible) that would be unlawful under any applicable Anti-Bribery Laws; (ii) been in violation of any Anti-Bribery Laws, offered, paid, promised to pay, or authorized any payment or transfer of anything of value, directly or indirectly, to any person for the purpose of (A) influencing any act or decision of any Government Official in his or her official capacity, (B) inducing a Government Official to do or omit to do any act in relation to his or her lawful duty, (C) securing any improper advantage, (D) inducing a Government Official to influence or affect any act, decision or omission of any Governmental Authority, or (E) assisting the Company or any of its Subsidiaries, or any agent or any other Person acting for or on behalf of the Company or any of its Subsidiaries, in obtaining or retaining business for or with, or in directing business to, any Person; or (iii) accepted or received any contributions, payments, gifts, or expenditures that would be unlawful under any Anti-Bribery Laws.
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(b) Each of the Company and its Subsidiaries, has instituted and maintains policies and procedures reasonably designed to ensure compliance with the Anti-Bribery Laws.
(c) As of the date hereof, there are no current or pending internal investigations, or, to the knowledge of the Company, any third-party investigations (including by any Governmental Authority), or internal or external audits that address any material allegations concerning possible material violations of the Anti-Bribery Laws related to the Company or any of the Company’s Subsidiaries.
Section 4.25. Anti-Money Laundering, Sanctions and International Trade Compliance.
(a) The Company and its Subsidiaries, and each of their respective directors, officers, and to the knowledge of the Company, each of their respective employees, agents, Representatives and other Persons acting on behalf of the Company or any of the Company’s Subsidiaries (i) are, and have been for the past four (4) years, in compliance with all applicable Anti-Money Laundering Laws, Sanctions, and International Trade Laws in all material respects, and (ii) have obtained all material licenses, consents, notices, waivers, approvals, orders, registrations, declarations, or other authorizations from, and have made any material filings with, any applicable Governmental Authority for all activities and transactions relating to the business operations of the Company or its Subsidiaries, including for the import, export, re-export, deemed export, deemed re-export, or transfer required under the International Trade Laws and Sanctions and the provision of financial services required under Anti-Money Laundering Laws. There are and have for the past four (4) years been no pending or, to the knowledge of the Company, threatened, claims, complaints, charges, investigations, voluntary disclosures or Legal Proceedings against the Company or any of the Company’s Subsidiaries related to violations of Anti-Money Laundering Laws, Sanctions, or International Trade Laws.
(b) Neither the Company nor any of its Subsidiaries nor any of their respective directors or officers, nor to the knowledge of the Company, any employees, agents, Representatives or other Persons acting on behalf of the Company or any of the Company’s Subsidiaries, (i) is, or has during the past four (4) years, been a Sanctioned Person or a Restricted Person, or (ii) has transacted business directly or indirectly with any Sanctioned Person or Restricted Person or with or in any Sanctioned Jurisdiction, in each case in violation of applicable Sanctions or International Trade Laws.
(c) The Company and its Subsidiaries have in place policies, procedures, controls, and systems reasonably designed to ensure compliance with all applicable Anti-Money Laundering Laws and Sanctions.
Section 4.26. Proxy/Registration Statement. The information supplied by the Company or any of its Subsidiaries in writing specifically for inclusion in the Proxy/Registration Statement shall not, at (a) the time the Proxy/Registration Statement is filed in accordance with Rule 424(b) of the Securities Act and/or pursuant to Section 14A of the Exchange Act or declared effective, (b) the time the Proxy/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to (i) the Acquiror Shareholders and (ii) the Company Shareholders, and (c) the time of (i) the Acquiror Shareholders’ Meeting and (ii) the Company Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by or on behalf of Acquiror, its Affiliates or their respective Representatives on their respective behalf. For the avoidance of doubt, the foregoing representations are made as of the respective dates specified therein, and not as of the date of this Agreement.
Section 4.27. Vendors
(a) Section 4.27(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, the top five (5) vendors based on the aggregate dollar value of the Company’s and its Subsidiaries’ transaction volume with such counterparty during the twelve-month period ended December 31, 2025 (the “Top Vendors”).
(b) None of the Top Vendors has, as of the date of this Agreement, informed any of the Company or any of the Company’s Subsidiaries that it will, or, to the knowledge of the Company, has threatened to, terminate, cancel, or materially limit or materially and adversely modify any of its existing business with the Company or any of the Company’s Subsidiaries (other than due to the expiration of the stated term of an existing contractual arrangement), and to the knowledge of the Company, none of the Top Vendors is, as of the date of this Agreement, otherwise involved in or threatening a material dispute against the Company or its Subsidiaries or their respective businesses.
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Section 4.28. Government Contracts. The Company is not party to (a) any Contract, including an individual task order, delivery order, purchase order, basic ordering agreement, letter Contract or blanket purchase agreement between the Company or any of its Subsidiaries, on one hand, and any Governmental Authority, on the other hand, or (b) any subcontract or other Contract by which the Company or one of its Subsidiaries has agreed to provide goods or services through a prime contractor directly to a Governmental Authority that is expressly identified in such subcontract or other Contract as the ultimate consumer of such goods or services.
Section 4.29. Investment Company. The Company is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company,” in each case within the meaning of the Investment Company Act.
Section 4.30. Company Transaction Expenses. The Company Transaction Expenses include any and all reasonable and documented out-of-pocket fees and expenses payable by the Company or any of its Subsidiaries (whether or not billed or accrued for) as a result of or in connection with the negotiation, documentation and consummation of the Transactions, including (a) all fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers, including consultants and public relations firms, and (b) any and all filing fees payable by the Company or any of its Subsidiaries or Affiliates to Governmental Authorities in connection with the Transactions.
Section 4.31. Investigation. Notwithstanding anything contained in this Agreement, each of the Company, its Subsidiaries and Company Shareholders has made its own investigation of Acquiror and acknowledges that neither Acquiror nor any of its equityholders, partners, members and Representatives, including Sponsor and its Affiliates, is making any representation or warranty whatsoever, express or implied, other than those expressly given by Acquiror in Article V.
Section 4.32. Brokers’ Fees. Except as set forth on Section 4.32 of the Company Disclosure Letter, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated hereby based upon arrangements made by the Company, any of the Company’s Subsidiaries or any of their Affiliates with respect to which Acquiror or any of its Affiliates, PubCo, Merger Sub I, Merger Sub II, the Company or any of the Company’s Subsidiaries has any obligation.
Section 4.33. Compliance with FDA Laws.
(a) Except as set forth on Section 4.33(a) of the Company Disclosure Letter:
(i) the Company, including the conduct of its business, is and has been at all times during the past three (3) years in compliance with all applicable FDA Laws, except where non-compliance would not reasonably be expected to have a Company Material Adverse Effect taken as a whole;
(ii) the Company holds, and is operating in compliance in all material respects with, all Licenses of the FDA and other foreign, federal, state and local regulatory authorities required for the lawful conduct of its business as currently conducted, including, but not limited to, INDs;
(iii) all data, information and representations contained in any submission to, or communications with, the FDA or other foreign regulatory authorities were accurate, truthful and non-misleading in all material respects when submitted or communicated to the FDA or other foreign regulatory authorities (or were corrected in or supplemented by a subsequent submission or communication) and, to the knowledge of the Company, remain so currently;
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(iv) no Company clinical study or clinical trial has been terminated or suspended by the FDA or any other applicable Governmental Authority or institutional review board, and neither the FDA nor any other applicable Governmental Authority has commenced or threatened to initiate any clinical hold order on, or otherwise terminate, delay, suspend or materially restrict, any proposed or ongoing clinical study or clinical trial;
(v) for the past three (3) years, the Company has developed, designed, tested, studied, processed, manufactured, labeled, stored, handled, packaged, imported, exported, and distributed the Company pipeline products and services in compliance in all material respects with all applicable FDA Laws. For the past three (3) years, the Company has not received, and to the knowledge of the Company, there is no pending civil, criminal or administrative action, suit, demand, claim, complaint, hearing, investigation, demand letter, warning letter, untitled letter, It Has Come To Our Attention Letter from the FDA or any Governmental Authority concerning material noncompliance with FDA Laws with regard to the Company or Company pipeline products or services; and
(vi) neither the Company nor any of its Affiliates, officers, directors, or to the knowledge of the Company, its employees, has, in the past three (3) years: (i) been debarred, excluded or received notice of action or threat of action with respect to debarment, exclusion or other action under the provisions of 21 U.S.C. §§ 335a, 335b, or 335c, 42 U.S.C. § 1320a-7 or any equivalent provisions in any other applicable jurisdiction; (ii) made or offered any payment, gratuity or other thing of value that is prohibited by any Law to personnel of the FDA or any other Governmental Authority; nor (iii) made an untrue statement of a material fact or material fraudulent statement to the FDA or other Governmental Authority, failed to disclose a material fact required to be disclosed to the FDA or any other Governmental Authority, or in any records and documentation prepared or maintained to comply with applicable Laws, or committed any act, made any statement, or failed to make any statement that, at the time of such disclosure in the foregoing in this subsection, could reasonably be expected to provide a basis for the FDA or any other Governmental Authority to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” set forth in 56 Fed. Reg. 46191 (September 10, 1991) or any similar policy.
Section 4.34. No Outside Reliance. Notwithstanding anything contained in this Article IV or any other provision hereof, each of the Company and any of its respective directors, managers, officers, employees, equityholders, partners, members or Representatives, acknowledges and agrees that the Company has made its own investigation of Acquiror and that neither Acquiror nor any of its Affiliates, their respective directors, managers, officers, employees, equityholders, partners, members, agents or Representatives is making any representation or warranty whatsoever, express or implied, other than those expressly given by Acquiror in Article V, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of Acquiror. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other predictions that may be provided by Acquiror, as well as any information, documents or other materials (including any such materials reviewed by the Company or its Subsidiaries pursuant to Section 3 of the Letter of Intent dated June 23, 2026 by and between Acquiror and the Company (Confidentiality Clause) or management presentations that have been or shall hereafter be provided to the Company, its Subsidiaries or any of its or their Affiliates or Representatives) are not and will not be deemed to be representations or warranties of Acquiror, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in Article V of this Agreement. Except as otherwise expressly set forth in this Agreement, the Company understands and agrees that any assets, properties and business of Acquiror are furnished “as is,” “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article V, with all faults and without any other representation or warranty of any nature whatsoever.
Section 4.35. No Additional Representation or Warranties. Except as provided in this Agreement, this Article IV and Section 12.1, neither the Company, nor any of its Affiliates, nor any of their respective directors, commissioners, managers, officers, employees, equityholders, partners, members or Representatives has made, or is making, any representation or warranty whatsoever to Acquiror or its Affiliates or any of their respective directors, commissioners, managers, officers, employees, equityholders, partners, members or Representatives and no such party shall be liable in respect of the accuracy or completeness of any information provided to Acquiror or its Affiliates or any of their respective directors, commissioners, managers, officers, employees, equityholders, partners, members or Representatives. Without limiting the foregoing, the Company acknowledges that the Company and its advisors have made their own investigation of Acquiror and, except as expressly provided in Article V, are not relying on any representation or warranty whatsoever as to the condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of Acquiror, the prospects (financial or otherwise) or the viability or likelihood of success of the business of Acquiror as conducted after the First Closing, whether contained in any materials provided by Acquiror or any of its Affiliates or any of their respective directors, officers, employees, shareholders, partners, members or Representatives or otherwise.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
Except (a) as set forth in any Acquiror SEC Filings filed or submitted on or prior to the date hereof (excluding (i) any disclosures in any risk factors section that do not constitute statements of fact, any disclosures in any forward-looking statements disclaimer and any other disclosures that are generally cautionary, predictive or forward-looking in nature and (ii) any exhibits or other documents appended thereto) (it being acknowledged that nothing disclosed in such Acquiror SEC Filings will be deemed to modify or qualify the representations and warranties set forth in Section 5.8, Section 5.12 and Section 5.15), (b) as set forth in the disclosure letter delivered by Acquiror to the Company (the “Acquiror Disclosure Letter”) on the date of this Agreement which may be supplemented by Acquiror immediately prior to the First Closing (each section of which, subject to Section 12.10, qualifies the correspondingly numbered and lettered representations and warranties in this Article V), and (c) as otherwise explicitly contemplated by this Agreement, the other Transaction Documents or in connection with the Transactions, Acquiror represents and warrants to the Company as of the date hereof and as of the First Closing, as follows:
Section 5.1. Company Organization. Acquiror has been duly incorporated, formed or organized and is validly existing under the Laws of its jurisdiction of incorporation or organization, and has the requisite company or corporate power, as applicable, and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. Acquiror’s Governing Documents, as amended to the date of this Agreement and as previously made available by or on behalf of Acquiror to the Company, are true, correct and complete. Acquiror is duly licensed or qualified and in good standing as a foreign or extra-provincial corporation (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not, individually or in the aggregate, have or reasonably be expected to have, an Acquiror Material Adverse Effect.
Section 5.2. Due Authorization.
(a) Other than the Acquiror Shareholder Approval, Acquiror has all requisite company or corporate power, as applicable, and authority to execute and deliver this Agreement and the other documents to which it is a party contemplated hereby and (subject to the approvals described in Section 5.7), to consummate the transactions contemplated hereby and thereby and to perform all of its obligations hereunder and thereunder. The execution and delivery of this Agreement and the other documents to which Acquiror is a party contemplated hereby and the consummation of the transactions contemplated hereby and thereby have been (A) duly and validly authorized and approved by the Acquiror Board and (B) determined by the Acquiror Board as advisable to Acquiror and the Acquiror Shareholders and recommended for approval by the Acquiror Shareholders. No other company proceeding on the part of Acquiror is necessary to authorize this Agreement and the documents to which Acquiror is a party contemplated hereby. This Agreement has been, and on or prior to the First Closing, the other documents to which Acquiror is a party contemplated hereby will be, duly and validly executed and delivered by Acquiror, and this Agreement constitutes, and on or prior to the First Closing, the other documents to which Acquiror is a party contemplated hereby will constitute, a legal, valid and binding obligation of Acquiror, enforceable against Acquiror in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws (currently in effect or enacted following the date hereof) affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
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(b) Assuming that a quorum (as determined pursuant to Acquiror’s Governing Documents) is present:
(i) the Transaction Proposal identified in clause (A) of Section 9.2(a)(i) shall require approval by Special Resolution (as defined in the Cayman Companies Act) of the Acquiror Shareholders, which requires an affirmative vote of the holders of at least two-thirds of the issued and outstanding Acquiror Ordinary Shares entitled to vote, who attend (in person or by proxy) and vote (in person or by proxy) thereupon (as determined in accordance with Acquiror’s Governing Documents) at a shareholders’ meeting duly called by the board of directors of Acquiror and held for such purpose;
(ii) each of those Transaction Proposals identified in clauses (B) to (D) of Section 9.2(a)(i), in each case, shall require approval by an Ordinary Resolution (as defined in the Acquiror Charter), which requires an affirmative vote of the holders of at least a majority of the issued and outstanding Acquiror Ordinary Shares entitled to vote who attend (in person or by proxy) and vote (in person or by proxy) thereupon (as determined in accordance with Acquiror’s Governing Documents) at a shareholders’ meeting duly called by the board of directors of Acquiror and held for such purpose.
(c) The foregoing votes (including the Acquiror Shareholder Approval) are the only votes of any of the Acquiror Ordinary Shares necessary in connection with entry into this Agreement by Acquiror and the consummation of the transactions contemplated hereby, including the First Closing and the Second Closing.
(d) At a meeting duly called and held, the Acquiror Board has approved the transactions contemplated by this Agreement as a Business Combination.
Section 5.3. No Conflict. Except as set forth on Section 5.3 of the Acquiror Disclosure Letter, subject to obtaining the Acquiror Shareholder Approval, the execution and delivery by Acquiror of this Agreement and the other Transaction Documents to which Acquiror is a party and the consummation of the transactions contemplated hereby and thereby do not and will not (a) violate or conflict with any provision of, or result in the breach of or default under the Governing Documents of Acquiror, (b) violate or conflict with any provision of, or result in the breach of, or default under any applicable Law or Governmental Order applicable to Acquiror, (c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any Contract to which Acquiror is a party or by which Acquiror may be bound, or terminate or result in the termination of any such Contract or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of Acquiror, except, in the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not, individually or in the aggregate, have, or reasonably be expected to have, a material adverse effect on the ability of Acquiror to enter into and perform its obligations under this Agreement.
Section 5.4. Litigation and Proceedings. Except as set forth on Section 5.4 of the Acquiror Disclosure Letter, as of the date hereof (a) there are no pending or, to the knowledge of Acquiror, threatened Legal Proceedings against Acquiror or its properties or assets; and (b) there is no outstanding Governmental Order specifically directed at and imposed upon Acquiror or any of its properties or assets, except, in each case, as would not, individually or in the aggregate, (i) have, or reasonably be expected to have, a material adverse effect on the ability of Acquiror to enter into and perform its obligations under this Agreement; or (ii) be or reasonably be expected to be material to the business of Acquiror.
Section 5.5. SEC Filings.
(a) Except as set forth on Section 5.5(a) of the Acquiror Disclosure Letter, Acquiror has timely filed or furnished all statements, prospectuses, registration statements, forms, schedules, reports and other documents required to be filed by it with the SEC since the IPO, pursuant to the Exchange Act or the Securities Act (collectively, as they have been amended since the time of their filing through the date hereof, the “Acquiror SEC Filings”). Each of the Acquiror SEC Filings, as of the respective date of its filing (or if amended or superseded by a filing prior to the date of this Agreement or the First Closing Date, then on the date of such filing), complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder applicable to the Acquiror SEC Filings. As of the respective date of its filing (or if amended or superseded by a filing prior to the date of this Agreement or the First Closing Date, then on the date of such filing), the Acquiror SEC Filings 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 made therein, in light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Acquiror SEC Filings. To the knowledge of Acquiror, none of the Acquiror SEC Filings 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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(b) Except to the extent available on the SEC’s website through EDGAR, Acquiror has delivered to the Company copies in the form filed with the SEC of all of the following: (i) Acquiror’s annual reports on Form 10-K for each fiscal year of Acquiror beginning with the first year Acquiror was required to file such a form, (ii) Acquiror’s quarterly reports on Form 10-Q for each fiscal quarter that Acquiror filed such reports to disclose its quarterly financial results in each of the fiscal years of Acquiror referred to in clause (i) above, (iii) all other forms, reports, registration statements, prospectuses and other documents (other than preliminary materials) filed by Acquiror with the SEC since the beginning of the first fiscal year referred to in clause (i) above and (iv) all certifications and statements required by (A) Rules 13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C. §1350 (Section 906 of Sarbanes-Oxley Act) with respect to any report referred to in clause (i) above.
(c) Except as set forth on Section 5.5(c) of the Acquiror Disclosure Letter, as of the date of this Agreement, (i) the Acquiror Units issued by Acquiror in the IPO as well as the Acquiror Ordinary Shares, and the Acquiror Warrants are quoted on OTC (as defined herein below), (ii) Acquiror has not received any written deficiency notice from OTC relating to the continued listing requirements of such Acquiror Units, Acquiror Ordinary Shares, and Acquiror Warrants, (iii) there are no Actions pending or, to the knowledge of Acquiror, threatened against Acquiror by the Financial Industry Regulatory Authority with respect to any intention by such entity to suspend, prohibit or terminate the quoting of such Acquiror Units, Acquiror Ordinary Shares, and Acquiror Warrants on OTC and (iv) such Acquiror Units, Acquiror Ordinary Shares, and Acquiror Warrants are in compliance with all of the applicable corporate governance rules of OTC.
Section 5.6. Internal Controls; Listing; Financial Statements. Except as set forth on Section 5.6 of the Acquiror Disclosure Letter:
(a) except as not required in reliance on exemptions from various reporting requirements by virtue of Acquiror’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act, Acquiror has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to (i) ensure that material information relating to Acquiror, including its consolidated Subsidiaries, if any, is made known to Acquiror’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; and (ii) be effective in timely alerting Acquiror’s principal executive officer and principal financial officer to material information required to be included in Acquiror’s periodic reports required under the Exchange Act. Acquiror has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 under the Exchange Act) which it reasonably believes is sufficient to provide reasonable assurance regarding the reliability of Acquiror’s financial reporting and the preparation of Acquiror Financial Statements for external purposes in accordance with GAAP;
(b) each director and executive officer of Acquiror has filed with the SEC on a timely basis all statements required by Section 16(a) of the Exchange Act and the rules and regulations promulgated thereunder;
(c) the Acquiror SEC Filings contain true and complete copies of the (x) audited balance sheet of Acquiror as of December 31, 2025, and (y) statements of operations, cash flow and shareholders’ equity of Acquiror for the period from June 14, 2022 (inception) through December 31, 2025, together with the auditor’s reports thereon (the “Acquiror Financial Statements”). Except as disclosed in the Acquiror SEC Filings, the Acquiror Financial Statements (i) fairly present in all material respects the financial position of Acquiror, as at the respective dates thereof, and the results of operations, changes in shareholders’ equity, and consolidated cash flows for the respective periods then ended, (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto), (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof, and (iv) were prepared in accordance with PCAOB standards. The books and records of Acquiror have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements;
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(d) there are no outstanding loans or other extensions of credit made by Acquiror to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Acquiror. Acquiror has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act; and
(e) except as not required in reliance on exemptions from various reporting requirements by virtue of Acquiror’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act or as otherwise set forth in the Acquiror SEC Filings, Acquiror maintains systems of internal control over financial reporting that are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies and procedures sufficient to provide reasonable assurance: (i) that Acquiror maintains records that in reasonable detail accurately and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP; (iii) that receipts and expenditures are being made only in accordance with authorizations of management and its board of directors; and (iv) regarding prevention or timely detection of unauthorized acquisition, use or disposition of its assets that could have a material effect on its financial statements. Acquiror has delivered to the Company a true and complete copy (if any) of any disclosure (or, if unwritten, a summary thereof) by any representative of Acquiror to Acquiror’s independent auditors relating to any material weaknesses in internal controls and any significant deficiencies in the design or operation of internal controls that would adversely affect the ability of Acquiror to record, process, summarize and report financial data. Acquiror has no knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of Acquiror;
(f) neither Acquiror nor any director or officer of Acquiror nor, to the knowledge of Acquiror, any employee of Acquiror, nor Acquiror’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by Acquiror, (ii) any fraud, whether or not material, that involves Acquiror’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Acquiror or (iii) any claim or allegation regarding any of the foregoing.
Section 5.7. Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of the Company and the Acquisition Entities contained in this Agreement, no consent, waiver, approval or authorization of, or designation, declaration or filing with, or notification to, any Governmental Authority or other Person is required on the part of Acquiror with respect to Acquiror’s execution or delivery of this Agreement or the consummation of the transactions contemplated hereby, except (a) as otherwise disclosed on Section 5.7 of the Acquiror Disclosure Letter, (b) for the Acquiror Shareholder Approval, (c) for the filing of the Proxy/Registration Statement with the SEC, other filings with respect to the Transactions pursuant to the applicable state blue sky or other securities Laws, the registration of the Plan of First Merger and filing of the related documentation with the Cayman Registrar, the filing of the Articles of the Surviving Subsidiary and the PubCo Charter with the Cayman Registrar and publication of notification of the First Merger in the Cayman Islands Government Gazette, in each case in accordance with the Cayman Companies Act, and (d) for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not, individually or in the aggregate, (i) have, or reasonably be expected to have, a material adverse effect on the ability of Acquiror to enter into and perform its obligations under this Agreement or (ii) be or reasonably be expected to be material to the business of Acquiror (taken as a whole).
Section 5.8. Trust Account. As of October 5, 2026, Acquiror has approximately $ $760,873.03 in the Trust Account, with such monies held in cash deposit accounts pursuant to the Investment Management Trust Agreement, dated December 21, 2022, between Acquiror and Continental Stock Transfer & Trust Company, as trustee (the “Trustee”) (the “Trust Agreement”). There are no separate Contracts, side letters or other binding arrangements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the Acquiror SEC Filings to be inaccurate or that would entitle any Person (other than shareholders of Acquiror holding Acquiror Ordinary Shares initially sold in Acquiror’s initial public offering (the “IPO”) who shall have elected to redeem their Acquiror Ordinary Shares pursuant to Acquiror’s Governing Documents and the underwriters of the IPO with respect to deferred underwriting commissions) to any portion of the proceeds in the Trust Account. Prior to the First Closing, none of the funds held in the Trust Account may be released other than to pay Taxes and payments with respect to all Acquiror Share Redemptions. There are no claims or proceedings pending or, to the knowledge of Acquiror, threatened with respect to the Trust Account. Acquiror has performed all material obligations required to be performed by it to date under, and is not in default, in breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. As of the First Merger Effective Time, the obligations of Acquiror to dissolve or liquidate pursuant to Acquiror’s Governing Documents shall terminate, and as of the First Merger Effective Time, Acquiror shall have no obligation whatsoever pursuant to Acquiror’s Governing Documents to dissolve and liquidate the assets of Acquiror by reason of the consummation of the transactions contemplated hereby (other than use of the funds in the Trust Account for Acquiror Share Redemptions and to pay the underwriters of the IPO with respect to deferred underwriting commissions). As of the date hereof, following the First Merger Effective Time, no Acquiror Shareholder shall be entitled to receive any amount in the Trust Account except to the extent such Acquiror Shareholder has exercised an Acquiror Share Redemption. As of the date hereof, Acquiror does not have any reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to Acquiror on the First Closing Date (other than use of the funds in the Trust Account for Acquiror Share Redemptions and to pay the underwriters of the IPO with respect to deferred underwriting commissions).
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Section 5.9. Investment Company Act; JOBS Act. Acquiror is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company,” in each case within the meaning of the Investment Company Act. Acquiror constitutes an “emerging growth company” within the meaning of the JOBS Act.
Section 5.10. Absence of Changes. Since December 31, 2025, (a) there has not been any event or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Acquiror to enter into and perform its obligations under this Agreement and on the operations of Acquiror, and (b) except as set forth on Section 5.10 of the Acquiror Disclosure Letter, Acquiror has, in all material respects, conducted its business and operated its properties in the ordinary course of business consistent with past practice.
Section 5.11. No Undisclosed Liabilities. Except for any Acquiror Transaction Expenses, there is no other liability, debt or obligation of or claim or judgment against Acquiror (whether direct or indirect, absolute or contingent, accrued or unaccrued, known or unknown, liquidated or unliquidated, or due or to become due), except for liabilities, debts, obligations, claims or judgments (a) set forth on Section 5.11 of the Acquiror Disclosure Letter (b) reflected or reserved for on the financial statements or disclosed in the notes thereto included in Acquiror SEC Filings, (c) that have arisen since the date of the most recent balance sheet included in the Acquiror SEC Filings in the ordinary course of business of Acquiror, (d) that are executory obligations under any Contract to which Acquiror is a party or by which it is bound incurred in the ordinary course of business consistent with past practice of the Acquiror, and (e) arising under this Agreement or any other Transaction Documents, (e) that will be discharged or paid off prior to or at the First Closing or (f) which are not and would not reasonably be expected to be material to Acquiror.
Section 5.12. Capitalization of Acquiror. Except as set forth on Section 5.12 of the Acquiror Disclosure Letter:
(a) as of the date of this Agreement, the authorized share capital of Acquiror consists of (i) 490,000,000 Acquiror Ordinary Shares, of which 2,369,416 shares are issued and outstanding as of the date of this Agreement (including 58,666 Acquiror Public Shares subject to possible redemption, and assuming the separation of all outstanding Acquiror Units into underlying Acquiror Ordinary Shares, Acquiror Rights and Acquiror Warrants), and (ii) 10,000,000 preference shares of par value $0.0001 each, of which no shares are issued and outstanding as of the date of this Agreement. All issued and outstanding Acquiror Ordinary Shares (i) have been duly authorized and validly issued and are fully paid and non-assessable; (ii) have been offered, sold and issued by Acquiror in compliance in all material respects with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) Acquiror’s Governing Documents, and (2) any other applicable Contracts governing the issuance of such securities to which Acquiror is a party or otherwise bound; and (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, Acquiror’s Governing Documents or any Contract to which Acquiror is a party or otherwise bound; and (iv) were issued free and clear of any Liens (other than Acquiror’s own Lien as provided for in Acquiror Charter). All filings and returns required by applicable Law to be delivered or made by Acquiror to the relevant authorities in the Cayman Islands or any other jurisdiction in respect of all issuances and transfers of Equity Securities of Acquiror has been duly and correctly delivered or made on a timely basis, except that the failure of which would not, and could not be reasonably be expected to, individually or in the aggregate, have a Acquiror Material Adverse Effect;
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(b) as of the date of this Agreement, approximately 7,285,750 Acquiror Warrants are issued and outstanding (assuming the separation of all outstanding Acquiror Units into underlying Acquiror Ordinary Shares, Acquiror Rights and Acquiror Warrants). The Acquiror Warrants are not exercisable until thirty (30) days after the closing of a Business Combination. As of the date of this Agreement, 7,285,750 Acquiror Rights are issued and outstanding (assuming the separation of all outstanding Acquiror Units into underlying Acquiror Ordinary Shares, Acquiror Rights and Acquiror Warrants). Each Acquiror Right entitles the holder to receive one-tenth (1/10) of one Acquiror Ordinary Share upon the closing of a Business Combination. All outstanding Acquiror Warrants and Acquiror Rights (i) have been duly authorized and validly issued and constitute valid and binding obligations of Acquiror, enforceable against Acquiror in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws (currently in effect or enacted following the date hereof) affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity; (ii) have been offered, sold and issued in compliance in all material respects with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) Acquiror’s Governing Documents and (2) any other applicable Contracts governing the issuance of such securities; and (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, Acquiror’s Governing Documents or any Contract to which Acquiror is a party or otherwise bound. Except for the Acquiror’s Governing Documents and this Agreement, there are no outstanding Contracts of Acquiror to repurchase, redeem or otherwise acquire any Acquiror Warrants or Acquiror Rights;
(c) except as set forth in this Section 5.12 or as contemplated by this Agreement or the other documents contemplated hereby, Acquiror has not granted any outstanding options, warrants, rights or other securities convertible, exercisable or exchangeable for Acquiror Ordinary Shares, or any other commitments or agreements providing for the issuance of additional shares, the sale of treasury shares, for the repurchase or redemption of any Acquiror Ordinary Shares or the value of which is determined by reference to the Acquiror Ordinary Shares, and there are no Contracts of any kind which may obligate Acquiror to issue, purchase, redeem or otherwise acquire any of its Acquiror Ordinary Shares; and
(d) Acquiror has no Subsidiaries, and does not own, directly or indirectly, any equity interests or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated. Acquiror is not party to any Contract that obligates Acquiror to invest money in, loan money to or make any capital contribution to any other Person.
Section 5.13. Brokers’ Fees. Except as set forth on Section 5.13 of the Acquiror Disclosure Letter, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated hereby based upon arrangements made by Acquiror or any of its Affiliates.
Section 5.14. Indebtedness. Except as set forth on Section 5.14 of the Acquiror Disclosure Letter, or as permitted by Section 8.4(g) after the date hereof, Acquiror does not have any Indebtedness exceeding $100,000.
Section 5.15. Taxes.
(a) All income Tax Returns and all other material Tax Returns required to be filed by or with respect to Acquiror have been timely filed (taking into account any applicable extensions) and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects. All material Taxes due and payable (whether or not shown on any Tax Return) have been fully and timely paid. Section 5.15(a) of the Acquiror Disclosure Letter sets forth each jurisdiction where Acquiror files or is required to file a Tax Return.
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(b) Acquiror has withheld from amounts owing to any employee, creditor or other Person all material Taxes required by Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for any material Taxes (other than Permitted Liens) upon the property or assets of Acquiror.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted or assessed by any Governmental Authority against Acquiror that remains unpaid.
(e) There is no Tax audit, investigation, examination, or other Action of Acquiror presently in progress, nor has Acquiror been notified of any request or threat for such an audit, investigation, examination, or other Action. There are no waivers, extensions or requests for any waivers or extensions of any statute of limitations currently in effect with respect to any Taxes of Acquiror. Acquiror has not made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes.
(f) Acquiror is not a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and Commercial or Transactional Contracts).
(g) Acquiror has not been a party to any transaction treated by the parties as a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(h) Acquiror (i) is not liable for Taxes of any other Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law, or as a transferee or successor or by Contract (other than a Commercial or Transactional Contract) or (ii) has never been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes.
