Yorkville Acquisition Corp 8-K, filed Aug 26, 2025
Yorkville Acquisition Corp. (MCGA)
About this 8-K
Yorkville Acquisition Corp filed this 8-K on August 26, 2025, reporting on events of August 21, 2025.
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.02: Unregistered sale of equity
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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| Item 1.01 | Entry into a Material Definitive Agreement. |
On August 26, 2025, Yorkville Acquisition Corp., a Cayman Islands exempted company (the “Company” or the “SPAC”), announced that it executed a Business Combination Agreement (the “Business Combination Agreement”), dated as of August 25, 2025, with YA S3 Inc., a Florida corporation and an indirect wholly owned subsidiary of the Company (“SPAC Sub”), Foris Holdings KY Limited, a Cayman Islands exempted company known commercially as Crypto.com (“Crypto.com”), Crypto.com Strategy Holdings, a Cayman Islands exempted company (“Crypto.com Sub”), Yorkville Acquisition Sponsor, LLC, a Delaware limited liability company (“Sponsor”), and Trump Media & Technology Group Corp., a Florida corporation (“TMTG” and together with Crypto.com Sub and the Sponsor, the “Sellers”) (the transactions contemplated by the Business Combination Agreement and the ancillary documents related thereto, the “Transactions”). The Company, SPAC Sub, Crypto.com, Crypto.com Sub, TMTG and Sponsor are referred to herein individually as a “Party” and, collectively, as the “Parties.” This Current Report on Form 8-K (this “Current Report”) provides a summary of the Business Combination Agreement and the other agreements entered into (and certain agreements to be entered into) in connection with the Transactions. The descriptions of these agreements do not purport to be complete and are qualified in their entirety by the terms and conditions of such agreements or the forms of these agreements, as applicable, copies of which are filed as Exhibits 2.1, 4.1, 4.2, 10.1, 10.2, 10.3, 10.4 and 10.5 to this Current Report and are incorporated by reference into this Current Report.
Business Combination Agreement
The below description of the Business Combination Agreement and the Transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to, the actual agreement, a copy of which is filed with this Current Report as Exhibit 2.1, and the terms of which are incorporated in this Current Report by reference. Capitalized terms used but not otherwise defined in this Current Report will have the meanings given to them in the Business Combination Agreement. The Business Combination Agreement has been filed to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Parties. In particular, the assertions embodied in the representations and warranties in the Business Combination Agreement were made as of a specified date, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between the Parties. Additionally, the assertions embodied in the representations and warranties in the Business Combination Agreement were made solely for the benefit of the parties to that agreement and are qualified by information in confidential disclosure schedules provided by the Parties to each other in connection with the signing of the Business Combination Agreement. These disclosure schedules contain information that modifies, qualifies, and creates exceptions to the representations and warranties set forth in the Business Combination Agreement. Accordingly, the representations and warranties in the Business Combination Agreement are not necessarily characterizations of the actual state of facts about the Parties at the time they were made or otherwise and should only be read in conjunction with the other information that the Company makes publicly available in reports, statements and other documents filed with the Securities and Exchange Commission (the “SEC”).
The Contributions
Pursuant to the terms of the Business Combination Agreement and the ancillary documents thereto, the Sellers will contribute certain assets to the Company and SPAC Sub (as applicable) in exchange for Transaction Shares, the Forced Exercise Warrants and the Earnout Warrants (as applicable).
Pursuant to and concurrently with the execution of the Business Combination Agreement, Crypto.com entered into an Asset Contribution Agreement with Crypto.com Sub (the “Pre-Closing Crypto.com Contribution Agreement 1”) pursuant to which, immediately prior to, but contingent upon, the Closing, Crypto.com will contribute (the “Pre-Closing Crypto.com Contribution”) 6,313,000,212 Cronos tokens and all necessary physical devices required to establish and operate a Cronos proof of stake validator node and staking infrastructure (the “Cronos Assets”) to Crypto.com Sub.
Pursuant to and concurrently with the execution of the Business Combination Agreement, Crypto.com Sub entered into an Asset Contribution Agreement with the Company (the “Crypto.com Contribution and Sale Agreement” and, together with the Crypto.com Pre-Closing Contribution Agreement 1, the “Crypto.com Contribution Agreements”) pursuant to which, at the Closing, (a) Crypto.com Sub will (1) at the Closing, sell 90% of the Cronos Assets to SPAC Sub and (2) immediately following the Closing, contribute 10% of the Cronos Assets to the Company in consideration of an aggregate 100,000,000 shares of SPAC Class B Common Stock, and a Forced Exercise Warrant, exercisable for 10,000,000 shares of SPAC Class A Common Stock. In connection with the consummation of the Crypto.com Contribution Agreement 2, at the Closing, Crypto.com will license to the Company, pursuant to a Trademark License Agreement, certain intellectual property and all operational knowhow and proprietary technology required to establish and operate a Cronos proof of stake validator node, and staking infrastructure.
Pursuant to and concurrently with the execution and delivery of the Business Combination Agreement, TMTG entered into a trademark license agreement (the “TMTG License Agreement”), with Trump Media Group, LLC, a Florida limited liability company, (“Asset Company”) pursuant to which, immediately prior to, but contingent upon, the Closing, TMTG will license the rights to use the “Trump Media Group” brand name and certain other Intellectual Property rights to the Asset Company (the “Pre-Closing TMTG Contribution” and together with the Pre-Closing Crypto.com Contribution, the “Pre-Closing Contributions”).
Pursuant to and concurrently with the execution and delivery of the Business Combination Agreement, TMTG entered into an asset contribution agreement with the Company (the “TMTG Contribution Agreement”) and, together with the Crypto.com Contribution Agreements and the TMTG License Agreement, the “Contribution Agreements”) pursuant to which, at the Closing, TMTG will contribute 100% of the issued and outstanding membership interests of the Asset Company to the Company in consideration of 10,000,000 shares of SPAC Class A Common Stock, the Earnout Warrants (as described below) and a Forced Exercise Warrant, exercisable for 10,000,000 shares of SPAC Class A Common Stock.
Pursuant to and concurrently with the execution and delivery of the Business Combination Agreement and in connection with the Transactions, Crypto.com Sub, Sponsor and TMTG entered into a voting agreement (the “Voting Agreement”), pursuant to which each of the parties to the Voting Agreement agreed to, from and following the Closing, vote their SPAC Class A Common Stock and SPAC Class B Common Stock (as applicable) in accordance with the terms set forth in the Voting Agreement.
At least two business days prior to the Closing and subject to the conditions of this Agreement, the Company shall convert into a Florida corporation in accordance with the Cayman Islands Companies Act (As Revised) (the “Cayman Act”) and Section 607.1801 of the Florida Business Corporation Act, as amended (the “Conversion”).
In connection with the Conversion, (i) each then issued and outstanding SPAC Class A Ordinary Share shall convert automatically, on a one-for-one basis, into a share of SPAC Class A Common Stock; and (ii) each then issued and outstanding SPAC Class B Ordinary Share will convert automatically, on a one-for-one basis, into a share of SPAC Class A Common Stock.
The Purchase and Sale of Assets
At the Closing, subject to the terms and conditions set forth in the Business Combination Agreement and pursuant to the Contribution Agreements, the Sellers will sell to the Company (or SPAC Sub, as applicable), and the Company (or SPAC Sub, as applicable) will purchase from the Sellers, the Cronos Assets and the Asset Company Interests (as applicable) as follows:
| (a) | Crypto.com Sub will (i) sell to SPAC Sub, and SPAC Sub will purchase from Crypto.com Sub, all right, title and interest in and to 90% of the Cronos Assets, free and clear of all Liens, in consideration of 90,000,000 shares of SPAC B Common Stock, and (ii) contribute to the Company, and the Company shall receive from Crypto.com Sub, all right, title and interest in and to 10% of the Cronos Assets, free and clear of all Liens, in consideration of 10,000,000 shares of SPAC Class B Common Stock and a Forced Exercise Warrant, exercisable for 10,000,000 shares of SPAC Class A Common Stock. The consideration will be allocated to SPAC Sub and the Company pursuant to the Crypto.com Contribution and Sale Agreement. |
| (b) | TMTG will sell to the Company, and the Company will purchase from TMTG, all right, title and interest in and to the Asset Company Interests, free and clear of all Liens, in consideration of 10,000,000 shares of SPAC Class A Common Stock and a Forced Exercise Warrant, exercisable for 10,000,000 shares of SPAC Class A Common Stock. |
| (c) | Additionally, in exchange for such Asset Company Interests, the Company will issue three Earnout Warrants to TMTG, each exercisable for a number of shares of SPAC Class A Common Stock equal to 7% of the Company’s outstanding capital stock at the time of the Closing, rounded to the nearest whole number. Each Earnout Warrant will be exercisable within 30 days of the occurrence of the applicable triggering event as described in the Earnout Warrants, as follows: |
| a. | The first Earnout Warrant will be exercisable upon the occurrence of Triggering Event I. |
| b. | The second Earnout Warrant will be exercisable upon the occurrence of Triggering Event II. |
| c. | The third Earnout Warrant will be exercisable upon the occurrence of Triggering Event III. |
| (d) | The Company will issue to the Sponsor a Forced Exercise Warrant exercisable (on or after the Closing Date) for 2,000,000 shares of SPAC Class A Common Stock. |
The Forced Exercise Warrants will be subject to forced exercise in the event that the SPAC Class A Common Stock trades at or above $20.00 per share for at least one trading day before the third anniversary of the Closing Date, as more fully set forth therein (the “Forced Exercise Warrant Condition”); provided that, if the Forced Exercise Warrant Condition occurs before the Closing Date, each of Crypto.com’s, TMTG’s and the Sponsor’s respective cash-in amounts will be due on the Closing Date, as more fully set forth therein.
“Triggering Event I” means the first date before the fifth anniversary of the Closing Date on which the trading price of the SPAC Class A Common Stock closes at or above $11.00 per share on any trading day.
“Triggering Event II” means the first date before the fifth anniversary of the Closing Date on which the trading price of the SPAC Class A Common Stock closes at or above $20.00 per share on any trading day.
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“Triggering Event III” means the first date before the fifth anniversary of the Closing Date on which the trading price of the SPAC Class A Common Stock closes at or above $40.00 per share on any trading day.
Earnout Warrants
Pursuant to the terms of the Earnout Warrants, TMTG is entitled, upon the terms and subject to the limitations on exercise and the conditions set forth in the Earnout Warrants, at any time on or after the first date on which the Trading Price of Common Stock is at or above Triggering Event I for the first Earnout Warrant, Triggering Event II for the second Earnout Warrant, and Triggering Event III for the third Earnout Warrant (as adjusted for stock splits, stock dividends, combinations, reclassifications and similar events) (the “Trigger” and such date, the “Trigger Date”), to subscribe for and purchase from the Company, up to a number of shares equal to 7% of the Company’s outstanding capital stock at the time of the Closing, rounded to the nearest whole number (as subject to adjustment under the Earnout Warrants, the “Warrant Shares”) of SPAC Class A Common Stock. Should the Trigger occur, the Earnout Warrants must be exercised within thirty (30) days of the Company’s notification to the TMTG that such Trigger has occurred (the “Trigger Expiration Date”). The Earnout Warrants will cease to be exercisable and will terminate and become void at 5:00 p.m., New York City time, on the earlier of (a) the Trigger Expiration Date, and (b) the fifth anniversary of the execution date of such Earnout Warrant (such earlier date, the “Expiration Date”). The purchase price of one share of SPAC Class A Common Stock under the Warrant is equal to $0.001 per share, subject to adjustment under the terms of the Earnout Warrant.
The foregoing description of the Earnout Warrants and the Transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to, the Form of Earnout Warrant, a copy of which is filed with this Current Report as Exhibit 4.1, and the terms of which are incorporated into this Current Report by reference.
Forced Exercise Warrants
Pursuant to the terms of the Series A Forced Exercise Warrants (the “Forced Exercise Warrants”) for value received, a holder will, upon the terms and subject to the limitations on exercise and the conditions set forth in the Forced Exercise Warrant, on the first day on or after August 25, 2025, on which the Trading Price of the Shares of the Company is at or above $20.00 (as adjusted for stock splits, stock dividends, combinations, reclassifications and similar events) (the “Trigger” and, such date, the “Trigger Date”), subscribe for and purchase from the Company, 10,000.000 (or, in the case of the Sponsor, 2,000,000) shares of SPAC Class A Common Stock (as subject to adjustment, the “Forced Exercise Warrant Shares”); provided that, should the Trigger occur prior to the date of such Forced Exercise Warrant, the holder will purchase the Forced Exercise Warrant Shares on the date of the Forced Exercise Warrant in connection with the Closing (the date of forced exercise, the “Exercise Date”). The Forced Exercised Warrant will terminate and become void, and all rights thereunder will cease, at 5:00 p.m., New York City time, on the third anniversary of the Closing Date. The purchase price of one share of SPAC Class A Common Stock under the Forced Exercised Warrant is equal to $10.00, subject to adjustment under the terms of the Forced Exercise Warrant.
The foregoing description of the Forced Exercise Warrants and the Transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to, the Form of Forced Exercise Warrant, a copy of which is filed with this Current Report as Exhibit 4.2, and the terms of which are incorporated into this Current Report by reference.
The Closing
The Closing will occur as promptly as practicable, but in no event later than five Business Days, after the satisfaction or, if permissible, waiver of the conditions set forth in the Business Combination Agreement. Effective at the Closing, the board of directors of the Company (the “Board”) will consist of seven directors consisting of (i) three directors who are designated prior to the Closing by Crypto.com and are reasonably acceptable to the Company, of which a sufficient number (when combined with the directors in clause (ii) and (iii)) will be required to qualify as an independent director under Nasdaq rules, (ii) three directors that each qualify as independent directors under Nasdaq rules, and (iii) one director designated prior to Closing by TMTG who is reasonably acceptable to Crypto.com. Prior to Closing, Crypto.com has the exclusive right to designate and appoint the Chief Executive Officer of the Company, subject to the reasonable approval of the Board. Additionally, pursuant to the terms of the Voting Agreement and until the expiration of the Lock-Up Period (as defined below), the Company will include in its slate of nominees recommended for election as directors at each annual or special meeting of stockholders at which directors are to be elected, three individuals designated by Crypto.com and one individual designated by TMTG.
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Proxy Statement and Registration Statement
Following the execution of the Business Combination Agreement, the Company will prepare with the reasonable assistance of each of Crypto.com and TMTG, and, as promptly as practicable after completion of such audited financial statements as required by the regulations of the SEC to be included, file with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement/Prospectus contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”) of the shares of (x) SPAC Class A Common Stock and SPAC Class B Common Stock (collectively, “Company Stock”) to be issued in exchange for SPAC Class A Ordinary Shares and SPAC Class B Ordinary Shares of the Company in the Conversion, and (y) the Transaction Shares, which Registration Statement will also contain a preliminary proxy statement of the Company and a prospectus (as amended, the “Proxy Statement/Prospectus”) for the purpose of soliciting proxies from the Company’s shareholders for the matters to be acted upon at the Extraordinary General Meeting and providing the Company’s shareholders an opportunity in accordance with the SPAC Memorandum and Articles and the IPO Prospectus to have their SPAC Class A Ordinary Shares redeemed (the “Redemption”) in conjunction with the shareholder vote on the Shareholder Approval Matters (defined below). The Proxy Statement/Prospectus shall include proxy materials for the purpose of soliciting proxies from the Company’s shareholders to vote, at an extraordinary general meeting of the Company’s shareholders to be called and held for such purpose (the “Extraordinary General Meeting”), in favor of resolutions approving (i) as an ordinary resolution, the adoption and approval of the Business Combination Agreement and the Transactions, (ii) as a special resolution, the approval of the Conversion, and (iii) as an ordinary resolution (or if required by applicable law or the SPAC Memorandum and Articles, as a special resolution) the adoption and approval of such other matters as the Sellers and the Company will hereafter mutually determine to be necessary or appropriate in order to effect the Transactions (the approvals described in foregoing clauses (i) through (iii), collectively, the “Shareholder Approval Matters”), and (iv) as an ordinary resolution, the adjournment of the Extraordinary General Meeting, if necessary or desirable in the reasonable determination of the Company, in each case in accordance with the SPAC Memorandum and Articles, the Cayman Act, and the rules and regulations of the SEC and Nasdaq. If on the date for which the Extraordinary General Meeting is scheduled, the Company has not received proxies representing a sufficient number of shares to obtain the Required Shareholder Approval, whether or not a quorum is present, the Company may make one or more successive postponements or adjournments of the Extraordinary General Meeting.
As soon as practicable after the Registration Statement becomes effective, the Company will set a record date for the Extraordinary General Meeting and distribute the Registration Statement to the Company’s shareholders and, pursuant thereto, shall call and convene the Extraordinary General Meeting for a date no later than thirty (30) days following the effectiveness of the Registration Statement. The Company will, through its Board, recommend to its shareholders the approval of the Shareholder Approval Matters and include such recommendation in the Proxy Statement/Prospectus , with such changes as may be mutually agreed by the parties. The Company’s Board shall not change, withdraw, withhold, qualify or modify its recommendation to its shareholders that they vote in favor of the Shareholder Approval Matters (a “Modification in Recommendation”).
Representations and Warranties
The Business Combination Agreement contains customary representations and warranties of the parties to the Business Combination Agreement, with respect to, among other things, (a) organization and standing, (b) authorization and binding agreement, (c) governmental approvals, (d) non-contravention, (e) capitalization, (f) SEC filings, financials and internal controls, (g) no litigation, orders and permits, (h) absence of certain changes, (i) compliance with laws, (j) taxes and returns, (k) employees and employee benefit plans, (l) properties, (m) material contracts, (n) transactions with affiliates, (o) finders and brokers, (p) certain business practices, (q) insurance, (r) no other representations, (s) information supplied, (t) trust account. The representations and warranties contained in the Business Combination Agreement were made only for purposes of that agreement and as of specific dates, and are solely for the benefit of the parties thereto.
Covenants
The Business Combination Agreement includes customary covenants of the parties with respect to the operation of their respective businesses prior to the consummation of the Business Combination and efforts to satisfy the conditions to consummation of the Business Combination. The covenants contained in the Business Combination Agreement were made only for purposes of that agreement and as of specific dates, and are solely for the benefit of the parties thereto.
Equity Plan
As promptly as reasonably practicable following the date of the Business Combination Agreement, the Company will adopt an equity incentive plan in the form and with the terms proposed by the Sellers (the “Equity Incentive Plan”) and will submit the Equity Incentive Plan for approval by the Company’s shareholders as a proposal, and following the Closing, will file and use its reasonable best efforts to maintain an applicable registration statement for shares issued under the Equity Incentive Plan remain outstanding.
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Exclusivity Restrictions
Pursuant to the terms of the Business Combination Agreement, from the date of the Business Combination Agreement to the Closing or, if earlier, the termination of the Business Combination Agreement in accordance with its terms, the Parties have agreed, among other things, not to, without the prior written consent of the other Parties, directly or indirectly, (i) solicit, assist, initiate, continue or facilitate the making, submission or announcement of, or intentionally encourage, any Acquisition Proposal (as defined below), (ii) furnish any non-public information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to the Business Combination Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that is intended or could reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, (v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal, or (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party.
Conditions to Closing
Mutual Conditions to Closing
Under the terms of the Business Combination Agreement, the obligations of the Parties to consummate the Transactions are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of the following conditions: (i) receipt of the requisite shareholder approval; (ii) no Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is then in effect and which has the effect of making the Transactions or agreements contemplated by the Business Combination Agreement illegal or which otherwise prevents or prohibits consummation of the Transactions contemplated thereby; (iii) the Registration Statement will have been declared effective by the SEC and remain effective as of the Closing; (iv) the shares of Company Stock (excluding the Transaction Shares) shall have been approved for clearing through the Depository Trust Company (“DTC”) (subject to DTC’s customary eligibility criteria) and approved for listing on Nasdaq, subject only to notice of issuance; and, (v) the Parties shall have received any requisite third party Consents to the Transactions, including any Consents with respect to Antitrust Laws and the expiration of any attendant waiting periods.
Sellers’ Conditions to Closing
Additionally, under the terms of the Business Combination Agreement, the obligations of the Sellers to consummate Transactions are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of, among other customary closing conditions, the following conditions: (i) the representation and warranties of the Company contained in the Business Combination Agreement will be true and correct in all material respects, or in all respects, as applicable; (ii) the Company will have performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under the Business Combination Agreement to be performed or complied with by it on or prior to the Closing Date; (iii) No Material Adverse Effect shall have occurred with respect to the Company, taken as a whole, since the date of the Business Combination Agreement which is continuing and uncured; (iv) each of the covenants of the Sponsor required under the Sponsor Support Agreement to be performed as of or prior to the Closing shall have been performed in all material respects.; (v) after giving effect to the completion of the Transactions contemplated by the Business Combination Agreement, including any deferred expenses or fees and the Redemption, there will be at least $200,000,000 in the Trust Account; (vi) the Company and Sponsor shall have executed and delivered to the Sellers each agreement as required under the Business Combination Agreement; (vii) the Company and YA II PN, Ltd., a Cayman Islands exempt limited partnership and an affiliate of the Sponsor (the “Investor”) shall have executed and delivered the Backstop Agreement (defined below); and (viii) the Conversion will have been completed.
The Company and Sponsor Conditions to Closing
Additionally, under the terms of the Business Combination Agreement, the obligations of the Company and the Sponsor to consummate the Transactions are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of, among other customary closing conditions, the following conditions (i) the Seller Fundamental Representations will be true and correct in all material respects, or in all respects, as applicable, on and as of the date of the Business Combination Agreement and on and as of the Closing Date (ii) each of the representations and warranties of the Sellers (other than the Seller Fundamental Representations) will be true and correct on and as of the date of the Business Combination Agreement and on and as of the Closing Date as if made on the Closing Date, except for (a) those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been true and correct as of such date) and (b) any failures to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Sellers or the Asset Companies, (iii) each of the Sellers will have performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under the Business Combination Agreement to be performed or complied with by it on or prior to the Closing Date (iv) no Material Adverse Effect shall have occurred with respect to the Sellers or the Asset Companies since the date of the Business Combination Agreement (v) certain executives of Crypto.com shall have entered into employment agreements in a form mutually satisfactory to Company and Crypto.com; (vi) the Sellers will have executed and delivered to the Company and the Sponsor each agreement as required under the Business Combination Agreement; and (vii) as of the Closing Date, the Pre-Closing Contributions have been consummated and the Contribution Agreements are in full force and effect in accordance with their terms.
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Termination
The Business Combination Agreement allows the Parties to terminate the agreement if certain conditions described in the Business Combination Agreement are satisfied, including (i) by mutual written consent of the Parties; (ii) by written notice to the other Parties by any Party if any of the conditions to Closing set forth in the Business Combination Agreement have not been satisfied or waived by August 25, 2026, the date that is one (1) year from the date of the Business Combination Agreement (the “Outside Date”); (iii) by written notice to the other Parties by any Party if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transactions contemplated by the Business Combination Agreement, and such Order or other action has become final and non-appealable; (iv) by written notice by Crypto.com or TMTG to the other Parties, if (a) there has been a material breach by the Company of any of its representations, warranties, covenants or agreements contained in the Business Combination Agreement, or if any representation or warranty of the Company shall have become materially untrue or materially inaccurate, in any case, which would result in a failure of a condition set forth in the Business Combination Agreement to be satisfied (treating the Closing Date for such purposes as the date of the Business Combination Agreement or, if later, the date of such breach), and (b) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) 20 days after written notice of such breach or inaccuracy is provided to the Company by the Sellers or (B) five Business Days prior to the Outside Date; (v) by written notice by Crypto.com or TMTG to the other Parties if there has been a Modification in Recommendation; (vi) by written notice by the Company to the Sellers, if (a) there has been a material breach by either Seller of any of their respective representations, warranties, covenants or agreements contained in the Business Combination Agreement, or if any representation or warranty of such Parties shall have become materially untrue or materially inaccurate, in any case, which would result in a failure of a condition as set forth in the Business Combination Agreement to be satisfied (treating the Closing Date for such purposes as the date of the Business Combination Agreement or, if later, the date of such breach), and (b) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) 20 days after written notice of such breach or inaccuracy is provided to the Sellers by SPAC or (B) five Business Days prior to the Outside Date; and (vii) without prejudice to the Company’s obligations under the Business Combination Agreement, by written notice by either the Company or the Sellers to the others if the Extraordinary General Meeting is held (including any adjournment or postponement thereof) and has concluded, the Company’s Shareholders have duly voted, and the Required Shareholder Approval was not obtained.