(i) No written claim has been made by any Governmental Authority where Acquiror does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Acquiror has not, and has never had, a permanent establishment in any country other than the country of its organization, or is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(k) Acquiror has not participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(l) Since the date of its incorporation, Acquiror has not (i) changed any Tax accounting methods, policies or procedures except as required by a change in Law, (ii) made, revoked, or amended any material Tax election, (iii) filed any amended Tax Returns or claim for refund or (iv) entered into any closing agreement affecting or otherwise settled or compromised any material Tax liability or refund.
(m) Acquiror is not a party to, is not bound by and has no obligation under any Tax sharing agreement, Tax indemnification agreement, Tax allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the sharing or ceding of Tax credits or Tax losses) or has a liability or obligation to any person as a result of or pursuant to any such agreement, contract, arrangement or commitment.
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(n) Acquiror does not have any request for a material closing agreement, private letter ruling, or similar ruling in respect of Taxes pending between Acquiror, on the one hand, and any Governmental Authority, on the other hand. The Acquiror has not made a change of any method of accounting with respect to any Taxes.
(o) Acquiror will not be required to include any item of income or exclude any item of deduction for any taxable period ending after the First Closing Date as a result of: (i) adjustment under Section 481 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law) by reason of a change in method of accounting for a taxable period ending on or before the First Closing Date; (ii) any “closing agreement” described in Section 7121 of the Code (or similar provision of state, local or non-U.S. income Tax Law) executed on or before the First Closing Date; (iii) any installment sale or open sale transaction disposition made on or before the First Closing Date; or (iv) any prepaid amount received on or before the First Closing Date outside the ordinary course of business.
(p) Acquiror has not taken any action or agreed to take any action, nor to the knowledge of Acquiror are there any facts or circumstances, that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment.
(q) Acquiror has timely and accurately complied with all applicable U.S. federal income tax reporting and disclosure requirements associated with its classification as a passive foreign investment company under Section 1291 through 1298 of the Code (to the extent applicable) and has operated without violating any applicable anti-deferral regimes.
Section 5.16. Business Activities. Except as set forth on Section 5.16 of the Acquiror Disclosure Letter:
(a) since formation, Acquiror has not conducted any business activities other than activities related to the IPO or directed toward the accomplishment of a Business Combination. Except as set forth in Acquiror’s Governing Documents or as otherwise contemplated by this Agreement or the other Transaction Documents and the transactions contemplated hereby and thereby, there is no agreement, commitment, or Governmental Order binding upon Acquiror or to which Acquiror is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of Acquiror or any acquisition of property by Acquiror or the conduct of business by Acquiror as currently conducted or as contemplated to be conducted as of the First Closing, other than such effects, individually or in the aggregate, which have not been and would not reasonably be expected to be material to Acquiror;
(b) except for the transactions contemplated by this Agreement and the other Transaction Documents, Acquiror does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. Except for this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, Acquiror has no interests, rights, obligations or liabilities with respect to, and is not party to, bound by or have its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or would reasonably be interpreted as constituting, a Business Combination; and
(c) except for Contracts relating to Acquiror Transaction Expenses, this Agreement and the other Transaction Documents to which Acquiror is a party and the other documents and transactions contemplated hereby and thereby, Contracts with the underwriters of Acquiror’s initial public offering, and Contracts relating to working capital loans (as disclosed on Section 5.16 of the Acquiror Disclosure Letter), Acquiror is not as of the date hereof party to any Contract with any other Person that would require payments by Acquiror after the date hereof in excess of $100,000 in the aggregate with respect to any individual Contract (or in the aggregate with any series of related Contracts).
Section 5.17. OTC Markets Quotation. Except as set forth on Section 5.17 of the Acquiror Disclosure Letter, the Acquiror Ordinary Shares, Acquiror Units, and Acquiror Warrants are listed for trading on the OTC Markets Group Inc. (“OTC”) under the symbol “HSPOF,” “HSPUF,” and “HSPWF,” respectively. Acquiror is in compliance in all material respects with the rules of OTC and there is no Action or proceeding pending or, to the knowledge of Acquiror, threatened against Acquiror by OTC, the Financial Industry Regulatory Authority, or the SEC with respect to any intention by such entity to deregister the Acquiror Ordinary Shares, Acquiror Units, and Acquiror Warrants, or terminate the listing of Acquiror Ordinary Shares, Acquiror Units, and Acquiror Warrants on OTC. None of Acquiror nor any of its Affiliates or Representatives has taken any action to terminate the registration of the Acquiror Ordinary Shares, Acquiror Units, and Acquiror Warrants under the Exchange Act except as contemplated by this Agreement or any other Transaction Document.
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Section 5.18. Proxy/Registration Statement. Except as set forth on Section 5.18 of the Acquiror Disclosure Letter, the information supplied by Acquiror in writing specifically for inclusion in the Proxy/Registration Statement shall not, at (a) the time the Proxy/Registration Statement is filed in accordance with Rule 424(b) of the Securities Act and/or pursuant to Section 14A of the Exchange Act or declared effective, (b) the time the Proxy/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to (i) the Acquiror Shareholders and (ii) the Company Shareholders, and (c) the time of (i) the Acquiror Shareholders’ Meeting and (ii) the Company Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, Acquiror makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the Company, its Subsidiaries or their respective Representatives on their respective behalf.
Section 5.19. No Indemnification. Except as set forth on Section 5.19 of the Acquiror Disclosure Letter, there has been no incident that has given, or is reasonably expected to give, rise to any indemnification obligation in respect of any Acquiror Indemnified Parties (as defined below).
Section 5.20. No Outside Reliance. Notwithstanding anything contained in this Article V or any other provision hereof, each of Acquiror and any of its respective directors, managers, officers, employees, equity holders, partners, members or Representatives, acknowledges and agrees that Acquiror has made its own investigation of the Company and that neither the Company nor any of its Affiliates, their respective directors, managers, officers, employees, equityholders, partners, members, agents or Representatives is making any representation or warranty whatsoever, express or implied (other than those expressly given by the Company in Article IV), including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Company or its Subsidiaries. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other predictions that may be contained or referred to in the Company Disclosure Letter or elsewhere, as well as any information, documents or other materials (including any such materials contained in any “data room” (whether or not accessed by Acquiror or its Representatives) or reviewed by Acquiror pursuant to the Confidentiality Clause) or management presentations that have been or shall hereafter be provided to Acquiror or any of its Affiliates or Representatives) are not and will be deemed not to be representations or warranties of the Company, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in this Agreement. Except as otherwise expressly set forth in this Agreement, Acquiror understands and agrees that any assets, properties and business of the Company and its Subsidiaries are furnished “as is,” “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article IV, with all faults and without any other representation or warranty of any nature whatsoever.
Section 5.21. No Additional Representation or Warranties. Except as expressly provided in this Article V, none of Acquiror, any of its Affiliates, or any of their respective directors, managers, officers, employees, shareholders, partners, members or Representatives has made, or is making, any representation or warranty whatsoever to the Company or its Affiliates and no such party shall be liable in respect of the accuracy or completeness of any information provided to the Company or its Affiliates. Without limiting the foregoing, Acquiror acknowledges that the Acquiror and its advisors have made their own investigation of the Company and the Subsidiaries and, except as expressly provided in Article IV, are not relying on any representation or warranty whatsoever as to the condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Company and its Subsidiaries, the prospects (financial or otherwise) or the viability or likelihood of success of the business of the Company and its Subsidiaries as conducted after the Second Closing, whether contained in any materials provided by the Company, its Subsidiaries or any of their respective Affiliates or any of their respective directors, officers, employees, shareholders, partners, members or Representatives or otherwise.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE ACQUISITION ENTITIES
Each Acquisition Entity represents and warrants to the Company and Acquiror, on behalf of itself only, as of the date hereof, as follows (except in the case of Section 6.9,Section 6.10 and Section 6.11, which representations and warranties are made solely by PubCo):
Section 6.1. Company Organization. Such Acquisition Entity has been duly incorporated, formed or organized and is validly existing under the Laws of its jurisdiction of incorporation or organization, and has the requisite company or corporate power, as applicable, and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. The copies of such Acquisition Entity’s Governing Documents, as amended to the date of this Agreement, previously delivered by such Acquisition Entity to the Company and Acquiror, are true, correct and complete. Such Acquisition Entity is duly licensed or qualified and in good standing as a foreign or extra-provincial corporation (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not, individually or in the aggregate, have, or reasonably be expected to have, a material adverse effect on such Acquisition Entity.
Section 6.2. Due Authorization. Such Acquisition Entity has all requisite corporate power and authority to (a) execute and deliver this Agreement and the documents contemplated hereby, and (b) consummate the transactions contemplated hereby and thereby and perform all obligations to be performed by it hereunder and thereunder. The execution and delivery of this Agreement and the other documents to which such Acquisition Entity is a party contemplated hereby and the consummation of the transactions contemplated hereby and thereby have been (i) duly and validly authorized and approved by the board of directors of such Acquisition Entity and (ii) determined by the board of directors of such Acquisition Entity as advisable to such Acquisition Entity and such Acquisition Entity’s shareholders and recommended for approval by such Acquisition Entity’s shareholders. No other company proceeding on the part of such Acquisition Entity is necessary to authorize this Agreement and the other documents to which such Acquisition Entity is a party contemplated hereby. This Agreement has been, and at or prior to the First Closing, the other documents to which such Acquisition Entity is a party contemplated hereby will be, duly and validly executed and delivered by such Acquisition Entity, and this Agreement constitutes, and at or prior to the First Closing, the other documents to which such Acquisition Entity is a party contemplated hereby will constitute, a legal, valid and binding obligation of such Acquisition Entity, enforceable against such Acquisition Entity in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws (currently in effect or enacted following the date hereof) affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
Section 6.3. No Conflict. The execution and delivery by such Acquisition Entity of this Agreement and the other documents to which such Acquisition Entity is a party contemplated hereby and the consummation of the transactions contemplated hereby and thereby do not and will not (a) violate or conflict with any provision of, or result in the breach of or default under the Governing Documents of such Acquisition Entity, (b) violate or conflict with any provision of, or result in the breach of, or default under any applicable Law or Governmental Order applicable to such Acquisition Entity, (c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any Contract to which such Acquisition Entity is a party or by which such Acquisition Entity may be bound, or terminate or result in the termination of any such Contract or (d) result in the creation of any Lien upon any of the properties or assets of such Acquisition Entity, except, in the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not, individually or in the aggregate, have, or reasonably be expected to have, a material adverse effect on the ability of such Acquisition Entity to enter into and perform its obligations under this Agreement.
Section 6.4. Litigation and Proceedings. As of the date hereof (a) there are no pending or, to the knowledge of such Acquisition Entity, threatened Legal Proceedings against such Acquisition Entity, its properties or assets; and (b) there is no outstanding Governmental Order specifically directed at and imposed upon such Acquisition Entity, nor are any properties or assets of such Acquisition Entity or its business bound or subject to any Governmental Order, except, in each case, as would not, individually or in the aggregate, (i) have, or reasonably be expected to have, a material adverse effect on the ability of such Acquisition Entity to enter into and perform its obligations under this Agreement; or (ii) be material to the business of such Acquisition Entity.
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Section 6.5. Governmental Authorities; Consents. Assuming the truth and completeness of the respective representations and warranties of the Company and Acquiror contained in this Agreement, no consent, waiver, approval or authorization of, or designation, declaration or filing with, or notification to, any Governmental Authority or other Person is required on the part of such Acquisition Entity with respect to such Acquisition Entity’s execution or delivery of this Agreement or the consummation of the transactions contemplated hereby, except (a) for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not, individually or in the aggregate, (i) have, or reasonably be expected to have, a material adverse effect on the ability of such Acquisition Entity to enter into and perform its obligations under this Agreement, or (ii) be or reasonably be expected to be material to the business of the Acquisition Entities (taken as a whole), (b) each Acquisition Entity’s shareholders’ approval, and (c) the filing of the Proxy/Registration Statement with the SEC, the registration of the Plan of First Merger, the Plan of Second Merger and related documentation with the Cayman Registrar and publication of notification of the Mergers in the Cayman Islands Government Gazette, in each case in accordance with the Cayman Companies Act.
Section 6.6. Capitalization of Acquisition Entities.
(a) As of the date of this Agreement, the authorized share capital of (i) PubCo is US$50,000 divided into 500,000,000 ordinary shares of par value of US$0.0001 each (the “Pre-Closing PubCo Ordinary Shares”), of which one such share (such shares, as the same may be consolidated, subdivided or reclassified after the date of this Agreement), is issued and outstanding as of the date of this Agreement, (ii) Merger Sub I is US$50,000 divided into 5,000,000 ordinary shares of par value of US$0.01 each, of which one such share (the “Merger Sub I Share”) is issued and outstanding as of the date of this Agreement, and (iii) Merger Sub II is US$50,000 divided into 5,000,000 ordinary shares of par value of US$0.01 each, of which one such share (the “Merger Sub II Share”) is issued and outstanding as of the date of this Agreement. The foregoing represents all of the issued and outstanding Equity Securities of each of PubCo, Merger Sub I and Merger Sub II, respectively, as of the date of this Agreement. All of the issued and outstanding Equity Securities of the respective Acquisition Entities (1) have been duly authorized and validly issued and allotted and are fully paid; (2) have been offered, sold, transferred and issued in compliance with applicable Law in all material respects, including the Cayman Companies Act and federal and state securities Laws, and all requirements set forth in (A) the Governing Documents of the respective Acquisition Entities and (B) any other applicable Contracts governing the issuance or allotment of such securities to which the relevant Acquisition Entity is a party or otherwise bound; (3) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the Governing Documents of the respective Acquisition Entities or any Contract to which the relevant Acquisition Entity is a party or otherwise bound; and (4) were issued free and clear of any Liens (other than each Acquisition Entity’s own Lien with respect to the issued shares in its share capital as provided for in the Governing Documents of the relevant Acquisition Entity). All filings and returns required by applicable Law to be delivered or made by the relevant Acquisition Entity to the relevant authorities in the Cayman Islands or any other jurisdiction in respect of all issuances and transfers of Equity Securities of such relevant Acquisition Entity has been duly and correctly delivered or made on a timely basis, except that the failure of which would not, and could not be reasonably be expected to, individually or in the aggregate, have a material adverse effect on the relevant Acquisition Entity.
(b) Except as set forth in this Section 6.6 or as contemplated by this Agreement or the other documents to which such Acquisition Entity is a party contemplated hereby, such Acquisition Entity has not granted any outstanding options, warrants, rights or other securities convertible, exercisable or exchangeable for any shares of such Acquisition Entity, or any other commitments or agreements providing for the issuance of additional shares, the sale of treasury shares, for the repurchase or redemption of any shares of such Acquisition Entity or the value of which is determined by reference to the shares of such Acquisition Entity, and there are no Contracts of any kind which may obligate such Acquisition Entity to issue, purchase, redeem or otherwise acquire any shares of such Acquisition Entity.
(c) Such Acquisition Entity has no Subsidiaries (other than Merger Sub I and Merger Sub II being wholly-owned Subsidiaries of PubCo), and does not own, directly or indirectly, any equity interests or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated. Such Acquisition Entity is not a party to any Contract that obligates such Acquisition Entity to invest money in, loan money to or make any capital contribution to any other Person.
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Section 6.7. Brokers’ Fees. Except for fees described on Section 4.32 of the Company Disclosure Letter, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated hereby based upon arrangements made by such Acquisition Entity.
Section 6.8. Business Activities. Since formation, such Acquisition Entity has not conducted any business activities other than those directed toward the consummation of the Transactions. Except as set forth in such Acquisition Entity’s Governing Documents or as otherwise contemplated by this Agreement or the other Transaction Documents and the transactions contemplated hereby and thereby, there is no agreement, commitment, or Governmental Order binding upon such Acquisition Entity or to which such Acquisition Entity is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of such Acquisition Entity or any acquisition of property by such Acquisition Entity or the conduct of business by such Acquisition Entity as currently conducted or as contemplated to be conducted as of the First Closing, other than such effects, individually or in the aggregate, which have not been and would not reasonably be expected to be material to such Acquisition Entity.
Section 6.9. Consideration Shares. The First Merger Consideration Shares and Second Merger Consideration Shares, when issued in accordance with the terms hereof, shall be duly authorized and validly issued and allotted, fully paid and non-assessable and issued or allotted in compliance with all applicable Law in all material respects, including state and federal securities Laws, and not subject to, and not issued in violation of, any Lien (other than PubCo ’s own Lien as provided for in the PubCo Charter and a voting rights and control agreement entered into among the Requisite Company Shareholders dated May 18, 2026), purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of applicable Law, PubCo’s Governing Documents, or any Contract to which PubCo is a party or otherwise bound.
Section 6.10. PubCo Warrants. The PubCo Warrants, when issued in accordance with the terms hereof, (i) shall be duly authorized and validly issued, and constitute valid and binding obligations of PubCo, enforceable against PubCo in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws (currently in effect or enacted following the date hereof) affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity; (ii) have been offered, sold and issued in compliance in all material respects with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) PubCo’s Governing Documents and (2) any other applicable Contracts governing the issuance of such securities; and (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, PubCo’s Governing Documents or any Contract to which PubCo is a party or otherwise bound.
Section 6.11. Foreign Private Issuer and Emerging Growth Company. PubCo is and shall be at all times commencing from the date thirty (30) days prior to the first filing of the Proxy/Registration Statement with the SEC through the Second Closing, (a) a foreign private issuer as defined in Rule 405 under the Securities Act and (b) an “emerging growth company” as that term is defined in the JOBS Act.
Section 6.12. Intended Tax Treatment. Such Acquisition Entity has not taken any action or agreed to take any action, nor to the knowledge of such Acquisition Entity are there any facts or circumstances, that could reasonably be expected to prevent, impair or impede the Intended Tax Treatment.
Section 6.13. No Outside Reliance. Notwithstanding anything contained in this Article VI or any other provision hereof, such Acquisition Entity and any of its respective directors, managers, officers, employees, equity holders, partners, members or Representatives, acknowledge and agree that such Acquisition Entity has made its own investigation of Acquiror and the Company and that neither Acquiror, the Company nor any of their respective Affiliates, agents or Representatives is making any representation or warranty whatsoever, express or implied (other than those expressly given by the Company in Article IV and Acquiror in Article V), including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Company or Acquiror. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other predictions that may be provided by the Company or Acquiror, as well as any information, documents or other materials or management presentations that have been or shall hereafter be provided to any Acquisition Entity, its Subsidiaries or any of its Affiliates or Representatives are not and will be deemed not to be representations or warranties of the Company or Acquiror, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in this Agreement. Except as otherwise expressly set forth in this Agreement, such Acquisition Entity understands and agrees that any assets, properties and business of the Company or Acquiror are furnished “as is,” “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article IV and Article V, with all faults and without any other representation or warranty of any nature whatsoever.
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ARTICLE VII
COVENANTS OF THE COMPANY & THE ACQUISITION ENTITIES
Section 7.1. Conduct of Business. From the date of this Agreement through the earlier of the Second Closing or valid termination of this Agreement pursuant to Article XI (the “Interim Period”), each of PubCo, Merger Sub I, Merger Sub II and the Company shall, and the Company shall cause its Subsidiaries to, except (i) as otherwise explicitly contemplated by this Agreement or the other Transaction Documents, (ii) as required by Law or (iii) as consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), (A) use reasonable best efforts to operate its business in the ordinary course consistent with past practice; and (B) comply with its Governing Documents, except solely in the case of any Subsidiary of the Company, where non-compliance by such Subsidiary would not be material to the Transactions or to the business of the Company and its Subsidiaries taken as a whole. Without limiting the generality of the foregoing, except as set forth on Section 7.1 of the Company Disclosure Letter or as consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), PubCo, Merger Sub I, Merger Sub II and the Company shall not, and the Company shall cause its Subsidiaries not to, except as otherwise contemplated by this Agreement or the other Transaction Documents or required by Law:
(a) (i) change or amend the Governing Documents of the Company or the Governing Documents of any of the Company’s Subsidiaries, except in the case of any of the Company’s Subsidiaries only, for any such amendment which is not material to the Transactions or to the business of the Company and its Subsidiaries, taken as a whole; or (ii) form or cause to be formed any new Subsidiary of PubCo, Merger Sub I or Merger Sub II;
(b) make or declare any dividend or distribution to its shareholders or make any other distributions in respect of any of its Equity Securities (other than dividends by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company);
(c) (i) split or subdivide, combine or consolidate, reclassify, recapitalize or otherwise amend any terms of any shares or series of its or any of its Subsidiaries’ Equity Securities, except for any such transaction by a wholly-owned Subsidiary of the Company for its own Equity Securities where such Subsidiary remains a wholly-owned Subsidiary of the Company after consummation of such transaction; or (ii) amend any term or alter any rights of any of its outstanding Equity Securities;
(d) purchase, repurchase, redeem or otherwise acquire any of its issued and outstanding share capital or outstanding Equity Securities or Equity Securities of its Subsidiaries, except for transactions solely among the Company, any wholly-owned Subsidiary of the Company or among wholly-owned Subsidiaries of the Company in any such case for Equity Securities of a wholly-owned Subsidiary of the Company;
(e) enter into, modify in any material respect or terminate (other than expiration in accordance with its terms) any Contract of a type required to be listed on Section 4.12(a) of the Company Disclosure Letter, or any Real Property Lease, in each case, other than in the ordinary course of business consistent with past practice or as required by Law;
(f) sell, assign, transfer, convey, lease, exclusively license or otherwise dispose of any of its material tangible assets or properties, except for (i) dispositions of obsolete or worthless equipment or other tangible assets or properties, (ii) transactions solely among the Company and its wholly-owned Subsidiaries or among its wholly-owned Subsidiaries, and (iii) transactions in the ordinary course of business;
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(g) except as otherwise required by Law and for existing Company Benefit Plans or the Contracts listed on Section 4.12(a) or Section 4.13(f) of the Company Disclosure Letter, (i) increase or grant any equity or equity based awards (except as permitted by Section 7.1(n)) or other severance, retention, change in control or termination or similar pay, (ii) hire or terminate (other than for cause or due to death or disability) any employee or consultant of the Company or any Subsidiary of the Company other than any employee or consultant with an annual base salary that does not exceed $200,000 and who is not an Executive-level Employee, (iii) terminate, adopt, enter into or materially amend any Company Benefit Plan, except for entering into, terminating or taking any other action with respect to any employment or engagement arrangements, to the extent not otherwise prohibited under any other sub-section of this Section 7.1(g), (iv) materially increase the cash compensation or bonus opportunity of any employee, officer, director or individual independent contractor, except in the ordinary course of business, (v) establish any trust or take any other action to secure the payment of any compensation payable by the Company or any of the Company’s Subsidiaries or (vi) take any action to amend or waive any performance or vesting criteria or to accelerate the time of payment or vesting of any compensation or benefit payable or provided by the Company or any of the Company’s Subsidiaries, except in the ordinary course of business consistent with past practice;
(h) (i) acquire (whether by merger, consolidation, amalgamation, scheme or similar transaction, purchase of securities of or otherwise) any corporation, partnership, association, joint venture or other business organization or division thereof; or (ii) make any acquisition of, or investment in, a business, by purchase of stock, securities or assets, contributions to capital, or loans or advances, in any such case with a value or purchase price in excess of $1,000,000 individually or $2,000,000 in the aggregate, other than the ordinary course funding and cash management by the Company or its Subsidiaries;
(i) in the case of PubCo, Merger Sub I and Merger Sub II only, acquire (whether by merger, consolidation, amalgamation, scheme or similar transaction, purchase of securities of, making any investment in or otherwise) any corporation, partnership, association, joint venture or other business organization or division thereof; or (ii) make any acquisition of, or investment in, a business, by purchase of stock, securities or assets, contributions to capital, or loans or advances;
(j) issue or sell any debt securities or options, warrants or other rights to acquire any debt securities of PubCo, Merger Sub I, Merger Sub II or the Company or any Subsidiary of the Company or otherwise incur, assume or guarantee or otherwise become liable for any Indebtedness, other than (i) in the case of the Company and its Subsidiaries only, in a principal amount not exceeding $1,000,000 in aggregate or (ii) borrowings under credit agreements disclosed in Section 7.1(j) of the Company Disclosure Letter, in the form and within the limits that exist on the date hereof;
(k) (i) make or change any material election in respect of Taxes, (ii) amend, modify or otherwise change any filed material Tax Return, (iii) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (iv) enter into any closing agreement or other binding written agreement with a Governmental Authority in respect of material Taxes or enter into any Tax sharing agreement or similar agreement (other than a Commercial or Transactional Agreement), (v) settle any claim or assessment in respect of material Taxes, (vi) surrender or allow to expire any right to claim a refund of material Taxes or (vii) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes for a period in excess of twenty-four (24) months;
(l) except as contemplated by this Agreement, the Transaction Documents, and the Transactions, take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent, impair or impede the Intended Tax Treatment;
(m) discharge any secured or unsecured obligation or liability (whether accrued, absolute, contingent or otherwise) which individually or in the aggregate exceeds $150,000, except as such obligations become due or in the ordinary course of business consistent with past practice;
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(n) issue, sell, grant, pledge, transfer or otherwise dispose of (i) any of its Equity Securities, (ii) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitment obligations to issue, deliver or sell any Equity Securities of the Company, any Subsidiary of the Company, PubCo, Merger Sub I or Merger Sub II, or (iii) amend, waive or modify any terms or rights of or attaching to any Equity Securities of any of them, in each case of the foregoing (i), (ii) and (iii), other than (y) Company Ordinary Shares upon conversion of the applicable Company Shares outstanding as of the date hereof in accordance with the Company Charter as of the date hereof and (z) issuance of Equity Securities by a Subsidiary of the Company (1) to the Company or a wholly-owned Subsidiary of the Company or (2) on a pro rata basis to all shareholders of such Subsidiary;
(o) adopt a plan of, or otherwise enter into or effect a, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or winding up of PubCo, Merger Sub I, Merger Sub II or the Company or any of the Company’s Subsidiaries, other than liquidation or dissolution of any dormant Subsidiary of the Company;
(p) waive, release, settle, compromise or otherwise resolve any Legal Proceedings, except in the ordinary course of business or where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $100,000 in the aggregate;
(q) assign or grant to, or agree to assign or grant to, any Person rights to any Intellectual Property or software that is material to the Company and its Subsidiaries taken as a whole, or dispose of, abandon or permit to lapse any rights to any Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole, except for (i) the expiration of Company Registered Intellectual Property in accordance with the applicable statutory term (or in the case of domain names, applicable registration period) and (ii) non-exclusive licenses entered into in the ordinary course of business consistent with past practice;
(r) disclose or agree to disclose to any Person (other than Acquiror or any of its Representatives) any trade secret of the Company or any of its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice and pursuant to obligations to maintain the confidentiality thereof;
(s) make or commit to make capital expenditures other than in an amount not in excess of $1,000,000, in the aggregate;
(t) manage the Company’s and its Subsidiaries’ working capital (including paying amounts payable in a timely manner when due and payable) in a manner other than in the ordinary course of business consistent with past practice;
(u) other than as required by applicable Law, enter into or extend any collective bargaining agreement or similar labor agreement between the Company or any of the Company’s Subsidiaries, on one hand, and any labor union or other labor organization representing employees of the Company or any of the Company’s Subsidiaries, on the other hand, or recognize or certify any labor union or labor organization as the bargaining representative for any employees of the Company or its Subsidiaries;
(v) terminate without replacement, abrogate, suspend, or fail to use reasonable efforts to maintain any License material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(w) expressly waive the written restrictive covenant obligations of any current or former employee of the Company or any of the Company’s Subsidiaries;
(x) (i) limit its right or the right of any of its Subsidiaries to engage in any line of business or in any geographic area, to develop, market or sell products or services, or to compete with any Person or (ii) grant any exclusive or similar rights to any Person, in each case, except where such limitation or grant does not, and would not be reasonably likely to, individually or in the aggregate, adversely affect, or disrupt, in any material respect, the ordinary course operation of the businesses of the Company and its Subsidiaries, taken as a whole;
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(y) terminate without replacement or amend in a manner adverse, in any material respect, to the Company and its Subsidiaries, taken as a whole, any insurance policy insuring any risks of the business of the Company or any of the Company’s Subsidiaries;
(z) make any material change in its accounting principles or methods unless required by GAAP or applicable Law or, to the extent applicable to the PubCo, Merger Sub I, Merger Sub II, the Company or a Subsidiary, applicable local accounting standards;
(aa) other than (i) expressly required by any Transaction Document or (ii) Contract relating to Company Transaction Expenses, and those employment agreements, indemnification agreements, Contracts covered by any Company Benefit Plan, confidentiality agreements, non-competition agreements or any other agreement of similar nature in each case entered into on arm’s length terms in the ordinary course consistent with past practice with employees (other than Executive-level Employees), enter into, renew or amend in any material respect or terminate, any Contract with a Company Related Party prior to the Second Closing;
(bb) in the case of the Acquisition Entities only, conduct any business activities other than those solely related to the consummation of the Transactions;
(cc) in the case of the Acquisition Entities only, incur, guarantee or otherwise become liable for any Indebtedness; or
(dd) enter into any agreement to do any action prohibited under this Section 7.1.
Section 7.2. Inspection. Subject to confidentiality obligations that may be applicable to information furnished to the Company or any of the Company’s Subsidiaries by third parties that may be in the Company’s or any of its Subsidiaries’ possession from time to time, and except for any information that is subject to attorney-client privilege (provided that, to the extent possible, the parties shall cooperate in good faith to permit disclosure of such information in a manner that preserves such privilege or compliance with such confidentiality obligations), and to the extent permitted by applicable Law, each of PubCo, Merger Sub I, Merger Sub II and the Company shall, and the Company shall cause its Subsidiaries to, afford to Acquiror and its Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance notice, in such manner as to not materially interfere with the ordinary course of business of the Company and its Subsidiaries taken as a whole, to all of their respective properties, books, Contracts, commitments, Tax Returns, records and appropriate officers and employees of PubCo, Merger Sub I, Merger Sub II and the Company and the Company’s Subsidiaries, and shall furnish such Representatives with all material financial and operating data and other information that are in the possession or control of the Company or any of its Subsidiaries or PubCo, Merger Sub I or Merger Sub II concerning the affairs of PubCo, Merger Sub I, Merger Sub II or the Company or any of the Company’s Subsidiaries as such Representatives may reasonably request for the purposes of and in connection with the Transactions or any Transaction Documents, including information and such other materials and resources relating to any Legal Proceeding initiated, pending or threatened during the Interim Period, or to the compliance and risk management operations and activities of PubCo, Merger Sub I, Merger Sub II and the Company and the Company’s Subsidiaries during the Interim Period. All information obtained by Acquiror or its respective Representatives pursuant to this Section 7.2 shall be subject to the Confidentiality Clause.
Section 7.3. Preparation and Delivery of Company Financial Statements.
(a) As promptly as practicable after the date of this Agreement but in no event later than the first confidential submission of the Proxy/Registration Statement (“Audit Delivery Date”), the Company shall deliver to Acquiror, the audited consolidated financial statements of the Company for the fiscal years ended and as of March 31, 2025 and 2026 (including, in each case, any related notes thereto), that are required for the initial filing of the Proxy/Registration Statement pursuant to the Securities Act and the rules and regulations promulgated thereunder (the “Required Financial Statements”).
(b) If the Second Merger Effective Time has not occurred prior to December 31, 2026, the Company shall deliver to Acquiror and PubCo (i) unaudited consolidated statements of financial position and unaudited consolidated statements of comprehensive income, cash flow and shareholders’ equity of the Company and its Subsidiaries as of and for the six months ending September 30, 2026 which comply in all material respects with the applicable accounting requirements (including the standard of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “2026 Interim Financial Statements,” together with the Required Financial Statements, the “Company Financial Statements”); and (ii) pro forma consolidated financial statements in respect of the Company and its Subsidiaries and the Acquiror using the Acquiror’s unaudited statement of operations, cash flow and shareholders’ equity as of and for the period ending September 30, 2026, which comply in all material respects with the applicable accounting requirements (including the standard of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Pro Forma Financial Statements”).
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(c) Each of the Company, PubCo, Merger Sub I and Merger Sub II shall use its reasonable best efforts to (i) assist Acquiror, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of the Company and its Subsidiaries, in preparing in a timely manner other financial information or statements (including customary pro forma financial statements) that are required to be included in the Proxy/Registration Statement and any other filings to be made by PubCo, Acquiror or the Company with the SEC in connection with the Transactions, and (ii) to obtain the consent of its auditors with respect thereto as may be required by applicable Law or requested by the SEC in connection therewith.
Section 7.4. Alternative Proposals. From the date hereof until the Second Closing Date or, if earlier, the termination of this Agreement in accordance with Article XI, PubCo, Merger Sub I, Merger Sub II and the Company shall not (and the Company shall cause its Subsidiaries not to), and none of them shall permit any of their respective Representatives to, (a) solicit, initiate, facilitate or encourage any inquiries, proposals, indications of interest or offers that constitute, or that would reasonably be expected to constitute or lead to, an Alternative Proposal, (b) engage in, continue or otherwise participate in any discussions or negotiations with any third-party regarding an Alternative Proposal, or furnish to any third-party non-public information or provide to any third-party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Alternative Proposal, (c) enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an Alternative Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an Alternative Proposal. From and after the date hereof, the Company shall, and shall direct its Subsidiaries and controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than Acquiror, Sponsor and their Representatives) with respect to an Alternative Proposal.
Section 7.5. Exchange Listing. From the date of this Agreement through the earlier of Second Closing or termination of this Agreement, PubCo shall apply for, and shall use reasonable best efforts to cause, and the Company shall provide all reasonable assistance reasonably required by PubCo in order for PubCo to cause, the PubCo Ordinary Shares to be issued in connection with the Transactions to be approved for listing on The Nasdaq Stock Market LLC (“Nasdaq”) and accepted for clearance by the DTC, subject to official notice of issuance, prior to the Second Closing Date.
Section 7.6. Notice of Developments. From and after the date of this Agreement until the earlier of the Second Closing or the termination of this Agreement in accordance with its terms, each of PubCo, Merger Sub I, Merger Sub II and the Company shall promptly (and in any event prior to the Second Closing) notify Acquiror in writing, upon PubCo, Merger Sub I, Merger Sub II or the Company or any of the Company’s Subsidiaries, as applicable, becoming aware (awareness being determined with reference to the knowledge of the Company) of: (a) the occurrence or non-occurrence of any event the occurrence or non-occurrence of which has caused or is reasonably likely to cause any condition to the obligations of any party to effect the Transactions not to be satisfied, (b) any breach of a representation or warranty given by the Company in Article IV or by any Acquisition Entity in Article VI or (c) any notice or other communication from any Governmental Authority which is reasonably likely, individually or in the aggregate, to have an adverse effect in any material respect on the ability of the parties hereto (other than the Acquiror) to consummate the Transactions or to materially delay the timing thereof. The delivery of any notice pursuant to this Section 7.6 shall not cure any breach of any representation or warranty requiring disclosure of such matter or any breach of any covenant, condition or agreement contained in this Agreement or any other Transaction Document or otherwise limit or affect the rights of, or the remedies available to, Acquiror.
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Section 7.7. No Trading. Each of the Company, PubCo, Merger Sub I and Merger Sub II acknowledges and agrees that it is aware, and that its Affiliates have been made aware of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise and other applicable foreign and domestic Laws on a Person possessing material non-public information about a publicly traded company. Each of the Company, PubCo, Merger Sub I and Merger Sub II hereby agrees that it shall not and shall cause its Subsidiaries not to purchase or sell any securities of Acquiror in violation of such Laws, or cause or encourage any Person to do the foregoing.
Section 7.8. Shareholder Litigation. Without limiting Section 7.1 above: (a) in the event that any litigation related to this Agreement, any other Transaction Document or the transactions contemplated hereby or thereby is brought, or, to the knowledge of the Company, PubCo, Merger Sub I or Merger Sub II, threatened in writing, against the Company or any of its Subsidiaries, PubCo, Merger Sub I or Merger Sub II or the board of directors of the Company or any of its Subsidiaries, PubCo, Merger Sub I or Merger Sub II by any Company Shareholders prior to the Second Closing, the Company, PubCo, Merger Sub I or Merger Sub II, as applicable, shall promptly after becoming aware of such litigation notify Acquiror of such litigation and keep Acquiror reasonably informed with respect to the status thereof; and (b) the Company, PubCo, Merger Sub I and Merger Sub II shall provide Acquiror the opportunity to participate in (at Acquiror’s own cost and expense and subject to a customary joint defense agreement), but not control, the defense of any such litigation, shall consider in good faith Acquiror’s suggestions with respect to such litigation and shall not settle any such litigation without prior written consent of Acquiror, such consent not to be unreasonably withheld, conditioned, delayed or denied.
Section 7.9. Employee Matters.
(a) No Third-Party Beneficiaries. Notwithstanding anything herein to the contrary, each of the parties to this Agreement acknowledges and agrees that all provisions contained in this Section 7.9 are included for the sole benefit of Acquiror, PubCo, Merger Sub I, Merger Sub II and the Company, and that nothing in this Agreement, whether express or implied, (i) shall be construed to establish, amend, or modify any Company Benefit Plan or other employee benefit plan, program, agreement or arrangement, (ii) shall limit the right of PubCo, the Company or their respective Affiliates to amend, terminate or otherwise modify any Company Benefit Plan or other employee benefit plan, agreement or other arrangement following the Second Closing Date, or (iii) shall confer upon any Person (including any equity holder, any current or former director, manager, officer, employee or independent contractor of the Company or any of its Subsidiaries, or any participant in any Company Benefit Plan or other employee benefit plan, agreement or other arrangement (or any dependent or beneficiary thereof)), any right to continued or resumed employment or recall, any right to compensation or benefits, or any third-party beneficiary (other than for any party to this Agreement) or other right of any kind or nature whatsoever.
Section 7.10. Shareholder Proxies. To the extent required for purposes of obtaining the Company Shareholder Approval, as soon as practicable following the date of this Agreement, the Company shall use commercially reasonable efforts to solicit from its shareholders (other than any Company Shareholder which is a party to the Company Shareholders Support Agreement) the agreement of such shareholders (in a form reasonably satisfactory to Acquiror) to vote (whether pursuant to a duly convened meeting of the shareholders of the Company or to approve by way of a written resolution of the shareholders of the Company) in favor of the Company Shareholder Approval, and/or to appoint individuals designated by the Company as proxies to vote in favor of the Company Shareholder Approval.
Section 7.11. Transaction Documents. Except as otherwise contemplated by this Agreement or the other Transaction Documents, during the Interim Period, none of PubCo, Merger Sub II, Merger Sub I or the Company shall amend any Transaction Document or the Company Charter, or agree to amend any Transaction Document or the Company Charter, unless consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, or delayed).
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Section 7.12. Reference to the Surviving Company. For the purpose of this Article VII, when referring to “Merger Sub II” or “the Company,” it shall be understood that it includes the Surviving Company if the Second Merger has been completed, to the extent applicable.
ARTICLE VIII
COVENANTS OF ACQUIROR
Section 8.1. Trust Account Proceeds and Related Available Equity. Upon satisfaction or waiver of the conditions set forth in Article X and provision of notice thereof to the Trustee (which notice shall be provided by Acquiror to the Trustee in accordance with the terms of the Trust Agreement), (a) in accordance with and pursuant to the Trust Agreement, at the First Closing, Acquiror shall (i) cause any documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (ii) use its reasonable best efforts to cause the Trustee to, and the Trustee shall thereupon be obligated to (1) pay as and when due all amounts payable to Acquiror Shareholders pursuant to the Acquiror Share Redemptions and pay to the underwriters of the IPO all outstanding deferred underwriting commissions, (2) pay all accrued and unpaid Acquiror Transaction Expenses, as set forth on a written statement to be delivered to PubCo by or on behalf of Acquiror, not less than two (2) Business Days prior to the First Closing Date, which shall include the respective amounts and wire transfers instructions for the payment thereof, (3) pay all accrued and unpaid Company Transaction Expenses, as set forth on a written statement to be delivered to PubCo by or on behalf of the Company, not less than two (2) Business Days prior to the First Closing Date, which shall include the respective amounts and wire transfers instructions for the payment thereof, and (4) after the deductions contemplated in (1), (2) and (3), on the Second Closing Date, pay all remaining amounts then available in the Trust Account (if any) (the “Remaining Trust Fund Proceeds”) to a bank account designated by the Surviving Subsidiary for its immediate use, subject to this Agreement and the Trust Agreement, and (b) thereafter, the Trust Agreement shall terminate, except as otherwise provided therein. If a bank account of PubCo or any of its Subsidiaries is designated by the Surviving Subsidiary under Section8.1(a)(ii)(4), the payment of the Remaining Trust Fund Proceeds to such bank account may be treated as (i) an advance from the Surviving Subsidiary to PubCo or such Subsidiary of PubCo, or (ii) a dividend from the Surviving Subsidiary to PubCo, in each case, as determined by the Surviving Subsidiary in its sole discretion, subject to applicable Laws.
Section 8.2. OTC Quotation. From the date of this Agreement through the First Merger Effective Time, Acquiror shall use its reasonable best efforts to ensure Acquiror Ordinary Shares remain quoted on OTC.
Section 8.3. No Solicitation by Acquiror. From the date hereof until the First Closing Date or, if earlier, the termination of this Agreement in accordance with Article XI, Acquiror shall not, and shall direct the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly (a) solicit, initiate, facilitate or encourage any inquiries, proposals, indications of interest or offers that constitute, or that would reasonably be expected to constitute or lead to, an Acquiror Acquisition Proposal, (b) engage in, continue or otherwise participate in any discussions or negotiations with any third-party regarding an Acquiror Acquisition Proposal, or furnish to any third-party non-public information or provide to any third-party access to the businesses, properties, assets or personnel of Acquiror, in each case for the purpose of encouraging or facilitating an Acquiror Acquisition Proposal, (c) enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an Acquiror Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an Acquiror Acquisition Proposal. From and after the date hereof, Acquiror shall, and shall direct the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Company and its Representatives) with respect to an Acquiror Acquisition Proposal. Notwithstanding the foregoing but subject to Section 12.14, nothing else in this Agreement shall prohibit Acquiror, or the Acquiror Board from making any legally required disclosure, including legally required disclosure of factual information regarding the business, financial condition or results of operations of Acquiror.
Section 8.4. Acquiror Conduct of Business. During the Interim Period, Acquiror shall, except (i) as otherwise explicitly contemplated by this Agreement or the other Transaction Documents, (ii) as required by Law, (iii) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) or (iv) as set forth in Section 8.4 of the Acquiror Disclosure Letter, (A) use reasonable best efforts to operate its business in the ordinary course consistent with past practice and (B) comply with its Governing Documents. Without limiting the generality of the foregoing, except as set forth on Section 8.4 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Acquiror shall not, except as otherwise contemplated by this Agreement or the other Transaction Documents or as required by Law:
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(a) seek any approval from the Acquiror Shareholders, to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror, except as contemplated by the Transaction Proposals;
(b) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(c) (i) make or declare any dividend or distribution to its shareholders or make any other distributions in respect of any of its Equity Securities, (ii) subdivide, consolidate, reclassify or otherwise amend any terms of its Equity Securities, or (iii) purchase, repurchase, redeem or otherwise acquire any of its issued and outstanding Equity Securities, other than redemptions of Acquiror Ordinary Shares made as part of the Acquiror Share Redemptions;
(d) (i) make or change any material election in respect of Taxes, (ii) amend, modify or otherwise change any filed material Tax Return, (iii) adopt or request permission of any Tax authority to change any accounting method in respect of material Taxes, (iv) enter into any closing agreement or other binding written agreement in respect of material Taxes or enter into any Tax sharing or similar agreement, (v) settle any claim or assessment in respect of material Taxes, (vi) surrender or allow to expire any right to claim a refund of material Taxes, or (vii) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any Tax attribute that would give rise to any claim or assessment of Taxes;
(e) except as contemplated by this Agreement, the Transaction Documents, and the Transactions, take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent, impair or impede the Intended Tax Treatment;
(f) other than as expressly required or contemplated by the Sponsor Parties Support Agreement or any other Transaction Document, enter into, renew or amend in any material respect, any Contract, other than any Contract relating to a working capital loan, any Contract related to Acquiror Transaction Expenses, any Contract relating to the non-redemption of Acquiror Ordinary Shares or any other Contract set out in the Acquiror Disclosure Letter;
(g) incur, guarantee or otherwise become liable for any Indebtedness, other than (i) liabilities incurred in the ordinary course of business and in an amount, individually or in the aggregate, not to exceed $100,000, (ii) any Acquiror Transaction Expenses, (iii) working capital loans and (iv) other Indebtedness as set out in Section 8.4(g) of the Acquiror Disclosure Letter;
(h) (i) issue any Equity Securities or securities exercisable for or convertible into Equity Securities, or (ii) grant any options, warrants or other equity-based awards with respect to any Equity Securities not outstanding on the date hereof,
(i) make any change in its accounting principles or methods unless required by GAAP;
(j) form any Subsidiary;
(k) liquidate, dissolve, reorganize or otherwise wind-up its business and operations of Acquiror; or
(l) enter into any agreement to do any action prohibited under this Section 8.4.
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Section 8.5. Acquiror Public Filings. From the date hereof through the First Merger Effective Time, Acquiror will use reasonable efforts to keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Laws.
Section 8.6. Shareholder Litigation. Without limiting Section 8.4 above, in the event that any litigation related to this Agreement, any other Transaction Document or the transactions contemplated hereby or thereby is brought, or, to the knowledge of Acquiror, threatened in writing, against Acquiror or the board of directors of Acquiror by any Acquiror Shareholders prior to the First Closing, Acquiror shall promptly after becoming aware of such litigation notify the Company of any such litigation and keep the Company reasonably informed with respect to the status thereof. Acquiror shall provide the Company the opportunity to participate in (at its own cost and subject to a customary joint defense agreement), but not control, the defense of any such litigation, and shall consider in good faith the Company’s suggestions with respect to such litigation and shall not settle any such litigation without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned, delayed or denied.
Section 8.7. Transaction Documents. Except as otherwise contemplated by this Agreement or the other Transaction Documents, during the Interim Period, Acquiror shall not amend any Transaction Document, or agree to amend any Transaction Document, unless consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, or delayed).
Section 8.8. Exchange Listing. From the date of this Agreement through the earlier of the Second Closing or termination of this Agreement, Acquiror shall make all reasonable best efforts to assist PubCo or the Company in connection with causing the PubCo Ordinary Shares to be issued in connection with the Transactions to be approved for listing on Nasdaq and accepted for clearance by the DTC, subject to official notice of issuance, prior to the Second Closing Date.
Section 8.9. Notice of Developments. From and after the date of this Agreement until the earlier of the Second Closing or the termination of this Agreement in accordance with its terms, Acquiror shall promptly (and in any event prior to the Second Closing) notify the Company and the Acquisition Entities in writing upon becoming aware of (awareness being determined with reference to the knowledge of Acquiror): (a) the occurrence or non-occurrence of any event the occurrence or non-occurrence of which has caused or is reasonably likely to cause any condition to the obligations of any party to effect the Transactions not to be satisfied, (b) any breach of a representation or warranty given by Acquiror in Article V or (c) any notice or other communication from any Governmental Authority that is reasonably likely, individually or in the aggregate, to have an adverse effect in any material respect on the ability of Acquiror to consummate the Transactions or to materially delay the timing thereof. The delivery of any notice pursuant to this Section 8.9 shall not cure any breach of any representation, warranty, covenant, condition or agreement contained in this Agreement or any other Transaction Document or otherwise limit or affect the rights of, or remedies available to, the Company or the Acquisition Entities.
ARTICLE IX
JOINT COVENANTS
Section 9.1. Regulatory Approvals; Other Filings.
(a) Each of the Company, PubCo, Acquiror, Merger Sub I and Merger Sub II shall use its commercially reasonable efforts to cooperate in good faith with any Governmental Authority and use its commercially reasonable efforts to undertake promptly any and all action required to obtain those regulatory approvals, consents, Actions, nonactions or waivers, and to provide any necessary or advisable regulatory notifications in connection with the Transactions (the “Regulatory Approvals”) as soon as reasonably practicable and any and all action necessary to consummate the Transactions as contemplated hereby. Each of the Company, PubCo, Acquiror, Merger Sub I and Merger Sub II shall use commercially reasonable efforts to cause the expiration or termination of the waiting, notice or review periods under any applicable Regulatory Approval with respect to the Transactions as promptly as reasonably possible after the execution of this Agreement.
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(b) With respect to each of the above filings, and any other requests, inquiries, Actions or other proceedings by or from Governmental Authorities, each of the Company, PubCo, Merger Sub I, Merger Sub II and Acquiror shall (and, to the extent required, shall cause its controlled Affiliates to) (i) diligently and expeditiously defend and use reasonable best efforts to obtain any necessary clearance, approval, consent, or Governmental Authorization and to provide any necessary or advisable regulatory notifications under Laws prescribed or enforceable by any Governmental Authority for the transactions contemplated by this Agreement and to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement; and (ii) cooperate in good faith with each other in the defense of such matters. To the extent not prohibited by Law, the Company, PubCo, Merger Sub I, Merger Sub II shall (and the Company shall cause its Subsidiaries to) promptly furnish to Acquiror, and Acquiror shall promptly furnish to the Company, copies of any notices or written communications received by such party or any of its Affiliates from any third party or any Governmental Authority with respect to the transactions contemplated hereby, and each party shall permit counsel to the other parties an opportunity to review in advance, and each party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such party and/or its Affiliates to any Governmental Authority concerning the transactions contemplated hereby; provided that none of the parties shall extend any waiting period or comparable period or enter into any agreement with any Governmental Authority without the written consent of the other parties. To the extent not prohibited by Law, the Company agrees to provide Acquiror and its counsel, and Acquiror agrees to provide the Company and its counsel, the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such party and/or any of its Affiliates, their respective agents or advisors, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the transactions contemplated hereby.
(c) Subject to Section 12.7, the Company, on the one hand, and Acquiror, on the other, shall each be responsible for and pay one-half of the cost for the preparation, filing and other related fees in connection with the Regulatory Approvals.
Section 9.2. Preparation of Proxy Statement/Proxy/Registration Statement; Acquiror Shareholders’ Meeting and Approvals; Company Shareholders’ Meeting and Approvals.
(a) Proxy/Registration Statement and Prospectus.
(i) As promptly as reasonably practicable after the execution of this Agreement, the Company, PubCo, Merger Sub I, Merger Sub II and Acquiror shall prepare, and PubCo shall file with the SEC, a registration statement on Form F-4 (as amended or supplemented from time to time, and including a proxy statement and prospectus, the “Proxy/Registration Statement”) among other things, registering the PubCo Ordinary Shares and PubCo Warrants issuable to the Acquiror Shareholders and the Company Shareholders pursuant to this Agreement and relating to the Acquiror Shareholders’ Meeting to approve and adopt: (A) the First Merger and the Plan of First Merger (including, without limitation, the adoption of the Articles of the Surviving Subsidiary), (B) this Agreement, the other Transaction Documents and the Business Combination, (C) the adjournment of the Acquiror Shareholders’ Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing or any proposal in (D), and (D) any other proposals as the SEC (or staff member thereof) indicates are necessary in its comments to the Proxy/Registration Statement or correspondence related thereto and any other proposals as reasonably agreed in writing by Acquiror and the Company to be necessary or appropriate in connection with the transactions contemplated hereby (such proposals in (A) through (D), collectively, the “Transaction Proposals”).
(ii) Acquiror, PubCo, Merger Sub I, Merger Sub II and the Company shall (and the Company shall cause each of its Subsidiaries to) each use its commercially reasonable efforts to (1) cause the Proxy/Registration Statement when filed with the SEC to comply in all material respects with all Laws applicable thereto and rules and regulations promulgated by the SEC, (2) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy/Registration Statement, (3) cause the Proxy/Registration Statement to be declared effective under the Securities Act as promptly as practicable and (4) keep the Proxy/Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Proxy/Registration Statement, the Company, PubCo, Acquiror, Merger Sub I and Merger Sub II shall (and the Company shall cause each of its Subsidiaries to) use its commercially reasonable efforts to take all or any action required under any applicable federal or state securities Laws in connection with the issuance of PubCo Ordinary Shares and PubCo Warrants pursuant to this Agreement. Each of the Company, PubCo, Acquiror, Merger Sub I and Merger Sub II also agrees to (and shall cause each of its Subsidiaries to) use its commercially reasonable efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the Transactions, and the Company, Acquiror, PubCo, Merger Sub I and Merger Sub II shall furnish all information concerning the Company and its Subsidiaries, PubCo, Merger Sub I and Merger Sub II and any of their respective members or shareholders as may be reasonably requested in connection with any such action.
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(iii) As promptly as reasonably practicable after finalization and effectiveness of the Proxy/Registration Statement, unless otherwise mutually agreed by the Company and Acquiror, Acquiror shall use reasonable best efforts to within ten (10) Business Days thereof, to commence mailing the Proxy/Registration Statement to the Acquiror Shareholders. Each of Acquiror, PubCo, Merger Sub I, Merger Sub II and the Company shall furnish to the other parties all information concerning itself, its Subsidiaries, officers, directors, managers, shareholders, and other equity holders and information regarding such other matters as may be reasonably necessary or advisable or as may be reasonably requested in connection with the Proxy/Registration Statement, or any other statement, filing, notice or application made by or on behalf of Acquiror, PubCo, Merger Sub I, Merger Sub II, the Company or their respective Affiliates to any regulatory authority (including Nasdaq) in connection with the Transactions.
(iv) Subject to Section 12.7, the Company, on the one hand, and Acquiror, on the other, shall each be responsible for and pay one-half of the cost for the preparation, filing and mailing of the Proxy/Registration Statement and other related fees.
(v) Any filing of, or amendment or supplement to, the Proxy/Registration Statement will be mutually prepared and agreed upon by Acquiror, PubCo, Merger Sub I, Merger Sub II and the Company. PubCo will advise the Company and Acquiror, promptly after receiving notice thereof, of the time when the Proxy/Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order, of the suspension of the qualification of any PubCo Ordinary Shares and PubCo Warrants to be issued or issuable in connection with this Agreement for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy/Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information and responses thereto, and shall provide the Company or Acquiror (as applicable) a reasonable opportunity to provide comments and amendments to any such filing. Acquiror, PubCo, Merger Sub I, Merger Sub II and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed) any response to comments of the SEC or its staff with respect to the Proxy/Registration Statement and any amendment to the Proxy/Registration Statement filed in response thereto.
(vi) Each of Acquiror, PubCo, Merger Sub I, Merger Sub II and the Company shall ensure that none of the information supplied by it or its Subsidiaries or on its behalf for inclusion or incorporation by reference in (A) the Proxy/Registration Statement will, at the time the Proxy/Registration Statement is filed with the SEC, at each time at which it is amended and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Proxy/Registration Statement will, at the date it is first mailed to the Acquiror Shareholders and at the time of the Acquiror Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
(vii) If at any time prior to the Second Merger Effective Time the Company, PubCo, Merger Sub I, Merger Sub II or Acquiror becomes aware that any information relating to the Company, PubCo, Merger Sub I, Merger Sub II, Acquiror or any of their respective Subsidiaries, Affiliates, directors or officers set forth in the Proxy/Registration Statement is required to be amended, so that the Proxy/Registration Statement would not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading, the party which discovers such information shall promptly notify the other parties and an appropriate amendment or supplement or alternative filing in compliance with the applicable rules and regulations of the SEC, the Exchange Act and the Securities Act describing and/or correcting such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the Acquiror Shareholders and Company Shareholders.
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(b) Acquiror Shareholder Approval.
(i) As promptly as reasonably practicable after the Proxy/Registration Statement is declared effective under the Securities Act, Acquiror shall establish a record date for, duly call and give notice of, convene and hold a meeting of the Acquiror Shareholders (including any adjournment or postponement thereof, the “Acquiror Shareholders’ Meeting”) to be held as promptly as reasonably practicable following the date that the Proxy/Registration Statement is declared effective under the Securities Act for the purpose of voting on the Transaction Proposals, obtaining the Acquiror Shareholders’ Approval (including if necessary any adjournment or postponement of such meeting for the purpose of soliciting additional proxies in favor of the adoption of this Agreement), and providing Acquiror Shareholders with the opportunity to elect to effect an Acquiror Share Redemption and such other matters as may be mutually agreed by Acquiror and the Company.
(ii) Acquiror will use its reasonable best efforts to (A) solicit from its shareholders proxies in favor of the adoption of the Transaction Proposals, including the Acquiror Shareholders’ Approval, and (B) obtain the vote or consent of its shareholders required by and in compliance with all applicable Law, OTC rules and the Acquiror’s Governing Documents. Acquiror (A) shall consult with the Company regarding the record date and the date of the Acquiror Shareholders’ Meeting, and (B) shall not adjourn or postpone the Acquiror Shareholders’ Meeting more than twice (and in that event, for no more than thirty (30) days in the aggregate) without the prior written consent of Company (which consent shall not be unreasonably withheld, conditioned or delayed); provided that Acquiror shall not be required by Law to adjourn or propose to adjourn the Acquiror Shareholders’ Meeting.
(iii) The Proxy/Registration Statement shall include a statement to the effect that the Acquiror Board has unanimously recommended that the Acquiror Shareholders vote in favor of the Transaction Proposals at the Acquiror Shareholders’ Meeting (such statement, the “Acquiror Board Recommendation”) and neither the Acquiror Board nor any committee thereof shall withhold, withdraw, qualify, amend or modify, or publicly propose or resolve to withhold, withdraw, qualify, amend or modify, the Acquiror Board Recommendation.
(c) Company Shareholder Approval.
(i) As promptly as reasonably practicable after the Proxy/Registration Statement is declared effective under the Securities Act, the Company shall establish a record date for, duly call, give notice of, convene and hold a meeting of the Company Shareholders (including any adjournment thereof, the “Company Shareholders’ Meeting”) to be held as promptly as reasonably practicable following the date that the Proxy/Registration Statement is declared effective under the Securities Act for the purpose of obtaining the Company Shareholder Approval (including any adjournment of such meeting for the purpose of soliciting additional proxies in favor of this Agreement) and such other matter as may be mutually agreed by Acquiror and the Company. The Company will use its reasonable best efforts to (A) solicit from its shareholders proxies in favor of the Company Shareholder Approval and will take such other action as is reasonably necessary or advisable to obtain such proxies and the Company Shareholder Approval and (B) obtain the vote or consent of its shareholders required by and in compliance with all applicable Law and the Company’s Governing Documents (including if necessary any adjournment or postponement of such meeting for the purpose of establishing a quorum). The Company (y) shall set the date of the Company Shareholders’ Meeting not more than fifteen (15) days after the Proxy/Registration Statement is declared effective or such other date as may be determined by the Company after consultancy with Acquiror, and (z) shall not adjourn the Company Shareholders’ Meeting for more than twice (and in that event, for no more than thirty (30) days in the aggregate, and in any event no later than the scheduled Acquiror Shareholders’ Meeting) without the prior written consent of Acquiror (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the Company shall not be required by Law to adjourn or propose to adjourn the Company Shareholders’ Meeting.
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(ii) Notwithstanding anything to the contrary in this Section 9.2(c)(i), in lieu of convening the Company Shareholders’ Meeting, the Company may seek to obtain the Company Shareholder Approval by written resolution(s) executed by all Company Shareholders entitled to vote thereon, in each case in accordance with applicable Law and the Company’s Governing Documents. If the Company elects to seek the Company Shareholder Approval by written resolution(s), the Company shall use its reasonable best efforts to deliver the Proxy/Registration Statement and any other information required by applicable Law to the Company Shareholders and to obtain such written resolution(s) as promptly as reasonably practicable after the Proxy/Registration Statement is declared effective under the Securities Act. For purposes of this Agreement, references to the Company Shareholders’ Meeting, the voting of Company Shares at such meeting and the solicitation of proxies in connection therewith shall, as applicable, be construed to include the process of seeking and obtaining the Company Shareholder Approval by written resolution(s); provided that no such reference shall require the Company to convene or hold the Company Shareholders’ Meeting if the Company Shareholder Approval is obtained by written resolution(s).
Section 9.3. Support of Transaction. Without limiting any covenant contained in Article VII or Article VIII, Acquiror, PubCo, Merger Sub I, Merger Sub II and the Company shall each, and each shall cause its Subsidiaries to, (a) use reasonable best efforts to obtain all material consents and approvals of third parties that any of Acquiror, PubCo, Merger Sub I, Merger Sub II or the Company or their respective Affiliates are required to obtain in order to consummate the Mergers, and (b) take such other action as may be reasonably necessary or as another party hereto may reasonably request to satisfy the conditions of Article X or otherwise to comply with this Agreement and to consummate the transactions contemplated hereby as soon as practicable, after the date hereof; provided that the Company and Acquiror shall not be required to act or omit to take any action that would constitute a breach of Section 7.1 or Section 8.4, respectively.
Section 9.4. Tax Matters.
(a) Transfer Taxes.All transfer, documentary, sales, use, real property, stamp, registration and other similar Taxes, fees and costs (including any associated penalties and interest) incurred in connection with this Agreement shall be paid one-half by the Company and one-half by the Acquiror.
(b) Tax Treatment. For U.S. federal income tax purposes (and for purposes of any applicable state or local Tax that follows the U.S. federal income tax treatment), the parties shall prepare and file all Tax Returns consistent with the Intended Tax Treatment (to the extent required to file such a Tax Return) and shall not take any inconsistent position on any Tax Return, or during the course of any audit, litigation or other proceeding with respect to Taxes, except as otherwise required by applicable Law.
(c) None of the parties hereto shall (and each shall cause its Affiliates not to) take or cause to be taken (or fail to take or cause to be taken) any action, which action (or failure to act), whether before or after the First Merger Effective Time and the Second Merger Effective Time, would reasonably be expected to prevent or impede the Mergers from qualifying for the Intended Tax Treatment.
(d) Each party hereto shall promptly notify the other party in writing if, before the First Closing and the Second Closing, such party knows or has reason to believe that the Mergers may not qualify for the Intended Tax Treatment (and whether the terms of this Agreement could be reasonably amended in order to facilitate the Mergers qualifying for the Intended Tax Treatment). In the event either (i) Acquiror or the Company seeks a Tax opinion from its respective Tax advisor regarding the Intended Tax Treatment or (ii) the SEC requests or requires such Tax opinion, each party hereto shall use reasonable efforts to execute and deliver customary Tax representation letters as the applicable Tax advisor may reasonably request in form and substance reasonably satisfactory to such Tax advisor. In the event the SEC requests or requires a Tax opinion with respect to the Mergers, Acquiror shall use reasonable best efforts to cause its Tax advisor to deliver such Tax opinion, subject to customary assumptions and limitations, to Acquiror, and the Company shall use reasonable best efforts to cause its Tax advisor to deliver such Tax opinion, subject to customary assumptions and limitations, to the Company.
(e) PFIC and Tax Reporting Cooperation. Following the Closing, PubCo and its Subsidiaries shall use commercially reasonable efforts to make available to any U.S. shareholder of Acquiror or the Company, upon written request, all information and statements necessary to comply with U.S. federal income tax reporting requirements, including PFIC annual information statements required under Section 1295 of the Code and Treasury Regulations thereunder, to enable such shareholders to make and maintain valid Qualified Electing Fund (QEF) elections, as well as any cooperation required for Section 367 gain recognition agreements (GRAs).
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Section 9.5. Cooperation; Consultation. Prior to the Second Closing, each of the Company, the Acquisition Entities and Acquiror shall, and each of them shall cause its respective Subsidiaries (as applicable) and its and their respective Representatives to reasonably cooperate in a timely manner in connection with any financing arrangement the parties mutually agree to seek in connection with the transactions contemplated by this Agreement (it being understood and agreed that the consummation of any such financing by the Company, the Acquisition Entities or Acquiror shall be subject to the parties’ mutual agreement), including (if mutually agreed by the parties) (a) by providing such information and assistance as the other party may reasonably request, (b) granting such access to the other party and its Representatives as may be reasonably necessary for their due diligence, and (c) participating in a reasonable number of meetings, presentations, road shows, drafting sessions and due diligence sessions with respect to such financing efforts (including direct contact between senior management and other Representatives of the Company and Acquiror and their respective Subsidiaries at reasonable times and locations). All such cooperation, assistance and access shall be granted during normal business hours and shall be granted under conditions that shall not unreasonably interfere with the business and operations of the Company, Acquiror, or their respective auditors.
Section 9.6. Indemnification and Insurance.