Sponsor Support Agreement
The Parties have entered into the Sponsor Support Agreement (the “Sponsor Support Agreement”), pursuant to which the Sponsor has agreed, among other things, to vote in favor of each Shareholder Approval Matter, against any Acquisition Proposal or Alternative Transaction (each as defined in the Sponsor Support Agreement), against any merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company (other than the Transactions), against any change in the business of the Company; and against any proposal, action or agreement involving the Company that would or would reasonably be expected to (i) impede, frustrate, prevent or nullify any provision of the Sponsor Support Agreement, the Business Combination Agreement or any ancillary document, (ii) result in a breach in any material respect of any covenant, representation, warranty or any other obligation or agreement of the Company under the Business Combination Agreement or any ancillary document, (iii) result in any of the conditions in respect of obligations of the Company or the Parties set forth in Article VIII of the Business Combination Agreement not being fulfilled, or (iv) change in any manner the capitalization of, including the voting rights of any class of share capital of, the Company (other than in connection with the Shareholder Approval Matters).
The foregoing description of the Sponsor Support Agreement and the Transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to, the actual agreement, a copy of which is filed with this Current Report as Exhibit 10.1, and the terms of which are incorporated into this Current Report by reference.
Backstop Subscription Agreement
The Company and the Investor entered into a Backstop Agreement (the “Backstop Agreement”) concurrently with the execution of the Business Combination Agreement. Pursuant to the Backstop Agreement, Sponsor (or such Affiliate of Sponsor) will commit to purchase in a private placement prior to the closing of the Transactions certain securities of Company to the extent necessary to have the condition set forth in Section 8.2(e) of the Business Combination Agreement be satisfied.
The foregoing description of the Backstop Agreement and the Transactions contemplated thereby are not complete and is subject to, and qualified in its entirety by reference to, the agreed upon form of Backstop Agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.2 to this Current Report, and the terms of which are incorporated into this Current Report by reference.
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Registration Rights Agreement
In connection with the Transactions, the Sponsor, TMTG, Crypto.com Sub, the Company and certain other holders named therein will amend and restate the existing registration rights agreement dated June 26, 2025 between the Sponsor and the Company pursuant to an Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”) at the Closing. Under the terms of the Registration Rights Agreement, the Company will be obligated to file one or more registration statements to register the resales of the Shares of Company Stock held by the Sellers and the Sponsor after the Closing. Holders (as defined in the Registration Rights Agreement) holding at least a majority of the then-outstanding number of Registrable Securities (as defined in the Registration Rights Agreement) are entitled under the Registration Rights Agreement to make a written demand for registration under the Securities Act of all or part of their Registrable Securities, up to a total of three such demands or no more than an aggregate of two demands in any twelve (12)-month period. In addition, pursuant to the terms of the Registration Rights Agreement and subject to certain requirements and customary conditions, such Holders may demand at any time or from time to time, that the Company file a registration statement on Form S-3 (or any similar short-form registration which may be available) to register the resale of the registrable securities of the Company held by such Holders. The Registration Rights Agreement will also provide such Holders with “piggy-back” registration rights, subject to certain requirements and customary conditions.
Under the Registration Rights Agreement, the Company will indemnify such holders of Registrable Securities and its officers and directors and each person who controls such holder (within the meaning of the Securities Act) against any 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, Proxy Statement/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 the Company by such holder expressly for use therein.
The foregoing description of the Registration Rights Agreement and the Transactions contemplated by the Registration Rights Agreement is not complete and is subject to, and qualified in its entirety by reference to, the agreed upon form of Registration Rights Agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.3 to this Current Report, and the terms of which are incorporated into this Current Report by reference.
Lock-Up Agreement
In connection with the Business Combination Agreement, the Company, the Sellers, the Sponsor, the Post-Closing Officers and the Post-Closing Board (the “Lock-Up Parties”) will enter into the Lock-Up Agreement. The Lock-Up Agreement will provide that, subject to certain exceptions, each of the Lock-Up Parties agrees that without the prior written consent of the Company, during the 12-month period beginning on the Closing Date and ending on the first anniversary of the Closing Date (the “Initial Lock-Up Period”), not to, and agrees not cause any direct or indirect Affiliate to, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidation with respect to or decrease a call equivalent position within the meaning of Section 16 of the Securities and Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder with respect to, any Restricted Securities, (ii) enter into any hedging, swap or other arrangement or transaction that transfers to another, in whole or in part, any of the economic consequences of ownership of any Restricted Securities, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) publicly announce the intention to effect any transaction specified in clause (i) or (ii) (any of the foregoing described in clauses (i), (ii) or (iii), a “Prohibited Transfer”). During the 6-month period following the Initial Lockup Period (“Window 1”), the Lock-Up Party and any direct or indirect Affiliate may sell up to 10% of Lock-Up Party’s Restricted Securities. During the 6-month period following Window 1 (“Window 2”), the Lock-Up Party and any direct or indirect Affiliate may sell up to 15% of the Lock-Up Party’s aggregate Restricted Securities. During the 12-month period following Window 2 (“Window 3”) the Lock-Up Party and any direct or indirect Affiliate may sell up to 25% of the Lock-Up Party’s aggregate Restricted Securities so long as no more than 10% of the Lock-Up Party’s aggregate Restricted Securities are sold within any 3-month period. During the 12-month period following Window 3 (“Window 4”), the Lock-Up Party and any direct or indirect Affiliate may sell up to 25% of the Lock-Up Party’s aggregate Restricted Securities so long as no more than 10% of the Lock-Up Party’s aggregate Restricted Securities are sold within any 3-month period. At the conclusion of Window 4, the Lock-Up Party and any direct or indirect Affiliate may sell all remaining aggregate shares.
The foregoing description of the Lock-Up Agreement and the Transactions contemplated by the Lock-Up Agreement is not complete and is subject to, and qualified in its entirety by reference to, the agreed upon form of Lock-Up Agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.4 to this Current Report, and the terms of which are incorporated into this Current Report by reference.
Stock Purchase Agreement
In connection with the Transactions, the Company and the Investor will enter into a Stock Purchase Agreement at the Closing, pursuant to which the Investor will commit to purchase up to $5,000,000,000 of the SPAC Class A Common Stock (the “Commitment Amount”) at a price per share equal to 97.25% of the market price of such shares in consideration of a commitment fee payable in cash or in shares of SPAC Class A Common Stock to the Investor, as more fully set forth therein (the “Stock Purchase Agreement”).
The foregoing description of the Stock Purchase Agreement and the Transactions contemplated by the Stock Purchase Agreement is not complete and is subject to, and qualified in its entirety by reference to, the agreed upon form of Stock Purchase Agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.5 to this Current Report, and the terms of which are incorporated into this Current Report by reference.
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Item 3.02. Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The securities to be issued in connection with the Business Combination Agreement and the Transactions will not be registered under the Securities Act, and issued in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act, and/or Regulation D and Regulation S promulgated thereunder.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Departure of Previous Directors
Effective August 21, 2025, Scott Glabe, Devin Nunes and Michael Rosselli resigned from the Board. Their resignations were not a result of any disagreement with the Company.
Appointment of New Directors
Effective August 21, 2025, Owen May and Ted McDonagh were appointed to the Board. In connection with their appointment to the Board, Messrs. May and McDonagh each entered into indemnity agreements with the Company.
Other than the foregoing, Messrs. May and McDonagh are not party to any arrangement or understanding with any person pursuant to which they were appointed as a director, nor are they party to any transaction required to be disclosed under Item 404(a) of Regulation S-K involving the Company.
Owen A. May is an investment banker with over three decades of experience in financial advisory, mergers & acquisitions, and strategic business development. As the CEO and Founder of MD Global Partners since its inception in 2005, Owen has built the firm into a leading financial services company specializing in capital raising, corporate restructuring, and M&A advisory for small-cap and middle-market companies. Owen has structured and closed numerous deals across the U.S., Europe, Israel, and China, with expertise spanning reverse mergers, business turnarounds, IPOs, and cross-border transactions. His strong relationships with institutional investors, private equity firms, and corporate clients have driven significant revenue growth and high-value transactions for the firm. In addition to his role at MD Global Partners, Owen currently serves on the Board of Directors for Sono Group N.V. (audit committee), the New York Society for the Prevention of Cruelty to Children (NYSPCC) (audit committee), and Ten North Group, LLC (chairman, finance and audit committee). He also sits on the advisory board of Syredix Bio. Owen is an Emeritus member of the Board of Visitors at the Fuqua School of Business, Duke University, and a member of the President's Council at the University of Miami. Owen is currently 65 years old and has been the CEO of MD Global Partners for 20 years. Owen holds an MBA from Duke University’s Fuqua School of Business and a bachelor’s degree in biology from the University of Miami, blending scientific knowledge with business acumen.
Ted McDonagh is Managing Director and Partner, Private Wealth Advisor at Ashton Thomas, a leading diversified financial advisory firm that specializes in advising foundations, business entities, and affluent individuals and families, based in Scottsdale, AZ. Leveraging the knowledge and experience of an extended career in financial services, Ted and his team advise entrepreneurs, C-suite executives, family office clients, and retirement plans. Ted was previously with Alex. Brown, a division of Raymond James, where he was a member of the firm’s Chairman’s Council. He joined Alex. Brown in 2008 and served as an advisor to affluent clients throughout his tenure with the firm. Earlier in his career, Ted was an advisor with Lehman Brothers in New York. He is a graduate of the University of Delaware, from which he received a Bachelor of Science degree in political science and economics.
Departure of Executive Officer
Effective August 21, 2025, Michael Rosselli resigned as Chief Financial Officer of the Company.
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Appointment of New Executive Officer
Effective August 25, 2025, Troy Rillo was appointed as Chief Financial Officer of the Company to replace Mr. Rosselli. In connection with his appointment as an executive officer, Mr. Rillo entered into an indemnity agreement with the Company.
Troy Rillo, 57, serves as our Chief Financial Officer. He is an accomplished business executive and attorney with extensive experience in corporate finance, securities law, and investment management. Troy is a partner with Yorkville Advisors Global, LP, an SEC-registered investment adviser to a family of hedge funds, where he has since 2004 been instrumental in the firm’s growth and strategic direction. Yorkville Advisors Global, LLC serves as the manager of Yorkville Acquisition Sponsor, LLC, the sponsor of Yorkville Acquisition Corp. He also currently serves as Co-Chief Executive Officer of Yorkville Securities LLC, an SEC registered broker-dealer and member of FINRA, and President and Chief Executive Officer, and member of the Board of Managers, of Yorkville America, LLC, an affiliated SEC-registered investment adviser focused on branded investment products, including separately managed accounts and exchange-traded funds.
Prior to joining Yorkville Advisors, Troy was a corporate and securities partner at K&L Gates LLP, a leading international law firm, where he advised public and private companies on capital-raising transactions, mergers and acquisitions, and securities compliance. Troy is widely recognized as an authority in corporate and securities law and is a frequent speaker on related topics. He earned both his J.D. and B.S. in Finance, magna cum laude, from the University of Florida. While in law school, he served as a member of the Florida Law Review and was elected to the Order of the Coif. He is admitted to practice law in New Jersey and Florida.
Committee Composition
Effective August 21, 2025, the Board appointed Messrs. May and McDonagh to serve as members of the Audit Committee and Compensation Committee of the Board.
As such, as of August 21, 2025, the composition of the committees of the Board were:
Audit Committee
Omar Hasan
Owen May
Ted McDonagh
Compensation Committee
Mark Angelo
Omar Hasan
Owen May
Ted McDonagh
Additional Information and Where to Find It
The Company intends to file with the SEC the Registration Statement, which will include the Proxy Statement/Prospectus in connection with the Transactions. The definitive Proxy Statement/Prospectus and other relevant documents will be mailed to shareholders of the Company as of a record date to be established for voting on the Transactions and other matters as described in the Proxy Statement/Prospectus. The Company will also file other documents regarding the Transactions with the SEC. This Current Report on Form 8-K does not contain all of the information that should be considered concerning the Transactions and is not intended to form the basis of any investment decision or any other decision in respect of the Transactions. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, SHAREHOLDERS OF THE COMPANY AND OTHER INTERESTED PARTIES ARE URGED TO READ, WHEN AVAILABLE, THE PRELIMINARY PROXY STATEMENT/PROSPECTUS, AND AMENDMENTS THERETO, AND THE DEFINITIVE PROXY STATEMENT/PROSPECTUS AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC IN CONNECTION WITH THE COMPANY’S SOLICITATION OF PROXIES FOR THE EXTRAORDINARY GENERAL MEETING OF ITS SHAREHOLDERS TO BE HELD TO APPROVE THE TRANSACTIONS AND OTHER MATTERS AS DESCRIBED IN THE PROXY STATEMENT/PROSPECTUS BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY AND THE TRANSACTIONS. Investors and security holders will also be able to obtain copies of the Registration Statement and the Proxy Statement/Prospectus and all other documents filed or that will be filed with the SEC by the Company, without charge, once available, on the SEC’s website at www.sec.gov or by directing a request to: Yorkville Acquisition Corp., 1012 Springfield Avenue, Mountainside, New Jersey 07092; e-mail: YORK@mzgroup.us.
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NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF THE TRANSACTIONS OR ANY RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS CURRENT REPORT. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
Participants in the Solicitation
The Company and its respective directors, executive officers, certain of its shareholders and other members of management and employees may be deemed under SEC rules to be participants in the solicitation of proxies from the Company’s shareholders in connection with the Transactions. A list of the names of such persons, and information regarding their interests in the Transactions and their ownership of the Company’s securities are, or will be, contained in the Company’s filings with the SEC. Additional information regarding the interests of the persons who may, under SEC rules, be deemed participants in the solicitation of proxies of the Company’s shareholders in connection with the Transactions, including the names and interests of the Company’s directors and executive officers, will be set forth in the Registration Statement and Proxy Statement/Prospectus, which is expected to be filed by the Company with the SEC. Investors and security holders may obtain free copies of these documents as described above.
Forward-Looking Statements:
This Current Report contains certain forward-looking statements within the meaning of the U.S. federal securities laws with respect to the Transactions, including expectations, hopes, beliefs, intentions, plans, prospects, financial results or strategies regarding the Company and the Transactions and statements regarding the anticipated benefits and timing of the completion of the Transactions, the assets contributed pursuant to the Contribution Agreements and Trademark License Agreement, Cronos’ prominence as a digital asset and as the foundation of the American digital economy, the planned business strategy, plans and use of proceeds, the upside potential and opportunity for investors, the Company’s plan for value creation and strategic advantages, market size and growth opportunities, regulatory conditions, technological and market trends, future financial condition and performance and expected financial impacts of the Transactions, the satisfaction of closing conditions to the Transactions and the level of redemptions of the Company’s public shareholders, and the Company’s expectations, intentions, strategies, assumptions or beliefs about future events, results of operations or performance or that do not solely relate to historical or current facts. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “potential,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are predictions, projections and other statements about future events or conditions that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this Current Report, including, but not limited to: the risk that the Transactions may not be completed in a timely manner or at all, which may adversely affect the price of the Company’s securities; the risk that the Transactions may not be completed by the Company’s business combination deadline; the failure by the Parties to satisfy the conditions to the consummation of the Transactions, including the approval of the Company’s shareholders; failure to realize the anticipated benefits of the Transactions; the level of redemptions of the Company’s public shareholders which may reduce the public float of, reduce the liquidity of the trading market of, and/or maintain the quotation, listing, or trading of the SPAC Class A Ordinary Shares or the SPAC Class A Common Stock; the lack of a third-party fairness opinion in determining whether or not to pursue the Transactions; the failure of the Company to obtain or maintain the listing of its securities on any securities exchange after closing of the Transactions; costs related to the Transactions; changes in business, market, financial, political and regulatory conditions; risks relating to the Company’s anticipated operations and business, including the highly volatile nature of the price of CRO; the risk that the Company’s stock price will be highly correlated to the price of CRO and the price of CRO may decrease between the signing of the definitive documents for the Transactions and the closing of the Transactions or at any time after the closing of the Transactions; risks related to increased competition in the industries in which the Company will operate; risks relating to significant legal, commercial, regulatory and technical uncertainty regarding CRO; risks relating to the treatment of crypto assets for U.S. and foreign tax purposes; risks that after consummation of the Transactions, the Company experiences difficulties managing its growth and expanding operations; the risks that growing the Company’s validator operations could be difficult; challenges in implementing our business plan including operating a Cronos validator, due to operational challenges, significant competition and regulation; being considered to be a “shell company” by any stock exchange on which SPAC Class A Common Stock will be listed or by the SEC, which may impact our ability to list the SPAC Class A Common Stock and restrict reliance on certain rules or forms in connection with the offering, sale or resale of securities; the outcome of any potential legal proceedings that may be instituted against the Company or others following announcement of the Transactions, and those risk factors discussed in documents that the Company filed, or that will be filed, with the SEC.
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The foregoing list of risk factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the final prospectus of the Company dated as of June 26, 2025 and filed by the Company with the SEC on June 30, 2025, the Company’s Quarterly Reports on Form 10-Q, the Registration Statement that will be filed by the Company and the Proxy Statement/Prospectus contained therein, and other documents filed by the Company from time to time with the SEC. These filings do or will identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. There may be additional risks that the Company presently knows or that the Company currently believes are immaterial that could also cause actual results to differ from those contained in the forward-looking statements.
Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and the Company assumes no obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. The Company gives no assurance that it will achieve its expectations. The inclusion of any statement in this communication does not constitute an admission by the Company or any other person that the events or circumstances described in such statement are material.
No Offer or Solicitation
This Current Report and the information contained herein is for informational purposes only and is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Transactions and shall not constitute an offer to sell or exchange, or a solicitation of an offer to buy or exchange the securities of the Company, or any commodity or instrument or related derivative, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, sale or exchange would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act or an exemption therefrom. Investors should consult with their counsel as to the applicable requirements for a purchaser to avail itself of any exemption under the Securities Act.
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| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits:
| † | Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request. |
| 12 |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: August 26, 2025 | YORKVILLE ACQUISITION CORP. | |
| By: | /s/ Troy Rillo | |
| Name: | Troy Rillo | |
| Title: | Chief Financial Officer | |
| 13 |
Exhibit 2.1
EXECUTION VERSION
BUSINESS COMBINATION AGREEMENT
by and among
YORKVILLE ACQUISITION CORP.
as SPAC,
YA
S3 INC.
as SPAC SUB,
Foris
Holdings KY Limited
as Crypto.com
Crypto.com
Strategy Holdings
as Crypto.com Sub,
TRUMP MEDIA & TECHNOLOGY GROUP CORP.
as TMTG,
and
YORKVILLE ACQUISITION SPONSOR LLC,
as the Sponsor
Dated as of August 25, 2025
TABLE OF CONTENTS
Page
| ARTICLE I DEFINITIONS | 3 | ||
| 1.1 | Certain Definitions | 3 | |
| 1.2 | Section References | 9 | |
| 1.3 | Interpretation | 12 | |
| ARTICLE II CONTRIBUTIONS AND SALE OF ASSETS | 13 | ||
| 2.1 | Contributions and Sales | 13 | |
| ARTICLE III CLOSING | 14 | ||
| 3.1 | Closing | 14 | |
| 3.2 | Pre-Closing Statement | 14 | |
| 3.3 | Closing Deliveries | 14 | |
| 3.4 | Intended Tax Treatment | 15 | |
| ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SPAC AND SPAC SUB | 16 | ||
| 4.1 | Organization and Standing | 16 | |
| 4.2 | Authorization; Binding Agreement | 16 | |
| 4.3 | Governmental Approvals | 17 | |
| 4.4 | Non-Contravention | 17 | |
| 4.5 | Capitalization | 17 | |
| 4.6 | SEC Filings; SPAC Financials; Internal Controls | 18 | |
| 4.7 | No Litigation; Orders; Permits | 19 | |
| 4.8 | Absence of Certain Changes | 20 | |
| 4.9 | Compliance with Laws | 20 | |
| 4.10 | Taxes and Returns | 20 | |
| 4.11 | Employees and Employee Benefit Plans | 20 | |
| 4.12 | Properties | 20 | |
| 4.13 | Material Contracts | 20 | |
| 4.14 | Transactions with Affiliates | 21 | |
| 4.15 | Finders and Brokers | 21 | |
| 4.16 | Certain Business Practices | 21 | |
| 4.17 | Insurance | 21 | |
| 4.18 | Independent Investigation | 22 | |
| 4.19 | No Other Representations | 22 | |
| 4.20 | Information Supplied | 22 | |
| 4.21 | SPAC Trust Account | 22 | |
| ARTICLE V REPRESENTATIONS AND WARRANTIES OF CRYPTO.COM AND CRYPTO.COM SUB | 23 | ||
| 5.1 | Organization and Standing | 23 | |
| 5.2 | Authorization; Binding Agreement | 23 | |
| 5.3 | Ownership | 23 | |
| i |
| 5.4 | Title; Sufficiency of Assets | 23 | |
| 5.5 | Government Approvals | 23 | |
| 5.6 | Non-Contravention | 23 | |
| 5.7 | No Litigation | 24 | |
| 5.8 | Investment Representations | 24 | |
| 5.9 | Finders and Brokers | 24 | |
| 5.10 | Information Supplied | 24 | |
| 5.11 | No Other Representations | 25 | |
| ARTICLE VI REPRESENTATIONS AND WARRANTIES OF TMTG | 25 | ||
| 6.1 | Organization and Standing | 25 | |
| 6.2 | Authorization; Binding Agreement | 25 | |
| 6.3 | Ownership | 25 | |
| 6.4 | Title; Sufficiency of Assets | 26 | |
| 6.5 | Government Approvals | 26 | |
| 6.6 | Non-Contravention | 26 | |
| 6.7 | No Litigation | 26 | |
| 6.8 | Finders and Brokers | 26 | |
| 6.9 | Information Supplied | 26 | |
| 6.10 | Investment Representations | 27 | |
| 6.11 | No Other Representations | 27 | |
| ARTICLE VII COVENANTS | 27 | ||
| 7.1 | Access and Information | 27 | |
| 7.2 | Conduct of Business of TMTG | 28 | |
| 7.3 | Conduct of Business of Crypto.com | 29 | |
| 7.4 | Conduct of Business of SPAC and Sponsor | 29 | |
| 7.5 | Sponsor Loans | 31 | |
| 7.6 | SPAC Public Filings | 31 | |
| 7.7 | Conversion | 31 | |
| 7.8 | Exclusivity | 32 | |
| 7.9 | No Trading | 32 | |
| 7.10 | Notification of Certain Matters | 33 | |
| 7.11 | Efforts | 33 | |
| 7.12 | Further Assurances | 34 | |
| 7.13 | The Registration Statement | 35 | |
| 7.14 | Public Announcements | 36 | |
| 7.15 | Confidential Information | 37 | |
| 7.16 | Post-Closing Board of Directors and Officers | 38 | |
| 7.17 | Indemnification of Directors and Officers | 38 | |
| 7.18 | Use of Proceeds | 39 | |
| 7.19 | Equity Plan | 39 | |
| 7.20 | Amendment and Restatement of Founder Registration Rights Agreement | 39 | |
| ii |
| 7.21 | Additional Permitted Financings | 39 | |
| ARTICLE VIII CLOSING CONDITIONS | 40 | ||
| 8.1 | Conditions to Each Party’s Obligations | 40 | |
| 8.2 | Conditions to Obligations of the Sellers | 40 | |
| 8.3 | Conditions to Obligations of SPAC and Sponsor | 41 | |
| 8.4 | Frustration of Conditions | 42 | |
| ARTICLE IX TERMINATION AND EXPENSES | 42 | ||
| 9.1 | Termination | 42 | |
| 9.2 | Effect of Termination | 43 | |
| ARTICLE X WAIVERS AND RELEASES | 43 | ||
| 10.1 | Waiver of Claims Against Trust | 43 | |
| 10.2 | Release and Covenant Not to Sue | 44 | |
| ARTICLE XI MISCELLANEOUS | 44 | ||
| 11.1 | Survival | 44 | |
| 11.2 | Notices | 45 | |
| 11.3 | Binding Effect; Assignment | 45 | |
| 11.4 | Third Parties | 45 | |
| 11.5 | Fees and Expenses | 45 | |
| 11.6 | Governing Law; Jurisdiction; Waiver of Jury Trial | 46 | |
| 11.7 | Specific Performance | 46 | |
| 11.8 | Severability | 46 | |
| 11.9 | Amendment | 46 | |
| 11.10 | Waiver | 46 | |
| 11.11 | Entire Agreement | 47 | |
| 11.12 | Counterparts | 47 | |
| 11.13 | Legal Representation | 47 | |
| 11.14 | No Recourse | 47 | |
| iii |
EXHIBITS
| Exhibit A | Form of Florida Articles of Incorporation |
| Exhibit B | Form of Florida Bylaws |
| Exhibit C | Form of Sponsor Support Agreement |
| Exhibit D | Form of Lock-Up Agreement |
| Exhibit E | Form of Registration Rights Agreement |
| Exhibit F | Form of Stock Purchase Agreement |
| Exhibit G | Form of Earnout Warrants |
Exhibit H Exhibit I |
Form of Series A Forced Exercise Warrants Form of Backstop Agreement |
| iv |
BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement (this “Agreement”) is made and entered into as of August 25, 2025, by and among (a) Yorkville Acquisition Corp., a Cayman Islands exempted company (“SPAC”), (b) YA S3 Inc., a Florida corporation and an indirect wholly owned subsidiary of SPAC (“SPAC Sub”), (c) Foris Holdings KY Limited, a Cayman Islands exempted company (“Crypto.com”), (d) Crypto.com Strategy Holdings, a Cayman Islands exempted company (“Crypto.com Sub”), (e) Trump Media & Technology Group Corp., a Florida corporation (“TMTG”), and (f) Yorkville Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”). Crypto.com Sub and TMTG are sometimes referred to herein collectively as the “Sellers.” SPAC, SPAC Sub, Crypto.com, Crypto.com Sub, TMTG, and Sponsor are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.”