(a) From and after the First Merger Effective Time, each of PubCo, the Company and the Surviving Subsidiary agrees that it shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director and officer of the (x) Company and each of its Subsidiaries (in each case, solely to the extent acting in their capacity as such and to the extent such activities are related to the business of the Company being acquired under this Agreement) (the “Company Indemnified Parties”) and (y) Acquiror and each of its Subsidiaries (the “Acquiror Indemnified Parties” together with the Company Indemnified Parties, the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Legal Proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the First Merger Effective Time, whether asserted or claimed prior to, at or after the First Merger Effective Time, to the fullest extent that the Company, Acquiror or their respective Subsidiaries, as the case may be, would have been permitted under applicable Law and each of their respective certificate of incorporation, certificate of formation, bylaws, limited liability company agreement, memorandum and articles of association or other organizational documents in effect on the date of this Agreement to indemnify such D&O Indemnified Parties (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, PubCo, the Company and the Surviving Subsidiary shall, and shall cause their Subsidiaries to (i) maintain for a period of not less than six (6) years from the First Merger Effective Time provisions in its Governing Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of the Company’s, Acquiror’s and their Subsidiaries’ former and current officers, directors, employees, and agents that are no less favorable to those Persons than the provisions of the Governing Documents of the Company, Acquiror or their respective Subsidiaries, as applicable, in each case, as of the date of this Agreement, and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) For a period of six (6) years from the First Merger Effective Time, PubCo, the Company (or the Surviving Company after the Second Merger Effective Time) shall, and PubCo shall cause the Surviving Company to, maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by Acquiror’s, the Company’s or their respective Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to the Company, Acquiror or their respective Representatives, as applicable) on terms not less favorable than the terms of such current insurance coverage; provided that (i) the Company (or the Surviving Company after the Second Merger Effective Time) may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six (6) year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the First Merger Effective Time and (ii) if any claim is asserted or made within such six (6) year period, any insurance required to be maintained under this Section 9.6 shall be continued in respect of such claim until the final disposition thereof.
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(c) Notwithstanding anything contained in this Agreement to the contrary, (i) this Section 9.6 shall survive the First Closing and the Second Closing indefinitely and shall be binding, jointly and severally, on PubCo, the Company and the Surviving Subsidiary and all of their respective successors and assigns; and (ii) in the event that PubCo, the Company or the Surviving Subsidiary or any of their successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, each of PubCo, the Company and the Surviving Subsidiary shall ensure that proper provision shall be made so that the successors and assigns of PubCo, the Company (or the Surviving Company after the Second Merger Effective Time) and the Surviving Subsidiary, as applicable, shall succeed to the obligations set forth in this Section 9.6.
(d) Prior to the First Closing Date, PubCo shall enter into customary indemnification agreements reasonably satisfactory to each of the Company and Acquiror with the post-Second Closing directors and officers of PubCo, which indemnification agreements shall continue to be effective following the Second Closing.
(e) The provisions of this Section 9.6: (i) are intended to be for the benefit of, and shall be enforceable by, each Person who is now, or who has been at any time prior to the date of this Agreement or who becomes prior to the Second Closing, a D&O Indemnified Party, his or her heirs and his or her personal representatives, (ii) shall be binding on PubCo, the Company and the Surviving Subsidiary and their respective successors and assigns, (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have, whether pursuant to Law, Contract, Governing Documents, or otherwise and (iv) shall survive the consummation of the First Closing and Second Closing and shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party without the prior written consent of such D&O Indemnified Party.
Section 9.7. Public Announcements.
(a) The Parties agree that, at any time on or after the date hereof and continuing until the earlier of the termination of this Agreement in accordance with Section 11.1 or the Second Closing, no public release, filing or announcement concerning this Agreement or the other Transaction Documents or the Transactions shall be issued by any Party or any of their Representatives or Affiliates without the prior written consent (not be unreasonably withheld, conditioned or delayed) of Acquiror, the Company and the Acquisition Entities, except as such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party shall use commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange for any required filing with respect to, such release or announcement in advance of such issuance.
(b) The Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement (but in any event within four (4) Business Days thereafter), issue a press release announcing the execution of this Agreement (the “Signing Press Release”). Promptly after the issuance of the Signing Press Release, Acquiror shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by applicable securities Laws, which shall be subject to the Company’s review, comment and approval prior to filing. The Parties shall mutually agree upon and, as promptly as practicable after the Second Closing Date (but in any event within four (4) Business Days thereafter), issue a press release announcing the consummation of the Transactions (the “Closing Press Release”). Promptly after the issuance of the Closing Press Release, PubCo shall file a current report on Form 20-F (the “Closing Filing”) with the Closing Press Release and a description of the Transactions as required by all applicable Laws which Acquiror and the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing, the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a Party to any Governmental Authority or other third party in connection with the Transactions, each of the Company and Acquisition Entities on one hand, and Acquiror on the other, shall, upon request by the other, furnish the other parties with all information concerning themselves, their respective directors, officers and equity holders, and such other matters as may be reasonably necessary or advisable in connection with the Transactions, or any other report, statement, filing, notice or application made by or on behalf of a Party to any third party and/or any Governmental Authority in connection with the Transactions.
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Section 9.8. Key Person Agreements. Each of the Company and Surviving Company, as applicable, shall procure the execution and delivery of (i) PubCo Employment Agreement by each executive officer of PubCo effective on and following the Second Closing, as set forth on Section 9.8 of the Company Disclosure Letter, containing non-disclosure, non-competition, non-circumvention/ solicitation protective clauses for the benefit of PubCo and the Surviving Company, and (ii) Non-Compete Agreement on or before the Second Closing, by each Company Shareholder that will hold no less than 10% of PubCo’s total issued and outstanding ordinary shares following the Second Closing, containing provisions of non-disclosure, non-competition, and non-solicitation(collectively, the “Key Person Agreements”).
Section 9.9. Post-Merger Closing Directors and Officers of PubCo. Each of the Company, PubCo and Acquiror shall take all such action within its power as may be necessary or appropriate such that upon the Second Closing:
(a) the board of directors of PubCo shall consist of (i) two (2) directors nominated by the Company and (ii) one (1) director nominated by the Acquiror and reasonably acceptable to the Company, provided that the composition of board of directors of PubCo shall comply with applicable SEC and Nasdaq listing rules and regulations; and
(b) the officers of the Company immediately before the Second Merger Effective Time shall be the officers of PubCo, and the existing officers of PubCo immediately prior to the Second Merger Effective Time shall resign and cease to hold office in PubCo.
Section 9.10. Access to Information; Confidentiality.
(a) During the Interim Period, the Company and Acquiror shall (and shall cause their Subsidiaries, as applicable, to): (i) provide to the other party (and the other party’s officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives, collectively, “Representatives”) reasonable access at reasonable times upon prior notice to the officers, employees, agents, properties, offices and other facilities of such party and its subsidiaries and to the books and records thereof; and (ii) furnish promptly to the other party such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of such party and its subsidiaries as the other party or its Representatives may reasonably request, including in connection with any Tax disclosure in any statement, filing, notice or application relating to the Intended Tax Treatment or any Tax opinion requested or required to be filed pursuant to Section 9.4. Notwithstanding the foregoing, neither the Company nor Acquiror shall be required to provide access to or disclose information where the access or disclosure would jeopardize the protection of attorney-client privilege or contravene applicable Law (it being agreed that the parties shall use their reasonable best efforts to cause such information to be provided in a manner that would not result in such jeopardy or contravention).
(b) All information obtained by the parties pursuant to this Section 9.10 shall be kept confidential in accordance with the Confidentiality Clause
(c) Notwithstanding anything in this Agreement to the contrary, each party hereto (and its respective Representatives) may consult any Tax advisor as is reasonably necessary regarding the Tax treatment and Tax structure of the Transactions and may disclose to such Tax advisor as reasonably necessary such treatment and structure of the Transactions and all materials (including any Tax analysis) that are provided relating to such treatment or structure, in each case in accordance with the Confidentiality Clause.
ARTICLE X
CONDITIONS TO OBLIGATIONS
Section 10.1. Conditions of Each Party’s Obligations. The obligations of each Party to consummate, or cause to be consummated, the Mergers, are subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by the party or parties whose obligations are conditioned thereupon:
(a) the Acquiror Shareholder Approval shall have been obtained and remain in full force and effect;
(b) the Company Shareholder Approval shall have been obtained and remain in full force and effect;
(c) the Proxy/Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Proxy/Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC and not withdrawn;
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(d) PubCo Ordinary Shares to be issued in connection with the Transactions shall have been approved for listing on Nasdaq, subject to official notice of issuance;
(e) all Regulatory Approvals necessary to consummate the Transactions as contemplated hereby shall have been obtained;
(f) no Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) or Governmental Order that is then in effect and which has the effect of making the First Closing or the Second Closing illegal or which otherwise prevents or prohibits consummation of the First Closing or the Second Closing (any of the foregoing, a “restraint”), other than any such restraint that is immaterial;
(g) all third party consents necessary to consummate the Transactions as contemplated hereby shall have been obtained;
(h) there shall have been no Material Adverse Effect of any of the Company or the Acquisition Entities or Acquiror;
(i) the actions provided in Section 2.1 have been completed; and
(j) all Transaction Documents shall have been executed and delivered by the other parties thereto and been in full force and effect in accordance with the terms thereof as of the First Closing and the Second Closing, as applicable.
(k) Intended Tax Treatment.There shall not have occurred any change in U.S. federal income tax law, and no administrative or judicial interpretation thereof shall have been issued, that would reasonably be expected to preclude the Mergers from qualifying for the Intended Tax Treatment.
Section 10.2. Conditions to Obligations of the Parties at the First Closing. The obligations of PubCo, Merger Sub I and Acquiror to consummate, or cause to be consummated, the First Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by all of such parties:
(a) The Acquiror Fundamental Representations (other than Section 5.12, in each case disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Acquiror Material Adverse Effect” or any similar qualification or exception) shall be true and correct in all material respects at and as of the First Closing Date as if made at the First Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects at and as of such date). The representations and warranties of Acquiror contained in Section 5.12 shall be true and correct in all but de minimis respects as of the First Closing Date, except for those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been true and correct in all but de minimis respects as of such date). Each of the other representations and warranties of the Acquiror contained in this Agreement (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Acquiror Material Adverse Effect” or any similar qualification or exception) shall be true and correct as of the First Closing Date as if made at the First Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Acquiror Material Adverse Effect” or any similar qualification or exception) shall be true and correct at and as of such date), except for inaccuracies in or the failure of such representations and warranties to be true and correct that, individually or in the aggregate, have not had, and would not reasonably be expected to have, an Acquiror Material Adverse Effect.
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(b) The Company Fundamental Representations (other than Section 4.6 and Section 4.7) and Acquisition Entity Fundamental Representations (other than Section 6.6), (in each case disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception) shall be true and correct in all material respects at and as of the First Closing Date as if made at and as of the First Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date). The representation and warranties of the Company contained in Section 4.6 and Section 4.7 and the representation and warranties of the Acquisition Entities contained in Section 6.6 shall be true and correct in all but de minimis respects as of the First Closing Date, except for those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been true and correct in all but de minimis respects as of such date).. Each of the other representations and warranties of (i) the Company contained in this Agreement (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception, ) shall be true and correct at and as of the First Closing Date as if made at the First Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception) shall be true and correct at and as of such date), except for inaccuracies in or the failure of such representations and warranties to be true and correct that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect; and (ii) the Acquisition Entities contained in this Agreement (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “material adverse effect” or any similar qualification or exception) shall be true and correct at and as of the First Closing Date as if made at the First Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date), except for inaccuracies in or the failure of such representations and warranties to be true and correct that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a material adverse effect on any Acquisition Entity;
(c) each of the covenants of Acquiror, the Company and the Acquisition Entities to be performed as of or prior to the First Closing shall have been performed in all material respects or waived in accordance with Section 12.3;
(d) each of the Company and the Acquisition Entities shall have delivered to Acquiror a good standing certificate or similar documents applicable for the Company and relevant Acquisition Entities in its jurisdiction of incorporation for such entity certified as of a date no earlier than ten (10) days prior to the First Closing Date from the proper Governmental Authority of such entity’s jurisdiction of organization and from each other jurisdiction in which such entity is qualified to do business as a foreign entity as of the First Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdiction; and
(e) Acquiror shall have delivered to the Company and the Acquisition Entities a good standing certificate or similar documents applicable for Acquiror in its jurisdiction of incorporation) for such entity certified as of a date no earlier than ten (10) days prior to the First Closing Date from the proper Governmental Authority of such entity’s jurisdiction of organization and from each other jurisdiction in which Acquiror is qualified to do business as a foreign entity as of the First Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdiction;
(f) Each of the Company and the Acquisition Entities shall have delivered to Acquiror a certificate signed by an authorized director or officer of each of the Company and the Acquisition Entities certifying that the conditions specified in clauses (b), (c) and (d). have been fulfilled; and
(g) Acquiror shall have delivered to PubCo a certificate signed by an authorized director or officer of Acquiror certifying that the conditions specified in clauses (a), (c) and (e) have been fulfilled.
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Section 10.3. Conditions to Obligations of the Acquisition Entities and the Company at Second Closing. The obligations of Acquisition Entities and the Company to consummate, or cause to be consummated, the Second Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by all of such parties (for the purpose of this Section 10.3, Acquisition Entities refer to PubCo, the Surviving Subsidiary, and Merger Sub II):
(a) To the extent applicable, the Company Fundamental Representations (other than Section 4.6 and Section 4.7) and Acquisition Entity Fundamental Representations (other than Section 6.6), (in each case disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception) shall be true and correct in all material respects at and as of the Second Closing Date as if made at and as of the Second Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date). The representation and warranties of the Company contained in Section 4.6 and Section 4.7 and the representation and warranties of the Acquisition Entities contained in Section 6.6 shall be true and correct in all but de minimis respects as of the Second Closing Date, except for those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been true and correct in all but de minimis respects as of such date). Each of the other representations and warranties of (i) the Company contained in this Agreement (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception, ) shall be true and correct at and as of the Second Closing Date as if made at the Second Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception) shall be true and correct at and as of such date), except for inaccuracies in or the failure of such representations and warranties to be true and correct that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect; and (ii) the Acquisition Entities contained in this Agreement (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “material adverse effect” or any similar qualification or exception) shall be true and correct at and as of the Second Closing Date as if made at the Second Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties (disregarding any qualifications or exceptions contained therein relating to materiality, “material” or “Company Material Adverse Effect” or any similar qualification or exception) shall be true and correct at and as of such date), except for inaccuracies in or the failure of such representations and warranties to be true and correct that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a material adverse effect on any Acquisition Entity; and
(b) each of the covenants of the Acquisition Entities and the Company to be performed as of or prior to the Second Closing shall have been performed in all material respects or waived in accordance with Section 12.3;
(c) the First Merger Effective Time and the First Closing shall have occurred prior to the Second Merger Effective Time;
Section 10.4. Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article X to be satisfied if such failure was caused by the failure of such Party or its Affiliates to comply with or perform any of its covenants or obligations set forth in this Agreement. For the avoidance of doubt, the occurrence of any Material Adverse Effect of the Company shall not be the fault of any party unless such Material Adverse Effect of the Company is a result of the breach of this Agreement or any other Transaction Document by any particular Party, in which case such breaching Party cannot rely on the non-satisfaction of Section 10.2(b) to not proceed with the First Merger Closing or the Second Merger Closing.
ARTICLE XI
TERMINATION/EFFECTIVENESS
Section 11.1. Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned:
(a) by mutual written consent of the Company and Acquiror;
(b) by written notice from either the Company or Acquiror to the other if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) or Governmental Order that is then in effect and which has the effect of making the First Closing or Second Closing illegal or which otherwise prevents or prohibits consummation of the First Closing or Second Closing, other than any such restraint that is immaterial;
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(c) by written notice to Acquiror from the Company if the Acquiror Shareholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the Acquiror Shareholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;
(d) by written notice to the Company from Acquiror if there is any breach of any representation, warranty, covenant or agreement on the part of the Company, PubCo, Merger Sub I or Merger Sub II set forth in this Agreement, except that, if such Terminating Company Breach is curable by the Company, PubCo, Merger Sub I or Merger Sub II (as applicable) through the exercise of its reasonable best efforts, then, for a period of up to thirty (30) days after receipt by the Company of notice from Acquiror of such termination, but only as long as the Company, PubCo, Merger Sub I or Merger Sub II (as applicable) continues to use its respective reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period; provided that the Acquiror shall not have the right to terminate this Agreement pursuant to this Section 11.1 (d) if it is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement;
(e) by written notice from either the Company or Acquiror to the other if the First Closing has not occurred on or before the last date required by the Acquiror Charter for Acquiror to consummate a business combination (the “Agreement End Date”);
(f) by written notice to the Company from Acquiror if the Second Closing shall not have occurred by the third (3rd) Business Day following the First Closing;
(g) by written notice to the Company from Acquiror if the Company Shareholder Approval shall not have been obtained by reason of the failure to obtain the required votes at the Company Shareholders’ Meeting duly convened therefor or at any adjournment or postponement thereof or, where the Company has elected to seek the Company Shareholder Approval by written resolution(s) pursuant to Section 9.2(c)(ii), by reason of the failure to obtain such written resolution(s) executed by all Company Shareholders entitled to vote thereon; or
(h) by written notice to Acquiror from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of Acquiror set forth in this Agreement, such that the conditions specified in Section 10.3 would not be satisfied at the Second Closing (a “Terminating Acquiror Breach”), except that, if any such Terminating Acquiror Breach is curable by Acquiror through the exercise of its reasonable best efforts, then, for a period of up to thirty (30) days after receipt by Acquiror of notice from the Company of such termination, but only as long as Acquiror continues to exercise such reasonable best efforts to cure such Terminating Acquiror Breach (the “Acquiror Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Acquiror Breach is not cured within the Acquiror Cure Period; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 11.1(h) if it is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement.
Section 11.2. Effect of Termination. In the event of the termination of this Agreement pursuant to Section 11.1, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto or its respective Affiliates, officers, directors or shareholders, other than liability of the Company, PubCo, Acquiror, Merger Sub I or Merger Sub II, as the case may be, for any willful and material breach of this Agreement occurring prior to such termination, except that the provisions of this Section 11.2 and Article XII and the Confidentiality Clause shall survive any termination of this Agreement.
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ARTICLE XII
MISCELLANEOUS
Section 12.1. Trust Account Waiver. Each of the Company, PubCo, Merger Sub I and Merger Sub II hereby represents and warrants that it has read the final prospectus of Acquiror, dated December 22, 2022 and filed with the SEC (File No. 333-268578) on December 22, 2022 (the “Prospectus”) and current report on Form 8-K of Acquiror dated and filed with the SEC on December 28, 2022 (the “Form 8-K”) available at www.sec.gov, and understands that (i) Acquiror has established a trust account (the “Trust Account”) containing the proceeds of the IPO and the overallotment shares acquired by its underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of Acquiror’s public shareholders (including the public shareholders of the overallotment shares acquired by Acquiror’s underwriters, the “Public Shareholders”), (ii) except as otherwise described in the Prospectus and the Form 8-K, Acquiror may disburse monies from the Trust Account only: (a) to the Public Shareholders with respect to Acquiror Share Redemptions, (b) to the Public Shareholders if Acquiror fails to consummate a Business Combination within nine (9) months (or up to fifteen (15) months if Acquiror extends the period of time to consummate a business combination) after the closing of the IPO, (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any taxes and up to $100,000 in dissolution expenses or (d) to Acquiror after or concurrently with the consummation of a Business Combination. Each of the Company, PubCo, Merger Sub I and Merger Sub II hereby agrees on behalf of itself and its Affiliates that, notwithstanding anything to the contrary in this Agreement (other than in Section 8.1), none of the Company, PubCo, Merger Sub I and Merger Sub II or any of their respective Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom) in connection with any claim that arises as a result of, in connection with, or relating to, this Agreement or any other Transaction Document, regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability under any Transaction Document (collectively, the “Released Claims”). Each of the Company, PubCo, Merger Sub I and Merger Sub II, on behalf of itself and its Affiliates, hereby irrevocably waives any Released Claims that the Company, PubCo, Merger Sub I, Merger Sub II or any of their respective Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future and will not seek recourse against the Trust Account (including any distributions therefrom) in connection with any Released Claims (including for an alleged breach of this Agreement or any other Transaction Document). Each of the Company, PubCo, Merger Sub I and Merger Sub II agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by Acquiror and its Affiliates to induce Acquiror to enter into the Transaction Documents, and each of the Company, PubCo, Merger Sub I and Merger Sub II further intends and understands such waiver to be valid, binding and enforceable against the Company, PubCo, Merger Sub I, Merger Sub II and each of their respective Affiliates under applicable Law. To the extent the Company, PubCo, Merger Sub I, Merger Sub II or any of their respective Affiliates commences any action or proceeding based upon, in connection with or relating to any Released Claim, which action or proceeding seeks, in whole or in part, monetary relief against Acquiror, Sponsor or their respective Representatives, each of the Company, PubCo, Merger Sub I and Merger Sub II hereby acknowledges and agrees that the Company’s, PubCo’s, Merger Sub I’s, Merger Sub II’s and each of their respective Affiliates’ sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit the Company, PubCo, Merger Sub I, Merger Sub II or any of their respective Affiliates (or any person claiming on their behalf or in lieu of any of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. In the event the Company, PubCo, Merger Sub I, Merger Sub II or any of their respective Affiliates commences any action or proceeding based upon, in connection with or relating to any Released Claim, which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions therefrom) or the Public Shareholders, whether in the form of money damages or injunctive relief or otherwise, Acquiror and its Representatives, as applicable, shall be entitled to recover from the Company, PubCo, Merger Sub I, Merger Sub II and their respective Affiliates the associated legal fees and costs in connection with any such action, in the event Acquiror or its Representatives, as applicable, prevails in such action or proceeding.
Section 12.2. Lock-Up Agreement and Insider Trading Policy.
(a) On or before the First Merger Effective Time, PubCo shall enter into a Lock-Up Agreement with each Company Shareholder who will hold 5% or more of PubCo Ordinary Shares immediately after the Second Merger Effective Time, the Sponsor, and certain persons, in the form of Exhibit I, which shall include, among other provisions, restrictions on transfer of PubCo Ordinary Shares issued in connection with the First Merger and Second Merger hereunder.
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(b) On or before the First Merger Effective Time, PubCo shall adopt and cause to be effective upon and following the Second Merger Effective Time, an insider trading policy customary for a public company.
Section 12.3. Waiver. Any party to this Agreement may, at any time prior to the Second Closing, by action taken by its board of directors or other officers or Persons thereunto duly authorized, (a) extend the time for the performance of the obligations or acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties (of another party hereto) that are contained in this Agreement or (c) waive compliance by the other parties hereto with any of the agreements or conditions contained in this Agreement, but such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party granting such extension or waiver.
Section 12.4. Notices. All general notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by courier or sent by registered post or sent by electronic mail to the intended recipient thereof at its address or at its email address set out below (or to such other address or email address as a party may from time to time notify the other parties). Any such notice, demand or communication shall be deemed to have been duly served (a) if given personally or sent by courier, upon delivery during normal business hours at the location of delivery or, if later, then on the next Business Day after the day of delivery; (b) if sent by electronic mail during normal business hours at the location of delivery, immediately, or, if later, then on the next Business Day after the day of delivery; (c) the third Business Day following the day sent by reputable international overnight courier (with written confirmation of receipt); and (d) if sent by registered post, five (5) days after posting. The initial addresses and email addresses of the parties for the purpose of this Agreement are:
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| If to Acquiror, to: | ||||
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| Horizon Space Acquisition I Corp. | ||||
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| 1412 Broadway 21st Floor, Suite 21V New York, NY 10018 | ||||
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| Attention: | Mingyu (Michael) Li | |||
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| Email: | mlee@horizonspace.cc | |||
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| with copies to (which shall not constitute notice): | ||||||
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| Robinson & Cole LLP | ||||
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| Chrysler East Building | ||||
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| 666 Third Avenue, 20th Floor | ||||
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| Attention: | Arila Zhou, Esq. | |||
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| Email: | azhou@rc.com | |||
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| (b) |
| If to PubCo, Merger Sub I or Merger Sub II, to: | ||||
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| ArcheNova Technology Co., Ltd | ||||
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| 1 Tai Seng Avenue, #02-04, Tai Seng Exchange (Tower A), Singapore 536464 | ||||
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| Attention: | Liu Ye | |||
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| Email: | liu.ye@paracrinetherapeutics.com | |||
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| with copies to (which shall not constitute notice): | ||||||
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| Commerce & Finance Law Offices LLP | ||||
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| 34/F, Alexandra House, The Landmark, Central, Hong Kong | ||||
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| Attention: | Gilbert Han |
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| Email: | gilberthan@gmail.com |
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| (c) |
| If to the Company, to: | ||||
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| ArcheNova Biotech Corp. | ||||
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| 1 Tai Seng Avenue, #02-04, Tai Seng Exchange (Tower A), Singapore 536464 | ||||
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| Attention: | Liu Ye |
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| Email: | liu.ye@paracrinetherapeutics.com |
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| with copies to (which shall not constitute notice): | ||||||
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| Commerce & Finance Law Offices LLP | ||||
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| 34/F, Alexandra House, The Landmark, Central, Hong Kong | ||||
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| Attention: | Gilbert Han |
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| Email: | gilberthan@gmail.com |
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or to such other address or addresses as the parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.
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Section 12.5. Assignment. No party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties and any such transfer without such prior written consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
Section 12.6. Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the parties hereto, any right or remedies under or by reason of this Agreement; provided that (a) the D&O Indemnified Parties may enforce Section 9.6; and (b) the Non-Recourse Parties may enforce Section 12.19.
Section 12.7. Expenses. Except as otherwise set forth in this Agreement, each party hereto shall be responsible for and pay its own expenses incurred in connection with this Agreement and the transactions contemplated hereby, including all fees of its legal counsel, financial advisers and accountants; provided that if the Second Closing shall occur, any reasonable and documented unpaid costs and expenses, and all prior paid costs and expenses from each party hereto will be paid by PubCo upon the Second Closing. Any expenses incurred by Acquiror to be paid from the capital of PubCo upon the Second Closing shall be reviewed and approved by the Company in advance and such pre-approval cannot be unreasonably withheld by the Company; provided that Acquiror has the discretion to seek pre-approval from the Company on the estimated expenses in advance, subject to reasonably incurred accountable adjustments by the service providers of Acquiror; provided further that, any regulatory or government filing fee, including the SEC filing fees and filings to the Cayman Islands, shall be split equally between Acquiror and the Company.
Section 12.8. Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of New York, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction (provided that the fiduciary duties of the Company Board and the board of directors of Acquiror, the Mergers and any exercise of appraisal and dissenters’ rights with respect to the Mergers, shall in each case be governed by the laws of the Cayman Islands).
Section 12.9. Headings; Counterparts. The headings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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Section 12.10. Electronic Execution of the Agreement and Certain Other Documents. The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to this Agreement or any Transaction Document (including any related amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms complying with applicable law, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Electronic Transactions Act (As Revised) of the Cayman Islands, the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 12.11. Company Disclosure Letter and Acquiror Disclosure Letter. Each of the Company Disclosure Letter and the Acquiror Disclosure Letter (including, in each case, any section thereof) referenced herein are a part of this Agreement as if fully set forth herein. All references herein to the Company Disclosure Letter and/or the Acquiror Disclosure Letter (including, in each case, any section thereof) shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a party in the applicable Disclosure Letter, or any section thereof, with reference to any section of this Agreement or section of the applicable Disclosure Letter shall be deemed to be a disclosure with respect to such other applicable sections of this Agreement or sections of the applicable Disclosure Letter only if it is reasonably apparent on the face of such disclosure that such disclosure is responsive to such other section of this Agreement or section of the applicable Disclosure Letter. Certain information set forth in the Disclosure Letters is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made in this Agreement, nor shall such information be deemed to establish a standard of materiality.
Section 12.12. Entire Agreement. This Agreement (together with the Company Disclosure Letter and the Acquiror Disclosure Letter) and the other Transaction Documents constitute the entire agreement among the parties to this Agreement relating to the transactions contemplated hereby and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the parties hereto or any of their respective Subsidiaries relating to the transactions contemplated hereby. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the transactions contemplated hereby exist between such parties except as expressly set forth in this Agreement and the other Transaction Documents.
Section 12.13. Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed in the same manner as this Agreement and which makes reference to this Agreement; provided that after the Company Shareholder Approval or the Acquiror Shareholder Approval has been obtained, there shall be no amendment or waiver that by applicable Law requires further approval by the Company Shareholders or the Acquiror Shareholders, respectively, without such approval having been obtained.
Section 12.14. No Presumption Against Drafter. Each party hereto and its advisers cooperated in the drafting and preparation of this Agreement, and any and all drafts relating thereto may not be construed against any party by reason of its preparation. Accordingly, any rule of Law or any legal decision that would require interpretation of any ambiguities in this Agreement against the party that drafted it is of no application and is hereby expressly waived.
Section 12.15. Publicity.
(a) All press releases or other public communications relating to the transactions contemplated hereby, and the method of the release for publication thereof, shall prior to the Second Closing be subject to the prior mutual approval of Acquiror, PubCo and the Company, which approval shall not be unreasonably withheld or delayed by any party; provided that no party shall be required to obtain consent pursuant to this Section 12.15(a) to the extent any proposed release or statement is substantially equivalent to the information that has previously been made public without breach of the obligation under this Section 12.15(a).
(b) The restriction in Section 12.15(a) shall not apply to the extent the public announcement is required by applicable securities Law, any Governmental Authority or stock exchange rule; provided that in such an event, the party making the announcement shall use its commercially reasonable efforts to consult with the other parties in advance as to its form, content and timing. Disclosures resulting from the parties’ efforts to obtain approval under applicable Law and to make any related filing shall be deemed not to violate this Section 12.15.
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Section 12.16. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.
Section 12.17. Jurisdiction; Waiver of Jury Trial.
(a) Each of the parties irrevocably and unconditionally submits to the exclusive jurisdiction of the federal courts of the State of New York sitting in New York, New York (or any appellate courts thereof), for the purposes of any Action (a) arising under this Agreement or the transactions contemplated hereby or (b) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Action in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action has been brought in an inconvenient forum. Each party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action (i) arising under this Agreement or the transactions contemplated hereby or (ii) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, (A) any claim that it is not personally subject to the jurisdiction of the courts as described in this Section 12.17 for any reason, (B) that it or its property is exempt or immune from the jurisdiction of any such court or from any Action commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Action in any such court is brought in an inconvenient forum, (y) the venue of such Action is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each party hereto agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 12.4 shall be effective service of process for any such Action.
(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.18. Enforcement. The parties hereto agree that irreparable damage could occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to specific enforcement of the terms and provisions of this Agreement, in addition to any other remedy to which any party is entitled at law or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
Section 12.19. Non-Recourse. Except in the case of claims against a Person in respect of such Person’s fraud:
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(a) this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the Company, PubCo, Acquiror, Merger Sub I and Merger Sub II as named parties hereto; and
(b) except to the extent a party hereto (and then only to the extent of the specific obligations undertaken by such party hereto), (i) no past, present or future director, commissioner, officer, employee, incorporator, member, partner, shareholder, Representative or Affiliate of the Company, PubCo, Acquiror, Merger Sub I or Merger Sub II and (ii) no past, present or future director, commissioner, officer, employee, incorporator, member, partner, shareholder, Representative or Affiliate of any of the foregoing (collectively, the “Non-Recourse Parties”) shall have any liability (whether in Contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, PubCo, Acquiror, Merger Sub I or Merger Sub II under this Agreement for any claim based on, arising out of, or related to this Agreement or the transactions contemplated hereby.
Section 12.20. Non-Survival of Representations, Warranties and Covenants. Except (x) as otherwise contemplated by Section 11.2 or (y) in the case of claims against a Person in respect of such Person’s fraud, none of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Second Closing and each such representation, warranty, covenant, obligation, agreement and provision shall terminate and expire upon the occurrence of the Second Merger Effective Time (and there shall be no liability after the Second Closing in respect thereof), except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part after the Second Closing and then only with respect to any breaches occurring after the Second Closing and (b) this Article XII.
Section 12.21. Conflicts and Privilege.
(a) Acquiror, the Company, PubCo, Merger Sub I and Merger Sub II, on behalf of their respective successors and assigns (including, the Surviving Subsidiary after the First Closing and the Surviving Company after the Second Closing), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Second Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of Acquiror or the Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “Acquiror Group”), on the one hand, and (y) the Surviving Company and/or any member of the shareholders or holders of other equity interests of the Company, Merger Sub I, Merger Sub II and/or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “ArcheNova Group”), on the other hand, any legal counsel, including Robinson & Cole LLP (“RC”), that represented Acquiror and/or the Sponsor, prior to the Second Closing may represent the Sponsor and/or any other member of the Acquiror Group, in such dispute even though the interests of such Persons may be directly adverse to the Surviving Company, and even though such counsel may have represented Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company and/or the Sponsor. Acquiror, the Company, Merger Sub I and Merger Sub II, on behalf of their respective successors and assigns (including, the Surviving Subsidiary after the First Closing and the Surviving Company after the Second Closing), further agree that, as to all legally privileged communications prior to the Second Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Document or the transactions contemplated hereby or thereby) between or among Acquiror, the Sponsor and/or any other member of the Acquiror Group, on the one hand, and RC, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to the Acquiror Group after the Second Closing, and shall not pass to or be claimed or controlled by the Surviving Company. Notwithstanding the foregoing, any privileged communications or information shared by the Company, Merger Sub I or Merger Sub II prior to the Second Closing with Acquiror or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Company.