RECITALS:
WHEREAS, on the date hereof, Trump Media Group, LLC, a Florida limited liability company, (“Asset Company”), is a wholly owned subsidiary of TMTG, and is treated as an entity disregarded as separate from TMTG for U.S. federal income tax purposes;
WHEREAS, the Parties desire and intend to effect a business combination transaction whereby, among other things, Crypto.com Sub and TMTG will contribute certain assets to SPAC and SPAC Sub (as applicable) in exchange for Transaction Shares, the Earnout Warrants, and the Forced Exercise Warrants (each as defined below) in accordance with the terms of this Agreement and the Ancillary Documents (together with the other transactions contemplated by this Agreement and the Ancillary Documents, the “Transactions”);
WHEREAS, concurrently with the execution and delivery of this Agreement, Crypto.com is entering into an Asset Contribution Agreement with Crypto.com Sub (the “Pre-Closing Crypto.com Contribution Agreement”), pursuant to which, immediately prior to, but contingent upon, the Closing (as defined below), Crypto.com will contribute (the “Pre-Closing Crypto.com Contribution”) 6,313,000,212 Cronos tokens and all necessary physical devices required to establish and operate a Cronos proof of stake validator node and staking infrastructure (the “Cronos Assets”) to Crypto.com Sub;
WHEREAS, concurrently with the execution and delivery of this Agreement, Crypto.com Sub is entering into an Asset Contribution Agreement with SPAC (the “Crypto.com Contribution and Sale Agreement” and, together with the Pre-Closing Crypto.com Contribution Agreement, the “Crypto.com Contribution Agreements”), pursuant to which (a) at the Closing, Crypto.com Sub will sell 90% of the Cronos Assets to SPAC Sub (the “Crypto.com Sale”) and (b) immediately following the Crypto.com Sale, Crypto.com Sub will contribute 10% of the Cronos Assets to SPAC;
WHEREAS, pursuant to the Crypto.com Contribution and Sale Agreement, at the Closing, Crypto.com Sub and SPAC will enter into a Trademark License Agreement, substantially in the form set forth on Exhibit A to the Crypto.com Contribution and Sale Agreement (the “Crypto.com License Agreement”), pursuant to which Crypto.com Sub will license to SPAC Intellectual Property (as defined below) and all operational knowhow and proprietary technology required to establish and operate a Cronos proof of stake validator node and staking infrastructure;
WHEREAS, concurrently with the execution and delivery of this Agreement, TMTG is entering into an Trademark License Agreement with Asset Company (the “TMTG License Agreement”) pursuant to which, immediately prior to, but contingent upon, the Closing, TMTG will license the rights to use the “Trump Media” brand name and certain other Intellectual Property rights to Asset Company (the “TMTG Marks,”) (the “Pre-Closing TMTG Contribution” and together with the Pre-Closing Crypto.com Contribution, the “Pre-Closing Contributions”);
WHEREAS, concurrently with the execution and delivery of this Agreement, (d) TMTG is entering into an Asset Contribution Agreement with SPAC (the “TMTG Contribution Agreement” and, together with the Crypto.com Contribution Agreements and the TMTG License Agreement, the “Contribution Agreements”) pursuant to which, at the Closing, TMTG will contribute 100% of the issued and outstanding membership interests of Asset Company to SPAC in consideration of 10,000,000 shares of SPAC Class A Common Stock, certain Earnout Warrants and Forced Exercise Warrants as described in Sections 2.1(b) and 2.1(c) below;
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WHEREAS, at least two Business Days prior to the Closing and subject to the conditions of this Agreement, SPAC shall convert into a Florida corporation in accordance with the Cayman Islands Companies Act (As Revised) (the “Cayman Act”) and Section 607.1801 of the Florida Business Corporation Act, as amended (the “Conversion”);
WHEREAS, concurrently with the Conversion, SPAC shall file articles of incorporation with the Secretary of State of the State of Florida and adopt bylaws in substantially the forms attached as Exhibits A and B hereto, respectively (together, the “Converted SPAC Organizational Documents”);
WHEREAS, in connection with the Conversion, (a) each then issued and outstanding SPAC Class A Ordinary Share (as defined below) shall convert automatically, on a one-for-one basis, into a share of Class A common stock, par value $0.0001 per share, of SPAC (the “SPAC Class A Common Stock”); and (b) each then issued and outstanding SPAC Class B Ordinary Share (as defined below) shall convert automatically, on a one-for-one basis, into a share of SPAC Class A Common Stock;
WHEREAS, concurrently with the execution and delivery of this Agreement, in connection with the Transactions, SPAC, SPAC Sub, Sponsor, Crypto.com and the Sellers are entering into a Sponsor Support Agreement substantially in the form of Exhibit C (the “Sponsor Support Agreement”), providing that, among other things, the Sponsor will vote its SPAC Ordinary Shares in favor of the adoption and approval of this Agreement and the Transactions;
WHEREAS, concurrently with the execution and delivery of this Agreement, in connection with the Transactions, SPAC and Sponsor (or an Affiliate thereof) are entering into a Backstop Agreement, substantially in the form of Exhibit I the (“Backstop Agreement”), pursuant to which Sponsor (or such Affiliate of Sponsor) will commit to purchase certain securities of SPAC to the extent necessary to have the condition set forth in Section 8.2(e) be satisfied;
WHEREAS, concurrently with the execution and delivery of this Agreement, in connection with the Transactions, Crypto.com Sub, Sponsor and TMTG are entering into a voting agreement (the “Voting Agreement”), pursuant to which each of the parties thereto will agree to, from and following the Closing, vote their SPAC Class A Common Stock and SPAC Class B Common Stock (as applicable) in accordance with the terms set forth therein;
WHEREAS, concurrently with the Closing, the Sellers, Sponsor and certain other parties named therein shall each enter into a Lock-Up Agreement with SPAC substantially in the form of Exhibit D (each, a “Lock-Up Agreement”), pursuant to which the Sellers, Sponsor and such other parties shall each agree not to transfer their shares of SPAC Stock for a period of a minimum of 12 months after the Closing, subject to certain exceptions described therein;
WHEREAS, concurrently with the Closing, the Sellers and Sponsor shall enter into an amended and restated registration rights agreement with SPAC, which will cover the resale of the shares of SPAC Stock held by the Sellers and Sponsor substantially in the form of Exhibit E (the “Registration Rights Agreement”);
WHEREAS, concurrently with the Closing, an affiliate of Sponsor, YA II PN, Ltd., a Cayman Islands exempt limited company (“YA II PN”), shall enter into a Stock Purchase Agreement with SPAC in substantially the form of Exhibit F, pursuant to which YA II PN will commit to purchase up to $5,000,000,000 (the “Commitment Amount”) of the SPAC Class A Common Stock (as defined below), at a price per share equal to 97.25% of the market price of such shares in consideration of a commitment fee payable in cash or in shares of SPAC Class A Common Stock to YA II PN, as more fully set forth therein (the “Stock Purchase Agreement”);
WHEREAS, the board of directors of SPAC (the “SPAC Board”) has unanimously: (a) determined that this Agreement and the Ancillary Documents to which SPAC is a party and the Transactions are advisable and in the best interests of SPAC and the SPAC Shareholders; (b) authorized and approved the execution, delivery and performance by SPAC of this Agreement and the Ancillary Documents to which SPAC is a party and the Transactions; (c) approved the Transactions as a Business Combination; and (d) recommended the adoption and approval of this Agreement and the Ancillary Documents to which SPAC is a party and the Transactions by the SPAC Shareholders; and
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WHEREAS, the respective boards of directors of each of TMTG and Crypto.com, the manager of Sponsor and the board of directors of Crypto.com Sub have each unanimously (a) determined that this Agreement and the Ancillary Documents to which the respective Parties are a party and the Transactions are advisable and in the best interests of the respective Parties and their equityholders and (b) authorized and approved this Agreement, the Ancillary Documents to which the respective Parties are a party and the Transactions, in each case upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties agree as follows:
Article I
DEFINITIONS
1.1 Certain Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“Action” means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint, stipulation, assessment or arbitration, or any request (including any subpoena or request for information), inquiry, hearing, proceeding or investigation, by or before any Person, including any Governmental Authority.
“Additional Permitted Financing” means (i) the subscription or purchase by an investor after the date of this Agreement of securities to be issued or guaranteed by SPAC or SPAC’s Subsidiaries (or of securities exercisable, convertible or exchangeable into securities to be issued or guaranteed by SPAC or SPAC’s Subsidiaries), including common stock, preferred stock, convertible or exchangeable bonds or notes (secured or unsecured), promissory notes, warrants or other securities or (ii) a line of credit, promissory note or other similar debt financing, by and between an investor and SPAC or SPAC’s Subsidiaries, in each case, as and to the extent consented to in writing by Crypto.com (which consent may be withheld in the sole and absolute discretion of Crypto.com);
“Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled by or is under common control with such specified Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For the purposes of this definition, the term “control,” when used with respect to any specified Person, means the power to direct or cause the direction of the management or policies of such Person, directly or indirectly, whether through the ownership of voting securities, by Contract or otherwise; and the terms “controlling,” “controlled,” or “under common control with” have correlative meanings.
“Ancillary Documents” means each agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates and instruments to be executed or delivered by any of the Parties in connection with or pursuant to this Agreement or the Transactions, including the Contribution Agreements, the Crypto.com License Agreement, the TMTG License Agreement, the Backstop Agreement, the Sponsor Support Agreement, the Lock-Up Agreements, the Registration Rights Agreement, the Voting Agreement, the Stock Purchase Agreement, the Converted SPAC Organizational Documents, the Earnout Warrants, the Series A Forced Exercise Warrants and any agreements relating to or instruments governing any Additional Permitted Financing.
“Benefit Plans” of any Person means any and all deferred compensation, executive compensation, incentive compensation, equity or equity-based compensation, employment or consulting, severance or termination pay, holiday, vacation, employee loan, bonus, retention, transaction, change in control, health and welfare, fringe benefit, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, or retirement or supplemental retirement plan, program, agreement, commitment or arrangement, and each other employee benefit plan, program, agreement or arrangement, including each “employee benefit plan” as such term is defined under Section 3(3) of ERISA, maintained or contributed to or required to be contributed to by a Person for the benefit of any current or former employee or other service provider of such Person, or with respect to which such Person has any Liability, whether direct or indirect, actual or contingent, whether formal or informal, and whether legally binding or not.
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“Business Combination” has the meaning set forth in the SPAC Memorandum and Articles as in effect on the date hereof.
“Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York and the Cayman Islands are authorized to close for business.
“Cayman Registrar” means the Registrar of Companies of the Cayman Islands.
“Code” means the Internal Revenue Code of 1986. Reference to a specific section of the Code shall include such section and any valid treasury regulation promulgated thereunder.
“Confidential Information” means all confidential or proprietary documents and information, whether written, oral, electronic, in visual form or in any other media, concerning the Parties or any of their respective Affiliates or Representatives, furnished in connection with this Agreement or the Transactions; provided, however, that Confidential Information shall not include any information which, (a) at the time of disclosure by any Party, any Affiliates thereof or any of their respective Representatives, is generally available publicly and was not disclosed in breach of this Agreement or applicable confidentiality agreement or (b) at the time of the disclosure by any Party, any Affiliates thereof or any of their respective Representatives was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such Confidential Information.
“Consent” means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with, any Governmental Authority or any other Person.
“Contracts” means all legally binding contracts, agreements, arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase orders, licenses (and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments or obligations of any kind, written or oral (including any amendments and other modifications thereto).
“Converted SPAC Units” means, following the Conversion, units issued by SPAC, each consisting of one share of SPAC Class A Common Stock and one-third (1/3) of one Converted SPAC Warrant (rounded down to the nearest whole share).
“Converted SPAC Warrants” means, following the Conversion, warrants to purchase one share of SPAC Class A Common Stock.
“DTC” means the Depository Trust Company.
“Earnout Warrants” means the cash-in warrants with an exercise price of $0.001 per share, in substantially the form of Exhibit G.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“Exchange Act” means the Securities Exchange Act of 1934.
“Forced Exercise Warrants” means the cash-in warrants with an exercise price of $10.00 per share, in substantially the form of Exhibit H.
“Founder Registration Rights Agreement” means the Registration Rights Agreement, dated as of June 26, 2025, by and among SPAC, Sponsor, and the other shareholders party thereto.
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“Fraud” means actual and intentional fraud, with elements of scienter and reliance, under the Laws of the State of Florida, in the making of any representations and warranties contained in this Agreement.
“Fraud Claim” means any Action to the extent based upon Fraud.
“GAAP” means generally accepted accounting principles as in effect in the United States of America.
“Governmental Authority” means any federal, state, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality, department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body with competent jurisdiction.
“Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services or capitalized leases, as determined in accordance with GAAP (other than trade payables incurred in the ordinary course of business), (c) any other indebtedness of such Person that is evidenced by a note, bond, debenture, credit agreement or similar instrument, (d) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (e) all obligations of such Person in respect of acceptances issued or created, (f) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (g) all obligations secured by a Lien on any property of such Person, (h) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person, (i) any severance costs, pension, bonus, deferred compensation, amounts due in respect of cancellation of options and other equity awards, forgivable loans (whether issued or proposed to be issued) or similar obligations (and, in each case, any employer portion of unemployment, social security, payroll or similar Tax payable in connection therewith), and (j) all obligations described in clauses (a) through (i) above of any other Person which are directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
“Intellectual Property” means trademarks, service marks, rights in trade names, business names, logos or get-up, goodwill and the right to sue for passing off, patents, supplementary protection certificates, rights in inventions, proprietary processes, formulae, models and methodologies, registered and unregistered design rights, copyrights (including rights in software), database rights, image rights, rights to publicity and rights to personality and privacy, moral rights and rights of attribution and integrity, rights in domain names and URLs and social media presence accounts, and all other similar rights in any part of the world (including in confidential information and trade secrets) and whether registered or not, including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and any rights to apply for and be granted, registrations, renewals, extensions, continuations or restorations of, and rights to claim priority from such registrations.
“Investment Company Act” means the United States Investment Company Act of 1940.
“IPO” means the initial public offering of SPAC Public Units pursuant to the IPO Prospectus.
“IPO Prospectus” means the final prospectus of SPAC, dated as of June 26, 2025, and filed with the SEC on June 30, 2025 (File No. 333-286569).
“Knowledge” means, with respect to any Party, the actual knowledge of its directors and executive officers, after reasonable inquiry.
“Law” means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
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“Liabilities” means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise, whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards), including Tax liabilities due or to become due.
“Lien” means any mortgage, pledge, security interest (including any created by Law), attachment, option, proxy, voting trust, encumbrance, license, covenant not to sue, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Material Adverse Effect” means, with respect to any specified Person, any fact, event, occurrence, change or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, Liabilities, results of operations, prospects or condition (financial or otherwise) of such Person and its Subsidiaries, taken as a whole, or (b) the ability of such Person or any of its Subsidiaries to consummate the Transactions contemplated by this Agreement or the Ancillary Documents to which it is a party or bound or to perform its obligations hereunder or thereunder; provided, however, any changes or effects directly or indirectly attributable to, resulting from, relating to or arising out of the following (by themselves or when aggregated with any other, changes or effects) shall not be deemed to be, constitute, or be taken into account when determining whether there has or may, would or could have occurred a Material Adverse Effect: (i) general changes in the financial or securities markets (including changes in interest rates) or general economic or political conditions in the country or region in which such Person or any of its Subsidiaries do business; (ii) changes, conditions or effects that generally affect the industries or markets in which such Person or any of its Subsidiaries principally operate; (iii) changes in the price or trading volume of Cronos tokens (provided that the underlying cause of any such event, occurrence, change or effect in the price or trading volume may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent not excluded by another exception herein); (iv) any proposal, enactment or change in interpretation of, or any other change in, applicable Laws, GAAP or other applicable accounting principles or mandatory changes in the regulatory accounting requirements applicable to any industry in which such Person and its Subsidiaries principally operate; (v) conditions caused by acts of God, natural disasters, terrorism, war (whether or not declared), escalation of hostilities, geopolitical conditions, local, national or international political conditions or any outbreak or continuation of an epidemic or pandemic or the effects of the actions of any Governmental Authority or Laws or other responses with respect thereto; (vi) the taking of any action required by this Agreement or any Ancillary Document; and (vii) any failure in and of itself by such Person and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period (provided that the underlying cause of any such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent not excluded by another exception herein); provided, further, however, that any event, occurrence, fact, condition, or change referred to in clauses (i), (ii), (iii), (iv), (v) and (vii) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition, or change has a disproportionate and adverse effect on such Person or any of its Subsidiaries compared to similarly situated participants in the industries in which such Person or any of its Subsidiaries primarily conducts its businesses. Notwithstanding the foregoing, with respect to SPAC, the amount of the Redemption (as defined below) or the failure to obtain the Required Shareholder Approval (as defined below) shall not in and of itself be deemed to be a Material Adverse Effect on or with respect to SPAC (provided that the underlying causes of any such Redemption or failure to obtain the Required Shareholder Approval may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent not excluded by another exception herein; and provided, further, with respect to the failure to obtain the Required Shareholder Approval, that the SPAC has not violated its obligations under this Agreement in connection with obtaining such Required Shareholder Approval).
“Nasdaq” means the Nasdaq Global Market.
“Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
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“Organizational Documents” means, with respect to any Person, (a) that is a corporation or company, its certificate or articles of incorporation and bylaws, and/or memorandum and articles of association or comparable documents, (b) that is a partnership, its certificate of partnership and partnership agreement, or comparable documents, (c) that is a limited liability company, its certificate of formation and limited liability company agreement, or comparable documents, (d) that is a trust, its declaration of trust, or comparable documents and (e) that is any other Person but that is not an individual, its comparable organizational documents, in the case of each of clauses (a) through (e) as currently in effect.
“PCAOB” means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“Permits” means all federal, state, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions, licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations, ratings, registrations, qualifications or orders of any Governmental Authority.
“Permitted Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not delinquent or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto, (b) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due and payable and as would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property subject thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection with social security, (d) Liens on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business, or (e) Liens arising under this Agreement or any Ancillary Document.
“Person” means an individual, corporation, company, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Personal Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible personal property.
“Post-Closing Officers” means each of the officers of SPAC following the Closing.
“Redemption Amount” means the aggregate amount payable with respect to all Redemption of the SPAC Class A Ordinary Shares pursuant to and in accordance with the SPAC Memorandum and Articles.
“Related Persons” means, as to any Person, the Affiliates of such Person, the Representatives of such Person and such Person’s Affiliates, and the immediate family members of any of the foregoing.
“Representatives” means, as to any Person, the respective managers, directors, officers, employees, independent contractors, consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person.
“SEC” means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Securities Act” means the Securities Act of 1933.
“Seller Fundamental Representations” means the representations and warranties made by the Sellers pursuant to Section 5.1 (Organization and Standing), Section 5.2 (Authorization; Binding Agreement), Section 5.9 (Finders and Brokers), Section 6.1 (Organization and Standing), Section 6.2 (Authorization; Binding Agreement) and Section 6.8 (Finders and Brokers).
“SPAC Class A Ordinary Shares” means, prior to the Conversion, the Class A ordinary shares, par value $0.0001 per share, of SPAC.
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“SPAC Class B Common Stock” means, following the Conversion, the Class B common stock, par value $0.0001 per share, of SPAC.
“SPAC Class B Ordinary Shares” means, prior to the Conversion, the Class B ordinary shares, par value $0.0001 per share, of SPAC.
“SPAC Fundamental Representations” means the representations and warranties made by SPAC pursuant to Section 4.1 (Organization and Standing), Section 4.2 (Authorization; Binding Agreement), Section 4.4 (Non-Contravention), Section 4.5 (Capitalization), and Section 4.15 (Finder and Brokers).
“SPAC Memorandum and Articles” means the amended and restated memorandum and articles of association of SPAC as of the date of this Agreement, as in effect under the Cayman Act.
“SPAC Ordinary Shares” means the SPAC Class A Ordinary Shares and the SPAC Class B Ordinary Shares.
“SPAC Preference Shares” means preference shares, par value $0.0001 per share, of SPAC.
“SPAC Shareholders” means the shareholders of SPAC prior to the Conversion, and the stockholders of SPAC following the Conversion.
“SPAC Stock” means, collectively, the SPAC Class A Common Stock and the SPAC Class B Common Stock.
“SPAC Units” means the units issued by SPAC in the IPO, (the “SPAC Public Units”) and issued by SPAC in private placements conducted concurrently with the IPO (the “SPAC Private Units”), each consisting of one SPAC Class A Ordinary Share and one-third (1/3) of one SPAC Warrant.
“SPAC Warrants” means warrants to purchase one SPAC Class A Ordinary Share.
“Subsidiary” means, with respect to any Person, any other Person of which (a) if a corporation or company, a majority of the total voting power of capital stock or share capital entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority of partnership, association or other business entity gains or losses or will be or control the managing director, managing member, general partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person will also include any variable interest entity which is consolidated with such Person under applicable accounting rules.
“Tax Return” means any return, declaration, report, claim for refund, information return or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
“Taxes” means (a) all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property, windfall profits, tariffs, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for any period or otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as a result of any tax sharing, tax group, tax indemnity or tax allocation agreement with, or any other express or implied agreement to indemnify, any other Person.
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“Transaction Shares” means the SPAC Stock that is sold and issued to the Sellers at Closing.
“Triggering Event I” means the first date before the fifth anniversary of the Closing Date on which the trading price of the SPAC Class A Common Stock closes at or above $11.00 per share on any trading day.
“Triggering Event II” means the first date before the fifth anniversary of the Closing Date on which the trading price of the SPAC Class A Common Stock closes at or above $20.00 per share on any trading day.
“Triggering Event III” means the first date before the fifth anniversary of the Closing Date on which the trading price of the SPAC Class A Common Stock closes at or above $40.00 per share on any trading day.
“Triggering Events” means Triggering Event I, Triggering Event II, and Triggering Event III, collectively.
“Trust Account” means the trust account established by SPAC with the proceeds from the IPO and from certain private placements occurring simultaneously with the IPO pursuant to the Trust Agreement in accordance with the IPO Prospectus.
“Trust Agreement” means that certain Investment Management Trust Agreement, dated as of June 26, 2025 by and between SPAC and the Trustee, as it may be amended, as well as any other agreements entered into related to or governing the Trust Account.
“Trustee” means Continental Stock Transfer & Trust Company, in its capacity as trustee under the Trust Agreement.