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(b) Acquiror, the Company, Merger Sub I and Merger Sub II, on behalf of their respective successors and assigns (including, the Surviving Subsidiary after the First Closing and the Surviving Company after the Second Closing), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Second Closing between or among (x) the ArcheNova Group, on the one hand, and (y) the Surviving Company and/or any member of the Acquiror Group, on the other hand, any legal counsel, including Commerce & Finance Law Offices LLP (“CFUS”) that represented the Company prior to the Second Closing may represent any member of the ArcheNova Group in such dispute even though the interests of such Persons may be directly adverse to the Surviving Company, and even though such counsel may have represented Acquiror, the Company, Merger Sub I and/or Merger Sub II in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company. Acquiror, the Company, Merger Sub I and Merger Sub II, on behalf of their respective successors and assigns (including, the Surviving Subsidiary after the First Closing and the Surviving Company after the Second Closing), further agree that, as to all legally privileged communications prior to the Second Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company, Merger Sub I, Merger Sub II and/or any member of the ArcheNova Group, on the one hand, and AFS, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to the ArcheNova Group after the Second Closing, and shall not pass to or be claimed or controlled by the Surviving Company. Notwithstanding the foregoing, any privileged communications or information shared by Acquiror prior to the Second Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Surviving Company.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date first above written.
| HORIZON SPACE ACQUISITION I CORP. | |||
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| By: | /s/ Mingyu (Michael) Li | |
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| Name: Mingyu (Michael) Li | |
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| Title: Director and Chief Executive Officer | |
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| ArcheNova Technology Co., Ltd | |||
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| By: | /s/ LIU Ye | |
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| Name: LIU Ye | |
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| Title: Director | |
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| ArcheNova International Co., Ltd | |||
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| By: | /s/ LIU Ye | |
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| Name: LIU Ye | |
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| Title: Director | |
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| ArcheNova Global Co., Ltd | |||
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| By: | /s/ LIU Ye | |
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| Name: LIU Ye | |
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| Title: Director | |
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| ArcheNova Biotech Corp. | |||
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| By: | /s/ LIU Ye | |
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| Name: LIU Ye | |
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| Title: Director | |
| S-1 |
EXHIBIT 10.1
COMPANY SHAREHOLDERS SUPPORT AGREEMENT
This Company Shareholders Support Agreement (this “Agreement”) is made and entered into as of October 12, 2026, by and among (i) ArcheNova Technology Co., Ltd, a Cayman Islands exempted company (“PubCo”), (ii) ArcheNova Biotech Corp., a Cayman Islands exempted company (the “Company”), (iii) certain shareholders of the Company (each, a “Requisite Shareholder”), and (iv) Horizon Space Acquisition I Corp., a Cayman Islands exempted company (the “Acquiror”). PubCo, the Company, Acquiror, and the Requisite Shareholders are sometimes referred to herein as a “Party” and collectively as the “Parties.” Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
A. On the date hereof, Acquiror, PubCo, ArcheNova International Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub I”), ArcheNova Global Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub II”), and the Company entered into a Business Combination Agreement (the “Business Combination Agreement”) pursuant to which, upon the terms and subject to the conditions set forth therein: (a) Merger Sub I will merge with and into Acquiror (the “First Merger”), with Acquiror surviving the First Merger as a wholly-owned subsidiary of PubCo and the outstanding securities of Acquiror being converted into the right to receive certain securities of PubCo, and (b) no later than one (1) Business Day following the First Closing (or, if not on the same day, the First Merger Effective Time) or at such other time agreed upon by Acquiror and the Company in writing, and as part of the same overall transaction contemplated by the Business Combination Agreement, Merger Sub II will merge with and into the Company (the “Second Merger”, and together with the First Merger, the “Mergers”), with the Company surviving the Second Merger as a wholly-owned subsidiary of PubCo and the outstanding shares of the Company being converted into the right to receive shares of PubCo (the Mergers together with the other transactions contemplated by the Business Combination Agreement, the “Transactions”).
B. The Requisite Shareholders agree to enter into this Agreement with respect to all Company Shares of which the Requisite Shareholders now or hereafter have beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act) and/or record ownership.
C. As of the date hereof, each Requisite Shareholder is the owner of, and/or has voting power (including, without limitation, by proxy or power of attorney) over, such number and class of Company Shares as are indicated opposite each of their names on Schedule A attached hereto, except pursuant to the Voting Agreement (as defined below) (all such Company Shares, together with any shares in the Company of which beneficial and/or record ownership and/or the power to vote (including, without limitation, by proxy or power of attorney) is hereafter acquired by any such Requisite Shareholder (or any securities convertible into or exercisable or exchangeable for Company Shares) during the period from the date hereof through the Expiration Time, collectively, the “Subject Shares”).
D. On May 18, 2026, certain Requisite Shareholders entered into a voting rights and control agreement (the “Voting Agreement”) among themselves, pursuant to which each of FORTUNE 9 GROUP PTE. LTD., LIU Ye, Saturn Space Holding Limited and Stephen LIM has delegated the voting rights attached to all of their respective Company Shares as are indicated opposite each of their names on Schedule A attached hereto with an aggregate number of 2,813,600 to Dr LIM Sai Kiang. Together with the 250,000 Company Shares held by Dr LIM Sai Kiang, Dr LIM Sai Kiang is entitled to exercise the voting rights attached to an aggregate number of 3,063,600 Company Shares.
E. As a condition to the willingness of Acquiror, PubCo and the Company to enter into the Business Combination Agreement and as an inducement and in consideration therefor, the Requisite Shareholders have agreed to enter into this Agreement.
F. Each of the Parties has determined that it is in its best interest to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:
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1. Definitions. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1 or elsewhere in this Agreement.
“Expiration Time” shall mean the earliest to occur of (a) the Second Merger Effective Time, (b) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 11.1 thereof and (c) the mutual written agreement of Acquiror, PubCo, the Company and such Requisite Shareholder.
“Transfer” shall mean any sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer, or entry into any contract, agreement, option or other arrangement or understanding with respect to any sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer, in each case directly or indirectly and voluntarily or involuntarily, of any interest owned by a person or any interest (including a beneficial interest) in, or the ownership, control or possession of, any interest owned by a person, excluding entry into this Agreement and the Business Combination Agreement and the consummation of the transactions contemplated hereby and thereby.
2. Agreement to Retain the Subject Shares.
2.1 No Transfer of Subject Shares. Until the Expiration Time, each Requisite Shareholder agrees not to (x) Transfer any Subject Shares or (y) deposit any Subject Shares into a voting trust or enter into a voting agreement with respect to any Subject Shares or grant any proxy (except as otherwise provided herein), consent or power of attorney with respect thereto (other than pursuant to this Agreement). Notwithstanding the foregoing, (A) if a Requisite Shareholder is an individual, such Requisite Shareholder may Transfer any such Subject Shares (i) to any member of such Requisite Shareholder’s immediate family, or to a trust for the benefit of such Requisite Shareholder or any member of such Requisite Shareholder’s immediate family, the sole trustees of which are such Requisite Shareholder or any member of such Requisite Shareholder’s immediate family, (ii) by will, other testamentary document or under the laws of intestacy upon the death of such Requisite Shareholder, (iii) pursuant to a qualified domestic relations order or (iv) pursuant to a charitable gift or contribution, (B) if a Requisite Shareholder is an entity, such Requisite Shareholder may Transfer any Subject Shares to any partner, member, shareholder, or affiliate of such Requisite Shareholder in accordance with the terms of the Governing Documents of the Company, and (C) a Requisite Shareholder may Transfer any Subject Shares upon the consent of Acquiror; provided, that in each case such transferee of such Subject Shares evidences, in a writing in form and substance reasonably satisfactory to PubCo, Acquiror and the Company, such transferee’s agreement to be bound by and subject to all of the terms and provisions hereof to the same effect as such transferring Requisite Shareholder, prior and as a condition to the occurrence of such Transfer.
2.2 Additional Purchases. Until the Expiration Time, each Requisite Shareholder agrees that any Subject Shares that such Requisite Shareholder purchases, that are issued to such Requisite Shareholder by the Company, that are otherwise hereinafter acquired by such Requisite Shareholder or with respect to which such Requisite Shareholder otherwise acquires sole or shared voting power (including by proxy or power of attorney) after the execution of this Agreement and prior to the Expiration Time, shall in each case be subject to the terms and conditions of this Agreement to the same extent as if they were Subject Shares owned by such Requisite Shareholder as of the date hereof. Each of the Requisite Shareholders agrees, while this Agreement is in effect, to notify PubCo, Acquiror and the Company promptly in writing (including by e-mail) of the number of any additional Subject Shares acquired, or over which voting power is acquired, by such Requisite Shareholder, if any, after the date hereof.
2.3 Unpermitted Transfers. Any Transfer or attempted Transfer of any Subject Shares in violation of this Section 2 shall, to the fullest extent permitted by applicable Law, be null and void ab initio.
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3. Voting of Subject Shares. Hereafter until the Expiration Time, each Requisite Shareholder hereby unconditionally and irrevocably agrees that, at any meeting of the shareholders of the Company (or any adjournment or postponement thereof), and in any action by written consent of the shareholders of the Company requested by the Governing Documents of the Company or otherwise undertaken as contemplated by the Transactions, such Requisite Shareholder shall: if a meeting is held, attend and appear at the meeting, in person or by proxy, or otherwise cause its Subject Shares to be counted as present thereat for purposes of establishing a quorum, and such Requisite Shareholder shall vote all of the Subject Shares to which such Requisite Shareholder has sole or shared voting power and is entitled to vote; and/or if a written consent or approval is requested, duly and promptly execute and provide such written consent or approval (or cause to be voted or so consented or approved), in person or by proxy, in respect of all of its Subject Shares: (i) in favor of (a) the Second Merger, the Transaction Documents, any required amendments to the Company’s Governing Documents, and all of the other Transactions (and any actions required in furtherance thereof), and (b) the other matters set forth in the Business Combination Agreement (clauses (a) and (b) collectively, the “Company Shareholder Approval Matters”), or if there are insufficient votes in favor of granting the approval of the Company Shareholder Approval Matters, in favor of the adjournment or postponement of such meeting of the shareholders of the Company to a later date, (ii) in opposition to, other than as contemplated by the Business Combination Agreement, (x) any material change in the present capitalization of the Company or any amendment of the Company’s Governing Documents, (y) any material change in the Company’s corporate structure or business or (z) any proposal, offer or submission with respect to an Alternative Proposal (a “Competing Transaction”) or the adoption of any agreement to enter into a Competing Transaction, (iii) in opposition to, any proposal that would or would be reasonably likely to in any material respect impede the consummation of the Transactions and the other transactions contemplated under the Transaction Documents, and (iv) in any other circumstances upon which a vote, consent or other approval with respect to the Company Shareholder Approval Matters is sought, to vote, consent or approve (or cause to be voted, consented or approved) all of such Requisite Shareholder’s Subject Shares held at such time in favor of the foregoing; provided, however, that such Requisite Shareholder shall not be required to vote or provide consent or take any other action, in each case to the extent any such vote, consent or other action would preclude SEC registration of the PubCo Ordinary Shares being issued to holders of Company Shares as contemplated by the Business Combination Agreement.
4. Additional Agreements.
4.1 No Challenges. Each Requisite Shareholder agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Acquiror, Merger Sub I, Merger Sub II, PubCo, the Company or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the Business Combination Agreement or any other agreement in connection with the Transactions.
4.2 Further Actions. Each Requisite Shareholder agrees, while this Agreement is in effect, not to take or omit to take, or agree to take or omit to take, any action that would make any representation and warranty of such Requisite Shareholder contained in this Agreement inaccurate in any material respect. Each Requisite Shareholder further agrees that it shall use its commercially reasonable efforts to cooperate with Acquiror and the Company to effect the transactions contemplated hereby and the Transactions, including to take or omit to take such actions, and execute such agreements, as may be reasonably requested by Acquiror or the Company in connection with the transactions contemplated hereby and the Transactions or that are necessary to give further effect thereto.
4.3 Consent to Disclosure. Each Requisite Shareholder hereby consents to the publication and disclosure in the Proxy/Registration Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents or communications provided by Acquiror, PubCo or the Company to any Governmental Authority or to securityholders of Acquiror) of such Requisite Shareholder’s identity and beneficial ownership of the Subject Shares and the nature of such Requisite Shareholder’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by Acquiror, PubCo or the Company, a copy of this Agreement. Each Requisite Shareholder will promptly provide any information reasonably requested by Acquiror, PubCo or the Company for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).
4.4 Waiver of Dissenters’ Rights. Each Requisite Shareholder hereby irrevocably waives, and agrees not to exercise or assert, any dissenters’ rights under Section 238 of the Companies Act (as Revised) of the Cayman Islands and any other similar statute in connection with the Transactions and the Business Combination Agreement.
4.5 No Redemption. Each of the Requisite Shareholders undertakes that, from the date hereof and until the termination of this Agreement, it will not elect to cause the Company to redeem any Subject Shares now or at any time legally or beneficially owned by such Requisite Shareholder (whether pursuant to the Governing Documents of the Company, Law, contract or otherwise, notwithstanding such Requisite Shareholder may have rights thereunder), or submit or surrender any of its Subject Shares for redemption.
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4.6 Release. Effective as of and from the Second Merger Effective Time, each Requisite Shareholder hereby releases Acquiror, PubCo, the Company and their respective Subsidiaries from all claims in respect of or relating to the period prior to the Second Closing that would or would be reasonably likely to in any material respect impede the consummation of the Transactions and the other transactions contemplated hereby.
4.7 New Shares. In the event that prior to the Expiration Time (i) any equity securities of the Company are issued or otherwise distributed to a Requisite Shareholder pursuant to any share dividend or distribution, or any change in any of the Subject Shares or other share capital of the Company by reason of any share subdivision, recapitalization, consolidation, exchange of shares or the like, (ii) a Requisite Shareholder acquires legal or beneficial ownership of any Company Shares after the date of this Agreement, or (iii) a Requisite Shareholder acquires the right to vote or share in the voting of any Company Shares after the date of this Agreement (collectively, the “New Securities”), the term “Subject Shares” shall be deemed to refer to and include such New Securities (including all such share dividends and distributions and any securities into which or for which any or all of the Subject Shares may be changed or exchanged into).
4.8 Shareholders’ Consent, Authorization or Approval. Each Requisite Shareholder hereby irrevocably agrees and confirms that, insofar as (i) such Requisite Shareholder’s consent, authorization or approval is required, or (ii) such Requisite Shareholder forms part of a class of shareholders of the Company whose consent, authorization or approval is required, in any such case in respect of or in connection with the Transactions, the Business Combination Agreement and the other transaction documents contemplated hereby and thereby, including pursuant to the Governing Documents of the Company, such Requisite Shareholder hereby grants, provides and gives such consent, authorization or approval, and all specific resolutions that may be required to have been adopted by such Requisite Shareholder or class of shareholders in connection with the Transactions, the Business Combination Agreement (as the Business Combination Agreement exists on the date hereof) and the other transaction documents contemplated hereby and thereby (as such transaction documents exist on the date hereof), are hereby deemed adopted and approved by such Requisite Shareholder (each as is in effect on the date hereof). For the avoidance of doubt, no Requisite Shareholder is providing its consent, authorization or approval under this Section 4.8 with respect to any future amendment, modification or supplement to the Business Combination Agreement or any other transaction document.
4.9 PubCo Voting Agreement. Each Requisite Shareholder that is a party to the Voting Agreement agrees and covenants to, and PubCo agrees and covenants to cause such Requisite Shareholder to, immediately following the Second Merger Effective Time, enter into a new voting agreement with respect to the PubCo Ordinary Shares to be received by such Requisite Shareholder in connection with the Second Merger. Such agreement shall, upon its effectiveness, supersede and replace the Voting Agreement (including amending Clause 9 therein to eliminate the requirements of minimal voting control and dynamic anti-dilution and top-up mechanism) and shall set forth all the other voting arrangements among the Requisite Shareholders within the PubCo.
5. Representations and Warranties of the Requisite Shareholders. Each Requisite Shareholder hereby, severally and not jointly, represents and warrants to Acquiror, the Company and PubCo as follows:
5.1 Ownership of the Company Shares. Such Requisite Shareholder is either (a) the owner of the Company Shares indicated on Schedule A hereto opposite such Requisite Shareholder’s name, free and clear of any and all Liens, other than (i) those created by this Agreement; (ii) as set forth in the Governing Documents of the Company; (iii) the Permitted Lien or (iv) as set forth in the Voting Agreement or (b) has the power to vote (including, without limitation, by proxy or power of attorney) the Company Shares indicated on Schedule A hereto opposite such Requisite Shareholder’s name, except pursuant to the Voting Agreement. Such Requisite Shareholder has as of the date hereof and, except pursuant to a Transfer permitted in accordance with Section 2.1 hereof, will have until the Expiration Time, sole voting power (including the right to control such vote as contemplated herein), power of disposition, power to issue instructions with respect to the matters set forth in this Agreement and power to agree to all of the matters applicable to such Requisite Shareholder set forth in this Agreement, in each case, over all Subject Shares, except pursuant to the Voting Agreement. As of the date hereof, such Requisite Shareholder does not own any other voting securities of the Company or have the power to vote (including by proxy or power of attorney) any other voting securities of the Company other than the Company Shares set forth on Schedule A opposite such Requisite Shareholder’s name, except pursuant to the Voting Agreement. As of the date hereof, such Requisite Shareholder does not own any rights to purchase or acquire (i) any other equity securities of the Company or (ii) the power to vote any other voting securities of the Company, in each case except as set forth on Schedule A opposite such Requisite Shareholder’s name and except pursuant to the Voting Agreement. There are no claims for finder’s fees or brokerage commissions or other like payments in connection with this Agreement or the transactions contemplated hereby payable by such Requisite Shareholder pursuant to arrangements made by such Requisite Shareholder.
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5.2 Absence of Other Voting Agreement. Except for this Agreement and the Voting Agreement, such Requisite Shareholder has not: (a) entered into any voting agreement, voting trust or similar agreement with respect to any Subject Shares or other equity securities of the Company owned by such Requisite Shareholder or (b) granted any proxy, consent or power of attorney with respect to any Subject Shares or other equity securities of the Company owned by such Requisite Shareholder (other than as contemplated by this Agreement).
5.3 Due Authority. Such Requisite Shareholder has the full power and authority to make, enter into and carry out the terms of this Agreement, except pursuant to the Voting Agreement. This Agreement has been duly and validly executed and delivered by such Requisite Shareholder (and, if such Requisite Shareholder is married and any of such Requisite Shareholder’s Subject Shares constitute community property or otherwise need spousal or other approval for this Agreement to be valid and binding, such Requisite Shareholder’s spouse), and constitutes a valid and binding agreement of such Requisite Shareholder enforceable against it in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditor’s rights, and to general equitable principles).
5.4 No Conflict; Consents.
(a) The execution and delivery of this Agreement by such Requisite Shareholder does not, and the performance by such Requisite Shareholder of the obligations under this Agreement and the compliance by such Requisite Shareholder with the provisions hereof do not and will not: (i) conflict with or violate any Law applicable to such Requisite Shareholder, (ii) contravene or conflict with, or result in any violation or breach of, any provision of any charter, certificate of incorporation, limited liability company agreement, certificate of formation, articles of association, by-laws, operating agreement or similar formation or governing documents and instruments of such Requisite Shareholder, as applicable, or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the Subject Shares owned by such Requisite Shareholder pursuant to any contract or agreement to which such Requisite Shareholder is a party or by which such Requisite Shareholder is bound, except in the case of clause (i) or (iii) as would not reasonably be expected, either individually or in the aggregate, to materially impair the ability of such Requisite Shareholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
(b) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority or any other person is required by or with respect to such Requisite Shareholder in connection with the execution and delivery of this Agreement or the consummation by such Requisite Shareholder of the transactions contemplated hereby.
5.5 Absence of Litigation. As of the date hereof, there is no Action pending or, to the knowledge of such Requisite Shareholder, threatened, against such Requisite Shareholder that would reasonably be expected to materially impair the ability of such Requisite Shareholder to perform such Requisite Shareholder’s obligations hereunder or to consummate the transactions contemplated hereby.
5.6 Reliance by Acquiror, the Company and PubCo. Such Requisite Shareholder understands and acknowledges that each of Acquiror, the Company, PubCo, Merger Sub I and Merger Sub II is entering into the Business Combination Agreement in reliance upon such Requisite Shareholder’s execution and delivery of this Agreement.
5.7 Requisite Shareholder Has Adequate Information. Such Requisite Shareholder is a sophisticated shareholder and has adequate information concerning the business and financial condition of Acquiror and the Company to make an informed decision regarding this Agreement and the Transactions, and has independently, without reliance upon Acquiror or the Company, and based on such information as such Requisite Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Requisite Shareholder acknowledges that none of Acquiror or the Company has made or makes any representation or warranty, whether express or implied, of any kind or character with respect to the matters covered herein, in each case except as expressly set forth in this Agreement and the Business Combination Agreement. Such Requisite Shareholder acknowledges that the agreements contained herein with respect to the Subject Shares held by such Requisite Shareholder are irrevocable.
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6. Termination. This Agreement shall terminate upon the Expiration Time. The termination of this Agreement shall not relieve any Party from any liability arising in respect of any willful and material breach of this Agreement prior to such termination.
7. Miscellaneous.
7.1 Further Assurances. From time to time, at another Party’s request and without further consideration, each Party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or desirable to consummate the transactions contemplated by this Agreement.
7.2 Fees and Expenses. Each of the Parties shall be responsible for its own fees and expenses (including, the fees and expenses of investment bankers, accountants and counsel) in connection with the entering into of this Agreement and the consummation of the transactions contemplated hereby; provided that the fees and expenses of the Company and Acquiror shall be allocated as set forth in Section 12.7 of the Business Combination Agreement.
7.3 No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Acquiror, PubCo, Merger Sub I or Merger Sub II any direct or indirect ownership or incidence of ownership of or with respect to any Subject Shares.
7.4 Amendments, Waivers. This Agreement may not be amended except by an instrument in writing signed by each of the Parties hereto. At any time prior to the Expiration Time,
(a) Acquiror may (i) extend the time for the performance of any obligation or other act of any Requisite Shareholder, (ii) waive any inaccuracy in the representations and warranties of each Requisite Shareholder contained herein or in any document delivered by any Requisite Shareholder pursuant hereto and (iii) waive compliance with any agreement of each Requisite Shareholder or any condition to their obligations contained herein and any such extension or waiver shall be valid if set forth in an instrument in writing signed by Acquiror;
(b) the Requisite Shareholders may (i) extend the time for the performance of any obligation or other act of Acquiror or the Company, (ii) waive any inaccuracy in the representations and warranties of Acquiror or the Company contained herein or in any document delivered by Acquiror or the Company pursuant hereto and (iii) waive compliance with any agreement of Acquiror or the Company or any condition to their obligations contained herein.
7.5 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by email or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 7.5):
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| Horizon Space Acquisition I Corp. | |
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| 1412 Broadway, 21st Floor, Suite 21V New York, NY 10018 | |
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| Attention: | Mingyu (Michael) Li |
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| Email: | mlee@horizonspace.cc |
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| with copies to (which shall not constitute notice): | |||
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| Robinson & Cole LLP | |
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| Chrysler East Building | |
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| 666 Third Avenue, 20th Floor | |
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| Attention: | Arila Zhou, Esq. |
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| Email: | azhou@rc.com |
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| (b) | If to the Company, PubCo, Merger Sub I or Merger Sub II, to: | |
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| ArcheNova Biotech Corp. | |
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| 1 Tai Seng Avenue, #02-04, Tai Seng Exchange (Tower A), Singapore 536464 | |
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| Attention: | Liu Ye |
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| Email: | liu.ye@paracrinetherapeutics.com |
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| with copies to (which shall not constitute notice): | |||
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| Commerce & Finance Law Offices LLP | |
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| 34/F, Alexandra House, The Landmark, Central, Hong Kong | |
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| Attention: | Gilbert Han |
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| Email: | gilberthan@gmail.com |
If to any Requisite Shareholder, to the address for notice set forth on Schedule A hereto,
7.6 Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
7.7 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby or any of the other Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.
7.8 Entire Agreement; Assignment. This Agreement and the Schedule(s) hereto (together with each transaction document in connection with the Transactions to which the Parties hereto are parties, to the extent referred to herein) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. Except for transfers permitted by Section 2.1, this Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise) by any Party without the prior express written consent of the other Parties hereto.
7.9 Certificates. Promptly following the date of this Agreement, the Company shall advise its transfer agent in writing that each Requisite Shareholder’s Subject Shares are subject to the restrictions set forth herein and, in connection therewith, provide the transfer agent of the Company, as applicable, in writing with such information as is reasonable to ensure compliance with such restrictions.
7.10 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
7.11 Interpretation.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the definitions contained in this agreement are applicable to the other grammatical forms of such terms, (iv) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (v) the terms “Section” and “Schedule” refer to the specified Section or Schedule of or to this Agreement, (vi) the word “including” means “including without limitation,” (vii) the word “or” shall be disjunctive but not exclusive, (viii) the word “person” means an individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without limitation, a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government, and references to a person are also to its permitted successors and assigns, (ix) an “affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person, (x) references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto and references to any Law shall include all rules and regulations promulgated thereunder, and (xi) references to any Law shall be construed as including all statutory, legal, and regulatory provisions consolidating, amending or replacing such Law.
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(b) The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction shall be applied against any Party.
7.12 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of New York without regard to principles of conflicts of law that would result in the application of the substantive Law of another jurisdiction. Each of the parties irrevocably and unconditionally submits to the exclusive jurisdiction of the federal courts of the State of New York sitting in New York, New York (or any appellate courts thereof), for the purposes of any Action (a) arising under this Agreement or the transactions contemplated hereby or (b) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Action in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action has been brought in an inconvenient forum. Each party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action (i) arising under this Agreement or the transactions contemplated hereby or (ii) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, (A) any claim that it is not personally subject to the jurisdiction of the courts as described in this Section 7.12 for any reason, (B) that it or its property is exempt or immune from the jurisdiction of any such court or from any Action commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Action in any such court is brought in an inconvenient forum, (y) the venue of such Action is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each party hereto agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 7.5 shall be effective service of process for any such Action.
7.13 Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and, accordingly, that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity as expressly permitted in this Agreement. Each of the Parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief.
7.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.14.
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7.15 Counterparts; Electronic Delivery. This Agreement may be executed and delivered (including by facsimile or portable document format (.pdf) transmission) in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery by email to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence.
7.16 Directors and Officers. Nothing in this Agreement shall be construed to impose any obligation or limitation on votes or actions taken by any director, officer, employee, agent, designee or other representative of any Requisite Shareholder or by any Requisite Shareholder that is a natural person, in each case, in his or her capacity as a director or officer of the Company or any of its Subsidiaries. Each Requisite Shareholder is executing this Agreement solely in such capacity as a record or beneficial holder of Company Shares.
[Remainder of Page Intentionally Left Blank]
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
| ACQUIROR: |
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| HORIZON SPACE ACQUISITION I CORP. |
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| By: | /s/ Mingyu (Michael) Li |
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| Name: Mingyu (Michael) Li |
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| Title: Director and Chief Executive Officer |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
| COMPANY: |
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| ArcheNova Biotech Corp. |
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| By: | /s/ Liu Ye |
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| Name: LIU Ye |
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| Title: Director |
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| PUBCO: |
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| ARCHENOVA TECHNOLOGY CO., LTD |
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| By: | /s/ Liu Ye |
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| Name: LIU Ye |
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| Title: Director |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
| REQUISITE SHAREHOLDERS: |
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| FORTUNE 9 GROUP PTE. LTD. |
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| By: | /s/ Chay Yiowmin |
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| Name: CHAY Yiowmin |
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| Title: Authorized Signatory |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
| REQUISITE SHAREHOLDERS:
LIU YE | |||
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| /s/ Liu Ye |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
| REQUISITE SHAREHOLDERS: |
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| SATURN SPACE HOLDING LIMITED |
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| By: | /s/ Qian Wenhua |
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| Name: QIAN Wenhua |
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| Title: Authorized Signatory |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
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| LIM SAI KIANG |
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| /s/ Lim Sai Kiang |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
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| STEPHMEN LI |
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| /s/ Stephen Lim |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
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| PHUA SIM GUAN |
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| /s/ Phua Sim Guan |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
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| GOH HANG CHYE MCROY |
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| /s/ Goh Hang Chye Mcroy |
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EXHIBIT 10.2
SPONSOR PARTIES SUPPORT AGREEMENT
This Sponsor Parties Support Agreement (this “Agreement”) is made and entered into as of October 12, 2026, by and among (i) ArcheNova Technology Co., Ltd, a Cayman Islands exempted company (“PubCo”), (ii) ArcheNova Biotech Corp., a Cayman Islands exempted company (the “Company”), (iii) Horizon Space Acquisition I Sponsor Corp., a Cayman Islands exempted company (the “Sponsor”), (iv) each of the directors and officers of Acquiror identified on Schedule A hereto (together with the Sponsor, the “Sponsor Parties” and each, a “Sponsor Party”), and (v) Horizon Space Acquisition I Corp., a Cayman Islands exempted company (“Acquiror”). PubCo, the Company, Acquiror and the Sponsor Parties are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
A. On the date hereof, Acquiror, PubCo, ArcheNova International Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub I”), ArcheNova Global Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub II”), and the Company entered into a Business Combination Agreement (the “Business Combination Agreement”) pursuant to which, upon the terms and subject to the conditions set forth therein: (a) Merger Sub I will merge with and into Acquiror (the “First Merger”), with Acquiror surviving the First Merger as a wholly-owned subsidiary of PubCo and the outstanding securities of Acquiror being converted into the right to receive certain securities of PubCo, and (b) no later than one (1) Business Day following the First Closing (or, if not on the same day, the First Merger Effective Time) or at such other time agreed upon by Acquiror and the Company in writing, and as part of the same overall transaction contemplated by the Business Combination Agreement, Merger Sub II will merge with and into the Company (the “Second Merger”, and together with the First Merger, the “Mergers ”), with the Company surviving the Second Merger as a wholly-owned subsidiary of PubCo and the outstanding shares of the Company being converted into the right to receive shares of PubCo (the Mergers together with the other transactions contemplated by the Business Combination Agreement, the “Transactions”).
B. The Sponsor Parties agree to enter into this Agreement with respect to all Acquiror Ordinary Shares of which any Sponsor Party now or hereafter has beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act) and/or record ownership.
C. As of the date hereof, each Sponsor Party is the owner of, and/or has voting power (including, without limitation, by proxy or power of attorney) over, such number of Acquiror Ordinary Shares as is indicated opposite such Sponsor Party’s name on Schedule A attached hereto (all such Acquiror Ordinary Shares, together with any shares in Acquiror of which beneficial and/or record ownership and/or the power to vote (including, without limitation, by proxy or power of attorney) is hereafter acquired by such Sponsor Party (or any securities convertible into or exercisable or exchangeable for Acquiror Ordinary Shares) during the period from the date hereof through the Expiration Time, collectively, the “Subject Shares”).
D. As a condition to the willingness of Acquiror, PubCo and the Company to enter into the Business Combination Agreement and as an inducement and in consideration therefor, the Sponsor Parties have agreed to enter into this Agreement.
E. Each of the Parties has determined that it is in its best interest to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:
1. Definitions. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1 or elsewhere in this Agreement.
“Expiration Time” shall mean the earliest to occur of (a) the First Merger Effective Time, (b) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 11.1 thereof and (c) the mutual written agreement of Acquiror, PubCo, the Company and the Sponsor Parties.
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“Transfer” shall mean any sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer, or entry into any contract, agreement, option or other arrangement or understanding with respect to any sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer, in each case directly or indirectly and voluntarily or involuntarily, of any interest owned by a person or any interest (including a beneficial interest) in, or the ownership, control or possession of, any interest owned by a person, excluding entry into this Agreement and the Business Combination Agreement and the consummation of the transactions contemplated hereby and thereby.
2. Agreement to Retain the Subject Shares.
2.1 No Transfer of Subject Shares. Until the Expiration Time, each Sponsor Party agrees not to (x) Transfer any Subject Shares or (y) deposit any Subject Shares into a voting trust or enter into a voting agreement with respect to any Subject Shares or grant any proxy (except as otherwise provided herein), consent or power of attorney with respect thereto (other than pursuant to this Agreement). Notwithstanding the foregoing, (A) each Sponsor Party may Transfer any Subject Shares to any member, shareholder, or affiliate of such Sponsor Party in accordance with the terms of the Governing Documents of Acquiror, and (B) each Sponsor Party may Transfer any Subject Shares upon the consent of the Company; provided, that in each case such transferee of such Subject Shares evidences in a writing, in form and substance reasonably satisfactory to PubCo, Acquiror and the Company, such transferee’s agreement to be bound by and subject to all of the terms and provisions hereof to the same effect as such Sponsor Party, prior and as a condition to the occurrence of such Transfer.
2.2 Additional Purchases. Until the Expiration Time, each Sponsor Party agrees that any Subject Shares that such Sponsor Party purchases, that are issued to such Sponsor Party by Acquiror, that are otherwise hereinafter acquired by such Sponsor Party or with respect to which such Sponsor Party otherwise acquires sole or shared voting power (including by proxy or power of attorney) after the execution of this Agreement and prior to the Expiration Time, shall in each case be subject to the terms and conditions of this Agreement to the same extent as if they were Subject Shares owned by such Sponsor Party as of the date hereof. Each Sponsor Party agrees, while this Agreement is in effect, to notify PubCo, Acquiror and the Company promptly in writing (including by e-mail) of the number of any additional Subject Shares acquired, or over which voting power is acquired, by such Sponsor Party, if any, after the date hereof.
2.3 Unpermitted Transfers. Any Transfer or attempted Transfer of any Subject Shares in violation of this Section 2 shall, to the fullest extent permitted by applicable Law, be null and void ab initio.
3. Voting of Subject Shares. Hereafter until the Expiration Time, each Sponsor Party hereby unconditionally and irrevocably agrees that, at any meeting of the shareholders of Acquiror (or any adjournment or postponement thereof), and in any action by written consent of the shareholders of Acquiror requested by the Governing Documents of Acquiror or otherwise undertaken as contemplated by the Transactions, such Sponsor Party shall, if a meeting is held, attend and appear at the meeting, in person or by proxy, or otherwise cause its Subject Shares to be counted as present thereat for purposes of establishing a quorum, and shall vote all Subject Shares over which such Sponsor Party has sole or shared voting power and is entitled to vote; and/or, if a written consent or approval is requested, duly and promptly execute and provide such written consent or approval (or cause to be voted or so consented or approved), in person or by proxy, in respect of all of its Subject Shares: (i) in favor of (a) the First Merger and the Second Merger, the Business Combination Agreement, the Ancillary Documents, any required amendments to the Company’s Governing Documents, and all of the other Transactions (and any actions required in furtherance thereof), and (b) the other matters set forth in the Business Combination Agreement (clauses (a) and (b) collectively, the “Acquiror Shareholder Approval Matters”), or if there are insufficient votes in favor of granting the approval of the Acquiror Shareholder Approval Matters, in favor of the adjournment or postponement of such meeting of the shareholders of Acquiror to a later date, (ii) in opposition to, other than as contemplated by the Business Combination Agreement, (x) any material change in the present capitalization of Acquiror or any amendment of Acquiror’s Governing Documents, (y) any material change in Acquiror’s corporate structure or business or (z) any proposal, offer, or submission with respect to an Alternative Proposal (“Competing Transaction”) or the adoption of any agreement to enter into a Competing Transaction, (iii) in opposition to, any proposal that would or would be reasonably likely to in any material respect impede the Transactions and the other transactions contemplated under the Transaction Documents, and (iv) in any other circumstances upon which a vote, consent or other approval with respect to the Acquiror Shareholder Approval Matters is sought, to vote, consent or approve (or cause to be voted, consented or approved) all of such Sponsor’s Subject Shares held at such time in favor of the foregoing; provided, however, that no Sponsor Party shall be required to vote, provide consent or take any other action to the extent such vote, consent or action would preclude SEC registration of the PubCo Ordinary Shares being issued to holders of Acquiror Ordinary Shares as contemplated by the Business Combination Agreement.
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4. Additional Agreements.
4.1 No Challenges. Each Sponsor Party agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Acquiror, Merger Sub I, Merger Sub II, PubCo, the Company or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the Business Combination Agreement or any other agreement in connection with the Transactions.
4.2 Further Actions. Each Sponsor Party agrees, while this Agreement is in effect, not to take or omit to take, or agree to commit to take or omit to take, any action that would make any representation and warranty of such Sponsor Party contained in this Agreement inaccurate in any material respect. Such Sponsor Party further agrees that it shall use its commercially reasonable efforts to cooperate with Acquiror and the Company to effect the transactions contemplated hereby and the Transactions, including to take or omit to take such actions, and execute such agreements, as may be reasonably requested by Acquiror or the Company in connection with the transactions contemplated hereby and the Transactions or that are necessary to give further effect thereto.
4.3 Consent to Disclosure. Each Sponsor Party hereby consents to the publication and disclosure in the Proxy/Registration Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents or communications provided by Acquiror, PubCo or the Company to any Governmental Authority or to securityholders of Acquiror) of such Sponsor Party’s identity and beneficial ownership of the Subject Shares and the nature of such Sponsor Party’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by Acquiror, PubCo or the Company, a copy of this Agreement. Each Sponsor Party will promptly provide any information reasonably requested by Acquiror, PubCo or the Company for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).
4.4 Waiver of Dissenters’ Rights. Each Sponsor Party hereby irrevocably waives, and agrees not to exercise or assert, any dissenters’ rights under Section 238 of the Companies Act (as Revised) of the Cayman Islands and any other similar statute in connection with the Transactions and the Business Combination Agreement.
4.5 No Redemption. Each Sponsor Party undertakes that, from the date hereof and until the termination of this Agreement, it will not elect to cause Acquiror to redeem any Subject Shares now or at any time legally or beneficially owned by such Sponsor Party (whether pursuant to the Governing Documents of Acquiror, Law, contract or otherwise, notwithstanding such Sponsor Party may have rights thereunder), or submit or surrender any of its Subject Shares for redemption.
4.6 New Shares. In the event that prior to the Expiration Time (i) any equity securities of Acquiror are issued or otherwise distributed to a Sponsor Party pursuant to any share dividend or distribution, or any change in any of the Subject Shares or other share capital of Acquiror by reason of any share subdivision, recapitalization, consolidation, exchange of shares or the like, (ii) a Sponsor Party acquires legal or beneficial ownership of any Acquiror Ordinary Shares after the date of this Agreement, or (iii) a Sponsor Party acquires the right to vote or share in the voting of any Acquiror Ordinary Shares after the date of this Agreement (collectively, the “New Securities”), the term “Subject Shares” shall be deemed to refer to and include such New Securities (including all such share dividends and distributions and any securities into which or for which any or all of the Subject Shares may be changed or exchanged into).
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4.7 Shareholders’ Consent, Authorization or Approval. Each Sponsor Party hereby irrevocably agrees and confirms that, insofar as (i) such Sponsor Party’s consent, authorization or approval is required, or (ii) such Sponsor Party forms part of a class of shareholders of Acquiror whose consent, authorization or approval is required, in any such case in respect of or in connection with the Transactions, the Business Combination Agreement and the other transaction documents contemplated hereby and thereby, including pursuant to the Governing Documents of Acquiror, such Sponsor Party hereby grants, provides and gives such consent, authorization or approval, and all specific resolutions that may be required to have been adopted by such Sponsor Party or class of shareholders in connection with the Transactions, the Business Combination Agreement (as the Business Combination Agreement exists on the date hereof) and the other transaction documents contemplated hereby and thereby (as such transaction documents exist on the date hereof), are hereby deemed adopted and approved by such Sponsor Party (each as is in effect on the date hereof). For the avoidance of doubt, no Sponsor Party is providing its consent, authorization or approval under this Section 4.7 with respect to any future amendment, modification or supplement to the Business Combination Agreement or any other transaction document.
4.8 Release. Effective as of the Second Merger Effective Time, each Sponsor Party hereby releases Acquiror, PubCo, the Company and their respective Subsidiaries from all claims in respect of or relating to the period prior to the Second Closing that would or would be reasonably likely to in any material respect impede the Transactions and the other transactions contemplated hereby.
5. Representations and Warranties of the Sponsor Parties. Each Sponsor Party hereby, severally and not jointly, represents and warrants to Acquiror, the Company and PubCo as follows:
5.1 Ownership of the Acquiror Ordinary Shares. Such Sponsor Party is either (a) the owner of the Acquiror Ordinary Shares indicated on Schedule A, free and clear of any and all Liens, other than (i) those created by this Agreement or (ii) as may be set forth in the Governing Documents of Acquiror or (b) has the power to vote (including, without limitation, by proxy or power of attorney) the Acquiror Ordinary Shares indicated on Schedule A. Such Sponsor Party has as of the date hereof and, except pursuant to a Transfer permitted in accordance with Section 2.1 hereof, will have until the Expiration Time, sole voting power (including the right to control such vote as contemplated herein), power of disposition, power to issue instructions with respect to the matters set forth in this Agreement and power to agree to all of the matters applicable to such Sponsor Party set forth in this Agreement, in each case, over all Subject Shares. As of the date hereof, such Sponsor Party does not own any other voting securities of Acquiror or have the power to vote (including by proxy or power of attorney) any other voting securities of Acquiror other than the Acquiror Ordinary Shares set forth on Schedule A opposite such Sponsor Party’s name. Except as disclosed in any Acquiror SEC Filings and/or in the Acquiror Disclosure Letter, as of the date hereof, such Sponsor Party does not own any rights to purchase or acquire (i) any other equity securities of Acquiror or (ii) the power to vote any other voting securities of Acquiror, in each case except as set forth on Schedule A. Except as disclosed in any Acquiror SEC Filings and/or in the Acquiror Disclosure Letter, there are no claims for finder’s fees or brokerage commissions or other like payments in connection with this Agreement or the transactions contemplated hereby payable by such Sponsor Party pursuant to arrangements made by such Sponsor Party.
5.2 Absence of Other Voting Agreement. Except as disclosed in any Acquiror SEC Filings and/or in the Acquiror Disclosure Letter, and except for this Agreement, such Sponsor Party has not: (a) entered into any voting agreement, voting trust or similar agreement with respect to any Subject Shares or other equity securities of Acquiror owned by such Sponsor Party or (b) granted any proxy, consent or power of attorney with respect to any Subject Shares or other equity securities of Acquiror owned by such Sponsor Party (other than as contemplated by this Agreement).
5.3 Due Authority. Such Sponsor Party has the full legal capacity, power and authority to make, enter into and carry out the terms of this Agreement. This Agreement has been duly and validly executed and delivered by such Sponsor Party (and, if such Sponsor Party is married and any of such Sponsor Party’s Subject Shares constitute community property or otherwise need spousal or other approval for this Agreement to be valid and binding, such Sponsor Party’s spouse) and constitutes a valid and binding agreement of such Sponsor Party enforceable against such Sponsor Party in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditors’ rights, and to general equitable principles).
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5.4 No Conflict; Consents.
(a) The execution and delivery of this Agreement by such Sponsor Party does not, and the performance by such Sponsor Party of the obligations under this Agreement and compliance by such Sponsor Party with the provisions hereof do not and will not: (i) conflict with or violate any Law applicable to such Sponsor Party, (ii) if such Sponsor Party is not an individual, contravene or conflict with, or result in any violation or breach of, any provision of its organizational or Governing Documents, or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any Subject Shares owned by such Sponsor Party pursuant to, any contract or agreement to which such Sponsor Party is a party or by which such Sponsor Party is bound, except in the case of clause (i) or (iii) as would not reasonably be expected, individually or in the aggregate, to materially impair the ability of such Sponsor Party to perform its obligations hereunder or consummate the transactions contemplated hereby.
(b) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority or any other person is required by or with respect to such Sponsor Party in connection with the execution and delivery of this Agreement or the consummation by such Sponsor Party of the transactions contemplated hereby.
5.5 Absence of Litigation. As of the date hereof, there is no Action pending or, to the knowledge of such Sponsor Party, threatened, against such Sponsor Party that would reasonably be expected to impair the ability of such Sponsor Party to perform such Sponsor Party’s obligations hereunder or to consummate the transactions contemplated hereby.
5.6 Reliance by Acquiror, the Company and PubCo. Such Sponsor Party understands and acknowledges that each of Acquiror, the Company, PubCo, Merger Sub I and Merger Sub II is entering into the Business Combination Agreement in reliance upon such Sponsor Party’s execution and delivery of this Agreement.
5.7 Such Sponsor Party Has Adequate Information. Such Sponsor Party is a sophisticated shareholder and has adequate information concerning the business and financial condition of Acquiror and the Company to make an informed decision regarding this Agreement and the Transactions, and has independently, without reliance upon Acquiror or the Company, and based on such information as such Sponsor Party has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Sponsor Party acknowledges that none of Acquiror or the Company has made or makes any representation or warranty, whether express or implied, of any kind or character with respect to the matters covered herein, in each case except as expressly set forth in this Agreement and the Business Combination Agreement. Such Sponsor Party acknowledges that the agreements contained herein with respect to the Subject Shares held by such Sponsor Party are irrevocable.
6. Termination. This Agreement shall terminate upon the Expiration Time. The termination of this Agreement shall not relieve any Party from any liability arising in respect of any willful and material breach of this Agreement prior to such termination.
7. Miscellaneous.
7.1 Further Assurances. From time to time, at another Party’s request and without further consideration, each Party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or desirable to consummate the transactions contemplated by this Agreement.
7.2 Fees and Expenses. Each of the Parties shall be responsible for its own fees and expenses (including, the fees and expenses of investment bankers, accountants and counsel) in connection with the entering into of this Agreement and the consummation of the transactions contemplated hereby; provided that the fees and expenses of the Company and Acquiror shall be allocated as set forth in Section 12.7 of the Business Combination Agreement.
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7.3 No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company, PubCo, Merger Sub I or Merger Sub II any direct or indirect ownership or incidence of ownership of or with respect to any Subject Shares.
7.4 Amendments, Waivers. This Agreement may not be amended except by an instrument in writing signed by each of the Parties hereto. At any time prior to the Expiration Time,
(a) Acquiror may (i) extend the time for the performance of any obligation or other act of any Sponsor Party and (ii) waive compliance with any agreement of any Sponsor Party or any condition to their obligations contained herein and any such extension or waiver shall be valid if set forth in an instrument in writing signed by Acquiror;
(b) each Sponsor Party may (i) extend the time for the performance of any obligation or other act of Acquiror or the Company, (ii) waive any inaccuracy in the representations and warranties of Acquiror or the Company contained herein or in any document delivered by Acquiror or the Company pursuant hereto and (iii) waive compliance with any agreement of Acquiror or the Company or any condition to their obligations contained herein.
7.5 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by email or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 7.5):
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| Horizon Space Acquisition I Corp. | |
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| 1412 Broadway, 21st Floor, Suite 21V New York, NY 10018 | |
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| Attention: | Mingyu (Michael) Li |
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| Email: | mlee@horizonspace.cc |
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| Robinson & Cole LLP | |
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| Chrysler East Building 666 Third Avenue, 20th Floor | |
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| Attention: | Arila Zhou, Esq. |
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| Email: | azhou@rc.com |
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| (b) | If to the Company, PubCo, Merger Sub I or Merger Sub II, to: | |
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| ArcheNova Biotech Corp. | |
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| 1 Tai Seng Avenue, #02-04, Tai Seng Exchange (Tower A), Singapore 536464 | |
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| Attention: | Liu Ye |
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| Email: | liu.ye@paracrinetherapeutics.com |
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| with copies to (which shall not constitute notice): | ||
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| Commerce & Finance Law Offices LLP | |
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| 34/F, Alexandra House, The Landmark, Central, Hong Kong | |
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| Attention: | Gilbert Han |
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| Email: | gilberthan@gmail.com |
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If to the Sponsor Parties, to the address for notice set forth on Schedule A hereto,
7.6 Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
7.7 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby or any of the other Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.
7.8 Entire Agreement; Assignment. This Agreement and the Schedule(s) hereto (together with each transaction document in connection with the Transactions to which the Parties hereto are parties, to the extent referred to herein) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. Except for transfers permitted by Section 2.1, this Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise) by any Party without the prior express written consent of the other Parties hereto.
7.9 Certificates. Promptly following the date of this Agreement, the Acquiror shall advise its transfer agent in writing that the Subject Shares are subject to the restrictions set forth herein and, in connection therewith, provide the transfer agent of the Acquiror, as applicable, in writing with such information as is reasonable to ensure compliance with such restrictions.
7.10 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
7.11 Interpretation.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the definitions contained in this Agreement are applicable to the other grammatical forms of such terms, (iv) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (v) the terms “Section” and “Schedule” refer to the specified Section or Schedule of or to this Agreement, (vi) the word “including” means “including without limitation,” (vii) the word “or” shall be disjunctive but not exclusive, (viii) the word “person” means an individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without limitation, a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government, and references to a person are also to its permitted successors and assigns, (ix), an “affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person, (x) references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto and references to any Law shall include all rules and regulations promulgated thereunder and (xi) references to any Law shall be construed as including all statutory, legal, and regulatory provisions consolidating, amending or replacing such Law.
(b) The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction shall be applied against any Party.
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7.12 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of New York without regard to principles of conflicts of law that would result in the application of the substantive Law of another jurisdiction. Each of the parties irrevocably and unconditionally submits to the exclusive jurisdiction of the federal courts of the State of New York sitting in New York, New York (or any appellate courts thereof), for the purposes of any Action (a) arising under this Agreement or the transactions contemplated hereby or (b) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Action in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action has been brought in an inconvenient forum. Each party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action (i) arising under this Agreement or the transactions contemplated hereby or (ii) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, (A) any claim that it is not personally subject to the jurisdiction of the courts as described in this Section 7.12 for any reason, (B) that it or its property is exempt or immune from the jurisdiction of any such court or from any Action commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Action in any such court is brought in an inconvenient forum, (y) the venue of such Action is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each party hereto agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 7.5 shall be effective service of process for any such Action.
7.13 Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and, accordingly, that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity as expressly permitted in this Agreement. Each of the Parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief.
7.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.14.
7.15 Counterparts; Electronic Delivery. This Agreement may be executed and delivered (including by facsimile or portable document format (.pdf) transmission) in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery by email to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence.
7.16 Directors and Officers. Nothing in this Agreement shall be construed to impose any obligation or limitation on votes or actions taken by any Sponsor Party, or by any director, officer, employee, agent, designee or other representative of a Sponsor Party, in each case in his or her capacity as a director or officer of Acquiror or any of its Subsidiaries. Each Sponsor Party is executing this Agreement solely in such Sponsor Party’s capacity as a record or beneficial holder of Acquiror Ordinary Shares.
[Remainder of Page Intentionally Left Blank]
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
| ACQUIROR: |
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| HORIZON SPACE ACQUISITION I CORP. |
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| By: | /s/ Mingyu (Michael) Li |
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| Name: Mingyu (Michael) Li |
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| Title: Director and Chief Executive Officer |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
| COMPANY: |
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| ARCHENOVA BIOTECH CORP. |
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| By: | /s/ LIU Ye |
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| Name: LIU Ye |
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| Title: Director |
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| PUBCO: |
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| ARCHENOVA TECHNOLOGY CO., LTD |
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| By: | /s/ LIU Ye |
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| Name: LIU Ye |
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| Title: Director |
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In witness whereof, the Parties hereto have caused this Agreement to be executed as of the date first set forth above.
| SPONSOR PARTIES: |
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| HORIZON SPACE ACQUISITION I SPONSOR CORP. |
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| By: | /s/ Mingyu (Michael) Li |
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| Name: Mingyu (Michael) Li |
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| Title: Director and Chief Executive Officer |
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| Angel Colon | |||
| By: | /s/ Angel Colon | ||
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| Name: | Angel Colon | |
| Mark Singh | |||
| By: | /s/ Mark Singh | ||
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| Name: | Mark Singh | |
| Rodolfo Jose Gonzalez Caceres | |||
| By: | /s/ Rodolfo Jose Gonzalez Caceres | ||
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| Name: | Rodolfo Jose Gonzalez Caceres | |
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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [•], is made and entered into by and among ArcheNova Technology Co., Ltd, a Cayman Islands exempted company limited by shares (“PubCo”), and each of the undersigned parties listed on the signature pages hereto under “Holders” (together with any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement, each, a “Holder” and collectively, the “Holders”). 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, on October 12, 2026, Horizon Space Acquisition I Corp., a Cayman Islands exempted company limited by shares (“Acquiror” or “SPAC”), PubCo, ArcheNova International Co., Ltd, a Cayman Islands exempted company limited by shares and a direct wholly-owned subsidiary of PubCo (“Merger Sub I”), ArcheNova Global Co., Ltd, a Cayman Islands exempted company limited by shares and a direct wholly-owned subsidiary of PubCo (“Merger Sub II”), and ArcheNova Biotech Corp., a Cayman Islands exempted company limited by shares (the “Company”), entered into a business combination agreement (the “Business Combination Agreement”) pursuant to which, upon the terms and subject to the conditions set forth therein: (a) Merger Sub I will merge with and into Acquiror (the “First Merger”), with Acquiror surviving the First Merger as a direct wholly-owned subsidiary of PubCo and the outstanding securities of Acquiror being converted into the right to receive certain securities of PubCo, and (b) no later than one (1) Business Day following, and as part of the same overall transaction as, the First Merger, Merger Sub II will merge with and into the Company (the “Second Merger”, and together with the First Merger, the “Mergers”), with the Company surviving the Second Merger as a direct wholly-owned subsidiary of PubCo and the outstanding shares of the Company being converted into the right to receive shares of PubCo (the Mergers together with the other transactions contemplated by the Business Combination Agreement, the “Transactions”);
WHEREAS, upon the First Merger Effective Time, all of the issued and outstanding securities of Acquiror immediately prior to the First Merger Effective Time shall no longer be issued and outstanding and shall automatically be cancelled, in exchange for the right of the holders thereof to receive certain securities of PubCo, in each case, upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with the provisions of the Companies Act (Revised) of the Cayman Islands and other applicable laws;
WHEREAS, upon the Second Merger Effective Time, each Company Exchanging Share shall automatically be cancelled and converted into, and shall thereafter represent the right of each holder of the Company Exchanging Shares to receive, such number of newly issued PubCo Ordinary Shares as determined in accordance with the Business Combination Agreement;
WHEREAS, on or before the First Merger Effective Time, PubCo shall enter into a lock-up agreement (the “Lock-Up Agreement”) with each Company shareholder who will hold 5% or more of PubCo Ordinary Shares immediately after the Second Merger Effective Time, the Sponsor, and certain persons, which have agreed not to transfer PubCo Ordinary Shares issued in connection with the First Merger and Second Merger for a certain period of time following the Second Closing, subject to certain exceptions specified therein; and
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WHEREAS, in connection with the Business Combination (as defined below), PubCo and the Holders desire to enter into this Agreement, pursuant to which PubCo shall grant the Holders certain registration rights with respect to certain securities of PubCo, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Acquiror” shall have the meaning given in the Recitals.
“Agreement” shall have the meaning given in the Preamble.
“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or principal financial officer of PubCo, after consultation with counsel to PubCo, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) PubCo has a bona fide business purpose for not making such information public.
“Board” shall mean the Board of Directors of PubCo.
“Business Combination” shall have the meaning set forth in the Business Combination Agreement.
“Business Combination Agreement” shall have the meaning given in the Recitals.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York or Governmental Authorities in the Cayman Islands or Singapore are authorized or required by Law to close.
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“Commission” shall mean the United States Securities and Exchange Commission.
“Converted SPAC Founder Shares” shall mean PubCo Ordinary Shares issued or issuable with respect to any SPAC Founder Shares in connection with the Mergers under the Business Combination Agreement.
“Converted SPAC Private Shares” shall mean PubCo Ordinary Shares issued or issuable with respect to any SPAC Private Shares in connection with the Mergers under the Business Combination Agreement.
“Converted SPAC Working Capital Loan Shares” shall mean PubCo Ordinary Shares issued or issuable with respect to any SPAC Working Capital Loan Shares.
“Demand Registration” shall have the meaning given in subsection 2.1.1.
“Demanding Holder” shall have the meaning given in subsection 2.1.1.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“First Merger” shall have the meaning given in the Recitals.
“First Merger Effective Time” shall have the meaning set forth in the Business Combination Agreement.
“Form F-1” shall mean a Registration Statement on Form F-1 or any comparable successor form or forms thereto.
“Form F-3” shall mean a Registration Statement on Form F-3 or any comparable successor form or forms thereto.
“Holders” shall have the meaning given in the Preamble.
“Legal Proceeding” means any judicial, administrative or arbitral actions, suits, hearings, inquiries, investigations or other proceedings (public or private) commenced, brought, conducted or heard before, or otherwise involving, any federal, national, state, foreign, provincial, local or other government or any governmental, regulatory, administrative or self-regulatory authority, agency, bureau, board, commission, court, judicial or arbitral body, department, political subdivision, tribunal or other instrumentality thereof or arbitrator.
“Lock-Up Agreement” shall have the meaning given in the Recitals.
“Maximum Number of Securities” shall have the meaning given in subsection 2.1.4.
“Merger Sub I” shall have the meaning given in the Recitals.
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“Merger Sub II” shall have the meaning given in the Recitals.
“Mergers” shall have the meaning given in the Recitals.
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus in the light of the circumstances under which they were made not misleading.
“Permitted Transferees” shall mean any Person to whom a Holder of Registrable Securities is permitted to transfer Registrable Securities prior to the expiration of the lock-up period set forth in the Lock-Up Agreement in accordance with the terms thereof, and to any transferee thereafter.
“Piggyback Registration” shall have the meaning given in subsection 2.2.1.
“Pro Rata” shall have the meaning given in subsection 2.1.4.
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“PubCo” shall have the meaning given in the Preamble.
“PubCo Ordinary Shares” shall have the meaning set forth in the Business Combination Agreement.
“Registrable Securities” shall mean collectively, (a) Tranche A Registrable Securities, and (b) Tranche B Registrable Securities; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (A) such securities have been registered in the proxy statement/prospectus on Form S-4 or F-4 in connection with the Business Combination, (B) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and in each case of clauses (A) and (B) above such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (C) such securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further transfer shall have been delivered by PubCo and subsequent public distribution of such securities shall not require registration under the Securities Act; (D) such securities shall have ceased to be outstanding; (E) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) (but with no volume or other restrictions or limitations); or (F) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.
“Registration” shall mean a registration effected by preparing and filing a Registration Statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
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“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which PubCo Ordinary Shares are then listed;
(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);
(C) printing, messenger, telephone and delivery expenses;
(D) reasonable fees and disbursements of counsel for PubCo;
(E) reasonable fees and disbursements of all independent registered public accountants of PubCo incurred specifically in connection with such Registration; and
(F) reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders initiating a Demand Registration to be registered for offer and sale in the applicable Registration.
“Registration Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Requesting Holder” shall have the meaning given in subsection 2.1.1.
“Second Merger” shall have the meaning given in the Recitals.
“Second Merger Effective Time” shall have the meaning set forth in the Business Combination Agreement.
“Second Closing” shall mean the closing of the Transactions contemplated by the Business Combination Agreement with respect to the Second Merger.
“Securities Act” shall mean the United States Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
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“SPAC Founder Shares” shall mean 1,725,000 ordinary shares of SPAC, par value $0.0001 per share, initially acquired by the Sponsor pursuant to a certain founder shares purchase agreement dated August 30, 2022, a total of 18,000 of which ordinary shares of SPAC were subsequently transferred by the Sponsor to certain directors of SPAC pursuant to the securities transfer agreement dated September 12, 2022.
“SPAC Ordinary Shares” shall mean the ordinary shares of SPAC, par value $0.0001 per share.
“SPAC Private Shares” shall mean 385,750 SPAC Ordinary Shares, included as part of the private units initially acquired by the Sponsor pursuant to certain private placement shares purchase agreements dated December 21, 2022.
“SPAC Working Capital Loan Shares” shall mean all SPAC Ordinary Shares, included as part of the private units that Sponsor and/or its designee acquired upon conversion of any working capital loan and/or any convertible notes evidencing the payments to extend the period of time Acquiror has to consummate its initial business combination.
“Sponsor” shall mean Horizon Space Acquisition I Sponsor Corp., a Cayman Islands exempted company.
“Tranche A Registrable Securities” shall mean collectively the Converted SPAC Private Shares, the Converted SPAC Working Capital Loan Shares, the Converted SPAC Founder Shares and any other equity security of PubCo issued or issuable with respect to any of the Converted SPAC Private Shares, the Converted SPAC Working Capital Loan Shares and the Converted SPAC Founder Shares by way of a share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization.
“Tranche B Registrable Securities” shall mean collectively the PubCo Ordinary Shares converted from the Company Exchanging Shares that the shareholders of PubCo will hold immediately following the Second Merger Effective Time and any other equity security of PubCo issued or issuable with respect to any of the foregoing PubCo Ordinary Shares by way of a share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization.
“Transactions” shall have the meaning given in the Recitals.
“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.
“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of PubCo are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
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ARTICLE II
REGISTRATIONS
2.1. Demand Registration.
2.1.1. Request for Registration. Subject to the provisions of subsection 2.1.4 and Section 2.5 hereof, at any time and from time to time on or after (A) the date PubCo consummates the Business Combination with respect to the Tranche A Registrable Securities, or (B) the date PubCo consummates the Business Combination with respect to the Tranche B Registrable Securities, (i) the Holders of at least a majority in interest of the then-outstanding number of the Tranche A Registrable Securities, and (ii) the Holders of at least a majority in interest of the then-outstanding number of the Tranche B Registrable Securities (each such Holders of the same tranche of the relevant Registrable Securities, the “Demanding Holders”) may make a written demand for Registration under the Securities Act of all or part of their respective Registrable Securities in that tranche on Form F-3 (or, if Form F-3 is not available to be used by PubCo at such time, on Form F-1 or another appropriate form permitting Registration of the relevant Registrable Securities for resale by such Demanding Holders), which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”). PubCo shall, within ten (10) days of PubCo’s receipt of the Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify PubCo, in writing, within ten (10) days after the receipt by the Holder of the notice from PubCo. Upon receipt by PubCo of any such written request, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and PubCo shall effect, as soon thereafter as practicable after PubCo’s receipt of the Demand Registration, the Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration. Under no circumstances shall PubCo be obligated to effect, (i) with respect to any Tranche A Registrable Securities, more than an aggregate of one (1) Registration pursuant to a Demand Registration under this subsection 2.1.1, and (ii) with respect to any Tranche B Registrable Securities, more than an aggregate of one (1) Registration pursuant to a Demand Registration under this subsection 2.1.1.
2.1.2. Effective Registration. Notwithstanding the provisions of subsection 2.1.1 above or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission, and (ii) PubCo has complied with all of its obligations under this Agreement with respect thereto; provided, further, that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or any other governmental agency the Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify PubCo in writing, but in no event later than five (5) days, of such election; and provided, further, that PubCo shall not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently terminated.
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2.1.3. Underwritten Offering. Subject to the provisions of subsection 2.1.4 and Section 2.5 hereof, if a majority-in-interest of the Demanding Holders so advise PubCo as part of their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.1.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the majority-in-interest of the Demanding Holders initiating the Demand Registration.
2.1.4. Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand Registration, in good faith, advises PubCo, the Demanding Holders and the Requesting Holders (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other PubCo Ordinary Shares or other equity securities that PubCo desires to sell and PubCo Ordinary Shares, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other shareholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then PubCo shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) on a pro rata basis based on the respective number of Registrable Securities that each such Holder has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that such Holders have requested to be included in such Underwritten Registration, which can be sold without exceeding the Maximum Number of Securities (such proportion is referred to herein as “Pro Rata”); (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), PubCo Ordinary Shares or other equity securities that PubCo desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), PubCo Ordinary Shares or other equity securities of other persons or entities that PubCo is obligated to register in a Registration pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.
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2.1.5. Demand Registration Withdrawal. A majority-in-interest of the Demanding Holders initiating a Demand Registration or a majority-in-interest of the Requesting Holders (if any), pursuant to a Registration under subsection 2.1.1 shall have the right to withdraw from a Registration pursuant to such Demand Registration for any or no reason whatsoever upon written notification to PubCo and the Underwriter or Underwriters (if any) of their intention to withdraw from such Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to the Registration of their Registrable Securities pursuant to such Demand Registration. Notwithstanding anything to the contrary in this Agreement, PubCo shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration prior to its withdrawal under this subsection 2.1.5.