1.2 Section References. The following capitalized terms, as used in this Agreement, have the respective meanings given to them in the Section as set forth below adjacent to such terms:
| Acquisition Proposal | 7.7(a) |
| Action | 1.1 |
| Additional Permitted Financing | 1.1 |
| Affiliate | 1.1 |
| Agreement | Preamble |
| Alternative Transaction | 7.7(a) |
| Ancillary Documents | 1.1 |
| Antitrust Laws | 7.10(b) |
| Asset Company | Recitals |
| Asset Company Interests | 6.3 |
| Backstop Agreement | Recitals |
| Benefit Plans | 1.1 |
| Business Combination | 1.1 |
| Business Day | 1.1 |
| Cayman Act | Recitals |
| Cayman Registrar | 1.1 |
| Closing | 3.1 |
| Closing Date | 3.1 |
| Closing Filing | 7.13(b) |
| Closing Press Release | 7.13(b) |
| Code | 1.1 |
| Commitment Amount | Recitals |
| Confidential Information | 1.1 |
| Confidential Party | 7.14 |
| Consent | 1.1 |
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| Contracts | 1.1 |
| Contribution Agreements | Recitals |
| Conversion | Recitals |
| Converted SPAC Organizational Documents | Recitals |
| Converted SPAC Units | 1.1 |
| Converted SPAC Warrants | 1.1 |
| Cronos Assets | Preamble |
| Crypto.com | Preamble |
| Crypto.com Contribution Agreements | Recitals |
| Crypto.com License Agreement | Recitals |
| Crypto.com Sub | Preamble |
| D&O Indemnified Persons | 7.16 |
| D&O Tail Insurance | 7.16(b) |
| Disclosure Schedules | 1.3(f) |
| DLA Piper | 11.13(a) |
| DTC | 1.1 |
| Earnout Warrants | 1.1 |
| Enforceability Exceptions | 4.2 |
| Equity Incentive Plan | 7.18 |
| ERISA | 1.1 |
| Exchange Act | 1.1 |
| Extraordinary General Meeting | 7.12(a) |
| Federal Securities Laws | 7.8 |
| Forced Exercise Warrants | 1.1 |
| Forced Exercise Warrant Condition | 2.1 |
| Founder Registration Rights Agreement | 1.1 |
| Fraud | 1.1 |
| Fraud Claim | 1.1 |
| GAAP | 1.1 |
| Governmental Authority | 1.1 |
| Harneys | 11.13(a) |
| Indebtedness | 1.1 |
| Intellectual Property | 1.1 |
| Intended Tax Treatment | 3.4 |
| Interim Period | 7.1(a) |
| Investment Company Act | 1.1 |
| IPO | 1.1 |
| IPO Prospectus | 1.1 |
| Knowledge | 1.1 |
| Law | 1.1 |
| Liabilities | 1.1 |
| Lien | 1.1 |
| Lock-Up Agreement | Recitals |
| Material Adverse Effect | 1.1 |
| Modification in Recommendation | 7.12(d) |
| Nasdaq | 1.1 |
| Non-Recourse Parties | 11.14 |
| OFAC | 4.16(c) |
| Order | 1.1 |
| Organizational Documents | 1.1 |
| Outside Date | 9.1(b) |
| Parties | Preamble |
| Party | Preamble |
| PCAOB | 1.1 |
| Permits | 1.1 |
| Permitted Liens | 1.1 |
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| Person | 1.1 |
| Personal Property | 1.1 |
| Post-Closing Board | 7.15(a) |
| Post-Closing Officers | 1.1 |
| Pre-Closing Contributions | Recitals |
| Proxy Statement | 7.12(a) |
| Public Shareholders | 10.1 |
| Redemption | 7.12(a) |
| Redemption Amount | 1.1 |
| Registration Rights Agreement | Recitals |
| Registration Statement | 7.12(a) |
| Related Persons | 1.1 |
| Released Claims | 10.1 |
| Releasing Persons | 10.2 |
| Representatives | 1.1 |
| Required Shareholder Approval | 8.1(a) |
| SEC | 1.1 |
| SEC Reports | 4.6(a) |
| Securities Act | 1.1 |
| Seller Fundamental Representations | 1.1 |
| Sellers | Preamble |
| Signing Filing | 7.13(b) |
| Signing Press Release | 7.13(b) |
| Skadden | 11.13(b) |
| SPAC | Preamble |
| SPAC Board | Recitals |
| SPAC Class A Common Stock | Recitals |
| SPAC Class A Ordinary Shares | 1.1 |
| SPAC Class B Common Stock | 1.1 |
| SPAC Class B Ordinary Shares | 1.1 |
| SPAC Financials | 4.6(d) |
| SPAC Fundamental Representations | 1.1 |
| SPAC Material Contract | 4.13(a) |
| SPAC Memorandum and Articles | 1.1 |
| SPAC Ordinary Shares | 1.1 |
| SPAC Preference Shares | 1.1 |
| SPAC Private Units | 1.1 |
| SPAC Public Units | 1.1 |
| SPAC Shareholder Approval Matters | 7.12(a) |
| SPAC Shareholders | 1.1 |
| SPAC Stock | 1.1 |
| SPAC Units | 1.1 |
| Sponsor | Preamble |
| Sponsor Support Agreement | Recitals |
| Stock Purchase Agreement | Recitals |
| Subsidiary | 1.1 |
| Tax Return | 1.1 |
| Taxes | 1.1 |
| TMTG | Preamble |
| Transaction Shares | 1.1 |
| Triggering Event I | 1.1 |
| Triggering Event II | 1.1 |
| Triggering Event III | 1.1 |
| Triggering Events | 1.1 |
| Trust Account | 1.1 |
| Trust Agreement | 1.1 |
| Trustee | 1.1 |
| Voting Agreement | Recitals |
| YA II PN | Recitals |
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1.3 Interpretation.
(a) The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.
(b) In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (ii) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (iii) any accounting term used and not otherwise defined in this Agreement or any Ancillary Document has the meaning assigned to such term in accordance with GAAP, based on the accounting principles used by the applicable Person; (iv) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (v) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement; (vi) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (vii) the term “or” means “and/or” unless clearly indicated otherwise, including, by use of “either”; (viii) any reference to the term “ordinary course” or “ordinary course of business” shall be deemed in each case to be followed by the words “consistent with past practice”; (ix) any agreement, instrument, insurance policy, Law defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument, insurance policy, Law as from time to time amended, modified or supplemented as of the applicable date or during the applicable period of time, including (in the case of agreements or instruments) by waiver or consent (and in the case of agreements or instruments, in accordance with the term of the agreement or instrument, and in the case of any Ancillary Document, in accordance with the terms of this Agreement) and (in the case of statutes, regulations, rules or orders) by succession of comparable successor statutes, regulations, rules or orders and references to all attachments thereto and instruments incorporated therein; (x) unless the context of this Agreement otherwise requires, references to statutes shall include all rules and regulations promulgated thereunder; (xi) except as otherwise indicated, all references in this Agreement to the words “Section,” “Article,” “Schedule,” “Annex” and “Exhibit” are intended to refer to Sections, Articles, Schedules, Annexes and Exhibits to this Agreement; and (xii) the term “Dollars” or “$” means United States dollars.
(c) Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing body and any reference in this Agreement to a Person’s officers shall include any Person filling a substantially similar position for such Person.
(d) Any reference in this Agreement or any Ancillary Document to a Person’s shareholders or stockholders shall include any applicable owners of the equity interests of such Person, in whatever form.
(e) The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
(f) The disclosure schedules delivered by SPAC and SPAC Sub to Crypto.com, Crypto.com Sub and TMTG on the date of this Agreement (the “Disclosure Schedules”) (including any section thereof) referenced herein are a part of this Agreement as if fully set forth herein. All references herein to the Disclosure Schedules (including any section thereof) shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by SPAC or SPAC Sub in the Disclosure Schedules, as applicable, or any section thereof, with reference to any section of this Agreement or section of the Disclosure Schedules, as applicable, shall be deemed to be a disclosure with respect to such other applicable sections of this Agreement or sections of the Disclosure Schedules, as applicable, if it is reasonably apparent on the face of such disclosure that such disclosure is responsive to such other section of this Agreement or section of the Disclosure Schedules, as applicable. Certain information set forth in the Disclosure Schedules, as applicable, is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. Unless expressly contemplated by this Agreement, the disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made in this Agreement, nor shall such information be deemed to establish a standard of materiality.
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Article II
CONTRIBUTIONS AND SALE OF ASSETS
2.1 Contributions and Sales. Subject to the terms and satisfaction or waiver of the conditions set forth in this Agreement, at (or immediately after (as applicable)) the Closing, pursuant to the Contribution Agreements, the Sellers shall sell, convey, transfer, assign and deliver to SPAC (or SPAC Sub, as applicable), and SPAC (or SPAC Sub, as applicable) shall purchase and accept from the Sellers, the Cronos Assets and the Asset Company Interests (as applicable), as follows:
(a) Crypto.com Sub shall (i) sell to SPAC Sub, and SPAC Sub shall purchase from Crypto.com Sub, all right, title and interest in and to 90% of the Cronos Assets, free and clear of all Liens, and, immediately thereafter, (ii) contribute to SPAC, and SPAC shall receive from Crypto.com Sub, all right, title and interest in and to 10% of the Cronos Assets, free and clear of all Liens, for aggregate consideration of 100,000,000 shares of SPAC Class B Common Stock and a Forced Exercise Warrant, exercisable for 10,000,000 shares of SPAC Class A Common Stock, which aggregate consideration shall be allocated between such purchase and such contribution in accordance with the Crypto.com Contribution and Sale Agreement, and delivered by SPAC Sub and SPAC, respectively, in accordance with the Crypto.com Contribution and Sale Agreement; and
(b) TMTG shall sell to SPAC, and SPAC shall purchase from TMTG, all right, title and interest in and to the Asset Company Interests (as defined below), free and clear of all Liens, in consideration of 10,000,000 shares of SPAC Class A Common Stock and a Forced Exercise Warrant, exercisable for 10,000,000 shares of SPAC Class A Common Stock.
(c) Additionally, in exchange for such Asset Company Interests, SPAC shall issue three Earnout Warrants to TMTG, each exercisable for a number of shares of SPAC Class A Common Stock equal to 7% of SPAC’s outstanding capital stock at the time of the Closing, rounded to the nearest whole number. Each warrant shall be exercisable within 30 days of the occurrence of the applicable Triggering Event, as follows:
(i) The first Earnout Warrant shall be exercisable upon the occurrence of Triggering Event I.
(ii) The second Earnout Warrant shall be exercisable upon the occurrence of Triggering Event II.
(iii) The third Earnout Warrant shall be exercisable upon the occurrence of Triggering Event III.
(d) SPAC shall issue to the Sponsor a Forced Exercise Warrant exercisable (on or after the Closing Date) for 2,000,000 shares of SPAC Class A Common Stock.
(e) The Forced Exercise Warrants will be subject to forced exercise in the event that the SPAC Class A Common Stock closes at or above $20.00 per share for at least one trading day before the third anniversary of the Closing Date, as more fully set forth therein (the “Forced Exercise Warrant Condition”); provided that, if the Forced Exercise Warrant Condition occurs before the Closing Date, each of Crypto.com’s, TMTG’s and the Sponsor’s respective cash-in amounts will be due on the Closing Date, as more fully set forth therein.
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Article III
CLOSING
3.1 Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VIII, the consummation of the Transactions contemplated by this Agreement (the “Closing”) shall take place by electronic exchange of signatures, on a date to be agreed by SPAC and the Sellers, which date shall be no later than on the fifth Business Day after all the Closing conditions in Article VIII have been satisfied or waived (other than any such conditions which by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the Closing) at 10:00 a.m. New York time, or at such other date, time or place as the Parties may agree in writing (the date and time at which the Closing is actually held being the “Closing Date”).
3.2 Pre-Closing Statement. At least two (2) Business Days prior to the Closing Date, SPAC shall deliver to each of the Sellers a written statement setting forth SPAC’s good faith estimate and calculation of the (a) Redemption Amount and (b) total cash proceeds from the Trust Account remaining following the Redemption.
3.3 Closing Deliveries.
(a) At the Closing, SPAC shall deliver or cause to be delivered, as applicable, to the other Parties:
(i) a certificate, dated as of the Closing Date, signed by an executive officer or director of each of SPAC and SPAC Sub in such capacity, certifying as to the satisfaction of the conditions specified in Sections 8.2(a) and (b) with respect to each of SPAC and SPAC Sub;
(ii) a certificate from SPAC’s secretary, assistant secretary, director or other executive officer certifying as to, and attaching, (A) copies of the Converted SPAC Organizational Documents as in effect as of the Closing Date, (B) the resolutions of the SPAC Board authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the Transactions contemplated hereby and thereby, and (C) the incumbency of directors and officers authorized to execute this Agreement or any Ancillary Document to which SPAC is or is required to be a party or otherwise bound;
(iii) a Lock-Up Agreement, duly executed by Sponsor, the Post-Closing Officers, and the Post-Closing Board (as defined below);
(iv) a copy of the Registration Rights Agreement duly executed by SPAC and Sponsor;
(v) a copy of the Stock Purchase Agreement duly executed by SPAC and YA II PN;
(vi) copies of the Earnout Warrants, duly executed by SPAC; and
(vii) copies of the Forced Exercise Warrants, duly executed by SPAC and, as applicable, Sponsor; and
(viii) a copy of the Crypto.com License Agreement, duly executed by SPAC.
(b) At the Closing, Crypto.com shall deliver or cause to be delivered, as applicable, to the other Parties:
(i) a duly executed and completed IRS Form W-9 from Crypto.com Sub;
(ii) a certificate signed by an executive officer or director of each of Crypto.com and Crypto.com Sub, dated as of the Closing Date, certifying as to the satisfaction of the conditions specified in Sections 8.3(a) and (b) with respect to Crypto.com and Crypto.com Sub;
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(iii) a certificate from Crypto.com’s secretary, assistant secretary, director or other executive officer certifying as to, and attaching, (A) the resolutions of the board of directors of Crypto.com authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the Transactions contemplated hereby and thereby, and (B) the incumbency of directors and officers authorized to execute this Agreement or any Ancillary Document to which Crypto.com is or is required to be a party or otherwise bound;
(iv) a Lock-Up Agreement, duly executed by Crypto.com Sub;
(v) a copy of the Registration Rights Agreement duly executed by Crypto.com Sub; and
(vi) a copy of the Crypto.com Forced Exercise Warrant, duly executed by Crypto.com Sub.
(vii) a copy of the Crypto.com License Agreement, duly executed by Crypto.com Sub.
(c) At the Closing, TMTG shall deliver or cause to be delivered, as applicable, to the other Parties:
(i) membership interest transfer powers evidencing the transfer of the Asset Company Interests to SPAC;
(ii) a duly executed and completed IRS Form W-9 from TMTG;
(iii) a certificate signed by an executive officer or director of TMTG, dated as of the Closing Date, certifying as to the satisfaction of the conditions specified in Sections 8.3(a) and (b) with respect to TMTG;
(iv) a certificate from TMTG’s secretary, assistant secretary, director or other executive officer certifying as to, and attaching, (A) copies of the Organizational Documents of Asset Company as in effect as of the Closing Date, (B) the resolutions of the board of directors of TMTG authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the Transactions contemplated hereby and thereby, and (C) the incumbency of directors and officers authorized to execute this Agreement or any Ancillary Document to which TMTG is or is required to be a party or otherwise bound;
(v) a Lock-Up Agreement, duly executed by TMTG;
(vi) a copy of the Registration Rights Agreement duly executed by TMTG; and
(vii) a copy of the Earnout Warrants, duly executed by TMTG.
3.4 Intended Tax Treatment. For U.S. federal (and applicable state or local) income Tax purposes, the Parties agree to treat (and, if applicable, to cause their Affiliates to treat) the Transactions as follows (the “Intended Tax Treatment”):
(a) the Conversion is a “reorganization” pursuant to Section 368(a)(1)(F) of the Code and the Treasury Regulations thereunder;
(b) the sale and purchase of the Transaction Shares (i) to TMTG, with respect to the contribution of 100% of the issued and outstanding membership interests of Asset Company, and (ii) to Crypto.com Sub with respect to its 10% interest in the Cronos Assets contributed to SPAC, taken together, as tax-deferred contributions governed by Section 351 of the Code; and
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(c) the sale and purchase of the Transaction Shares to Crypto.com Sub with respect to its 90% interest in the Cronos Assets contributed to SPAC Sub is a taxable disposition governed by Section 1001 of the Code.
Article IV
REPRESENTATIONS AND WARRANTIES OF SPAC AND SPAC SUB
Except as set forth in (a) the Disclosure Schedules, the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, or (b) the SEC Reports (as defined below) that are available prior to the date hereof on the SEC’s website through EDGAR (excluding any disclosures in such SEC Reports under the headings “Risk Factors,” “Forward-Looking Statements” or “Qualitative Disclosures About Market Risk” and other disclosures that are predictive, cautionary or forward looking in nature, and excluding, for the avoidance of doubt, any content of such SEC Reports that have been redacted or omitted pursuant to applicable Law) (it being acknowledged that nothing disclosed in such SEC Reports will be deemed to modify or qualify the representations and warranties set forth in Section 4.1 (Organization and Standing), Section 4.2 (Authorization; Binding Agreement), Section 4.5 (Capitalization), Section 4.10 (Taxes and Returns), Section 4.15 (Finders and Brokers) and Section 4.21 (SPAC Trust Account)), each of SPAC and SPAC Sub represents and warrants to the other Parties as of the date of this Agreement and as of the Closing, as follows:
4.1 Organization and Standing.
(a) SPAC is a company duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation. SPAC has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. SPAC is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by SPAC or the nature of the business conducted by SPAC makes such qualification or licensing necessary. SPAC has heretofore made available to the Sellers accurate and complete copies of SPAC’s Organizational Documents as currently in effect. SPAC is not in violation of any provision of its Organizational Documents.
(b) SPAC Sub and each other Subsidiary of SPAC was formed for the purpose of engaging in the Transactions, and has engaged in no other business activities other than in connection with the Transactions. SPAC Sub and each other Subsidiary of SPAC is a corporation, duly incorporated, validly existing and in good standing under the laws of the State of Florida.
4.2 Authorization; Binding Agreement. Each of SPAC and SPAC Sub has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions contemplated hereby and thereby, subject to obtaining the Required Shareholder Approval. The execution and delivery of this Agreement and each Ancillary Document to which it is a party and the consummation of the Transactions contemplated hereby and thereby have been duly and validly authorized by the SPAC Board and the governing body of SPAC Sub and, other than obtaining the Required Shareholder Approval, no other corporate proceedings, other than as set forth elsewhere in this Agreement, on the part of SPAC or SPAC Sub is necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the Transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which SPAC and/or SPAC Sub is a party has been or shall be when delivered, duly and validly executed and delivered by each of SPAC and SPAC Sub and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other Parties and other parties thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of SPAC, enforceable against each of SPAC and SPAC Sub in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws of general application affecting the enforcement of creditors’ rights generally and subject to general principles of equity (collectively, the “Enforceability Exceptions”). The SPAC Board, either (A) at a duly called and held meeting or (B) by way of written resolution, has unanimously (i) determined that this Agreement and the other Transactions contemplated hereby are advisable, fair to, and in the best interests of, SPAC and the SPAC Shareholders, (ii) approved this Agreement and the other Transactions contemplated hereby and thereby in accordance with applicable Law and the SPAC’s Organizational Documents, and (iii) approved the Transactions as a Business Combination.
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4.3 Governmental Approvals. No Consent of any Governmental Authority on the part of SPAC or SPAC Sub is required to be obtained in connection with the execution, delivery or performance by SPAC or SPAC Sub of this Agreement and each Ancillary Document to which SPAC and/or SPAC Sub is a party or the consummation by SPAC and SPAC Sub of the Transactions contemplated hereby and thereby, other than (a) such filings as contemplated by this Agreement, (b) any filings required with Nasdaq or the SEC with respect to the Transactions, (c) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws, and the rules and regulations thereunder and (d) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a Material Adverse Effect on SPAC.
4.4 Non-Contravention. The execution and delivery by each of SPAC and SPAC Sub of this Agreement and each Ancillary Document to which it is a party, the consummation by each of SPAC and SPAC Sub of the Transactions contemplated hereby and thereby, and compliance by each of SPAC and SPAC Sub with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision of SPAC’s Organizational Documents or SPAC Sub’s Organizational Documents, as applicable, in any material respect, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 4.3, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any Law applicable to SPAC or SPAC Sub, or any of SPAC’s or SPAC Sub’s properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by SPAC or SPAC Sub under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of SPAC or SPAC Sub under, (viii) give rise to any obligation to obtain any third-party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, 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 SPAC Material Contract (as defined below), except for any deviations from any of the foregoing clauses (b) and (c) that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on SPAC, as the case may be.
4.5 Capitalization.
(a) As of the date of this Agreement, SPAC is authorized to issue (i) 220,000,000 SPAC Ordinary Shares, consisting of (A) 200,000,000 SPAC Class A Ordinary Shares and (B) 20,000,000 SPAC Class B Ordinary Shares and (ii) 1,000,000 SPAC Preference Shares. The issued and outstanding SPAC Ordinary Shares as of the date of this Agreement consist of (A) 17,831,250 SPAC Class A Ordinary Shares (assuming the separation of all outstanding SPAC Units into underlying SPAC Class A Ordinary Shares and SPAC Warrants), of which 17,250,000 SPAC Class A Ordinary Shares are subject to possible redemption, and (B) 5,750,000 SPAC Class B Ordinary Shares. There are no issued or outstanding SPAC Preference Shares. All outstanding SPAC Ordinary Shares and equity interests of SPAC Sub are duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under applicable Law, the SPAC Memorandum and Articles or any Contract to which SPAC or SPAC Sub is a party. None of the outstanding SPAC Ordinary Shares has been issued in violation of any applicable securities Laws. Prior to giving effect to the Transactions, SPAC does not have any Subsidiaries or own any equity interests in any other Person, other than SPAC Sub and its direct and indirect equityholders. SPAC indirectly owns 100% of the issued and outstanding equity interests of SPAC Sub. The SPAC does not own any SPAC Ordinary Shares as treasury shares.
(b) As of the date of this Agreement, 5,867,275 SPAC Warrants are issued and outstanding (assuming the separation of all outstanding SPAC Units into underlying SPAC Class A Ordinary Shares and SPAC Warrants). All outstanding SPAC Warrants are duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under applicable Law, the SPAC Memorandum and Articles or any Contract to which SPAC is a party. None of the outstanding SPAC Warrants has been issued in violation of any applicable securities Laws.
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(c) Except as set forth in this Section 4.5 or as contemplated by this Agreement or the Ancillary Documents, there are no (i) outstanding options, warrants, puts, calls, convertible securities, preemptive or similar rights, (ii) bonds, debentures, notes or other Indebtedness having general voting rights or that are convertible or exchangeable into securities having such rights or (iii) subscriptions or other rights, agreements, arrangements, Contracts or commitments of any character (other than this Agreement and the Ancillary Documents), (A) relating to the issued or unissued securities of SPAC or any Subsidiary of SPAC, (B) obligating SPAC or any Subsidiary of SPAC to issue, transfer, deliver or sell or cause to be issued, transferred, delivered, sold or repurchased any options or shares or securities convertible into or exchangeable for any securities of SPAC or any Subsidiary of SPAC, or (C) obligating SPAC or any Subsidiary of SPAC to grant, extend or enter into any option, warrant, call, subscription or other right, agreement, arrangement or commitment for such securities of SPAC or any Subsidiary of SPAC. Other than the Redemption or as expressly set forth in this Agreement, there are no outstanding obligations of SPAC or any Subsidiary of SPAC to repurchase, redeem or otherwise acquire any securities of SPAC or any Subsidiary of SPAC or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Person. There are no shareholders agreements, voting trusts or other agreements or understandings to which SPAC or any Subsidiary of SPAC is a party with respect to the voting of any securities of SPAC or any Subsidiary of SPAC.
(d) As of the date hereof, (i) neither SPAC nor any Subsidiary of SPAC has any Indebtedness and (ii) no Indebtedness of SPAC or any Subsidiary of SPAC contains any restriction upon (A) the prepayment of any of such Indebtedness, (B) the incurrence of Indebtedness by SPAC, (C) the ability of SPAC or any Subsidiary of SPAC to grant any Lien on its properties or assets, or (D) the consummation of the Transactions.
(e) Since the date of incorporation of SPAC, and except as contemplated by this Agreement, SPAC has not declared or paid any distribution or dividend in respect of its shares and has not repurchased, redeemed or otherwise acquired any of its shares, and the SPAC Board has not authorized any of the foregoing.
4.6 SEC Filings; SPAC Financials; Internal Controls.
(a) SPAC, since the IPO and through the date of this Agreement, has timely filed all forms, reports, schedules, statements, registration statements, prospectuses, and other documents required to be filed or furnished by SPAC with the SEC under the Securities Act and/or the Exchange Act (collectively, and together with any amendments, restatements or supplements thereto, the “SEC Reports”), which SEC Reports are all available on the SEC’s website through EDGAR, and will file all such SEC Reports required to be filed or furnished between the date of this Agreement and the Closing Date.
(b) The SEC Reports (x) were prepared in all material respects in accordance with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, and the rules and regulations promulgated thereunder, as applicable, and (y) did not, as of their respective effective dates (in the case of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and at the time they were filed with the SEC (in the case of all other SEC Reports) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As used in this Section 4.6, the term “file” shall be broadly construed to include any manner permitted by SEC rules and regulations in which a document or information is furnished, supplied or otherwise made available to the SEC.
(c) As of the date of this Agreement, the SPAC Units, the SPAC Class A Ordinary Shares and the SPAC Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed on Nasdaq under the symbols “YORKU,” “YORK” and “YORKW,” respectively. Concurrently with the public announcement of this Agreement, such symbols are being changed to “MCGAU,” “MCGA,” and “MCGAW,” respectively. Since the IPO, SPAC has complied in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq. There is no action or proceeding pending or, to the Knowledge of SPAC, threatened against SPAC, by Nasdaq or the SEC with respect to any intention by such entity to deregister or terminate the listing of the SPAC Units, the SPAC Class A Ordinary Shares or the SPAC Warrants. None of SPAC or its Affiliates has taken any action in an attempt to terminate the registration of the SPAC Units, the SPAC Class A Ordinary Shares or the SPAC Warrants under the Exchange Act except as contemplated by this Agreement.
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(d) The financial statements and notes of SPAC contained or incorporated by reference in the SEC Reports and audited in conformity with GAAP in accordance with the standards of the PCAOB (the “SPAC Financials”), fairly present in all material respects the financial position and the results of operations, changes in shareholders’ equity, and cash flows of SPAC at the respective dates of and for the periods referred to in such financial statements, all in accordance with (i) GAAP methodologies applied on a consistent basis throughout the periods involved and (ii) Regulation S-X or Regulation S-K, as applicable (except as may be indicated in the notes thereto and for the omission of notes and audit adjustments in the case of unaudited quarterly financial statements to the extent permitted by Regulation S-X or Regulation S-K, as applicable).