2.2. Piggyback Registration.
2.2.1. Piggyback Rights. If, at any time on or after the date PubCo consummates the Business Combination, PubCo proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of shareholders of PubCo (or by PubCo and by the shareholders of PubCo including, without limitation, pursuant to Section 2.1 hereof), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to PubCo’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of PubCo or (iv) for a dividend reinvestment plan, then PubCo shall give written notice of such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within ten (10) days after receipt of such written notice (such Registration a “Piggyback Registration”). PubCo shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.2.1 to be included in a Piggyback Registration on the same terms and conditions as any similar securities of PubCo included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.2.1 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by PubCo.
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2.2.2. Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration, in good faith, advises PubCo and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of PubCo Ordinary Shares that PubCo desires to sell, taken together with (i) PubCo Ordinary Shares, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.2 hereof, and (iii) PubCo Ordinary Shares, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of PubCo, exceeds the Maximum Number of Securities, then:
(a) If the Registration is undertaken for PubCo’s account, PubCo shall include in any such Registration (A) first, PubCo Ordinary Shares or other equity securities that PubCo desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Tranche A Registrable Securities and the Tranche B Registrable Securities on a Pro Rata basis, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), PubCo Ordinary Shares, if any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other shareholders of PubCo, which can be sold without exceeding the Maximum Number of Securities;
(b) If the Registration is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then PubCo shall include in any such Registration (A) first, PubCo Ordinary Shares or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Tranche A Registrable Securities and the Tranche B Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1 on a Pro Rata basis, which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), PubCo Ordinary Shares or other equity securities that PubCo desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), PubCo Ordinary Shares or other equity securities for the account of other persons or entities that PubCo is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.
2.2.3. Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to PubCo and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration. PubCo (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, PubCo shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this subsection 2.2.3.
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2.3. Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.2 hereof shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.1 hereof.
2.4. Registrations on Form F-3. The Holders of Registrable Securities may at any time, and from time to time, request in writing that PubCo, pursuant to Rule 415 under the Securities Act (or any successor rule promulgated thereafter by the Commission), register the resale of any or all of their Registrable Securities on Form F-3; provided, however, that PubCo shall not be obligated to effect such request through an Underwritten Offering. Within five (5) days of PubCo’s receipt of a written request from a Holder or Holders of Registrable Securities for a Registration on Form F-3, PubCo shall promptly give written notice of the proposed Registration on Form F-3 to all other Holders of Registrable Securities, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in such Registration on Form F-3 shall so notify PubCo, in writing, within ten (10) days after the receipt by the Holder of the notice from PubCo. As soon as practicable thereafter, but not more than thirty (30) days after PubCo’s initial receipt of such written request for a Registration on Form F-3, PubCo shall prepare and file or cause to be prepared and filed with the Commission a Registration Statement relating to all or such portion of such Holder’s Registrable Securities as are specified in such written request, together with all or such portion of Registrable Securities of any other Holder or Holders joining in such request as are specified in the written notification given by such Holder or Holders; provided, however, that PubCo shall not be obligated to effect any such Registration pursuant to this Section 2.4 hereof if (i) a Form F-3 is not available for such offering; or (ii) the Holders of Registrable Securities, together with the Holders of any other equity securities of PubCo entitled to inclusion in such Registration, propose to sell the Registrable Securities and such other equity securities (if any) at any aggregate price to the public of less than $10,000,000.
2.5. Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to PubCo’s good faith estimate of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of, a PubCo initiated Registration and provided that PubCo has delivered written notice to the Holders prior to receipt of a Demand Registration pursuant to subsection 2.1.1 and it continues to actively employ, in good faith, all reasonable efforts to cause the applicable Registration Statement to become effective; (B) the Holders have requested an Underwritten Registration and PubCo and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or (C) in the good faith judgment of the Board such Registration would be seriously detrimental to PubCo and the Board concludes as a result that it is essential to defer the filing of such Registration Statement at such time, then in each case PubCo shall furnish to such Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be seriously detrimental to PubCo for such Registration Statement to be filed in the near future and that it is therefore essential to defer the filing of such Registration Statement. In such event, PubCo shall have the right to defer such filing for a period of not more than sixty (60) days; provided, however, that PubCo shall not defer its obligation in this manner more than twice in any 12-month period.
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ARTICLE III
COMPANY PROCEDURES
3.1. General Procedures. If at any time on or after the date PubCo consummates the Business Combination, PubCo is required to effect the Registration of Registrable Securities, PubCo shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto PubCo shall, as expeditiously as possible:
3.1.1. prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2. prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the majority-in-interest of the Holders with Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by PubCo or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3. prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4. prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of PubCo and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that PubCo shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
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3.1.5. cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by PubCo are then listed;
3.1.6. provide a transfer agent, warrant agent or right agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7. advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8. at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9. notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10. permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders, or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause PubCo’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representative or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to PubCo, prior to the release or disclosure of any such information and provided further, PubCo may not include the name of any Holder or Underwriter or any information regarding any Holder or Underwriter in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent of such Holder or Underwriter and providing each such Holder or Underwriter a reasonable amount of time to review and comment on such applicable document, which comments PubCo shall include unless contrary to applicable law;
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3.1.11. obtain a “cold comfort” letter from PubCo’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12. on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing PubCo for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13. in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14. make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of PubCo’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15. if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $50,000,000, use its reasonable efforts to make available senior executives of PubCo to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16. otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
3.2. Registration Expenses. The Registration Expenses of all Registrations shall be borne by PubCo. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
3.3. Requirements for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities of PubCo pursuant to a Registration initiated by PubCo hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by PubCo and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements.
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3.4. Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from PubCo that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that PubCo hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised in writing by PubCo that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (i) require PubCo to make an Adverse Disclosure, (ii) require the inclusion in such Registration Statement of financial statements that are unavailable to PubCo for reasons beyond PubCo’s control or (iii) in good faith judgment of the majority of the Board, be seriously detrimental to PubCo, and the majority of the Board concludes as a result that it is essential to defer such filing, initial effectiveness or continued use at such time, PubCo may, upon giving prompt written notice of such action to the Holders (which notice shall specify the nature of the event giving rise to such delay or suspension), delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by PubCo to be necessary for such purpose, provided that the filing of such Registration Statement shall not be delayed for more than one hundred twenty (120) days in any 12-month period. In the event PubCo exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. PubCo shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 3.4.
3.5. Reporting Obligations. As long as any Holder shall own Registrable Securities, PubCo, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by PubCo after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings. PubCo further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell PubCo Ordinary Shares held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of any Holder, PubCo shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
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ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1. Indemnification.
4.1.1. PubCo agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to PubCo by such Holder expressly for use therein. PubCo shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
4.1.2. In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to PubCo in writing such information and affidavits as PubCo reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify PubCo, its directors and officers and agents and each person who controls PubCo (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of PubCo. For the avoidance of doubt, the obligation to indemnify under this Section 4.1.2 shall be several, not joint and several, among the Holders of Registrable Securities, and the total indemnification liability of a Holder under this Section 4.1.2 shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement; provided, however, that such limitation shall not apply to any losses, claims, damages, liabilities or expenses arising from such Holder’s fraud or willful misconduct.
4.1.3. Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
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4.1.4. The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities.
4.1.5. If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
ARTICLE V
MISCELLANEOUS
5.1. Notices. All general notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by courier or sent by registered post or sent by electronic mail to the intended recipient thereof at its address or at its email address set out below (or to such other address or email address as a party may from time to time notify the other parties). Any such notice, demand or communication shall be deemed to have been duly served (a) if given personally or sent by courier, upon delivery during normal business hours at the location of delivery or, if later, then on the next Business Day after the day of delivery; (b) if sent by electronic mail during normal business hours at the location of delivery, immediately, or, if later, then on the next Business Day after the day of delivery; (c) the third Business Day following the day sent by reputable international overnight courier (with written confirmation of receipt); and (d) if sent by registered post, five (5) days after posting. The initial addresses and email addresses of the parties for the purpose of this Agreement are:
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if to PubCo, to:
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| c/o ArcheNova Biotech Corp. | ||
| ArcheNova Biotech Corp. | |||
| 1 Tai Seng Avenue, #02-04, Tai Seng Exchange (Tower A), Singapore 536464 | |||
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| Attention: | Liu Ye | |
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| Email: | liu.ye@paracrinetherapeutics.com | |
|
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| with copies to (which shall not constitute notice): | |||
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| |||
| Commerce & Finance Law Offices LLP | |||
| 34/F, Alexandra House, The Landmark, Central, Hong Kong | |||
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| Attention: | Gilbert Han | |
|
| Email: | gilberthan@gmail.com | |
if to a Holder, to the address set forth on such Holder’s signature page hereto, or to such other address as any party may have furnished to the others in writing in accordance herewith.
5.2. Assignment; No Third Party Beneficiaries.
5.2.1. This Agreement and the rights, duties and obligations of PubCo hereunder may not be assigned or delegated by PubCo in whole or in part.
5.2.2. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees, as applicable.
5.2.3. This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2.2 hereof.
5.2.4. No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate PubCo unless and until PubCo shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to PubCo, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void.
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5.3. Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced.
5.4. Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction.
5.5. Jurisdiction; Waiver of Jury Trial. Each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York (or any appellate courts thereof), for the purposes of any Legal Proceeding (a) arising under this Agreement or the transactions contemplated hereby or (b) in any way connected with or related or incidental to the dealings of the parties hereto in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Legal Proceeding in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Legal Proceeding has been brought in an inconvenient forum. Each party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Legal Proceeding (i) arising under this Agreement or the transactions contemplated hereby or (ii) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, (A) any claim that it is not personally subject to the jurisdiction of the courts as described in this Section 5.5 for any reason, (B) that it or its property is exempt or immune from the jurisdiction of any such court or from any Legal Proceeding commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Legal Proceeding in any such court is brought in an inconvenient forum, (y) the venue of such Legal Proceeding is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each party hereto agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 5.1 shall be effective service of process for any such Legal Proceeding.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION WILL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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5.6. Amendments and Modifications. Upon the written consent of PubCo and the Holders of at least a majority in interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in his, her or its capacity as a holder of the shares of capital stock of PubCo, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or PubCo and any other party hereto or any failure or delay on the part of a Holder or PubCo in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or PubCo. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
5.7. Other Registration Rights. PubCo represents and warrants that no person, other than a Holder of Registrable Securities, has any right to require PubCo to register any securities of PubCo for sale or to include such securities of PubCo in any Registration filed by PubCo for the sale of securities for its own account or for the account of any other person. Further, PubCo represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.
5.8. Term. This Agreement shall terminate upon the earlier of (i) the fifth anniversary of the date of this Agreement or (ii) the date as of which (A) all of the Registrable Securities have been sold pursuant to a Registration Statement (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the Commission)) or (B) the Holders of all Registrable Securities are permitted to sell the Registrable Securities under Rule 144 (or any similar provision) under the Securities Act without limitation on the amount of securities sold or the manner of sale and without compliance with the current public reporting requirements set forth under Rule 144(i)(2). The provisions of Section 3.5 and ARTICLE IV shall survive any termination.
5.9. Termination of Prior Agreement. Each Holder that is also a party to the registration rights agreement entered into by and among such Holder, Acquiror and certain other parties thereto dated December 21, 2022 (“Prior Agreement”) hereby consents that upon such Holder’s execution and delivery of this Agreement, the Prior Agreement shall be automatically terminated without further force and effect with respect to such Holder.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
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| ARCHENOVA TECHNOLOGY CO., LTD |
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[Signature Page to the Registration Rights Agreement]
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HOLDERS:
[Signature Page to the Registration Rights Agreement]
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EXHIBIT 10.4
LOCK-UP AGREEMENT
This LOCK-UP AGREEMENT is made as of [•] (this “Agreement”) by and between ArcheNova Technology Co., Ltd, a Cayman Islands exempted company (“PubCo”), and each of the undersigned (each, a “Shareholder”). Capitalized terms used but not defined in this Agreement shall have the meaning ascribed to such terms in the Business Combination Agreement (as defined below).
WHEREAS, on October 12, 2026, Horizon Space Acquisition I Corp., a Cayman Islands exempted company (“Acquiror” or “SPAC”), PubCo, ArcheNova International Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub I”), ArcheNova Global Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub II”), and ArcheNova Biotech Corp., a Cayman Islands exempted company (the “Company”), entered into a Business Combination Agreement (the “Business Combination Agreement”) pursuant to which, upon the terms and subject to the conditions set forth therein: (a) Merger Sub I will merge with and into Acquiror (the “First Merger”), with Acquiror surviving the First Merger as a wholly-owned subsidiary of PubCo and the outstanding securities of Acquiror being converted into the right to receive certain securities of PubCo, and (b) no later than one (1) Business Day following the First Closing (or, if not on the same day, the First Merger Effective Time) or at such other time agreed upon by the Acquiror and the Company in writing, and as part of the same overall transaction as contemplated by the Business Combination Agreement, Merger Sub II will merge with and into the Company (the “Second Merger”, and together with the First Merger, the “Mergers”), with the Company surviving the Second Merger as a wholly-owned subsidiary of PubCo and the outstanding shares of the Company being converted into the right to receive shares of PubCo (the Mergers together with the other transactions contemplated by the Business Combination Agreement, the “Transactions”).
WHEREAS, Acquiror, the persons listed on Schedule B hereto (each, an “Initial Insider” and collectively, the “Initial Insiders”) and Continental Stock Transfer & Trust Company, a New York limited liability trust company, as escrow agent (the “Escrow Agent”), entered into a Share Escrow Agreement, dated as of December 21, 2022 (the “Share Escrow Agreement”).
WHEREAS, a condition of, and as a material inducement for the Company, the SPAC and PubCo to enter into and consummate the Transactions, each Shareholder has agreed to execute and deliver this Agreement prior to the First Merger Effective Time.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
| 1. | REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Each Shareholder hereby represents and warrants to the PubCo as of the date of this Agreement as follows: |
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| 1.1 | Organization. Each Shareholder, if an entity, has been duly incorporated, organized or formed and is validly existing as a corporation in good standing (or equivalent status, to the extent that such concept exists) under the laws of its jurisdiction of incorporation or organization, and has the requisite corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. It is duly licensed or qualified and in good standing as a foreign corporation in all jurisdictions in which the character of the property owned, leased or operated by it or the nature of the business conducted by it is such as to require it to be so licensed or qualified or in good standing (or equivalent status, to the extent that such concept exists) except where the failure to be so licensed or qualified or in good standing would not prevent, impede or, in any material respect, interfere with, delay or adversely affect its ability to perform its obligations under this Agreement and the documents contemplated hereby and consummate the transactions contemplated hereby and thereby. |
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| 1.2 | Due Authorization. Such Shareholder, if an entity, has all requisite corporate power and authority, and if an individual, have full legal capacity right and authority, to (a) execute and deliver this Agreement and the documents contemplated hereby, and (b) consummate the transactions contemplated hereby and thereby and perform all obligations to be performed by it hereunder and thereunder. The execution and delivery of this Agreement and the documents contemplated hereby and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized and approved. No other company proceeding on the part of such Shareholder is necessary to authorize the execution and delivery of this Agreement and the documents contemplated hereby or to consummate the transactions contemplated hereby and thereby. This Agreement has been duly and validly executed and delivered by such Shareholder, and assuming the due authorization, execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes a legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. |
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| 1.3 | Governmental Approvals. No consent of or with any Governmental Authority on the part of such Shareholder is required to be obtained or made in connection with the execution, delivery or performance by such Shareholder of this Agreement and the documents contemplated hereby or the consummation by such Shareholder of the transactions contemplated hereby and thereby, other than (a) applicable requirements on securities laws of any relevant jurisdiction, and the rules and regulations thereunder and (b) where the failure to obtain or make such consents or to make such filings or notifications would not prevent, impede or, in any material respect, interfere with, delay or adversely affect the performance by such Shareholder of its obligations under this Agreement and the documents contemplated hereby. |
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| 1.4 | No Conflict. The execution and delivery of this Agreement by such Shareholder and the other documents contemplated hereby by such Shareholder, the consummation of the transactions contemplated hereby and thereby and compliance with any of the provisions hereof and thereof by such Shareholder do not and will not: |
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| (a) | violate or conflict with any provision of, or result in the breach of or default under the Governing Documents of such Shareholder; |
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| (b) | violate or conflict with any provision of, or result in the breach of, or default under, or require any consent, waiver, exemption or approval under, any applicable law or governmental order applicable to such Shareholder or any of its properties or assets; |
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| (c) | (i) violate or conflict with any provision of, or result in the breach of, (ii) result in the loss of any right or benefit under, (iii) give rise to any obligation to obtain any third party consent from any Person, (iv) accelerate the performance required by such Shareholder under, (v) constitute (with or without due notice or lapse of time or both) a default, (vi) result in the termination, withdrawal, suspension, cancellation or modification of, (vi) result in a right of termination or acceleration under, (vii) give rise to any obligation to make payments or provide compensation under, or (viii) give any Person the right to declare a default, exercise any remedy, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any contract to which such Shareholder is a party or by which such Shareholder may be bound; or |
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| (d) | result in the creation of any Lien upon any of the properties or assets of such Shareholder; |
except, in the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not prevent, impede or, in any material respect, interfere with, delay or adversely affect the ability of such Shareholder to perform its obligations under this Agreement and the documents contemplated hereby and consummate the transactions contemplated hereby and thereby.
| 2. | REPRESENTATIONS AND WARRANTIES OF PUBCO. PubCo hereby represents and warrants to each Shareholder as of the date of this Agreement as follows: |
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| 2.1 | Organization. The PubCo has been duly incorporated, organized or formed and is validly existing as an exempted company in good standing under the Laws of the Cayman Islands, and has the requisite corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. It is duly licensed or qualified and in good standing as a foreign company in all jurisdictions in which the character of the property owned, leased or operated by it or the nature of the business conducted by it is such as to require it to be so licensed or qualified or in good standing (or equivalent status, to the extent that such concept exists) except where the failure to be so licensed or qualified or in good standing would not prevent, impede or, in any material respect, interfere with, delay or adversely affect its ability to perform its obligations under this Agreement and the documents contemplated hereby and consummate the transactions contemplated hereby and thereby. |
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| 2.2 | Due Authorization. The PubCo has all requisite corporate power and authority to (a) execute and deliver this Agreement and the documents contemplated hereby, and (b) consummate the transactions contemplated hereby and thereby and perform all obligations to be performed by it hereunder and thereunder. The execution and delivery of this Agreement and the documents contemplated hereby and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized and approved. No other company proceeding on its part is necessary to authorize the execution and delivery of this Agreement and the documents contemplated hereby or to consummate the transactions contemplated hereby and thereby. This Agreement has been duly and validly executed and delivered by it, and assuming the due authorization, execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. |
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| 2.3 | No Conflict. The execution and delivery of this Agreement by the PubCo and the other documents contemplated hereby by it, the consummation of the transactions contemplated hereby and thereby and compliance with any of the provisions hereof and thereof by it do not and will not: |
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| (a) | violate or conflict with any provision of, or result in the breach of or default under its Governing Documents; |
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| (b) | violate or conflict with any provision of, or result in the breach of, or default under any applicable Law or governmental order applicable to it or any of its properties or assets; |
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| (c) | (i) violate or conflict with any provision of, or result in the breach of, (ii) result in the loss of any right or benefit under, (iii) give rise to any obligation to obtain any third party consent from any Person, (iv) accelerate the performance required by it under, (v) constitute (with or without due notice or lapse of time or both) a default, (vi) result in the termination, withdrawal, suspension, cancellation or modification of, (vii) result in a right of termination or acceleration under, (viii) give rise to any obligation to make payments or provide compensation under, or (ix) give any Person the right to declare a default, exercise any remedy, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any Contract to which it is a party or by which it may be bound; or |
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| (d) | result in the creation of any Lien upon any of its properties or assets, |
except, in the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not prevent, impede or, in any material respect, interfere with, delay or adversely affect its ability to perform it obligations under this Agreement and the documents contemplated hereby and consummate the transactions contemplated hereby and thereby.
| 3. | LOCK-UP |
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| 3.1 | For purposes of this Agreement, the “Lock-up Shares” shall include, (A) with respect to a Shareholder that is not an Initial Insider, (i) PubCo Ordinary Shares held by such Shareholder immediately after the date of the Second Closing (the “Second Closing Date”), (ii) PubCo Ordinary Shares issuable upon the exercise of options or warrants to purchase PubCo Ordinary Shares held by such Shareholder immediately after the Second Closing Date (along with such options or warrants themselves), and (iii) any PubCo Ordinary Shares acquirable upon the conversion, exercise or exchange of any securities convertible into or exercisable or exchangeable for PubCo Ordinary Shares held by such Shareholder immediately after the Second Closing Date (along with securities themselves), as set forth on Schedule A hereto, and (B) with respect to a Shareholder that is an Initial Insider, PubCo Ordinary Shares issued to such Shareholder and its assignees in exchange of their Insider Shares upon the First Merger as set forth on Schedule B hereto. For the purpose of this paragraph, “Insider Shares” shall mean 1,725,000 ordinary shares of the SPAC that Initial Insiders collectively acquired before the initial public offering of the SPAC and which ordinary shares have been deposited with the Escrow Agent pursuant to the Share Escrow Agreement. |
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| 3.2 | Subject to the exceptions set forth herein, during the Lock-up Period (as defined below), such Shareholder irrevocably agrees that each Shareholder will not (a) sell, assign, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder with respect to, any of the Lock-up Shares, (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Lock-up Shares, whether any such transaction is to be settled by delivery of such Lock-up Shares, in cash or otherwise, (c) make public announcement of any intention to effect any transaction specified in clause (a) or (b), or (d) engage in any Short Sales (as defined below) with respect to any security of PubCo. |
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| 3.3 | In furtherance of the foregoing, PubCo will (i) place an irrevocable stop order on all Lock-up Shares, including those which may be covered by a registration statement, and (ii) notify PubCo’s transfer agent in writing of the stop order and the restrictions on such Lock-up Shares under this Agreement and direct PubCo’s transfer agent not to process any attempts by such Shareholder to resell or transfer any Lock-up Shares, except in compliance with this Agreement or waived by PubCo. |
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| 3.4 | For purposes of this Agreement, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers. |
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| 3.5 | For purposes of this Agreement, “Lock-up Period” means, with respect to each Shareholder, (A) with respect to 50% of such Shareholder’s Lock-up Shares, the period commencing on the Second Closing Date and ending on the date that is the earlier to occur of (i) six months after the Second Closing Date, or (ii) the date on which the closing price of each PubCo Ordinary Share equals or exceeds $12.50 per share (as adjusted for share splits, share dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after the Second Closing Date, and (B) with respect to the remaining 50% of such Shareholder’s Lock-up Shares, the period commencing on the Second Closing Date and ending on the date that is six months after the Second Closing Date. |
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| 3.6 | The restrictions set forth herein shall not apply to: (i) transfers or distributions to such Shareholder’s general or limited partners, members, shareholders, other equity holders or direct or indirect affiliates (within the meaning of Rule 405 under the Securities Act of 1933, as amended) or to the estates of any of the foregoing; (ii) transfers by bona fide gift to a member of the Shareholder’s immediate family or to a trust, the beneficiary of which is the Shareholder or a member of the Shareholder’s immediate family for estate planning purposes; (iii) by virtue of the laws of descent and distribution upon death of the Shareholder; or (iv) pursuant to a qualified domestic relations order, in each case where such transferee agrees to be bound by the terms of this Agreement in writing, in form and substance reasonably satisfactory to PubCo. |
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| 3.7 | In addition, after the Second Closing Date, if there is a Change of Control, then upon the consummation of such Change of Control, all Lock-up Shares shall be released from the restrictions contained herein. A “Change of Control” means: (a) the sale of all or substantially all of the consolidated assets of PubCo and PubCo’s subsidiaries to a third-party purchaser; (b) a sale resulting in no less than a majority of the voting power of PubCo being held by person that did not own a majority of the voting power prior to such sale; or (c) a merger, consolidation, recapitalization or reorganization of PubCo with or into a third-party purchaser that results in the inability of the pre-transaction equity holders to designate or elect a majority of the board of directors (or its equivalent) of the resulting entity or its parent company. |
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| 4. | GENERAL PROVISIONS |
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| 4.1 | Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered to, with respect to each Shareholder, the address set forth on its signature page hereto, and with respect to the PubCo in accordance with Section 12.4 (Notices) of the Business Combination Agreement (or to such other address as any party may have furnished to the others in writing in accordance herewith). |
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| 4.2 | Headings Counterparts. The headings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. |
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| 4.3 | Assignment. No party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties and any such transfer without the prior written consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. |
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| 4.4 | Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties hereto further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties hereto. |
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| 4.5 | Amendment. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed by each party hereto in the same manner as this Agreement and which makes reference to this Agreement. |
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| 4.6 | Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto relating to the subject matter hereof and the transactions contemplated hereby and supersedes any other agreements, whether written or oral, that may have been made or entered into by or between any of the parties hereto relating to the subject matter hereof or the transactions contemplated hereby. |
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| 4.7 | Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of law that would result in the application of the substantive law of another jurisdiction. |
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| 4.8 | Jurisdiction. Each of the parties irrevocably and unconditionally submits to the exclusive jurisdiction of the federal courts of the State of New York sitting in New York, New York (or any appellate courts thereof), for the purposes of any Action (a) arising under this Agreement or the transactions contemplated hereby or (b) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Action in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action has been brought in an inconvenient forum. Each party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action (i) arising under this Agreement or the transactions contemplated hereby or (ii) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement or the transactions contemplated hereby or any of the transactions contemplated hereby or thereby, (A) any claim that it is not personally subject to the jurisdiction of the courts as described in this Section 4.8 for any reason, (B) that it or its property is exempt or immune from the jurisdiction of any such court or from any Action commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Action in any such court is brought in an inconvenient forum, (y) the venue of such Action is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each party hereto agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 4.1 shall be effective service of process for any such Action. |
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| 4.9 | WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION, DISPUTE, CLAIM, LEGAL ACTION OR OTHER ACTION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. |
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| 4.10 | Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. |
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| 4.11 | No Additional Fees/Payment. Other than the consideration specifically referenced herein, the parties hereto agree that no fee, payment or additional consideration in any form has been or will be paid to each Shareholder in connection with this Agreement. |
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| 4.12 | Enforcement. The parties hereto agree that irreparable damage could occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to specific enforcement of the terms and provisions of this Agreement, in addition to any other remedy to which any party is entitled at Law or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party hereto shall allege, and each party hereto hereby waives the defence, that there is an adequate remedy at Law, and each party hereto agrees to waive any requirement for the securing or posting of any bond in connection therewith. |
[Signature pages follow]
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IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date first above written.
| ARCHENOVA TECHNOLOGY CO., LTD | |||
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[Signature Page to Lock-up Agreement]
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IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date first above written.
Shareholder
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Notice Address:
[Signature Page to Lock-up Agreement]
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SCHEDULE A
| Name and Address | Total PubCo Ordinary Shares Exchanged for Company Shares |
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SCHEDULE B
| Name and Address | Total PubCo Ordinary Shares Exchanged for Insider Shares |
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EXHIBIT 10.5
ASSIGNMENT ASSUMPTION AND AMENDED & RESTATED WARRANT AGREEMENT
This ASSIGNMENT ASSUMPTION AND AMENDED & RESTATED WARRANT AGREEMENT (this “Agreement” or the “A&R Warrant Agreement”) is made as of [•] (the “Effective Date”) among Horizon Space Acquisition I Corp., a Cayman Islands exempted company limited by shares, with offices at 1412 Broadway, 21st Floor, Suite 21V, New York, NY 10018 (“SPAC”), ArcheNova Technology Co., Ltd, a Cayman Islands exempted company limited by shares (“PubCo”), and Continental Stock Transfer & Trust Company, a New York limited purpose trust company, with offices at 1 State Street, New York, New York 10004, as warrant agent (“Warrant Agent”).
RECITALS
WHEREAS, SPAC and the Warrant Agent are parties to that certain Warrant Agreement, dated as of December 21, 2022 (the “Existing Warrant Agreement”);
WHEREAS, SPAC engaged in a public offering (the “Public Offering”) of 6,900,000 units, each unit (the “Public Units”) comprised of one ordinary share of SPAC, par value $0.0001 per share (“SPAC Ordinary Shares”), one redeemable warrant, where each whole warrant entitles the holder to purchase one SPAC Ordinary Share at a price of $11.50 per share, subject to adjustment as described herein, and one right to receive one-tenth (1/10) of one SPAC Ordinary Share upon the consummation of an initial business combination, and, in connection therewith, has issued and delivered 6,900,000 warrants (the “Public Warrants”) to the public investors in connection with the Public Offering;
WHEREAS, SPAC has filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-1, No. 333- 268578 (“Registration Statement”) and prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (“Act”) of, among other securities, the Public Warrants;
WHEREAS, SPAC issued to its sponsor, Horizon Space Acquisition I Sponsor Corp. a Cayman Islands exempted company limited by shares (the “Sponsor”), simultaneously with the closing of the Public Offering, 385,750 units (the “Private Units”), each containing one SPAC Ordinary Share, one warrant (the “Private Warrants”) and one right to receive one-tenth (1/10) of one SPAC Ordinary Share upon the consummation of an initial business combination (the “Private Rights”). Each whole Private Warrant exercisable to purchase one SPAC Ordinary Share at a price of $11.50 per share;
WHEREAS, SPAC may issue up to an additional 300,000 units (the “Working Capital Units”) at a price of $10.00 per Working Capital Unit, with each Working Capital Unit consisting of one SPAC Ordinary Share, one warrant (a whole warrant of each such warrant, a “Working Capital Warrant”) and one right to receive one-tenth (1/10) of one SPAC Ordinary Share upon the consummation of an initial business combination (the “Working Capital Rights”), in satisfaction of certain working capital loans made by the SPAC’s officers, directors, initial shareholders and their affiliates;
WHEREAS, SPAC may issue additional units (the “Extension Loan Units” and together with the Public Units, the Private Units, and the Working Capital Units, the “Units”) at a price of $10.00 per Extension Loan Unit, with each Extension Loan Unit consisting of one SPAC Ordinary Share, one warrant (a whole warrant of each such warrant, an “Extension Loan Warrant” and together with the Public Warrants, Private Warrants, and Working Capital Warrants, the “Warrants”) and one right to receive one-tenth (1/10) of one SPAC Ordinary Share upon the consummation of an initial business combination (the “Extension Loan Rights”), for each loan made by the Sponsor, its affiliates or designees in connection with the extensions of the period for SPAC’s initial business combination as contemplated in SPAC’s amended and restated memorandum and articles of association;
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WHEREAS, on October 12, 2026, the SPAC, PubCo, ArcheNova International Co., Ltd, a Cayman Islands exempted company limited by shares and a direct wholly-owned subsidiary of PubCo (“Merger Sub I”), ArcheNova Global Co., Ltd, a Cayman Islands exempted company limited by shares and a direct wholly-owned subsidiary of PubCo (“Merger Sub II”), and ArcheNova Biotech Corp., a Cayman Islands exempted company limited by shares (the “Company”), entered into a Business Combination Agreement (the “Business Combination Agreement”) pursuant to which, upon the terms and subject to the conditions set forth therein: (a) Merger Sub I will merge with and into Acquiror (the “First Merger”), with Acquiror surviving the First Merger as a direct wholly-owned subsidiary of PubCo and the outstanding securities of Acquiror being converted into the right to receive certain securities of PubCo, and (b) no later than one (1) Business Day following, and as part of the same overall transaction as, the First Merger, Merger Sub II will merge with and into the Company (the “Second Merger”, and together with the First Merger, the “Mergers”), with the Company surviving the Second Merger as a direct wholly-owned subsidiary of PubCo and the outstanding shares of the Company being converted into the right to receive shares of PubCo (the Mergers together with the other transactions contemplated by the Business Combination Agreement, the “Transactions”);
WHEREAS, upon consummation of the Mergers, as provided in Section 4.4 of the Existing Warrant Agreement, (i) the Warrants will no longer be exercisable for SPAC Ordinary Shares, but instead will be exercisable (subject to the terms and conditions of the Existing Warrant Agreement as amended hereby) for a number of ordinary shares of PubCo (the “Ordinary Shares”) equal to the number of SPAC Ordinary Shares for which such Warrants were exercisable immediately prior to the Mergers, subject to adjustment as described herein (such Warrants as so adjusted and amended, the “Warrants”), and (ii) the Warrants shall be assumed by PubCo;
WHEREAS, in connection with the transactions contemplated by the Business Combination Agreement, SPAC desires to assign to PubCo, and PubCo desires to assume, all of SPAC’s rights, interests and obligations under the Existing Warrant Agreement;
WHEREAS, the consummation of the transactions contemplated by the Business Combination Agreement will constitute a Business Combination as defined in the Existing Warrant Agreement;
WHEREAS, Section 9.8 of the Existing Warrant Agreement provides that SPAC and the Warrant Agent may amend the Existing Warrant Agreement without the consent of any registered holder for the purpose of (i) curing any ambiguity, or curing, or correcting or supplementing any defective provision or mistake contained therein, and (ii) adding or changing any other provisions with respect to matters or questions arising under the Existing Warrant Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the rights of the registered holders thereunder;
WHEREAS, PubCo desires the Warrant Agent to act on behalf of PubCo, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption, and exercise of the Warrants;
WHEREAS, PubCo desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of PubCo, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of PubCo and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding, and legal obligations of PubCo, and to authorize the execution and delivery of this Agreement.