(e) Except as and to the extent reflected or reserved against in the SPAC Financials, SPAC has not incurred any Liabilities or obligations not adequately reflected or reserved on or provided for in the SPAC Financials, other than (i) Liabilities incurred since SPAC’s incorporation in the ordinary course of business or (ii) Liabilities or obligations incurred pursuant to this Agreement. SPAC has no off-balance sheet arrangements that are not disclosed in the SEC Reports.
(f) Since the IPO, (i) SPAC has not received any complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of SPAC or its internal accounting controls, including any such complaint, allegation, assertion or claim that SPAC has engaged in questionable accounting or auditing practices and (ii) there have been no internal unresolved, material investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, the SPAC Board or any committee thereof.
(g) SPAC has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) that are designed to ensure that material information relating to SPAC and other material information required to be disclosed by SPAC in the reports and other documents that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to SPAC’s principal executive officer and its principal financial officer as appropriate to allow timely decisions regarding required disclosure. Such disclosure controls and procedures are effective in timely alerting SPAC’s principal executive officer and principal financial officer to material information required to be included in SPAC’s periodic reports required under the Exchange Act.
(h) SPAC maintains systems of internal accounting controls that are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies and procedures that are sufficient to provide reasonable assurance: (i) that SPAC maintains records that in reasonable detail accurately and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) that transactions are executed, and access to assets is permitted, in accordance with management’s general or specific authorization; and (iv) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Neither SPAC nor SPAC’s independent auditors identified or have been made aware of any “significant deficiencies” or “material weaknesses” (as defined by the PCAOB) in the design or operation of SPAC’s internal controls over financial reporting which would reasonably be expected to adversely affect SPAC’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. SPAC has no Knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of SPAC. Since the IPO, there have been no material changes in SPAC’s internal control over financial reporting.
(i) There are no outstanding loans or other extensions of credit made by SPAC to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of SPAC, in their capacity as such, and SPAC has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(j) As of the date hereof, there are no outstanding comments from the SEC with respect to the SEC Reports. To the Knowledge of SPAC, none of the SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.
4.7 No Litigation; Orders; Permits. There is no Action pending, or, to the Knowledge of SPAC, threatened Action against SPAC or any Subsidiary of SPAC, or, to the Knowledge of SPAC, any of their respective directors or officers (in their capacity as such) or otherwise affecting SPAC or its assets nor is any Order outstanding, against or involving SPAC, whether at law or in equity, before or by any Governmental Authority, which, in each case, would reasonably be expected to have a Material Adverse Effect on SPAC. There is no unsatisfied judgment or open injunction binding upon SPAC that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on SPAC. There is no Action that SPAC or any Subsidiary of SPAC has pending against any other Person. SPAC holds all Permits necessary to lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties, all of which are in full force and effect.
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4.8 Absence of Certain Changes. Except in connection with this Agreement and the Transactions, SPAC has (a) since its incorporation, conducted no business other than its organization, the public offering of its SPAC Units (and the related private offering), public reporting and its search for an initial Business Combination as described in the IPO Prospectus (including the investigation of Crypto.com and the negotiation and execution of this Agreement) and related activities and (b) since the IPO, SPAC has not been subject to a Material Adverse Effect.
4.9 Compliance with Laws. SPAC and each Subsidiary of SPAC (a) is in compliance with all Laws applicable to it and the conduct of its business in all material respects, (b) has not received written notice alleging any violation of applicable Law in any material respect by SPAC or any Subsidiary of SPAC and (c) is not under investigation with respect to any violation or alleged violation of any Law or judgement, Order or decree of any court or Governmental Authority.
4.10 Taxes and Returns. SPAC has timely filed, or caused to be timely filed, and will timely file or cause to be timely filed all material Tax Returns required to be filed by it, which Tax Returns are true, accurate, correct and complete in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld, other than such Taxes for which adequate reserves in the SPAC Financials have been established in accordance with GAAP. There are no audits, examinations, investigations, claims, assessments or other proceedings pending or threatened against SPAC in respect of any Tax, and SPAC has not been notified in writing of any proposed Tax claims or assessments against SPAC (other than, in each case, claims or assessments for which adequate reserves in the SPAC Financials have been established in accordance with GAAP or are immaterial in amount). There are no Liens with respect to any Taxes upon any of SPAC’s assets, other than Permitted Liens. SPAC has no outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes. There are no outstanding requests by SPAC for any extension of time within which to file any Tax Return or within which to pay any Taxes shown to be due on any Tax Return. SPAC does not have material Liability for the Taxes of any Person (i) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), (ii) as a transferee or successor or (iii) by contract (except, in each case, for Liabilities pursuant to commercial contracts not primarily relating to Taxes).
4.11 Employees and Employee Benefit Plans. SPAC has never (a) had any paid employees, (b) retained any contractors, other than consultants and advisors in the ordinary course of business or (c) maintained, sponsored, contributed to or otherwise had any Liability under, any Benefit Plans. Other than reimbursement of any reasonable out-of-pocket expenses incurred by SPAC’s officers and directors in connection with activities on SPAC’s behalf, neither SPAC nor its Affiliates have any material Liability to any officer or director of SPAC (in their capacity as such).
4.12 Properties. SPAC does not own, license or otherwise have any right, title or interest in any material Intellectual Property. SPAC does not own or lease any material real property or Personal Property.
4.13 Material Contracts.
(a) All SPAC Material Contracts have been made available to the Sellers. “SPAC Material Contract” means any Contract other than this Agreement and the Ancillary Documents to which SPAC is a party as of the date hereof or such other Ancillary Documents that SPAC shall execute after the date hereof and which are attached as exhibits hereto to which SPAC is a party or by which any of its properties or assets may be bound, subject or affected, which (i) creates or imposes a Liability greater than $100,000, (ii) may not be cancelled by SPAC on less than 60 days’ prior notice without payment of a material penalty or termination fee or (iii) prohibits, prevents, restricts or impairs in any material respect any business practice of SPAC as its business is currently conducted, any acquisition of material property by SPAC, or restricts in any material respect the ability of SPAC from entering into this Agreement or Ancillary Documents or consummating the Transactions.
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(b) With respect to each SPAC Material Contract: (i) the SPAC Material Contract was entered into at arms’ length and in the ordinary course of business; (ii) the SPAC Material Contract is legal, valid, binding and enforceable in all material respects against SPAC and, to the Knowledge of SPAC, the other parties thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions); (iii) SPAC is not in breach or default in any material respect and, to SPAC’s Knowledge, no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default in any material respect by SPAC, or permit termination or acceleration by the other party, under such SPAC Material Contract; (iv) no party to a SPAC Material Contract has given written notice of or, to the Knowledge of SPAC, threatened any potential exercise of termination rights with respect to any SPAC Material Contract and (v) to the Knowledge of SPAC, no other party to any SPAC Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by SPAC under any SPAC Material Contract.
4.14 Transactions with Affiliates. Section 4.14 of the Disclosure Schedules sets forth a true, correct and complete list of the Contracts and arrangements that are in existence as of the date of this Agreement under which there are any existing or future Liabilities or obligations between SPAC or any Subsidiary of SPAC, on the one hand, and any (a) present or former director, officer, employee, direct equityholder or Affiliate of SPAC or any Subsidiary of SPAC or (b) record or beneficial owner of more than five percent (5%) of outstanding SPAC Ordinary Shares as of the date hereof, on the other hand (in each case).
4.15 Finders and Brokers. No broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission from any Party or its Affiliates in connection with the Transactions based upon arrangements made by or on behalf of SPAC or any of its Affiliates, including the Sponsor.
4.16 Certain Business Practices.
(a) Neither SPAC, nor any of its Representatives acting on its behalf, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977 or any other local or foreign anti-corruption or bribery Law, (iii) made any other unlawful payment or (iv) since the formation of SPAC, directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder SPAC or assist it in connection with any actual or proposed transaction.
(b) The operations of SPAC are and have been conducted at all times in compliance with money laundering Laws in all applicable jurisdictions and no Action involving SPAC with respect to any of the foregoing is pending or, to the Knowledge of SPAC, threatened.
(c) None of SPAC or any of its directors or officers, or, to the Knowledge of SPAC, any other Representative acting on behalf of SPAC is currently identified on the specially designated nationals or other blocked person list or otherwise currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), and SPAC has not, directly or indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any other country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC in the last five (5) fiscal years.
4.17 Insurance. Section 4.17 of the Disclosure Schedules lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by SPAC relating to SPAC or its business, properties, assets, directors, officers and employees, copies of which have been provided to the Seller. All premiums due and payable under all such insurance policies have been timely paid and SPAC is otherwise in material compliance with the terms of such insurance policies. All such insurance policies are in full force and effect, and to the Knowledge of SPAC, there is no threatened termination of, or material premium increase with respect to, any of such insurance policies. There have been no insurance claims made by SPAC. SPAC has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to have a Material Adverse Effect on SPAC.
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4.18 Independent Investigation. SPAC has conducted its own independent investigation, review and analysis of the business, results of operations, condition (financial or otherwise) or assets of each of the Sellers, including with respect to the Cronos Assets, and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of each of the Sellers for such purpose. SPAC acknowledges and agrees that, in making its decision to enter into this Agreement and the Ancillary Documents and to consummate the Transactions contemplated hereby and thereby, it has relied solely upon its own investigation and the express representations and warranties of each of the Sellers set forth in this Agreement (including the related portions of the Disclosure Schedules) and in any certificate delivered to SPAC pursuant hereto, and the information provided by or on behalf of each of the Sellers for the Registration Statement (as defined below).
4.19 No Other Representations. Except for the representations and warranties expressly made by SPAC in this Article IV (as modified by the Disclosure Schedules) or as expressly set forth in any Ancillary Document, neither SPAC nor any other Person on its behalf makes any express or implied representation or warranty with respect to SPAC or its business, operations, assets or Liabilities, or the Transactions, and SPAC hereby expressly disclaims any other representations or warranties, whether implied or made by SPAC or any of its Representatives. SPAC acknowledges that, except for the representations and warranties expressly made by Crypto.com in Article V and TMTG in Article VI, neither of the Sellers is making or has made, communicated or furnished (orally or in writing) any representation, warranty, projection, forecast, statement or information to SPAC or its Representatives (including any opinion, information or advice that may have been or may be provided to SPAC or its Representatives by any Representative of the Sellers), including any representations or warranties regarding the probable success of the Cronos Assets. SPAC specifically disclaims that it is relying upon or has relied upon any such other representations and warranties that may have been made by any Person and acknowledges and agrees that the Sellers have specifically disclaimed any such other representations and warranties.
4.20 Information Supplied. None of the information supplied or to be supplied by or on behalf of SPAC or any of its Affiliates (including Sponsor) expressly for inclusion or incorporation by reference: (a) in any Current Report on Form 8-K and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority (including the SEC) with respect to the Transactions; (b) in the Registration Statement; or (c) in the mailings or other distributions to the SPAC Shareholders with respect to the consummation of the Transactions or in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, 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. None of the information supplied or to be supplied by or on behalf of SPAC or any of its Affiliates (including Sponsor) expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing (each as defined below) will, when filed or distributed, as applicable, 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. Notwithstanding the foregoing, SPAC makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the Sellers or any of their respective Affiliates.
4.21 SPAC Trust Account. As of the date of this Agreement, there is at least $172,500,000 held in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released except in accordance with the Trust Agreement, SPAC’s Organizational Documents and the IPO Prospectus. Amounts in the Trust Account are invested in United States Government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act. SPAC has performed all obligations required to be performed by it to date under, and is not in default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of SPAC, enforceable in accordance with its terms, subject to the Enforceability Exceptions. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified, in any respect, and to the Knowledge of SPAC, no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no separate Contracts, side letters or other arrangements (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the SEC Reports filed, or furnished by SPAC to the Seller, to be inaccurate or that would entitle any Person (other than Public Shareholders (as defined below) who shall have elected to redeem their SPAC Class A Ordinary Shares pursuant to the SPAC Memorandum and Articles) to any portion of the proceeds in the Trust Account prior to the closing of a Business Combination. There are no Actions pending with respect to the Trust Account. SPAC has not released any money from the Trust Account other than as permitted by the Trust Agreement. Following the Closing, no shareholder of SPAC is or shall be entitled to receive any amount from the Trust Account except to the extent such Public Shareholder shall have elected to redeem its SPAC Class A Ordinary Shares pursuant to the Redemption.
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Article V
REPRESENTATIONS AND WARRANTIES OF CRYPTO.COM AND CRYPTO.COM SUB
Crypto.com and Crypto.com Sub hereby represent and warrant to the other Parties, as of the date of this Agreement and as of the Closing, as follows:
5.1 Organization and Standing. Each of Crypto.com and Crypto.com Sub is duly organized, validly existing and in good standing (to the extent such concept is applicable in the jurisdiction of such entity’s formation) under the Laws of the jurisdiction of its formation, and has all requisite power and authority to carry on its business as now being conducted.
5.2 Authorization; Binding Agreement. Each of Crypto.com and Crypto.com Sub has all requisite power, authority and legal right and capacity to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform each of their obligations hereunder and thereunder and to consummate the Transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which Crypto.com or Crypto.com Sub is or is required to be a party has been or shall be when delivered, duly and validly executed and delivered by Crypto.com and Crypto.com Sub (as applicable) and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other Parties and other parties thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of Crypto.com and Crypto.com Sub (as applicable), enforceable against Crypto.com or Crypto.com Sub (as applicable) in accordance with its terms, subject to the Enforceability Exceptions.
5.3 Ownership. Upon delivery at the Closing of the Cronos Assets, SPAC will acquire good and valid title to the Cronos Assets, free and clear of any Liens (other than any restriction under any securities Law, if applicable, or Liens created by SPAC).
5.4 Title; Sufficiency of Assets. Crypto.com has provided true and complete copies of the Crypto.com Contribution Agreements to the other Parties. The Crypto.com Contribution Agreements are in full force and effect. The parties to the Crypto.com Contribution Agreements have complied with such agreements and no provisions thereunder have been waived or assigned. Following the Crypto.com Pre-Closing Contribution in accordance with the Pre-Closing Crypto.com Contribution, Crypto.com Sub will have good, valid and marketable title to all of the Cronos Assets, free and clear of any Liens. The Cronos Assets are not subject to any preemptive right, right of first refusal or other right or restriction. The Cronos Assets are sufficient to establish and operate a Cronos proof of stake validator node and staking infrastructure. Following the Crypto.com Pre-Closing Contribution, Crypto.com Sub will have all rights, including licenses, necessary to ensure that the Cronos Assets are freely usable, marketable, and capable of further development, and such rights will not be impaired by the Transactions.
5.5 Government Approvals. No Consent of any Governmental Authority on the part of Crypto.com is required in connection with the execution, delivery or performance by Crypto.com of this Agreement or any Ancillary Documents or the consummation by Crypto.com of the Transactions contemplated hereby or thereby other than (a) such filings as expressly contemplated by this Agreement, (b) any filings required with Nasdaq or the SEC with respect to the Transactions, and (c) applicable requirements, if any, of the Securities Act, the Exchange Act, and/or other applicable securities Laws.
5.6 Non-Contravention. The execution and delivery by Crypto.com and Crypto.com Sub (as applicable) of this Agreement and each Ancillary Document to which it is a party or otherwise bound and the consummation by Crypto.com and Crypto.com Sub (as applicable) of the Transactions contemplated hereby and thereby, and compliance by Crypto.com and Crypto.com Sub (as applicable) with any of the provisions hereof and thereof, will not, (a) violate any Law to which Crypto.com or and Crypto.com Sub is subject; (b) violate any Organizational Document of Crypto.com or Crypto.com Sub; or (c) materially violate, conflict with, result in a breach of, constitute a material default under, result in the acceleration of or give any Person the right to accelerate the maturity or performance of, or to cancel, terminate, modify or exercise any remedy under, any Contract to which Crypto.com or Crypto.com Sub is a party or by which Crypto.com or Crypto.com Sub is bound or the performance of which is guaranteed by Crypto.com, except for any deviations from any of the foregoing clauses (a) or (c) that would not reasonably be expected to materially impair or delay the ability of Crypto.com to consummate the Transactions.
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5.7 No Litigation. There is no Action pending or, to the Knowledge of Crypto.com, threatened, nor any Order is outstanding, against or involving Crypto.com, whether at law or in equity, before or by any Governmental Authority, which would reasonably be expected to materially and adversely affect the ability of Crypto.com to consummate the Transactions contemplated by, and discharge its obligations under, this Agreement and the Ancillary Documents to which Crypto.com is or is required to be a party.
5.8 Investment Representations. Crypto.com: (a) is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act; (b) is acquiring its portion of the Transaction Shares for itself for investment purposes only, and not with a view towards any resale or distribution of such Transaction Shares; (c) has been advised and understands that the Transaction Shares (i) are being issued in reliance upon one or more exemptions from the registration requirements of the Securities Act and any applicable U.S. state securities Laws, (ii) has not been and at the Closing shall not be, registered under the Securities Act or any applicable U.S. state securities Laws and, therefore, must be held indefinitely and cannot be resold unless and until such Transaction Shares are registered under the Securities Act and all applicable U.S. state securities Laws, unless exemptions from registration are available, and (iii) may be subject to additional restrictions on transfer pursuant to the applicable Lock-Up Agreement; (d) is aware that an investment in SPAC is a speculative investment and is subject to the risk of complete loss; and (e) acknowledges that except as set forth in the Registration Rights Agreement, SPAC is under no obligation hereunder to register the Transaction Shares under the Securities Act. Crypto.com does not have any Contract with any Person to sell, transfer, or grant participations to such Person, or to any third Person, with respect to the Transaction Shares. By reason of Crypto.com’s business or financial experience, Crypto.com is capable of evaluating the risks and merits of an investment in SPAC and of protecting its interests in connection with this investment. Crypto.com has carefully read and understands all materials provided by or on behalf of SPAC or its Representatives to Crypto.com or its Representatives pertaining to an investment in Crypto.com and has consulted, as Crypto.com has deemed advisable, with its own attorneys, accountants or investment advisors with respect to the investment contemplated hereby and its suitability for Crypto.com. Crypto.com acknowledges that the Transaction Shares are subject to dilution for events not under the control of Crypto.com. Crypto.com has completed its independent inquiry and has relied fully upon the advice of its own legal counsel, accountant, financial and other Representatives in determining the legal, tax, financial and other consequences of this Agreement and the Transactions contemplated hereby and the suitability of this Agreement and the Transactions contemplated hereby for Crypto.com and its particular circumstances, and, except as set forth herein, has not relied upon any representations or advice by Sponsor, SPAC or their respective Representatives. Crypto.com: (A) has been represented by independent counsel (or has had the opportunity to consult with independent counsel and has declined to do so); (B) has had the full right and opportunity to consult with Crypto.com’s attorneys and other advisors and has availed itself of this right and opportunity; (C) has carefully read and fully understands this Agreement in its entirety and has had it fully explained to it by such counsel; (D) is fully aware of the contents hereof and the meaning, intent and legal effect thereof; and (E) is competent to execute this Agreement and any Ancillary Documents to which Crypto.com is or will be required to be a party and has executed this Agreement and such Ancillary Documents free from coercion, duress or undue influence.
5.9 Finders and Brokers. No broker, finder or investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission from a Party or its Affiliates in connection with the Transactions contemplated hereby directly based upon arrangements made by Crypto.com or its Affiliates.
5.10 Information Supplied. None of the information supplied or to be supplied by Crypto.com in writing expressly for inclusion or incorporation by reference: (a) in any Current Report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority (including the SEC) with respect to the Transactions; (b) in the Registration Statement; or (c) in the mailings or other distributions to the SPAC Shareholders and/or prospective investors with respect to the consummation of the Transactions or in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, 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. None of the information supplied or to be supplied by Crypto.com in writing expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing, the Closing Filing and the Closing Press Release will, when filed or distributed, as applicable, 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. Notwithstanding the foregoing, Crypto.com makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the other Parties or any of their respective Affiliates.
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5.11 No Other Representations. Except for the representations and warranties expressly made by Crypto.com in this Article V or as expressly set forth in any Ancillary Document, none of Crypto.com or any other Person on Crypto.com’s behalf makes any express or implied representation or warranty with respect to Crypto.com or any of Crypto.com’s business, operations, assets or Liabilities, or the Transactions, and Crypto.com hereby expressly disclaims any other representations or warranties, whether implied or made by Crypto.com or any of its Representatives. The Parties hereto (other than Crypto.com) acknowledge that, except for the representations and warranties expressly made by Crypto.com in this Article V, Crypto.com is not making and has not made, communicated or furnished (orally or in writing) any representation, warranty, projection, forecast, statement or information to any other Party (including any opinion, information, projection or advice that may have been or may be provided to any other Party or any Representatives thereof), including any representations or warranties regarding the probable success of the Cronos Assets. Each Party, other than Crypto.com, specifically disclaims that it is relying upon or has relied upon any such other representations and warranties that may have been made by any Person and acknowledges and agrees that the Seller has specifically disclaimed any such other representations and warranties.
Article VI
REPRESENTATIONS AND WARRANTIES OF TMTG
TMTG hereby represents and warrants to the other Parties, as of the date of this Agreement and as of the Closing, as follows:
6.1 Organization and Standing. TMTG is duly organized, validly existing and in good standing (to the extent such concept is applicable in the jurisdiction of such entity’s formation) under the Laws of the jurisdiction of its formation, and has all requisite power and authority to carry on its business as now being conducted.
6.2 Authorization; Binding Agreement. TMTG has all requisite power, authority and legal right and capacity to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform TMTG’s obligations hereunder and thereunder and to consummate the Transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which TMTG is or is required to be a party has been or shall be when delivered, duly and validly executed and delivered by TMTG and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other Parties and other parties thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of TMTG, enforceable against TMTG in accordance with its terms, subject to the Enforceability Exceptions.
6.3 Ownership. TMTG owns of record and beneficially all of the issued and outstanding ownership and equity interests of Asset Company (the “Asset Company Interests,”), free and clear of any Liens or restriction on transfer (other than any restriction under any securities Law or under the Organizational Documents of Asset Company). Upon delivery at the Closing of the Asset Company Interests, SPAC will acquire good and valid title to the Asset Company Interests, free and clear of any Liens (other than any restriction under any securities Law or Liens created by SPAC). There are no options, warrants, purchase rights, rights of first refusal, call, put or other Contracts (other than the Organizational Documents of Asset Company or this Agreement) that could require TMTG to sell, transfer or otherwise dispose of any of the Asset Company Interests or (ii) any voting trust, proxy or other Contract relating to the voting of the Asset Company Interests (other than the Organizational Documents of Asset Company). The Asset Company Interests constitute 100% of the issued and outstanding ownership and equity interests and outstanding securities of Asset Company.
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6.4 Title; Sufficiency of Assets. TMTG has provided a true and complete copy of the TMTG License Agreement and the TMTG Contribution Agreement to the other Parties. Each of the TMTG License Agreement and the TMTG Contribution Agreement is in full force and effect in the form in which it was executed, and has not been amended, modified or terminated. The parties to each of the TMTG License Agreement and the TMTG Contribution Agreement have complied with such agreement and no provisions thereunder have been waived or assigned. Following the license from TMTG to Asset Company in accordance with the TMTG License Agreement, Asset Company will have the rights to use the TMTG Marks, free and clear of any Liens. The TMTG Marks are not subject to any preemptive right, right of first refusal or other right or restriction.
6.5 Government Approvals. No Consent of any Governmental Authority on the part of TMTG is required in connection with the execution, delivery or performance by TMTG of this Agreement or any Ancillary Documents or the consummation by TMTG of the Transactions contemplated hereby or thereby other than (a) such filings as expressly contemplated by this Agreement, (b) any filings required with Nasdaq or the SEC with respect to the Transactions, and (c) applicable requirements, if any, of the Securities Act, the Exchange Act, and/or other applicable securities Laws.
6.6 Non-Contravention. The execution and delivery by TMTG of this Agreement and each Ancillary Document to which it is a party or otherwise bound and the consummation by TMTG of the Transactions contemplated hereby and thereby, and compliance by TMTG with any of the provisions hereof and thereof, will not, (a) violate any Law to which TMTG or any of the Asset Company Interests are subject; (b) violate any Organizational Document of TMTG or Asset Company; (c) materially violate, conflict with, result in a breach of, constitute a material default under, result in the acceleration of or give any Person the right to accelerate the maturity or performance of, or to cancel, terminate, modify or exercise any remedy under, any Contract to which TMTG is a party or by which TMTG is bound or to which any of the Asset Company Interests is subject or the performance of which is guaranteed by TMTG; or (d) result in the imposition of any Lien on any of such the Asset Company Interests, except for any deviations from any of the foregoing clauses (a), (c) or (d) that would not reasonably be expected to materially impair delay the ability of TMTG to consummate the Transactions.