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NOW, THEREFORE, in consideration of the mutual agreements herein contained, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
1. Assignment and Assumption; Amendment; Appointment of Warrant Agent.
1.1. Assignment and Assumption. SPAC hereby assigns to PubCo all of SPAC’s right, title and interest in and to the Existing Warrant Agreement and the Warrants (each as amended hereby) as of the First Merger Effective Time (as defined in the Business Combination Agreement). PubCo hereby assumes, and agrees to pay, perform, satisfy, and discharge in full, as the same become due, all of SPAC’s liabilities and obligations under the Existing Warrant Agreement and the Warrants (each as amended hereby) arising from and after the First Merger Effective Time (as defined in the Business Combination Agreement).
1.2. Amendment. SPAC and the Warrant Agent hereby amend and restate the Existing Warrant Agreement and the Warrants issued thereunder in accordance with Section 9.8 of the Existing Warrant Agreement in its entirety in the form of this Agreement as of the First Merger Effective Time (as defined in the Business Combination Agreement), such that the rights and obligations of the Warrants issued under the Existing Warrant Agreement shall be governed by the terms of this Agreement. SPAC and Warrant Agent hereby acknowledge and agree that the amendments and restatements to the Existing Warrant Agreement as set forth in this Agreement are necessary or desirable and that such amendments and restatements do not adversely affect the interests of the registered holders.
1.3. Appointment of Warrant Agent. PubCo hereby appoints the Warrant Agent to act as agent for PubCo for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1. Form of Warrant. Each Warrant shall be issued in registered form only, and, if a physical certificate is issued, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board, President, a Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of PubCo. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2. Effect of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant certificate shall be invalid and of no effect and may not be exercised by the holder thereof.
2.3. Registration.
2.3.1. Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by PubCo. All of the Public Warrants shall initially be represented by one or more book-entry certificates (each, a “Book-Entry Warrant Certificate”) deposited with The Depository Trust Company (the “Depositary”) and registered in the name of Cede & Co., a nominee of the Depositary. Ownership of beneficial interests in the Public Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by (i) the Depositary or its nominee for each Book-Entry Warrant Certificate, or (ii) institutions that have accounts with the Depositary (each such institution, with respect to a Warrant in its account, a “Participant”).
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If the Depositary subsequently ceases to make its book-entry settlement system available for the Public Warrants, PubCo may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent for cancellation each book-entry Public Warrant, and PubCo shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants (“Definitive Warrant Certificate”). Such Definitive Warrant Certificate shall be in the form annexed hereto as Exhibit A, with appropriate insertions, modifications and omissions, as provided above.
2.3.2. Registered Holder. Prior to due presentment for registration of transfer of any Warrant, PubCo and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on a Definitive Warrant Certificate made by anyone other than PubCo or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither PubCo nor the Warrant Agent shall be affected by any notice to the contrary.
2.4. Private Warrant, Working Capital Warrant, and Extension Loan Warrant Attributes. The Private Warrants, Working Capital Warrants, and Extension Loan Warrants will be issued in the same form as the Public Warrants.
2.5. No Fractional Warrants. If a holder of Warrants would be entitled to receive a fractional Warrant, PubCo shall round down to the nearest whole number the number of Warrants to be issued to such holder.
3. Terms and Exercise of Warrants
3.1. Warrant Price. Each whole Warrant shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from PubCo the number of Ordinary Shares stated therein, at the price of $11.50 per whole share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share at which Ordinary Shares may be purchased at the time a Warrant is exercised. PubCo in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days; provided, that PubCo shall provide at least twenty (20) days’ prior written notice of such reduction to Registered Holders of the Warrants and, provided further that any such reduction shall be identical among all of the Warrants.
3.2. Duration of Warrants. A whole Warrant may be exercised only during the period commencing on the Effective Date, and terminating at 5:00 p.m., New York City time on the earlier to occur of (i) five years from the Effective Date, and (ii) at 5:00 p.m., New York City time on the Redemption Date (as defined below) as provided in Section 6.2 of this Agreement (“Expiration Date”), provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below with respect to an effective registration statement. Except with respect to the right to receive the Redemption Price (as defined below) in the event of a redemption (as set forth in Section 6 hereunder), as applicable, each outstanding Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m., New York City time, on the Expiration Date. PubCo in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, that PubCo shall provide at least twenty (20) days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.
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3.3. Exercise of Warrants.
3.3.1. Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant may be exercised by the Registered Holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Definitive Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the “Book-Entry Warrants”) on the records of the Depositary to an account of the Warrant Agent at the Depositary designated for such purposes in writing by the Warrant Agent to the Depositary from time to time, (ii) an election to purchase (“Election to Purchase”) Ordinary Shares pursuant to the exercise of a Warrant, properly completed and executed by the Registered Holder on the reverse of the Definitive Warrant Certificate or, in the case of a Book-Entry Warrant Certificate, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) payment in full of the Warrant Price for each full Ordinary Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the Ordinary Shares and the issuance of such Ordinary Shares, as follows:
(a) in lawful money of the United States, in good certified check or good bank draft payable to the order of the Warrant Agent or by wire transfer; or
(b) in the event of a redemption pursuant to Section 6 hereof in which PubCo’s board of directors (the “Board”) has elected to require all holders of the Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value”, as defined in this subsection 3.3.1(b), over the Warrant Price by (y) the Fair Market Value. Solely for purposes of this subsection 3.3.1(b) and Section 6.3, the “Fair Market Value” shall mean the average last sale price of the Ordinary Shares for the ten (10) trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of the Warrants, pursuant to Section 6 hereof; or
(c) as provided in Section 7.4 hereof.
3.3.2. Issuance of Ordinary Shares on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), PubCo shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of full Ordinary Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of Ordinary Shares as to which such Warrant shall not have been exercised. Subject to Section 4.6, a Registered Holder of Warrants may exercise its Warrants only for a whole number of Ordinary Shares. If fewer than all the Warrants evidenced by a Book Entry Warrant Certificate are exercised, a notation shall be made to the records maintained by the Depositary, its nominee for each Book Entry Warrant Certificate, or a Participant, as appropriate, evidencing the balance of the Warrants remaining after such exercise. Notwithstanding the foregoing, PubCo shall not be obligated to issue any Ordinary Shares pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the Ordinary Shares underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to PubCo’s satisfying its obligations under Section 7.4. No Warrant shall be exercisable and PubCo shall not be obligated to issue Ordinary Shares upon exercise of a Warrant unless the Ordinary Shares issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt from registration or qualification under the securities laws of the state of residence of the Registered Holder of the Warrants, except pursuant to Section 7.4. In the event that the conditions in the two immediately preceding sentences are not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless, in which case the purchaser of a Unit containing such Public Warrants shall have paid the full purchase price for the Unit solely for the Ordinary Shares underlying such Unit. In no event will PubCo be required to net cash settle the Warrant exercise. PubCo may require holders of Public Warrants to settle the Warrant on a “cashless basis” pursuant to subsection 3.3.1(b) and Section 7.4. If, by reason of any exercise of Warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in an Ordinary Share, PubCo shall round down to the nearest whole number, the number of Ordinary Shares to be issued to such holder.
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3.3.3. Valid Issuance. All Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement and the Amended and Restated Memorandum and Articles of Association of PubCo shall be validly issued, fully paid and nonassessable.
3.3.4. Date of Issuance. Upon proper exercise of a Warrant, PubCo shall instruct the Warrant Agent, in writing, to make the necessary entries in the register of members of PubCo in respect of Ordinary Shares and to issue a certificate if requested by the holder of such Warrant. Each person in whose name any book-entry position in the register of members of PubCo or certificate, as applicable, for Ordinary Shares is issued shall for all purposes be deemed to have become the holder of record of such Ordinary Shares on the date on which the Warrant, or book-entry position in the register of members of PubCo representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the register of members or share transfer books of PubCo or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such Ordinary Shares at the close of business on the next succeeding date on which the register of members, share transfer books or book-entry system are open.
3.3.5. Maximum Percentage. A holder of a Warrant may notify PubCo in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (or such other amount as a holder may specify) (the “Maximum Percentage”) of the Ordinary Shares issued and outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such person and its affiliates shall include the number of Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of PubCo beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of issued and outstanding Ordinary Shares, the holder may rely on the number of issued and outstanding Ordinary Shares as reflected in (1) PubCo’s most recent annual report on Form 20-F, current report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by PubCo or (3) any other notice by PubCo or the Transfer Agent setting forth the number of Ordinary Shares issued and outstanding. For any reason at any time, upon the written request of the holder of the Warrant, PubCo shall, within two (2) Business Days, confirm orally and in writing to such holder the number of Ordinary Shares then issued and outstanding. In any case, the number of issued and outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of PubCo by the holder and its affiliates since the date as of which such number of issued and outstanding Ordinary Shares was reported. By written notice to PubCo, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to PubCo.
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4. Adjustments.
4.1. Share Capitalization.
4.1.1 Split-Ups. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of issued and outstanding Ordinary Shares is increased by a capitalization of Ordinary Shares, or by a split of Ordinary Shares or other similar event, then, on the effective date of such share capitalization, split or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in the issued and outstanding Ordinary Shares. A rights offering to holders of the Ordinary Shares entitling holders to purchase Ordinary Shares at a price less than the “Fair Market Value” (as defined below) shall be deemed a capitalization of a number of Ordinary Shares equal to the product of (i) the number of Ordinary Shares actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for Ordinary Shares) and (ii) one (1) minus the quotient of (x) the price per Ordinary Share paid in such rights offering divided by (y) the Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for the Ordinary Shares, in determining the price payable for Ordinary Shares, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means the volume weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the first date on which the Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
4.1.2 Extraordinary Dividends. If PubCo, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of Ordinary Shares on account of such Ordinary Shares (or other shares of PubCo into which the Warrants are convertible), other than (a) as described in subsection 4.1.1 above, (b) Ordinary Cash Dividends (as defined below), or (c) any subsequent distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each Ordinary Share in respect of such Extraordinary Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis, with the per share amounts of all other cash dividends and cash distributions paid on the Ordinary Shares during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of Ordinary Shares issuable on exercise of each Warrant) does not exceed $0.50.
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4.2. Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of issued and outstanding Ordinary Shares is decreased by a consolidation, combination, reverse share split or redesignation of Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, redesignation or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in issued and outstanding Ordinary Shares.
4.3. Adjustments in Exercise Price. Whenever the number of Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of Ordinary Shares so purchasable immediately thereafter.
4.4. Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the issued and outstanding Ordinary Shares (other than a change under subsections 4.1.1 or 4.1.2 or Section 4.2 hereof or that solely affects the par value of such Ordinary Shares), or in the case of any merger or consolidation of PubCo with or into another corporation (other than a consolidation or merger in which PubCo is the continuing corporation and that does not result in any reclassification or reorganization of the issued and outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of PubCo as an entirety or substantially as an entirety in connection with which PubCo is dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Ordinary Shares of PubCo immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event. If any reclassification also results in a change in the Ordinary Shares covered by subsection 4.1.1 or Section 4.1.2 or Section 4.2 hereof, then such adjustment shall be made pursuant to subsection 4.1.1 or Section 4.1.2 or Section 4.2 hereof and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant.
4.5. Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of Ordinary Shares issuable upon exercise of a Warrant, PubCo shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of Ordinary Shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, PubCo shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.6. No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, PubCo shall not issue fractional Ordinary Shares upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, PubCo shall, upon such exercise, round down to the nearest whole number, the number of Ordinary Shares to be issued to such holder.
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4.7. Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of Ordinary Shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that PubCo may at any time in its sole discretion make any change in the form of Warrant that PubCo may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.8. Other Events. In case any event shall occur affecting PubCo as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, PubCo shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. PubCo shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5. Transfer and Exchange of Warrants.
5.1. Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, in the case of certificated Warrants, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the Warrants so cancelled shall be delivered by the Warrant Agent to PubCo from time to time upon request.
5.2. Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or in any Book Entry Warrant Certificate or Definitive Warrant Certificate, each Book Entry Warrant Certificate and Definitive Warrant Certificate may be transferred only in whole and only to the Depositary, to another nominee of the Depositary, to a successor depository, or to a nominee of a successor depository; provided further, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Private Warrants and Working Capital Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for PubCo stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the issuance of a warrant certificate or book-entry position for a fraction of a warrant.
5.4. Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and PubCo, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of PubCo for such purpose.
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6. Redemption.
6.1. Redemption. Not less than all of the outstanding Warrants may be redeemed, at the option of PubCo, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.2 below, at the price of $0.01 per Warrant (the “Redemption Price”), provided that the last sales price of the Ordinary Shares reported has been at least $16.00 per share (subject to adjustment in compliance with Section 4 hereof), on each of twenty (20) trading days within the thirty (30) trading-day period ending on the third trading day prior to the date on which notice of the redemption is given and provided that there is an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day Redemption Period (as defined in Section 6.2 below) or PubCo has elected to require the exercise of the Warrants on a “cashless basis” pursuant to subsection 3.3.1; provided, however, that if and when the Public Warrants become redeemable by PubCo, PubCo may not exercise such redemption right if the issuance of Ordinary Shares upon exercise of the Public Warrants is not exempt from registration or qualification under applicable state blue sky laws or PubCo is unable to effect such registration or qualification.
6.2. Date Fixed for, and Notice of, Redemption. In the event that PubCo elects to redeem all of the Warrants, PubCo shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by PubCo not less than thirty (30) days prior to the Redemption Date (the “30-day Redemption Period”) to the Registered Holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice.
6.3. Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with subsection 3.3.1(b) of this Agreement) at any time after notice of redemption shall have been given by PubCo pursuant to Section 6.2 hereof and prior to the Redemption Date. In the event that PubCo determines to require all holders of Warrants to exercise their Warrants on a “cashless basis” pursuant to subsection 3.3.1, the notice of redemption shall contain the information necessary to calculate the number of Ordinary Shares to be received upon exercise of the Warrants, including the “Fair Market Value” (as such term is defined in subsection 3.3.1(b) hereof) in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1. No Rights as Shareholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of PubCo, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the general meetings or the election of directors of PubCo or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, PubCo and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of PubCo, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3. Reservation of Ordinary Shares. PubCo shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
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7.4. Registration of Ordinary Shares; Cashless Exercise at PubCo’s Option.
7.4.1 Registration of the Ordinary Shares. PubCo agrees that as soon as practicable after the Effective Date, it shall use its best efforts to file with the Commission a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants. PubCo shall use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration of the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been declared effective by the 60th Business Day following the Effective Date, holders of the Warrants shall have the right, during the period beginning on the 61st Business Day after the Effective Date and ending upon such registration statement being declared effective by the Commission, and during any other period when PubCo shall fail to have maintained an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act (or any successor rule) or another exemption) for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (as defined below) by (y) the Fair Market Value. Solely for purposes of this subsection 7.4.1, “Fair Market Value” shall mean the volume weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of cashless exercise is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. In connection with the “cashless exercise” of a Public Warrant, PubCo shall, upon request, provide the Warrant Agent with an opinion of counsel for PubCo (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance with this subsection 7.4.1 is not required to be registered under the Securities Act and (ii) the Ordinary Shares issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities Act (or any successor statute)) of PubCo and, accordingly, shall not be required to bear a restrictive legend. Except as provided in subsection 7.4.2, for the avoidance of any doubt, unless and until all of the Warrants have been exercised or have expired, PubCo shall continue to be obligated to comply with its registration obligations under the first three sentences of this subsection 7.4.1.
7.4.2 Cashless Exercise at PubCo’s Option. If the Ordinary Shares are at the time of any exercise of a Warrant not listed on a national securities exchange such that it satisfies the definition of a “covered security” under Section 18(b)(1) of the Securities Act (or any successor statute), PubCo may, at its option, (i) require holders of Public Warrants who exercise Public Warrants to exercise such Public Warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act (or any successor statute) as described in subsection 7.4.1 and (ii) in the event PubCo so elects, PubCo shall not be required to file or maintain in effect a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants, notwithstanding anything in this Agreement to the contrary. If PubCo does not elect at the time of exercise to require a holder of Public Warrants who exercises Public Warrants to exercise such Public Warrants on a “cashless basis,” it agrees to use its best efforts to register or qualify for sale the Ordinary Shares issuable upon exercise of the Public Warrant under the blue sky laws of the state of residence of the exercising Public Warrant holder to the extent an exemption is not available.
8. Concerning the Warrant Agent and Other Matters.
8.1. Payment of Taxes. PubCo shall from time to time promptly pay all taxes and charges that may be imposed upon PubCo or the Warrant Agent in respect of the issuance or delivery of Ordinary Shares upon the exercise of the Warrants, but PubCo shall not be obligated to pay any transfer taxes in respect of the Warrants or such Ordinary Shares.
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8.2. Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to PubCo. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, PubCo shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If PubCo shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by PubCo), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at PubCo’s cost. Any successor Warrant Agent, whether appointed by PubCo or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of PubCo, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent PubCo shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, PubCo shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the Ordinary Shares not later than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. PubCo agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2. Further Assurances. PubCo agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
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8.4. Liability of Warrant Agent.
8.4.1. Reliance on PubCo Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by PubCo prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by a Chief Executive Officer, Chief Financial Officer, President, Executive Vice President, Vice President, Secretary or Chairman of the Board of PubCo and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. PubCo agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith.
8.4.3. Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by PubCo of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Ordinary Shares shall, when issued, be valid and fully paid and non-assessable.
8.5. Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to PubCo with respect to Warrants exercised and concurrently account for, and pay to PubCo, all monies received by the Warrant Agent for the purchase of Ordinary Shares through the exercise of Warrants.
8.6. Waiver. The Warrant Agent acknowledges and agrees that it shall not make any claims or proceed against the trust account established by SPAC in connection with the Public Offering (as more fully described in the Registration Statement) (“Trust Account”), including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance. In the event that the Warrant Agent has a claim against PubCo under this Agreement, the Warrant Agent will pursue such claim solely against PubCo and not against the property held in the Trust Account.
9. Miscellaneous Provisions.
9.1. Successors. All the covenants and provisions of this Agreement by or for the benefit of PubCo or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
9.2. Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on PubCo shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by PubCo with the Warrant Agent), as follow:
ArcheNova Technology Co., Ltd.
41 Tai Seng Avenue, #02-04,
Tai Seng Exchange (Tower A), Singapore 536464
Attn: Liu Ye
Email: liu.ye@paracrinetherapeutics.com
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Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by PubCo to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with PubCo), as follows:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: Compliance Department
9.3. Applicable Law and Exclusive Forum.
9.3.1 The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of PubCo and the Warrant Agent hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction. Each of PubCo and the Warrant Agent hereby waives any objection to such jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, this exclusive forum provision shall not apply to suits brought to enforce a duty or liability created by the Securities and Exchange Act of 1934 (“Exchange Act”), as amended, any other claim for which the federal courts have exclusive jurisdiction or any complaint asserting a cause of action arising under the Securities Act against us or any of our directors, officers, other employees or agents. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder.
9.3.2 Any person or entity purchasing or otherwise acquiring any interest in the Warrants shall be deemed to have notice of and to have consented to the forum provisions in this Section 9.3. If any action, the subject matter of which is within the scope the forum provisions above, is filed in a court other than the United States District Court for the Southern District of New York (a “foreign action”) in the name of any warrant holder, such warrant holder shall be deemed to have consented to: (x) the personal jurisdiction of the United States District Court for the Southern District of New York in connection with any action brought in such court to enforce the forum provisions (an “enforcement action”), and (y) having service of process made upon such warrant holder in any such enforcement action by service upon such warrant holder’s counsel in the foreign action as agent for such warrant holder.
9.4. Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
9.5. Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent.
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9.6. Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7. Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
9.8. Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder for the purpose of (i) curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein, or (ii) adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the exercise period, shall require the vote or written consent of the Registered Holders of a majority of the then outstanding Public Warrants. Any amendment solely to the Private Warrants, the Working Capital Warrants or the Extension Loan Warrants shall require the vote or written consent of a majority of the holders of the then outstanding Private Warrants, the Working Capital Warrants and the Extension Loan Warrants. Notwithstanding the foregoing, PubCo may lower the Warrant Price or extend the duration of the exercise period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the Registered Holders.
9.9. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
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[Signature page to Assignment, Assumption and Amended & Restated Warrant Agreement]
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EXHIBIT 99.1
Horizon Space Acquisition I Corp. Announces Definitive
Business Combination Agreement with ArcheNova Biotech Corp.
NEW YORK, NY, October 13, 2026 (Accesswire) – Horizon Space Acquisition I Corp. (“HSPO”) (OTC: HSPOF), a publicly traded special purpose acquisition company, and ArcheNova Biotech Corp. (“ArcheNova” or the “Company”), a clinical-stage, platform-based biopharmaceutical company, focusing on the research, development, clinical translation, scalable manufacturing and global commercialization of innovative drugs derived from mesenchymal stromal cell (MSC)-derived extracellular vesicles (EVs) and exosomes, today announced that they have entered into a definitive business combination agreement (the “Business Combination Agreement”). Upon completion of the business combination of HSPO and the Company and related transactions pursuant to the Business Combination Agreement (collectively, the “Proposed Transactions”), ArcheNova Technology Co., Ltd, a Cayman Islands exempted company newly formed for purpose of effecting the Proposed Transactions (the “Combined Company” or “PubCo”) will be listed on The Nasdaq Stock Market LLC (“Nasdaq”).
The closing of the Proposed Transactions is subject to customary closing conditions, including regulatory and shareholder approvals.
ArcheNova's MSC-Exosome Platform for Tissue Repair and Regenerative Medicine
ArcheNova has established a proprietary MSC-exosome therapeutics platform built on an immortalized monoclonal MSC producer cell line, supported by a good manufacturing practice (GMP) master cell bank, controlled manufacturing processes, and an integrated chemistry, manufacturing and controls (CMC) framework. This platform provides a renewable, defined biological source for scalable and reproducible exosome production, addressing key challenges of donor variability and batch consistency.
One of ArcheNova’s key advantages is the ability to develop multiple therapeutic products from a common, process-defined exosome drug substance, leveraging shared manufacturing processes, analytical methods and quality systems across indications. The same producer cell line underpins the ArcheNova's foundational preclinical studies and clinical-stage development, providing continuity from discovery to clinical translation.
ArcheNova's competitive protection extends beyond conventional patents. MSC-exosome products are complex biologics whose identity and activity depend on their cell source and manufacturing process. Products derived from different sources or processes cannot be presumed therapeutically equivalent, creating potential barriers to biosimilar competition. Exclusive control of its producer cell line and proprietary manufacturing know-how may provide durable competitive advantages beyond patent expiry.
ArcheNova is advancing therapeutic programs spanning dermatology, orthopedics, ophthalmology, neurology and cardiology, at different stages of development. Its lead topical psoriasis program has completed a Phase I clinical trial in ten healthy volunteers at Singapore's National University Hospital, and is being prepared for Phase II clinical evaluation.
Together, ArcheNova's scalable manufacturing platform, clinical progress and durable competitive advantages provide a foundation for developing a differentiated portfolio of cell-free regenerative medicines.
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Management Comments
Mingyu (“Michael”) Li, Chief Executive Officer and Chairman of HSPO
“We are pleased to announce that HSPO has entered into the Business Combination Agreement with ArcheNova. ArcheNova’s progress in developing exosome-based therapeutics for tissue repair and regenerative medicine aligns with our objective of partnering with an innovative company positioned to address significant unmet medical needs.
We look forward to working with the ArcheNova team and supporting its continued research, clinical development and growth. Together, we aim to create long-term value for shareholders and expand access to innovative treatment options for patients worldwide.”
Dr. LIM Sai Kiang, Chief Executive Officer, Chief Scientist and director of ArcheNova
“We are thrilled to enter into the Business Combination Agreement and excited about the contemplated Nasdaq listing, which will provide ArcheNova with a platform to connect with growth capital and investors potentially across the globe. Having access to the global capital market will empower our research and development as well as our novel pipeline products and fuel our growth and expansion. We believe that empowered by the support from the public capital markets, we are well positioned to upgrade our R&D capabilities, advance our pipeline development, enhance our innovation, and further grow our business.”
Transaction Overview
Under the terms of the Business Combination Agreement, ArcheNova International Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo, will merge with and into HSPO, with HSPO as the surviving entity and a wholly-owned subsidiary of PubCo (the “First Merger”), and, following the First Merger, ArcheNova Global Co., Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo, will merge with and into the Company, with the Company as the surviving entity and a wholly-owned subsidiary of PubCo (the “Second Merger”). Upon consummation of the Proposed Transactions, HSPO’s shareholders and the Company’s shareholders will receive ordinary shares of PubCo (“PubCo Ordinary Shares”) as consideration. HSPO warrants will be assumed by PubCo and converted into warrants to purchase PubCo Ordinary Shares on substantially the same terms and conditions. PubCo Ordinary Shares are expected to be listed and traded on Nasdaq following consummation of the Proposed Transactions.
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The Proposed Transactions have been unanimously approved by the boards of directors of both ArcheNova and HSPO. The Proposed Transactions are currently expected to close in the first quarter of 2027, subject to regulatory and shareholder approvals, and other customary closing conditions. No assurances can be made that the Proposed Transactions will be consummated on the terms or time frame currently contemplated, or at all.
Upon completion of the Proposed Transaction, PubCo will be led by Chief Executive Officer and Chief Scientist, Dr. Lim Sai Kiang. Liu Ye will serve as the Chief Financial Officer.
Additional information about the Proposed Transactions, including a copy of the Business Combination Agreement, will be included in a Current Report on Form 8-K to be filed by HSPO with the Securities and Exchange Commission (the “SEC”) and will be available at www.sec.gov.
Advisors
Commerce & Finance Law Offices LLP is acting as legal counsel to ArcheNova. Robinson & Cole LLP is acting as legal counsel to HSPO.
About ArcheNova Biotech Corp.
ArcheNova is a clinical-stage, platform-based biopharmaceutical company focused on the research, development, clinical translation, scalable manufacturing and global commercialization of innovative drugs derived from MSC-derived EVs and exosomes. ArcheNova’s approach combines scientific expertise with shared manufacturing processes and quality systems to translate advances in MSC and exosome biology into new treatment options that address unmet medical needs and improve patients’ health and quality of life. Leveraging a proprietary drug development and manufacturing platform, the Company is advancing five product candidates across dermatology, orthopedics, ophthalmology, neurology and cardiology. Its lead topical candidate for psoriasis has completed a Phase I study evaluating safety and tolerability in healthy volunteers and is being prepared for a Phase II trial.
About Horizon Space Acquisition I Corp.
Horizon Space Acquisition I Corp. is a blank check company, also commonly referred to as a special purpose acquisition company, or SPAC, formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination with one or more businesses or entities.
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Additional Information and Where to Find It
This press release relates to a proposed business combination transaction involving HSPO and ArcheNova. In connection with the Proposed Transactions, HSPO, ArcheNova and PubCo intend to file with the SEC a registration statement on Form F-4 that will include a proxy statement for shareholders of HSPO and that will also constitute a prospectus with respect to the ordinary shares of PubCo to be issued in connection with the Proposed Transactions (the “Proxy Statement/Prospectus”). This document is not a substitute for the Proxy Statement/Prospectus. The definitive Proxy Statement/Prospectus (if and when available) will be delivered to HSPO’s shareholders. HSPO may also file other relevant documents regarding the Proposed Transactions with the SEC. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, INVESTORS AND SECURITY HOLDERS OF HSPO AND ARCHENOVA AND OTHER INTERESTED PARTIES ARE URGED TO READ THE REGISTRATION STATEMENT, PROXY STATEMENT/PROSPECTUS AND ALL OTHER RELEVANT DOCUMENTS THAT ARE FILED OR WILL BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTIONS, INCLUDING ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT HSPO, PUBCO, ARCHENOVA, THE PROPOSED TRANSACTIONS AND RELATED MATTERS.
Investors and security holders of HSPO and ArcheNova may obtain free copies of the Proxy Statement/Prospectus (if and when available) and other documents that are filed or will be filed with the SEC by HSPO, ArcheNova and PubCo through the website maintained by the SEC at www.sec.gov.
Participants in the Solicitation
HSPO, ArcheNova and certain of their respective directors and executive officers and other persons may be deemed to be participants in the solicitation of proxies from the shareholders of HSPO in respect of the Proposed Transactions. Information regarding HSPO’s directors and executive officers is available in HSPO’s filings with the SEC. Additional information regarding the persons who may, under the rules of the SEC, be deemed to be participants in the proxy solicitation relating to the Transactions and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the Proxy Statement/Prospectus when it becomes available.
No Offer or Solicitation
This press release is for informational purposes only and is not intended to and shall not constitute an offer to sell or the solicitation of an offer to sell or to buy any securities or a solicitation of any proxy, consent, vote or approval with respect to any securities in respect of the Proposed Transactions and is not a substitute for the Proxy Statement/Prospectus or any other document that HSPO or PubCo may file with the SEC or send to HSPO’s or ArcheNova’s shareholders in connection with the Proposed Transactions. No offer, sale, issuance or transfer of securities shall be made in any jurisdiction in which such offer, sale, issuance or transfer would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
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Cautionary Note Regarding Forward-Looking Statements
This press release contains “forward-looking statements” that involve risks and uncertainties. Forward-looking statements are statements that are not historical facts and may be accompanied by words that convey projected future events or outcomes, such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “design,” “intend,” “expect,” “could,” “plan,” “potential,” “predict,” “seek,” “target,” “aim,” “plan,” “project,” “forecast,” “should,” “would,” or variations of such words or by expressions of similar meaning. Such forward-looking statements, including, without limitation, statements regarding anticipated financial and operational results, projections of market opportunity and expectations, the estimated post-transaction enterprise value, the advantages and expected growth of PubCo, the cash position of PubCo following the consummation of the Proposed Transactions, the ability of HSPO and the Company to consummate the Proposed Transactions and the timing of such consummation, are subject to risks and uncertainties, which could cause actual results to differ from the forward-looking statements. These risks and uncertainties include, but are not limited to, those risk factors described in the section entitled “Risk Factors” in HSPO’s Annual Report on Form 10-K for the year ended December 31, 2025 filed with the SEC on April 15, 2026 (the “Form 10-K”), and in other documents filed by HSPO with the SEC from time to time. Important factors that could cause PubCo’s actual results or outcomes to differ materially from those discussed in the forward-looking statements include: (i) HSPO’s or the Company’s limited operating history; (ii)general economic and market conditions impacting demand for the products and services of the Company; (iii) the inability to complete the Proposed Transactions; (iv) the inability to recognize the anticipated benefits of the Proposed Transactions, which may be affected by, among other things, the amount of cash available following any redemptions by HSPO’s shareholders; and (v) the ability of PubCo to obtain or maintain the listing of its securities on Nasdaq following the consummation of the Proposed Transactions; costs related to the Proposed Transactions; and such other risks and uncertainties as are discussed in the Form 10-K and the proxy statement/prospectus to be filed with the SEC relating to the Proposed Transactions. Other factors include the possibility that the Proposed Transactions do not close, including due to the failure to receive required security holder approvals or the failure to satisfy other closing conditions under the Business Combination Agreement.
HSPO, the Company, and PubCo each expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the expectations of HSPO, the Company or PubCo with respect thereto or any change in events, conditions or circumstances on which any statement is based, except as required by law.
Contact Information:
Horizon Space Acquisition I Corp. Contact:
Mingyu (Michael) Li
Chief Executive Officer
Tel: (646) 257-5537
Email: mcli@horizonspace.cc
ArcheNova Biotech Corp. Contact:
LIU Ye
Chief Financial Officer
Tel: +65 91901568
Email: liu.ye@paracrinetherapeutics.com
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