6.7 No Litigation. There is no Action pending or, to the Knowledge of TMTG, threatened, nor any Order is outstanding, against or involving TMTG, whether at law or in equity, before or by any Governmental Authority, which would reasonably be expected to materially and adversely affect the ability of TMTG to consummate the Transactions contemplated by, and discharge its obligations under, this Agreement and the Ancillary Documents to which TMTG is or is required to be a party.
6.8 Finders and Brokers. No broker, finder or investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission from TMTG or its Affiliates in connection with the Transactions contemplated hereby directly based upon arrangements made by TMTG or its Affiliates.
6.9 Information Supplied. None of the information supplied or to be supplied by TMTG in writing expressly for inclusion or incorporation by reference: (a) in any Current Report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority (including the SEC) with respect to the Transactions; (b) in the Registration Statement; or (c) in the mailings or other distributions to the SPAC Shareholders and/or prospective investors with respect to the consummation of the Transactions or in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, 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. None of the information supplied or to be supplied by TMTG in writing expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing, the Closing Filing and the Closing Press Release will, when filed or distributed, as applicable, 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. Notwithstanding the foregoing, TMTG makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the other Parties or any of their respective Affiliates.
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6.10 Investment Representations. TMTG: (a) is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act; (b) is acquiring its portion of the Transaction Shares for itself for investment purposes only, and not with a view towards any resale or distribution of such Transaction Shares; (c) has been advised and understands that the Transaction Shares (i) are being issued in reliance upon one or more exemptions from the registration requirements of the Securities Act and any applicable U.S. state securities Laws, (ii) has not been and at the Closing shall not be, registered under the Securities Act or any applicable U.S. state securities Laws and, therefore, must be held indefinitely and cannot be resold unless and until such Transaction Shares are registered under the Securities Act and all applicable U.S. state securities Laws, unless exemptions from registration are available, and (iii) may be subject to additional restrictions on transfer pursuant to the applicable Lock-Up Agreement; (d) is aware that an investment in SPAC is a speculative investment and is subject to the risk of complete loss; and (e) acknowledges that except as set forth in the Registration Rights Agreement, SPAC is under no obligation hereunder to register the Transaction Shares under the Securities Act. TMTG does not have any Contract with any Person to sell, transfer, or grant participations to such Person, or to any third Person, with respect to the Transaction Shares. By reason of TMTG’s business or financial experience, TMTG is capable of evaluating the risks and merits of an investment in SPAC and of protecting its interests in connection with this investment. TMTG has carefully read and understands all materials provided by or on behalf of SPAC or its Representatives to TMTG or its Representatives pertaining to an investment in TMTG and has consulted, as TMTG has deemed advisable, with its own attorneys, accountants or investment advisors with respect to the investment contemplated hereby and its suitability for TMTG. TMTG acknowledges that the Transaction Shares are subject to dilution for events not under the control of TMTG. TMTG has completed its independent inquiry and has relied fully upon the advice of its own legal counsel, accountant, financial and other Representatives in determining the legal, tax, financial and other consequences of this Agreement and the Transactions contemplated hereby and the suitability of this Agreement and the Transactions contemplated hereby for TMTG and its particular circumstances, and, except as set forth herein, has not relied upon any representations or advice by Sponsor, SPAC or their respective Representatives. TMTG: (A) has been represented by independent counsel (or has had the opportunity to consult with independent counsel and has declined to do so); (B) has had the full right and opportunity to consult with TMTG’s attorneys and other advisors and has availed itself of this right and opportunity; (C) has carefully read and fully understands this Agreement in its entirety and has had it fully explained to it by such counsel; (D) is fully aware of the contents hereof and the meaning, intent and legal effect thereof; and (E) is competent to execute this Agreement and any Ancillary Documents to which TMTG is or will be required to be a party and has executed this Agreement and such Ancillary Documents free from coercion, duress or undue influence.
6.11 No Other Representations. Except for the representations and warranties expressly made by TMTG in this Article VI or as expressly set forth in any Ancillary Document, none of TMTG or any other Person on TMTG’s behalf makes any express or implied representation or warranty with respect to TMTG or any of TMTG’s business, operations, assets or Liabilities, or the Transactions, and TMTG hereby expressly disclaims any other representations or warranties, whether implied or made by TMTG or any of its Representatives. The Parties hereto (other than TMTG) acknowledge that, except for the representations and warranties expressly made by TMTG in this Article VI, TMTG is not making and has not made, communicated or furnished (orally or in writing) any representation, warranty, projection, forecast, statement or information to any other Party (including any opinion, information, projection or advice that may have been or may be provided to any other Party or any Representatives thereof), including any representations or warranties regarding the probable success of the Cronos Assets. Each Party, other than TMTG, specifically disclaims that it is relying upon or has relied upon any such other representations and warranties that may have been made by any Person and acknowledges and agrees that the Seller has specifically disclaimed any such other representations and warranties.
Article VII
COVENANTS
7.1 Access and Information.
(a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 9.1 or the Closing (the “Interim Period”), subject to Section 7.15, the Sellers shall give, and shall cause its Representatives to give, SPAC and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information of or pertaining to Asset Company and the Cronos Assets (as applicable), as SPAC or its Representatives may reasonably request regarding the Cronos Assets or Asset Company and its respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects and cause each of the Representatives of Asset Company to reasonably cooperate with SPAC and its Representatives in their investigation; provided, however, that SPAC and its Representatives, in each case, shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Sellers.
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(b) During the Interim Period, subject to Section 7.15, SPAC shall give, and shall cause its Representatives to give, the Sellers and their respective Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information of or pertaining to SPAC, as the Sellers or their respective Representatives may reasonably request regarding SPAC and its businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects and cause SPAC’s Representatives to reasonably cooperate with the Sellers and their respective Representatives in their investigation; provided, however, that the Sellers and their respective Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of SPAC.
7.2 Conduct of Business of TMTG.
(a) Unless SPAC shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as expressly contemplated, permitted or required by this Agreement or any Ancillary Document, or as required by the Transactions or applicable Law, TMTG will ensure that Asset Company will (i) only engage in activities relating to the initial organization and commencement of its respective operations, (ii) comply in all material respects with all Laws applicable to it and its respective businesses and assets, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organizations, and to preserve the possession, control and condition of its respective material assets.
(b) Without limiting the generality of Section 7.2(a) and except as contemplated, permitted or required by the terms of this Agreement or any Ancillary Document, or as required in connection with the Transactions or by applicable Law, during the Interim Period, without the prior written consent of SPAC (such consent, except in the case of clause (iii) of Section 7.2(a), not to be unreasonably withheld, conditioned or delayed), TMTG will not:
(i) amend, waive or otherwise change, in any respect, Asset Company’s Organizational Documents or any Contribution Agreement to which TMTG is a party;
(ii) allow Asset Company to form any Subsidiary;
(iii) subject to Section 7.2(c), authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of Asset Company’s equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iv) split, combine, recapitalize or reclassify any of Asset Company’s shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(v) allow Asset Company to make or rescind any material election relating to Taxes (other than make an election under Section 754 of the Code), settle any Action relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP or to the extent such action would not reasonably be expected to have any adverse effect on SPAC or any of its Affiliates;
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(vi) allow Asset Company to incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or guarantee or endorse any Indebtedness, Liability or obligation of any Person;
(vii) allow Asset Company to sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(viii) allow Asset Company to adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(ix) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of Asset Company;
(x) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xi) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any material transaction with any Related Person (other than compensation and benefits and advancement of expenses); or
(xii) authorize or agree to do any of the foregoing actions.
(c) Without limiting Sections 7.2(a) and 7.2(b), without the prior written consent of SPAC, (i) Asset Company shall not issue any membership interests or equity equivalents, and (ii) TMTG shall not, other than in connection with the Transactions, sell, transfer or dispose of any membership interests or equity equivalents of Asset Company.
7.3 Conduct of Business of Crypto.com.
(a) Except as contemplated, permitted or required by the terms of this Agreement or any Ancillary Document, or as required in connection with the Transactions or by applicable Law, during the Interim Period, without the prior written consent of SPAC (such consent not to be unreasonably withheld, conditioned or delayed), Crypto.com will not, and will not allow Crypto.com Sub to:
(i) amend, waive or otherwise change, in any respect, any Contribution Agreement to which Crypto.com or Crypto.com Sub is a party;
(ii) take any action or omit to take any action that would reasonably be expected to have a material adverse effect on the Cronos Assets or delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; or
(iii) authorize or agree to do any of the foregoing actions.
(b) Without limiting Section 7.3(a), without the prior written consent of SPAC, Crypto.com shall not, other than in connection with the Transactions, directly or indirectly sell, transfer, license, pledge, encumber or dispose of any of the Cronos Assets.
7.4 Conduct of Business of SPAC and Sponsor.
(a) Unless the Sellers shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as expressly contemplated, permitted or required by this Agreement or any Ancillary Document, or as required in connection with the Transactions or applicable Law, SPAC shall (i) conduct its businesses, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to SPAC and its businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organization.
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(b) Without limiting the generality of Section 7.4(a) and except as contemplated by the terms of this Agreement or any Ancillary Document, or as required by the Transactions or applicable Law, during the Interim Period, without the prior written consent of the Sellers (such consent not to be unreasonably withheld, conditioned or delayed), the SPAC shall not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares or other equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay, repay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), fees or expenses in excess of $250,000 individually or $500,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person (provided that this Section 7.4(b)(iv) shall not prevent SPAC from borrowing funds necessary to finance its ordinary course administrative costs and expenses and expenses related to the Transactions);
(v) make or rescind any material election relating to Taxes, settle any Action relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vi) amend, waive or otherwise change the Trust Agreement;
(vii) amend or otherwise modify, terminate, waive or assign or delegate (as applicable) any right or obligation under any SPAC Material Contract (other than amendments or other modifications, terminations, waivers, assignments or delegations of or with respect to Contracts with Related Persons otherwise governed by Section 7.4(b)(viii) or enter into any new Contract that would be a SPAC Material Contract);
(viii) enter into, renew, amend, waive or terminate (other than terminations in accordance with their terms) any Contracts, arrangements or transactions with any Related Person, including any Ancillary Document to which SPAC or any Related Person is a party;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any new line of business;
(xi) revalue any of its material assets or make any change in accounting methods, principles or practices, except to the extent required to comply with GAAP, and after consulting SPAC’s outside auditors;
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(xii) waive, release, assign, settle or compromise any Action (including any Action relating to this Agreement or the Transactions), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, SPAC) not in excess of $250,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the SPAC Financials;
(xiii) acquire, including by merger, consolidation, acquisition of securities or assets, or any other form of business combination, any corporation, company, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business;
(xiv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than with respect to the Conversion);
(xv) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $250,000 individually or $500,000 in the aggregate (excluding the incurrence of any expenses arising from the Transactions) other than pursuant to the terms of a Contract (a) in existence as of the date of this Agreement and disclosed to the Sellers (including in the SEC Reports) or (b) entered into in the ordinary course of business or in accordance with the terms of this Section 7.4 during the Interim Period;
(xvi) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xvii) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xviii) (A) establish, adopt, enter into, amend, terminate, exercise any discretion under, or take any action to accelerate rights under any Benefit Plans or any plan, agreement, program, policy, trust, fund, or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement, or (B) pay or increase the compensation payable to, or grant any bonus or equity or equity-based award to, any current or former employee or other service provider; or
(xix) authorize or agree to do any of the foregoing actions.
7.5 Sponsor Loans. During the Interim Period, Sponsor agrees not to fund any working capital loans to SPAC or enter into any other arrangements with SPAC that would result in the issuance by SPAC of additional units, shares or warrants, without the express written consent of Crypto.com.
7.6 SPAC Public Filings. During the Interim Period, SPAC will keep current and timely file all of the public filings required to be filed by it with the SEC under the Exchange Act and the Securities Act and otherwise comply in all material respects with applicable securities Laws and shall use its reasonable best efforts prior to the Closing to maintain the listing of the SPAC Public Units, SPAC Class A Ordinary Shares and SPAC Warrants on Nasdaq; provided that the Parties acknowledge and agree that from and after the Closing, the Parties intend to list on Nasdaq only the shares of SPAC Stock.
7.7 Conversion. At least two Business Days prior to the Closing, SPAC shall cause the Conversion to become effective, including by (a) filing with the Florida Secretary of State a Certificate of Conversion with respect to the Conversion, together with the Articles of Incorporation of SPAC in substantially the form attached as Exhibit A to this Agreement, in each case, in accordance with the provisions thereof and applicable Law and (b) completing and making and procuring all those filings required to be made with the Cayman Registrar in connection with the Conversion, and as soon as possible thereafter, obtaining a certificate of de-registration from the Cayman Registrar. In accordance with applicable Law, the Conversion shall provide that at the effective time of the Conversion, by virtue of the Conversion, and without any action on the part of any SPAC Shareholder, (i) each then issued and outstanding SPAC Class A Ordinary Share shall convert automatically, on a one-for-one basis, into a share of SPAC Class A Common Stock; (ii) each then issued and outstanding SPAC Class B Ordinary Share shall convert automatically, on a one-for-one basis, into a share of SPAC Class A Common Stock; (iii) each then issued and outstanding SPAC Unit shall convert automatically, on a one-for-one basis, into a Converted SPAC Unit; and (iv) each then issued and outstanding SPAC Warrant shall convert automatically, on a one-for-one basis, into a Converted SPAC Warrant.
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7.8 Exclusivity.
(a) For purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction, and (ii) an “Alternative Transaction” means (A) with respect to the Sellers and their respective Affiliates, a transaction (other than the Transactions contemplated by this Agreement and any Ancillary Document) concerning the sale of (x) all or any material part of the business or assets of the Asset Companies or (y) any of the membership interests or equity equivalents of the Asset Companies, in any case, whether such transaction takes the form of a sale of membership interests or other equity equivalents in the Asset Companies, assets, merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect to SPAC and its Affiliates, a transaction (other than the Transactions contemplated by this Agreement) concerning a Business Combination involving SPAC.
(b) During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of the Transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the prior written consent of the other Parties, directly or indirectly, (i) solicit, assist, initiate, continue or facilitate the making, submission or announcement of, or intentionally encourage, any Acquisition Proposal, (ii) furnish any nonpublic information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that is intended or could reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, (v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal, or (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party.
(c) Each Party shall notify the others as promptly as practicable (and in any event within 48 hours) orally and in writing of the receipt by such Party or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could reasonably be expected to result in an Acquisition Proposal, and (ii) any request for nonpublic information relating to such Party or its Affiliates, specifying in each case, the material terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if oral) and the identity of the party making such inquiry, proposal, offer or request for information, subject to applicable confidentiality restrictions. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.
7.9 No Trading. Each of the Sellers acknowledges and agrees that it is aware, and that their respective Affiliates are aware (and each of their respective Representatives is aware or, upon receipt of any material nonpublic information of SPAC, will be advised) of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC and Nasdaq promulgated thereunder or otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Sellers each hereby agree that, while such Seller is in possession of such material nonpublic information, it shall not purchase or sell any securities of SPAC (other than pursuant to the Transactions), communicate such information to any third party, take any other action with respect to SPAC in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
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7.10 Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice to the other Parties if such Party or its Affiliates: (a) fails to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its Affiliates hereunder in any material respect; (b) receives any notice or other communication in writing from any third party (including any Governmental Authority or Nasdaq) alleging (i) that the Consent of such third party is or may be required in connection with the Transactions contemplated by this Agreement or (ii) any noncompliance with any Law by such Party or its Affiliates; (c) receives any notice or other communication from any Governmental Authority or Nasdaq in connection with the Transactions contemplated by this Agreement; (d) discovers any fact or circumstance that, or becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would reasonably be expected to cause or result in any of the conditions to Closing set forth in Article VIII not being satisfied or the satisfaction of those conditions being materially delayed; or (e) becomes aware of the commencement or threat, in writing, of any Action against such Party or any of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such Party, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with respect to the consummation of the Transactions. No such notice shall constitute an acknowledgement or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
7.11 Efforts.
(a) Subject to the terms and conditions of this Agreement, each Party shall use its reasonable best efforts, and shall cooperate fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to consummate the Transactions contemplated by this Agreement (including the receipt of all applicable Consents of, or termination of all applicable waiting periods by, Governmental Authorities) and to comply as promptly as practicable with all requirements or conditions of Governmental Authorities applicable to the Transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of Section 7.11(a), to the extent required under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (“Antitrust Laws”), each Party agrees to make any required filing or application under Antitrust Laws, as applicable, with respect to the Transactions contemplated hereby as promptly as practicable, to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under Antitrust Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the Antitrust Laws. The Parties agree to use their reasonable best efforts to make all required filings under Antitrust Laws no later than thirty (30) days after the initial filing of the Registration Statement. Each Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the Transactions contemplated by this Agreement under any Antitrust Law, use its reasonable best efforts to: (i) cooperate in all respects with each other Party or its Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private Person; (ii) keep the other Parties reasonably informed of any communication received by such Party or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions contemplated by this Agreement; (iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences; (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto; and (v) use reasonable best efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the Transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
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(c) As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) their respective reasonable best efforts to prepare and file with Governmental Authorities requests for approval of the Transactions contemplated by this Agreement and shall use all commercially reasonable efforts to have such Governmental Authorities approve the Transactions contemplated by this Agreement. Each Party shall give prompt written notice to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection with the Transactions contemplated by this Agreement, and shall promptly furnish the other Parties with a copy of such Governmental Authority notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the Transactions contemplated hereby, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to be present for such hearing or meeting. If any objections are asserted with respect to the Transactions contemplated by this Agreement under any applicable Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the Transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable Law or which would otherwise prevent, materially impede or materially delay the consummation of the Transactions contemplated hereby or thereby, the Parties shall use their reasonable best efforts to resolve any such objections or Actions so as to timely permit consummation of the Transactions contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections or Actions which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions contemplated hereby or thereby. In the event any Action is instituted (or threatened to be instituted) by a Governmental Authority or private Person challenging the Transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective reasonable best efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions contemplated by this Agreement or the Ancillary Documents.
(d) Prior to the Closing, each Party shall use its commercially reasonable efforts to obtain any Consents of Governmental Authorities or other third Persons as may be necessary for the consummation by such Party or its Affiliates of the Transactions contemplated by this Agreement or required as a result of the execution or performance of, or consummation of the Transactions contemplated by, this Agreement by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
(e) The Parties hereby agree to file all Tax and other informational returns on a basis consistent with the Intended Tax Treatment, unless otherwise required pursuant to a determination within the meaning of Section 1313(a) of the Code. Each of the Parties acknowledges and agrees that each (i) has had the opportunity to obtain independent legal and tax advice with respect to the Transactions contemplated by this Agreement, and (ii) is responsible for paying its own Taxes, including any adverse Tax consequences that may result if the Transactions do not qualify for the Intended Tax Treatment. If the SEC or any other Governmental Authority requests or requires that an opinion be provided on or prior to the Closing in respect of the Intended Tax Treatment, SPAC will use commercially reasonable efforts to cause its Tax advisors to provide any such opinion, subject to customary assumptions and limitations, and each Party shall use its reasonable best efforts to reasonably cooperate with one another and their respective Tax advisors with respect to such opinion, including using reasonable best efforts to deliver to the relevant counsel certificates (dated as of the necessary date and signed by such Party or its Affiliate, as applicable) containing such customary representations as are necessary or appropriate for such counsel to render such opinion.
7.12 Further Assurances. The Parties shall further cooperate with each other and use their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on their part under this Agreement and applicable Laws to consummate the Transactions contemplated by this Agreement as soon as reasonably practicable, including preparing and filing as soon as practicable all documentation to effect all necessary notices, reports and other filings.
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7.13 The Registration Statement.
(a) Following the date of this Agreement, SPAC shall prepare with the reasonable assistance of each of Crypto.com and TMTG, and, as promptly as practicable after completion of such audited financial statements as required by the regulations of the SEC to be included, file with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the shares of (x) SPAC Stock to be issued in exchange for SPAC Class A Ordinary Shares and SPAC Class B Ordinary Shares in the Conversion, and (y) the Transaction Shares, which Registration Statement will also contain a proxy statement of SPAC (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from SPAC Shareholders for the matters to be acted upon at the Extraordinary General Meeting and providing the SPAC Shareholders an opportunity in accordance with the SPAC Memorandum and Articles and the IPO Prospectus to have their SPAC Class A Ordinary Shares redeemed (the “Redemption”) in conjunction with the shareholder vote on the SPAC Shareholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from SPAC Shareholders to vote, at an extraordinary general meeting of SPAC Shareholders to be called and held for such purpose (the “Extraordinary General Meeting”), in favor of resolutions approving (i) as an ordinary resolution, the adoption and approval of this Agreement and the Transactions as a Business Combination, (ii) as a special resolution approved by the holders of the SPAC Class B Ordinary Shares, the approval of the Conversion, and (iii) as an ordinary resolution (or if required by applicable Law or the SPAC Memorandum and Articles, as a special resolution) the adoption and approval of such other matters as the Sellers and SPAC shall hereafter mutually determine to be necessary or appropriate in order to effect the Transactions (the approvals described in foregoing clauses (i) through (iii), collectively, the “SPAC Shareholder Approval Matters”), and (iv) as an ordinary resolution, the adjournment of the Extraordinary General Meeting, if necessary or desirable in the reasonable determination of SPAC, in each case in accordance with the SPAC Memorandum and Articles, the Cayman Act, and the rules and regulations of the SEC and Nasdaq. If on the date for which the Extraordinary General Meeting is scheduled, SPAC has not received proxies representing a sufficient number of shares to obtain the Required Shareholder Approval, whether or not a quorum is present, SPAC may make one or more successive postponements or adjournments of the Extraordinary General Meeting in accordance with Section 7.13(d). In connection with the Registration Statement, SPAC will file with the SEC financial and other information about the Transactions in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in the SPAC Memorandum and Articles, the Cayman Act and the rules and regulations of the SEC and Nasdaq. SPAC shall cooperate and provide the Seller (and their counsel) with a reasonable opportunity to review and comment on the Registration Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Sellers shall provide SPAC with such information concerning the Asset Companies, the Sellers and their respective shareholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be reasonably required or appropriate for inclusion in the Registration Statement, or in any amendments or supplements thereto, which information provided by the Sellers shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading. The Sellers shall promptly correct any information provided by them for use in the Registration Statement (and other related materials) if and to the extent that such information is determined by the applicable Seller to have become false or misleading in any material respect or as otherwise required by applicable Laws.
(b) SPAC shall take any and all reasonable and necessary actions required to satisfy the requirements of the SPAC Organizational Documents, the Securities Act, the Exchange Act and other applicable Laws in connection with the Registration Statement, the Extraordinary General Meeting and the Redemption. Each of SPAC, Crypto.com and TMTG shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to SPAC, Crypto.com, TMTG and their respective Representatives in connection with the drafting of the public filings with respect to the Transactions, including the Registration Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. SPAC shall amend or supplement the Registration Statement and cause the Registration Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the SPAC Shareholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Organizational Documents of SPAC.
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(c) SPAC, with the assistance of the other Parties, shall promptly respond to any SEC comments on the Registration Statement and shall otherwise use its reasonable efforts to cause the Registration Statement to “clear” comments from the SEC and become effective. SPAC shall provide the Sellers with copies of any written comments, and shall inform the Sellers of any material oral comments that SPAC or its Representatives receive from the SEC or its staff with respect to the Registration Statement, the Extraordinary General Meeting or the Redemption promptly after the receipt of such comments and shall give the Sellers and their respective Representatives a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments, including to the extent possible, participation by the Sellers or their counsel in discussions with the SEC.
(d) As soon as practicable following the Registration Statement “clearing” comments from the SEC and becoming effective, SPAC shall set a record date for the Extraordinary General Meeting and distribute the Registration Statement to the SPAC Shareholders and, pursuant thereto, shall call and convene the Extraordinary General Meeting for a date no later than thirty (30) days following the effectiveness of the Registration Statement. SPAC shall, through the SPAC Board, recommend to the SPAC Shareholders the approval of the SPAC Shareholder Approval Matters and include such recommendation in the Proxy Statement, with such changes as may be mutually agreed by the Parties. The SPAC Board shall not change, withdraw, withhold, qualify or modify its recommendation to the SPAC Shareholders that they vote in favor of the SPAC Shareholder Approval Matters (a “Modification in Recommendation”).
(e) SPAC shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Organizational Documents of SPAC and this Agreement in the preparation, filing and distribution of the Registration Statement, any solicitation of proxies thereunder, the setting of the record date for, and the calling and holding of, the Extraordinary General Meeting and the Redemption.
7.14 Public Announcements.
(a) The Parties agree that during the Interim Period, no public release, filing or announcement concerning this Agreement or the Ancillary Documents or the Transactions contemplated hereby or thereby shall be issued by any Party or any of their Affiliates without the prior written consent (not be unreasonably withheld, conditioned or delayed) of SPAC and the Sellers, 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 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; provided that nothing shall prevent the Parties from issuing any press releases or making any public announcements about the Transactions containing information that has already been made public by the Parties.
(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, SPAC 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 Federal Securities Laws, which the Sellers shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing (with the Sellers reviewing, commenting upon and approving such Signing Filing in any event no later than the third (3rd) Business Day after the execution of this Agreement); provided that SPAC provides the Sellers with a reasonable period of time to complete such review, comment and approval prior thereto. The Parties shall mutually agree upon and, as promptly as practicable after the Closing (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, SPAC shall file a Current Report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Federal Securities Laws which Sponsor and the Sellers 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 contemplated hereby, each Party shall, upon request by any other Party, furnish the Parties with all information concerning themselves, their respective directors, officers and equity holders, and such other matters as may be reasonably necessary or advisable in connection with the Transactions contemplated hereby, 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 contemplated hereby. Furthermore, nothing contained in this Section 7.14 shall prevent SPAC or the Sellers from furnishing customary or other reasonable information concerning the Transactions to their investors and prospective investors that is substantively consistent with public statements previously consented to by the other Parties in accordance with this Section 7.14.
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7.15 Confidential Information.
(a) The Parties hereby agree that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article IX, for a period of two (2) years after such termination, they shall, and shall cause their respective Representatives to: (i) treat and hold in strict confidence any Confidential Information, and will not use for any purpose (except in connection with the consummation of the Transactions contemplated by this Agreement or the Ancillary Documents, performing their obligations hereunder or thereunder or enforcing their rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Confidential Information of any other Party without such Party’s prior written consent; and (ii) in the event that any Party or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article IX, for a period of two (2) years after such termination, becomes legally compelled to disclose any Confidential Information of another Party, (A) provide the Party whose Confidential Information is to be disclosed (the “Confidential Party”), to the extent legally permitted, with prompt written notice of such requirement so that such Confidential Party or an Affiliate thereof may seek, at such Confidential Party’s cost, a protective Order or other remedy or waive compliance with this Section 7.15, and (B) in the event that such protective Order or other remedy is not obtained, or such Confidential Party waives compliance with this Section 7.15(a), furnish only that portion of such Confidential Party’s Confidential Information which is legally required to be provided as advised by outside counsel and to exercise its reasonable efforts to obtain assurances that confidential treatment will be accorded to such Confidential Party’s Confidential Information. In the event that this Agreement is terminated and the Transactions contemplated hereby are not consummated, the Parties shall, and shall cause their respective Representatives to, promptly deliver to each other Party or destroy (at such Party’s election) any and all copies (in whatever form or medium) of each other Party’s respective Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Parties and their respective Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies; and provided, further, that any Confidential Information of any Party that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement. Notwithstanding the foregoing, each Party and its Representatives shall be permitted to disclose any and all Confidential Information to the extent required by the Federal Securities Laws.
(b) SPAC hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article IX, for a period of two (2) years after such termination, it shall, and shall cause its Representatives to: (i) treat and hold in strict confidence any Confidential Information, and will not use for any purpose (except in connection with the consummation of the Transactions contemplated by this Agreement or the Ancillary Documents, performing its obligations hereunder or thereunder or enforcing its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Confidential Information without the Sellers’ prior written consent; and (ii) in the event that SPAC or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article IX, for a period of two (2) years after such termination, becomes legally compelled to disclose any Confidential Information, (A) provide the Sellers, to the extent legally permitted, with prompt written notice of such requirement so that the Sellers may seek, at the their sole expense, a protective Order or other remedy or waive compliance with this Section 7.15(b) and (B) in the event that such protective Order or other remedy is not obtained, or the Sellers waive compliance with this Section 7.15(b), furnish only that portion of such Confidential Information which is legally required to be provided as advised by outside counsel and to exercise its reasonable efforts to obtain assurances that confidential treatment will be accorded to such Confidential Information. In the event that this Agreement is terminated and the Transactions contemplated hereby are not consummated, SPAC shall, and shall cause its Representatives to, promptly deliver to the Seller or destroy (at SPAC’s election) any and all copies (in whatever form or medium) of Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that SPAC and its Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies; and provided, further, that any Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement. Notwithstanding the foregoing, SPAC and its Representatives shall be permitted to disclose any and all Confidential Information to the extent required by the Federal Securities Laws.
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7.16 Post-Closing Board of Directors and Officers.
(a) The Parties shall take all necessary action so that effective as of the Closing, SPAC’s board of directors (the “Post-Closing Board”) will consist of seven persons, consisting of (i) three directors who are designated prior to the Closing by Crypto.com and are reasonably acceptable to SPAC, of which a sufficient number (when combined with the directors in clause (ii) and (iii)) shall be required to qualify as an independent director under Nasdaq rules, (ii) three directors that each qualify as independent directors under Nasdaq rules, and (iii) one director designated prior to Closing by TMTG who is reasonably acceptable to Crypto.com. Prior to the Closing, Crypto.com shall have the exclusive right to designate and appoint the Chief Executive Officer of SPAC, subject to the approval of the SPAC Board (such approval not to be unreasonably withheld, conditioned or delayed). The parties agree to cooperate in good faith to facilitate such appointment, and to take all necessary corporate and other actions required to effectuate such appointment prior to the Closing.
(b) At the Closing, SPAC will provide each member of the Post-Closing Board and the Post-Closing Officers with a customary indemnification agreement.
7.17 Indemnification of Directors and Officers.
(a) The Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or former directors and officers of SPAC (the “D&O Indemnified Persons”) as provided in SPAC’s Organizational Documents or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and SPAC, in each case as in effect on the date of this Agreement, shall survive the Closing and continue in full force and effect in accordance with their respective terms to the extent permitted by applicable Law. For a period of six (6) years after the Closing Date, SPAC shall cause the Organizational Documents of SPAC to contain provisions no less favorable with respect to exculpation and indemnification of and advancement of expenses to D&O Indemnified Persons than are set forth as of the date of this Agreement in the Organizational Documents of SPAC, to the extent permitted by applicable Law. In addition, from and after the Closing Date, SPAC shall, to the fullest extent permitted by applicable Law, indemnify and hold harmless, and provide advancement of expenses to, each of the D&O Indemnified Persons against any costs, expenses (including attorneys’ fees), judgments, fines, losses, claims, damages or Liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in such D&O Indemnified Person’s capacity as a director or officer of SPAC, occurring or alleged to have occurred at or prior to the Closing Date, whether asserted or claimed prior to, at or after the Closing Date. The provisions of this Section 7.17(a) shall survive the Closing indefinitely and are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Persons and their respective heirs and representatives. The provisions of this Section 7.17(a) shall be binding, jointly and severally, on SPAC and all its successors and assigns. In the event that SPAC or any of its successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, SPAC shall ensure that proper provision shall be made so that the successors and assigns of SPAC shall succeed to the obligations set forth in this Section 7.17(a).
(b) Prior to the Closing Date, SPAC shall obtain a fully pre-paid “tail” insurance policy(ies) under SPAC’s existing insurance policy(ies) for the benefit of SPAC’s directors and officers and all insureds thereunder that provides coverage for a six-year period from and after the Closing Date for events occurring at or prior to the Closing Date (the “D&O Tail Insurance”), on terms substantially equivalent to and in any event not less favorable in the aggregate than SPAC’s existing coverage (or, if substantially equivalent insurance coverage is unavailable, the best available coverage), except that in no event shall SPAC be required to pay a premium for the D&O Tail Insurance in excess of three hundred percent (300%) of the aggregate annual premium currently payable by SPAC with respect to such current policy(ies); provided that, if the premium for the D&O Tail Insurance exceeds such amount, SPAC shall be obligated to obtain a “tail” insurance policy(ies) with the greatest coverage available for a cost not exceeding such amount from insurance carriers with the same or better credit rating as SPAC’s current insurance provider(s). SPAC and its Subsidiaries shall, for a period of six (6) years after the Closing Date, maintain the D&O Tail Insurance in effect and shall continue to honor the obligations thereunder.
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7.18 Use of Proceeds.
(a) Upon satisfaction or waiver of the conditions set forth in Article VIII and provision of notice thereof to the Trustee (which notice SPAC shall provide to the Trustee in accordance with the terms of the Trust Agreement), in accordance with and pursuant to the Trust Agreement, at the Closing, SPAC 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) cause the Trustee to, and the Trustee shall thereupon be obligated to, (x) pay as and when due all amounts payable to former SPAC Shareholders pursuant to the Redemption and (y) pay all remaining amounts, less the fees and costs incurred by the Trustee in accordance with the Trust Agreement, then available in the Trust Account in accordance with Section 7.18(b).
(b) The Parties agree that, at the Closing, upon satisfaction or waiver of the conditions set forth in Article VIII, the funds in the Trust Account (after taking into account payments for the Redemption) and the net cash proceeds of any Additional Permitted Financing shall be used to pay or reimburse SPAC’s accrued but unpaid expenses, including expenses arising from the Transactions, deferred IPO fees and deferred advisor fees, the premium for the D&O Tail Insurance and obligations owed to sponsor pursuant to and in accordance with Section 11.5. Any remaining cash in the Trust Account and any Additional Permitted Financing shall be disbursed to SPAC and used for working capital and general corporate purposes.
7.19 Equity Plan. As promptly as reasonably practicable following the date of this Agreement, SPAC shall adopt an equity incentive plan in the form and with the terms proposed by the Sellers (the “Equity Incentive Plan”) and shall submit the Equity Incentive Plan for approval by SPAC’s stockholders as a proposal in the Proxy Statement/Registration Statement. Following the Closing, if the Equity Incentive Plan is approved by SPAC’s stockholders, then within two (2) Business Days following the expiration of the sixty (60) day period following the date SPAC has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company, SPAC shall file an effective registration statement on Form S-8 (or other applicable form, including Form S-3) with respect to the SPAC Class A Common Stock issuable under the Equity Incentive Plan, and SPAC shall use its reasonable best efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the Equity Incentive Plan remain outstanding.
7.20 Amendment and Restatement of Founder Registration Rights Agreement. SPAC and the Sellers shall amend and restate the Founder Registration Rights Agreement, effective as of the Closing, substantially in the form of the Registration Rights Agreement.
7.21 Additional Permitted Financings.
(a) At the request of Crypto.com, SPAC or SPAC’s post-Closing Subsidiaries shall use commercially reasonable efforts to negotiate and enter into Additional Permitted Financings. Notwithstanding the foregoing, it is hereby understood and agreed that the decision to negotiate any Additional Permitted Financing from any potential alternative sources of financing and the terms of any such Additional Permitted Financing and the instruments governing such Additional Permitted Financings shall be subject to the prior written consent of Crypto.com (which consent may be withheld in the sole and absolute discretion of Crypto.com), and none of the foregoing actions shall be taken, and no Additional Permitted Financings shall be entered into, without such prior written consent.
(b) To the extent that any Additional Permitted Financings shall have been expressly consented to by Crypto.com and entered into in accordance with the terms of Section 7.21(a):
(i) as of the date of entering into such Additional Permitted Financings, the Parties that are party to such Additional Permitted Financings will deliver to the other Parties to this Agreement true, correct and complete copies of each of the fully executed instruments governing such Additional Permitted Financings; and
(ii) no Party shall enter into any side letters or Contracts related to the provision or funding, as applicable, of the purchases contemplated by the instruments governing such Additional Permitted Financings or the Transactions other than as expressly set forth in this Agreement, the instruments governing such Additional Permitted Financings or any other agreement entered into (or to be entered into) in connection with the Transactions with the prior written consent of Crypto.com.
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Article VIII
CLOSING CONDITIONS
8.1 Conditions to Each Party’s Obligations. The obligations of each Party to consummate the Transactions shall be subject to the satisfaction or written waiver (where permissible) by the Seller and SPAC of the following conditions:
(a) Required Shareholder Approval. The SPAC Shareholder Approval Matters that are submitted to the vote of the shareholders of SPAC at the Extraordinary General Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote of the shareholders of SPAC at the Extraordinary General Meeting in accordance with the SPAC Memorandum and Articles, applicable Law and the Proxy Statement (the “Required Shareholder Approval”).
(b) No Law or Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is then in effect and which has the effect of making the transactions or agreements contemplated by this Agreement illegal or which otherwise prevents or prohibits consummation of the Transactions.
(c) Registration Statement. The Registration Statement shall have been declared effective by the SEC and shall remain effective as of the Closing.
(d) Exchange Listing. The shares of SPAC Stock (excluding the Transaction Shares) shall have been approved for clearing through DTC (subject to DTC’s customary eligibility criteria) and approved for listing on Nasdaq, the New York Stock Exchange or another national exchange reasonable acceptable to the Parties, subject only to notice of issuance.
(e) Consents. The Parties shall have received any Consents with respect to Antitrust Laws and the expiration of any attendant waiting periods.
8.2 Conditions to Obligations of the Sellers. In addition to the conditions specified in Section 8.1, the obligations of the Sellers to consummate the Transactions are subject to the satisfaction or written waiver by the Sellers of the following conditions:
(a) Representations and Warranties.
(i) The SPAC Fundamental Representations (other than Section 4.5(a)) shall be true and correct (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect) in all material respects on and as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date, except for those SPAC Fundamental Representations that address matters only as of a particular date (which SPAC Fundamental Representations shall have been true and correct in all material respects as of such date).
(ii) The representations and warranties of SPAC contained in Section 4.5(a) shall be true and correct in all but de minimis respects as of the 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).
(iii) Each of the representations and warranties of SPAC contained in this Agreement (other than the SPAC Fundamental Representations) shall be true and correct on and as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date, except for (x) those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been true and correct as of such date) and (y) any failures to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to SPAC, taken as a whole.
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(b) Agreements and Covenants. SPAC shall have performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) No Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to SPAC, taken as a whole, since the date of this Agreement which is continuing and uncured.
(d) Sponsor Support Agreement. Each of the covenants of the Sponsor required under the Sponsor Support Agreement to be performed as of or prior to the Closing shall have been performed in all material respects.
(e) Trust Account. After giving effect to the completion of the Transactions, including any deferred expenses or fees and the Redemption, there shall be at least $200,000,000 in the Trust Account.
(f) SPAC Deliverables. SPAC and Sponsor shall have executed and delivered to the Sellers each agreement set forth in Section 3.3(a).
(g) Backstop Agreement. The Backstop Agreement shall be in full force and effect, and Sponsor (or an Affiliate thereof) shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Backstop Agreement to be performed, satisfied or complied with by it concurrently with the Closing, except where the failure of such performance, satisfaction or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the ability of SPAC to consummate the Closing.
(h) Conversion. The Conversion shall have been completed as provided in Section 7.7, and a time-stamped copy of the Articles of Incorporation issued by the Secretary of State of the State of Florida shall have been delivered to the Sellers.
8.3 Conditions to Obligations of SPAC and Sponsor. In addition to the conditions specified in Section 8.1, the obligations of SPAC and Sponsor to consummate the Transactions are subject to the satisfaction or written waiver by SPAC of the following conditions:
(a) Representations and Warranties. The Seller Fundamental Representations shall be true and correct (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect) in all material respects on and as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date, except for those Seller Fundamental Representations that address matters only as of a particular date (which representations and warranties shall have been true and correct in all material respects as of such date).
(i) Each of the representations and warranties of the Sellers (other than the Seller Fundamental Representations) shall be true and correct on and as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date, except for (a) those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been true and correct as of such date) and (b) any failures to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Sellers or the Asset Companies.
(b) Agreements and Covenants. Each of the Sellers shall have performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
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(c) Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Sellers or the Asset Companies since the date of this Agreement.
(d) Employment Arrangements. The executives of Crypto.com set forth on Schedule 8.3(d) shall have entered into employment agreements in a form mutually satisfactory to SPAC and Crypto.com on or prior to the Closing Date.
(e) Seller Deliverables. The Sellers shall have executed and delivered to SPAC and Sponsor each agreement set forth in Sections 3.3(b) and (c) on or prior to the Closing Date.
(f) Contribution. As of the Closing Date, the Pre-Closing Contributions have been consummated and the Contribution Agreements are in full force and effect in accordance with their terms.
8.4 Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was caused by the failure of such Party or its Affiliates to comply with or perform any of its covenants or obligations set forth in this Agreement.
Article IX
TERMINATION AND EXPENSES
9.1 Termination. This Agreement may be terminated and the Transactions contemplated hereby may be abandoned at any time prior to the Closing as follows:
(a) by mutual written consent of the Parties;
(b) by written notice to the other Parties by any Party if any of the conditions to the Closing set forth in Article VIII have not been satisfied or waived by the date that is one (1) year from the date of this Agreement (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the primary cause of, or directly resulted in, the failure of the Closing to occur on or before the Outside Date;
(c) by written notice to the other Parties by any Party if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transactions contemplated by this Agreement, and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply with any provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental Authority;
(d) by written notice by Crypto.com or TMTG to the other Parties, if (i) there has been a material breach by SPAC of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of SPAC shall have become materially untrue or materially inaccurate, in any case, which would result in a failure of a condition set forth in Section 8.1(a) or Section 8.1(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) 20 days after written notice of such breach or inaccuracy is provided to SPAC by the Sellers or (B) five Business Days prior to the Outside Date; provided that the Sellers shall not have the right to terminate this Agreement pursuant to this Section 9.1(d) if at such time the either Seller is in material uncured breach of this Agreement;
(e) by written notice by Crypto.com or TMTG to the other Parties if there has been a Modification in Recommendation;
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(f) by written notice by SPAC to the Sellers, if (i) there has been a material breach by either Seller of any of their respective representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become materially untrue or materially inaccurate, in any case, which would result in a failure of a condition set forth in Section 8.3(a) or Section 8.3(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) 20 days after written notice of such breach or inaccuracy is provided to the Sellers by SPAC or (B) five Business Days prior to the Outside Date; provided that SPAC shall not have the right to terminate this Agreement pursuant to this Section 9.1(f) if at such time SPAC is in material uncured breach of this Agreement; or
(g) without prejudice to SPAC’s obligations under Section 7.13(d), by written notice by either SPAC or the Sellers to the others if the Extraordinary General Meeting is held (including any adjournment or postponement thereof) and has concluded, SPAC Shareholders have duly voted, and the Required Shareholder Approval was not obtained.
9.2 Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 9.1 and pursuant to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination, including the provision of Section 9.1 under which such termination is made. In the event of the valid termination of this Agreement pursuant to Section 9.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Sections 7.14, 7.15, 10.1, Article XI and this Section 9.2 shall survive the termination of this Agreement, and (ii) nothing herein shall relieve any Party from Liability for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above, subject to Section 10.1). Without limiting the foregoing, and except as provided in Section 11.5 and this Section 9.2 (but subject to Section 10.1, and subject to the right to seek injunctions, specific performance or other equitable relief in accordance with Section 11.7), the Parties’ sole right prior to the Closing with respect to any breach of any representation, warranty, covenant or other agreement contained in this Agreement by another Party or with respect to the Transactions contemplated by this Agreement shall be the right, if applicable, to terminate this Agreement pursuant to Section 9.1.
Article X
WAIVERS AND RELEASES
10.1 Waiver of Claims Against Trust. The Sellers hereby represent and warrant that they have read the IPO Prospectus and understand that SPAC has established the Trust Account containing the proceeds of the IPO and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the holders of the SPAC Class A Ordinary Shares issued and sold as part of the SPAC Units in the IPO (the “Public Shareholders”) and that, except as otherwise described in the IPO Prospectus, SPAC may disburse monies from the Trust Account only: (a) to the Public Shareholders in the event they elect to redeem their SPAC Class A Ordinary Shares in connection with the consummation of its initial Business Combination or in connection with an amendment to the SPAC Memorandum and Articles to extend SPAC’s deadline to consummate a Business Combination or with respect to any other provision relating to shareholders’ rights or pre-Business Combination activity, (b) to the Public Shareholders if SPAC fails to consummate a Business Combination within twenty four (24) months after the closing of the IPO, subject to further extension by amendment to the SPAC Memorandum and Articles, (c) with respect to any interest earned on the amounts held in the Trust Account, as necessary to pay any income taxes, and (d) to SPAC after or concurrently with the consummation of a Business Combination. For and in consideration of SPAC entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Sellers hereby agree on behalf of themselves and their Affiliates, notwithstanding anything to the contrary in this Agreement, that none of the Sellers nor any of their respective Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”). The Sellers on behalf of themselves and their respective Affiliates hereby irrevocably waive any Released Claims that any such Party or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, contracts or agreements hereunder and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of this Agreement or any other agreement with SPAC or its Affiliates). The Sellers each agree and acknowledge that such irrevocable waiver is material to this Agreement and specifically relied upon by SPAC to induce SPAC to enter in this Agreement, and the Sellers each further intend and understand such waiver to be valid, binding and enforceable against such Party and each of its Affiliates under applicable Law. To the extent the Sellers or any of their respective Affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to this Agreement or the Transactions, which proceeding seeks, in whole or in part, monetary relief against the Trust Account, each such Party hereby acknowledges and agrees that such Party’s and its Affiliates’ sole remedy with respect to monetary relief shall be against funds held outside of the Trust Account and that such claim shall not permit such Party or any of its Affiliates (or any Person claiming on any of their behalf or in lieu of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Nothing in this Section 10.1 shall amend, limit, alter, change, supersede or otherwise modify the right of the Sellers to (a) bring any action or actions for specific performance, injunctive and/or other equitable relief or (b) bring or seek a claim for damages against SPAC, or any of its successors or assigns, for any breach of this Agreement (but such claim shall not be against the Trust Account or any funds distributed from the Trust Account). This Section 10.1 shall survive termination of this Agreement for any reason.
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10.2 Release and Covenant Not to Sue. Effective as of the Closing, to the fullest extent permitted by applicable Law, the Sellers, on behalf of themselves and their Affiliates that own any shares or other securities in or of the Sellers (the “Releasing Persons”), hereby release and discharge SPAC from and against any and all Actions, obligations, agreements, debts and Liabilities whatsoever, whether known or unknown, both at law and in equity, which such Releasing Person now has, has ever had or may hereafter have against such Parties arising on or prior to the Closing Date or on account of or arising out of any matter occurring on or prior to the Closing Date, including any rights to indemnification or reimbursement, whether pursuant to its Organizational Documents, Contract or otherwise, and whether or not relating to claims pending on, or asserted after, the Closing Date. From and after the Closing, each Releasing Person hereby irrevocably covenants to refrain from, directly or indirectly, asserting any Action, or commencing or causing to be commenced, any Action of any kind against any of the Parties or their respective Affiliates, based upon any matter purported to be released hereby. Notwithstanding anything herein to the contrary, the releases and restrictions set forth herein shall not apply to any claims a Releasing Person may have against any Party pursuant to this Agreement or any Ancillary Document.
Article XI
MISCELLANEOUS
11.1 Survival. Except as otherwise contemplated by Section 11.2, (a) the representations and warranties of the Parties contained in this Agreement (other than those representations and warranties set forth in Sections 4.19, 5.11 and 6.11 or in any certificate or instrument delivered by or on behalf of the Parties pursuant to this Agreement) shall not survive the Closing, and from and after the Closing, the Parties and their respective Representatives shall not have any further obligations, nor shall any claim be asserted or action be brought against any of the Parties or their respective Representatives with respect thereto and (b) the covenants and agreements made by the Parties in this Agreement or in any certificate or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such covenants or agreements, shall not survive the Closing, except for those covenants and agreements contained herein and therein that by their terms apply or are to be performed in whole or in part after the Closing (which such covenants shall survive the Closing and continue until fully performed in accordance with their terms), including, for the avoidance of doubt, Section 7.17, Section 8.1 and this Article XI.
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11.2 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by facsimile, email or other electronic means, with affirmative confirmation of receipt (excluding out-of-office replies or other automatically generated responses), (c) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (d) four (4) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
If to SPAC, SPAC Sub or Sponsor, to:
Yorkville Advisors Global, LP
1012 Springfield Avenue
Mountainside, NJ 07092
Attn: Mark Angelo, Portfolio Manager
with a copy (which will not constitute notice) to:
DLA Piper LLP (US)
3203 Hanover Street, Suite 100
Palo Alto, CA 94304
Attn: Curtis L. Mo; Jeffrey Selman
Email:
If to Crypto.com or Crypto.com Sub, to:
Crypto.com Strategy Holdings
110 N College Ave., Suite 500
Tyler, TX 75702
Attn: Nick Lundgren
with a copy (which will not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West,
New York, NY 10001
Attn: Christopher M. Barlow
Email:
If to TMTG, to:
Trump Media & Technology Group Corp.
401 N. Cattlemen Road, Suite 200
Sarasota, FL 34232
Attn: Devin Nunes, Chief Executive Officer
11.3 Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by any Party by operation of Law or otherwise without the prior written consent of SPAC (in the case of Crypto.com or the Sellers) or the Sellers (in the case of SPAC, SPAC Sub or Sponsor), and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning Party of its obligations hereunder.
11.4 Third Parties. Nothing contained in this Agreement or in any Ancillary Document shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party or party thereto or a successor or permitted assign of such a Party; provided, however, that (a) in the event that the Closing occurs, the D&O Indemnified Persons are intended third-party beneficiaries of Section 7.17, and (b) the past, present or future directors, officers, agents, employees, equityholders or other Representatives, Affiliates, successors or assignees of any Party, are intended third-party beneficiaries of, and may enforce, Section 11.1 and Section 11.14.
11.5 Fees and Expenses. Subject to Section 10.1, all expenses incurred in connection with this Agreement and the Transactions contemplated hereby shall be paid by the Party incurring such expenses; provided that filing fees with respect to Antitrust Laws or any other regulatory filings made prior to the Closing and SEC registration fees, if any, will be shared pro rata between the Sellers.
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11.6 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) Subject to Section 11.6(b), this Agreement and all claims or causes of action based upon, arising out of, or related to this Agreement or the Transactions shall be governed by, construed and enforced in accordance with the Laws of the State of Florida, without regard to the conflict of Laws principles or rules thereof to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
(b) Any Action based upon, arising out of or related to this Agreement or the Transactions must be brought in the 12th Judicial Circuit Court of Florida in Sarasota, Florida, or, if it has or can acquire jurisdiction, in the United States District Court for the Middle District of Florida, and each Party irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Action, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Action shall be heard and determined only in any such court, and (iv) agrees not to bring any Action arising out of or relating to this Agreement or the Transactions in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence Actions or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this Section 11.6.
(c) EACH PARTY 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.
11.7 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the Transactions contemplated hereby are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages would be inadequate and the non-breaching Parties would not have an adequate remedy at law, and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
11.8 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable by any court of competent jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
11.9 Amendment. Subject to the provisions of applicable Law, this Agreement may be amended, supplemented or modified only by execution of a written instrument signed by each of SPAC, Sponsor and the Sellers.
11.10 Waiver. Each Party may in its sole discretion (a) extend the time for the performance of any obligation or other act of any other non-Affiliated Party, (b) waive any inaccuracy in the representations and warranties by any other non-Affiliated Party contained herein or in any document delivered pursuant hereto and (c) waive compliance by such other non-Affiliated Party with any covenant or condition contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
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11.11 Entire Agreement. This Agreement and the documents or instruments referred to herein, including any Exhibits, Annexes and Schedules, which Exhibits, Annexes and Schedules are incorporated herein by reference, together with the Ancillary Documents, embody the entire agreement and understanding of the Parties in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the Parties with respect to the subject matter contained herein.
11.12 Counterparts. This Agreement may be executed and delivered (including by facsimile, email or other electronic means or transmission) in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Copies of executed counterparts of this Agreement transmitted by electronic transmission (including by email or in .pdf format) or facsimile as well as electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered original executed counterparts of this Agreement.
11.13 Legal Representation.
(a) The Parties agree that, notwithstanding the fact that DLA Piper LLP (US) (“DLA Piper”) and Harney Westwood & Riegels (BVI) LP (“Harneys”) may have, prior to the Closing, jointly represented SPAC and Sponsor in connection with this Agreement, the Ancillary Documents and the Transactions, and has also represented Sponsor and its Affiliates in connection with matters other than the Transactions that are the subject of this Agreement, DLA Piper and Harneys will be permitted in the future, after the Closing, to represent the Sponsor or its Affiliates in connection with matters in which such Persons are adverse to SPAC, Sponsor or any of their respective Affiliates, including any disputes arising out of, or related to, this Agreement. The Sellers, who are or have the right to be represented by independent counsel in connection with the Transactions contemplated by this Agreement, hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with DLA Piper or Harneys’ future representation of one or more of the Sponsor or its Affiliates in which the interests of such Person are adverse to the interests of SPAC, the Sellers or any of their respective Affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by DLA Piper or Harneys, SPAC or any of their respective Affiliates. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, Sponsor shall be deemed the client of DLA Piper or Harneys with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of their respective Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(b) The Parties agree that, notwithstanding the fact that Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”) may have, prior to the Closing, jointly represented Crypto.com in connection with this Agreement, the Ancillary Documents and the Transactions, and may have also represented any of the other Parties and/or their respective Affiliates in connection with matters other than the Transactions that are the subject of this Agreement, Skadden will be permitted in the future, after the Closing, to represent SPAC, TMTG or their respective Affiliates in connection with matters in which such Persons are adverse to any other party to the Agreement, or any of their respective Affiliates, including any disputes arising out of, or related to, this Agreement. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, each of the Parties shall be deemed the clients of Skadden with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong to each such respective party, shall be controlled thereby and shall not pass to or be claimed by any other party; provided, further, that nothing contained herein shall be deemed to be a waiver by any party or any of their respective Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
11.14 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, the Parties acknowledge and agree that, no recourse under this Agreement or under any Ancillary Documents shall be had against any Person that is not a Party to this Agreement or such Ancillary Document, including any past, present or future director, officer, agent, employee, equityholder or other Representative or any Affiliate or successor or assignee thereof that is not a Party (collectively, the “Non-Recourse Parties”), as such, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable Law, it being expressly agreed and acknowledged that no Liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Non-Recourse Party, as such, for any obligation or Liability of a Party under this Agreement or Person party to such Ancillary Document under any Ancillary Document for any claim based on, in respect of or by reason of such obligations or Liabilities or their creation.
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IN WITNESS WHEREOF, each Party has caused this Business Combination Agreement to be signed and delivered by its respective duly authorized signatory as of the date first written above.
| SPAC: | ||
| YORKVILLE ACQUISITION CORP. | ||
| By: | /s/ Kevin McGurn | |
| Name: Kevin McGurn | ||
| Title: Chief Executive Officer | ||
| SPAC Sub: | ||
| YA S3 INC. | ||
| By: | /s/ Troy Rillo | |
| Name: Troy Rillo | ||
| Title: President | ||
| Sponsor: | ||
| YORKVILLE ACQUISITION SPONSOR LLC | ||
| By: Yorkville Advisors Global, LP | ||
| Its: Manager | ||
| By: Yorkville Advisors Global II, LLC . | ||
| By: | /s/ Troy Rillo | |
| Name: Troy Rillo | ||
| Title: Partner | ||
| Crypto.com: | ||
| FORIS HOLDINGS KY LIMITED | ||
| By: | /s/ Kris Marszalek | |
| Name: Kris Marszalek | ||
| Title: Chief Executive Officer | ||
| Crypto.com Sub: | ||
| Crypto.com Strategy Holdings | ||
| By: | /s/ Kris Marszalek | |
| Name: Kris Marszalek | ||
| TMTG: | ||
| TRUMP MEDIA & TECHNOLOGY GROUP CORP. | ||
| By: | /s/ Devin Nunes | |
| Name: Devin Nunes | ||
| Title: Chief Executive Officer | ||
Exhibit 4.1
FINAL FORM
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM.
EARNOUT WARRANT
Trump Media Group CRO Strategy, Inc.
| Warrant Number: [______] | |
| Warrant Shares: [_______] | Issue Date: [______] |
THIS EARNOUT WARRANT (the “Warrant”) certifies that, for value received, Trump Media & Technology Group Corp. (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the first date on which the Trading Price of Common Stock is at or above [$__.00]1 (as adjusted for stock splits, stock dividends, combinations, reclassifications and similar events) (the “Trigger” and such date, the “Trigger Date”), to subscribe for and purchase from Trump Media Group CRO Strategy, Inc., a Florida corporation (the “Company”), up to [______]2 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Class A common stock, $0.0001 par value per share, of the Company (“Common Stock”); provided that, should the Trigger occur, the Warrant must be exercised within thirty (30) days of the Company’s notification to the Holder that such Trigger has occurred (the “Trigger Expiration Date”). The Warrant shall cease to be exercisable and shall terminate and become void, and all rights thereunder and under this Agreement shall cease, at 5:00 p.m., New York City time, on the earlier of (a) the Trigger Expiration Date, and (b) the fifth anniversary of the date hereof (such earlier date, the “Expiration Date”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
1 Insert Triggering Event I price for the first Earnout Warrant, Triggering Event II price for the second Earnout Warrant and Triggering Event III price for the third Earnout Warrant in accordance with Section 2(c) of the Business Combination Agreement.
2 Insert number of shares equal to 7% of the Company’s outstanding capital stock at the time of the Closing, rounded to the nearest whole number.
Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Business Combination Agreement, dated August 25, 2025 (as amended, modified or supplemented from time to time, the “Business Combination Agreement”), by and among Yorkville Acquisition Corp., YA S3 Inc., Foris Holdings KY Limited, Crypto.com Strategy Holdings (“Crypto.com Sub”), Holder and Yorkville Acquisition Sponsor LLC (the “Sponsor”).
“Exercise Period” means the period between the Trigger Date and the Expiration Date.
“Lock-up Agreement” means the Lock-up Agreement, dated [__], 2025 (the “Lock-up Agreement”), by and between the Company and the Holder.
“Person” means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization or government or department or agency thereof.
“Registration Rights Agreement” means the Registration Rights Agreement, dated [__], 2025 (the “Registration Rights Agreement”), by and among the Company, the Sponsor, Crypto.com Sub and Holder.
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise to the Company.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, the OTCQB or the OTCQX (or any successors to any of the foregoing).
“Trading Price” means, with respect to any security, for any date, the price determined by the first of the following clauses that applies: (i) if the security is then listed or quoted on a Trading Market, the closing price of the security for such date on the Trading Market on which the security is then listed or quoted as reported by Bloomberg L.P., (ii) the closing price of the security for such date on the OTC Bulletin Board, (iii) if the security is not then listed or quoted for trading on the OTC Bulletin Board and if prices for the security are then reported in the “Pink Sheets” published by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share or unit of the security so reported, or (iv) in all other cases, the fair market value of a share or unit of the security as determined by the Company’s board of directors in reliance on the advice of a nationally recognized independent investment banking firm retained and paid by the Company for this purpose.
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Section 2. Exercise.
(a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, during the Exercise Period by delivery to the Company of a duly executed facsimile copy or PDF copy submitted by email (or email attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within one (1) Trading Day following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer of immediately available funds or cashier’s check drawn on a United States bank. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the date that Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Holder, by acceptance of this Warrant, acknowledges and agrees that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
(b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $0.001, subject to adjustment hereunder (the “Exercise Price”).
(c) Mechanics of Exercise.
(i) Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted, at the Company’s option, by (a) the transfer agent of the Company to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company or its designee is then a participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder, (b) by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise or (c) issuing such Warrant Shares in the name of the Holder in restricted book-entry form in the Company’s share register, by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise to the Company, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares; provided that payment of the aggregate Exercise Price is received within one (1) Trading Day following delivery of the Notice of Exercise to the Company.
(ii) Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
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(iii) Rescission Rights. If the Company fails to cause the transfer agent to transmit to the Holder the Warrant Shares pursuant to Section 2(c)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
(iv) Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder. The Company shall pay all transfer agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
(v) Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
Section 3. Certain Adjustments.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Warrant Shares shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately after such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately before such event, and the Exercise Price shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
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(b) Consolidation or Merger. In the event of any (i) consolidation or merger of the Company with or into another Person, (ii) sale of all or substantially all of the Company’s assets to another Person, or (iii) other similar transaction, in each case which entitles the holders of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities, or assets with respect to or in exchange for Common Stock, the Warrant shall, immediately after such consolidation, merger, sale, or similar transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Warrant Shares then exercisable under this Warrant, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person resulting from such transaction to which the Holder would have been entitled upon such consolidation, merger, sale, or similar transaction if the Holder had exercised this Warrant in full immediately prior to the time of such reorganization, reclassification, consolidation, merger, sale, or similar transaction and acquired the applicable number of Warrant Shares then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant); and, in such case, appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant to insure that the provisions of this Section 3(b) hereof shall thereafter be applicable, as nearly as possible, to this Warrant in relation to any shares of stock, securities, or assets thereafter acquirable upon exercise of this Warrant. The provisions of this Section 3(b) shall similarly apply to successive consolidations, mergers, sales, or similar transactions. The Company shall not effect any such consolidation, merger, sale, or similar transaction unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation, merger, sale, or similar transaction, shall assume, by written instrument substantially similar in form and substance to this Warrant and satisfactory to the Holder, the obligation to deliver to the Holder such shares of stock, securities, or assets which, in accordance with the foregoing provisions, such Holder shall be entitled to receive upon exercise of this Warrant.
(c) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend or spin off or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled upon exercise of this Warrant to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution.
(d) Notice to Holder. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
Section 4. Transferability. This Warrant is not transferable.
Section 5. Prohibition on Hedging. The Holder may not, directly or indirectly, sell, hedge, transfer, pledge, mortgage, charge or otherwise dispose of or encumber, or grant any option over or right to, this Warrant or the Holder’s economic or legal rights or interests in this Warrant or in the Common Stock issuable pursuant to this Warrant.
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Section 6. Miscellaneous.
(a) No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(c)(i), except as expressly set forth in Section 3.
(b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
(c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
(d) Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
(e) Governing Law and Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Business Combination Agreement.
(f) Representations of the Holder. In connection with the issuance of this Warrant, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant as follows:
(i) The Holder is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act. The Holder is acquiring this Warrant and the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of this Warrant or the Warrant Shares, except pursuant to sales registered or exempted under the Securities Act.
(ii) The Holder understands and acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144 under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
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(iii) The Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Warrant and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Warrant and the business, properties, prospects, and financial condition of the Company.
(g) Notices. Any notices, consents, waivers or other document or communications required or permitted to be given or delivered under the terms of this Warrant must be in writing and will be deemed to have been delivered: (i) upon receipt, if delivered personally; (ii) when sent, if sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); (iii) when sent, if sent by email (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s email server that such email could not be delivered to such recipient); and (iv) if sent by overnight courier service, one (1) Trading Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same. If notice is given by facsimile or email, a copy of such notice shall be dispatched no later than the next business day by first class mail, postage prepaid. The addresses, facsimile numbers and email addresses for such communications shall be:
If to the Company:
[______]
[______]
[______]
[______]
If to the Holder:
Trump Media & Technology Group
Corp.
401 N. Cattlemen Road, Suite 200
Sarasota, FL 34232
Attn: Devin Nunes, Chief Executive Officer
Or, in each of the above instances, to such other address, facsimile number or email address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party at least five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date and recipient facsimile number or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or (iv) above, respectively. A copy of the email transmission containing the time, date and recipient e- mail address shall be rebuttable evidence of receipt by email in accordance with clause (iii) above.
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(h) Entire Agreement. This Warrant, together with the Business Combination Agreement, the Lock-up Agreement and the Registration Rights Agreement, constitutes the sole and entire agreement of the parties to this Warrant with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
(i) Successor and Assigns. This Warrant and the rights evidenced hereby shall be binding upon and shall inure to the benefit of the parties hereto and the successors of the Company and the successors and permitted assigns of the Holder. Such successors and/or permitted assigns of the Holder shall be deemed to be a Holder for all purposes hereunder.
(j) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
(k) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS WARRANT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(l) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(m) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
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IN WITNESS WHEREOF, the undersigned have caused this Warrant to be executed by its respective officer thereunto duly authorized as of the date first above indicated.
| TRUMP MEDIA GROUP CRO STRATEGY, INC. | |||
| By: | |||
| Name: | [______] | ||
| Title: | [______] | ||
| TRUMP MEDIA & TECHNOLOGY GROUP CORP. | |||
| By: | |||
| Name: | [______] | ||
| Title: | [______] | ||
NOTICE OF EXERCISE
To: Trump Media Group CRO Strategy, Inc. (the “Company”)
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of lawful money in the United States.
(3) Please issue said Warrant Shares in the name of the undersigned:
_______________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4) Accredited Investors. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
| Name of Investing Entity: |
| Signature of Authorized Signatory of Investing Entity: |
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
| Date: |
(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)
Exhibit 4.2
FINAL FORM
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM.
SERIES A FORCED EXERCISE WARRANT
Trump Media Group CRO Strategy, Inc.
| Warrant Number: [______] | |
| Warrant Shares: [_______] | Issue Date: [______] |
THIS SERIES A FORCED EXERCISE WARRANT (the “Warrant”) certifies that, for value received, [_______] (the “Holder”) shall, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, on the first day on or after August 25, 2025, on which the Trading Price of the Shares of the Company is at or above $20.00 (as adjusted for stock splits, stock dividends, combinations, reclassifications and similar events) (the “Trigger” and, such date, the “Trigger Date”), subscribe for and purchase from the Company, [______] shares of Class A common stock, $0.0001 par value per share, of the Company (“Common Stock”) (as subject to adjustment hereunder, the “Warrant Shares”); provided that, should the Trigger occur prior to the date hereof, the Holder shall purchase the Warrant Shares on the date hereof in connection with the Closing (the date of forced exercise being referred to herein as the “Exercise Date”). The Warrant shall terminate and become void, and all rights thereunder and under this Agreement shall cease, at 5:00 p.m., New York City time, on the third anniversary of the Closing Date. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Business Combination Agreement, dated August 25, 2025 (as amended, modified or supplemented from time to time, the “Business Combination Agreement”), by and among Yorkville Acquisition Corp., YA S3 Inc., Foris Holdings KY Limited, Crypto.com Strategy Holdings (“Crypto.com Sub”), Trump Media & Technology Group Corp. (“TMTG”) and Yorkville Acquisition Sponsor LLC (the “Sponsor”).
“Company” means, (a) prior to the Conversion, Yorkville Acquisition Corp., a Delaware corporation, and (b) upon and after the Conversion, Trump Media Group CRO Strategy, Inc., a Florida corporation, as applicable.
“Fair Market Value” means, with respect to any asset distributed as part of a Distribution (as defined below), the fair market value of such asset as of the date of determination as determined by the Company.
“Lock-up Agreement” means the Lock-up Agreement, dated [__], 2025 (the “Lock-up Agreement”), by and between the Company and the Holder.
“Person” means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization or government or department or agency thereof.
“Registration Rights Agreement” means the Registration Rights Agreement, dated [__], 2025 (the “Registration Rights Agreement”), by and among the Company, the Sponsor, Crypto.com Sub and TMTG.
“Shares” means, (a) prior to the Conversion, Class A ordinary shares, $0.0001 par value per share, of the Company, and (b) upon and after the Conversion, shares of Common Stock, as applicable.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, the OTCQB or the OTCQX (or any successors to any of the foregoing).
“Trading Price” means, with respect to any security, for any date, the price determined by the first of the following clauses that applies: (i) if the security is then listed or quoted on a Trading Market, the closing price of the security for such date on the Trading Market on which the security is then listed or quoted as reported by Bloomberg L.P., (ii) the closing price of the security for such date on the OTC Bulletin Board, (iii) if the security is not then listed or quoted for trading on the OTC Bulletin Board and if prices for the security are then reported in the “Pink Sheets” published by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share or unit of the security so reported, or (iv) in all other cases, the fair market value of a share or unit of the security as determined by the Company’s board of directors in reliance on the advice of a nationally recognized independent investment banking firm retained and paid by the Company for this purpose.
Section 2. Exercise.
(a) Exercise of Warrant. Within one (1) Trading Day following the Exercise Date or, if the Trigger has occurred prior to the date hereof, at or prior to the Closing, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares by wire transfer of immediately available funds or cashier’s check drawn on a United States bank. No Notice of Exercise shall be required.
(b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $10.00, subject to adjustment hereunder (the “Exercise Price”).
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(c) Mechanics of Exercise.
(i) Delivery of Warrant Shares Upon Exercise. Except as otherwise instructed by the Holder, the Company shall cause the Warrant Shares purchased hereunder to be transmitted, at the Company’s option, by (a) the transfer agent of the Company to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) at Account Number [ ] if the Company or its designee is then a participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder, (b) by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee or (c) issuing such Warrant Shares in the name of the Holder in restricted book-entry form in the Company’s share register, for the number of Warrant Shares exercised for to the address at [ ], by the date that is two (2) Trading Days after the delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”). On the Exercise Date, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares, irrespective of the date of delivery of the Warrant Shares; provided that payment of the aggregate Exercise Price is received within one (1) Trading Day following the Exercise Date or at or prior to the Closing, as the case may be.
(ii) Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder. The Company shall pay all transfer agent fees required for same-day processing of exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
(iii) Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
Section 3. Certain Adjustments.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Warrant Shares shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately after such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately before such event, and the Exercise Price shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
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(b) Consolidation or Merger. In the event of any (i) consolidation or merger of the Company with or into another Person, (ii) sale of all or substantially all of the Company’s assets to another Person, or (iii) other similar transaction, in each case which entitles the holders of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities, or assets with respect to or in exchange for Common Stock, the Warrant shall, immediately after such consolidation, merger, sale, or similar transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Warrant Shares then exercisable under this Warrant, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person resulting from such transaction to which the Holder would have been entitled upon such consolidation, merger, sale, or similar transaction if the Holder had exercised this Warrant in full immediately prior to the time of such reorganization, reclassification, consolidation, merger, sale, or similar transaction and acquired the applicable number of Warrant Shares then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant); and, in such case, appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant to insure that the provisions of this Section 3(b) hereof shall thereafter be applicable, as nearly as possible, to this Warrant in relation to any shares of stock, securities, or assets thereafter acquirable upon exercise of this Warrant. The provisions of this Section 3(b) shall similarly apply to successive consolidations, mergers, sales, or similar transactions. The Company shall not effect any such consolidation, merger, sale, or similar transaction unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation, merger, sale, or similar transaction, shall assume, by written instrument substantially similar in form and substance to this Warrant and satisfactory to the Holder, the obligation to deliver to the Holder such shares of stock, securities, or assets which, in accordance with the foregoing provisions, such Holder shall be entitled to receive upon exercise of this Warrant.
(c) Pro Rata Distributions. If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend or spin off or other similar transaction) (a “Distribution”), at any time on or after August 25, 2025, then in each such case the Exercise Price shall be adjusted lower so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the close of business on the date (the “Record Date”) fixed for the determination of holders of Shares entitled to receive such dividend or distribution by a fraction, (i) the numerator of which shall be the Fair Market Value of the Shares as of the Trading Day next preceding the Record Date less the Fair Market Value, as of the Record Date, of the portion of the Distribution applicable to one Share, and (ii) the denominator of which shall be the Fair Market Value of the Shares as of the Trading Day next preceding the Record Date, with such adjustment to become effective immediately prior to the opening of business on the day following the Record Date. Notwithstanding the foregoing, in the event that, with respect to any Distribution to which this Section 3(c)) would otherwise apply, the numerator in the fraction referred to in the first sentence of this Section 3(c)) is zero (or is a negative number), then the adjustment provided by this Section 3(c)) shall not be made and in lieu of such adjustment, the Company shall deliver to the Holder on the date fixed for payment to stockholders of the Company such Distribution in respect of the number of Warrant Shares (determined as of the close of business on the Record Date) issuable upon exercise hereof. Upon any adjustment of the Exercise Price hereunder, the number of Warrant Shares shall be increased to equal the number (calculated to the nearest 1/100th of a share) obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares issuable on the exercise hereof immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment.
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(d) Notice to Holder. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
Section 4. Transferability. This Warrant is not transferable.
Section 5. Prohibition on Hedging. The Holder may not, directly or indirectly, sell, hedge, transfer, pledge, mortgage, charge or otherwise dispose of or encumber, or grant any option over or right to, this Warrant or the Holder’s economic or legal rights or interests in this Warrant or in the Common Stock issuable pursuant to this Warrant.
Section 6. Miscellaneous.
(a) No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(c)(i), except as expressly set forth in Section 3.
(b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
(c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
(d) Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
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(e) Governing Law and Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Business Combination Agreement.
(f) Representations of the Holder. In connection with the issuance of this Warrant, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant as follows:
(i) The Holder is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act. The Holder is acquiring this Warrant and the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of this Warrant or the Warrant Shares, except pursuant to sales registered or exempted under the Securities Act.
(ii) The Holder understands and acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144 under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
(iii) The Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Warrant and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Warrant and the business, properties, prospects, and financial condition of the Company.
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(g) Notices. Any notices, consents, waivers or other document or communications required or permitted to be given or delivered under the terms of this Warrant must be in writing and will be deemed to have been delivered: (i) upon receipt, if delivered personally; (ii) when sent, if sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); (iii) when sent, if sent by email (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s email server that such email could not be delivered to such recipient); and (iv) if sent by overnight courier service, one (1) Trading Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same. If notice is given by facsimile or email, a copy of such notice shall be dispatched no later than the next business day by first class mail, postage prepaid. The addresses, facsimile numbers and email addresses for such communications shall be:
If to the Company:
[______]
[______]
[______]
[______]
If to the Holder:
[______]
[______]
[______]
[______]
Or, in each of the above instances, to such other address, facsimile number or email address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party at least five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date and recipient facsimile number or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or (iv) above, respectively. A copy of the email transmission containing the time, date and recipient e-mail address shall be rebuttable evidence of receipt by email in accordance with clause (iii) above.
(h) Entire Agreement. This Warrant, together with the Business Combination Agreement, the Lock-up Agreement and the Registration Rights Agreement, constitutes the sole and entire agreement of the parties to this Warrant with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
(i) Successor and Assigns. This Warrant and the rights evidenced hereby shall be binding upon and shall inure to the benefit of the parties hereto and the successors of the Company and the successors and permitted assigns of the Holder. Such successors and/or permitted assigns of the Holder shall be deemed to be a Holder for all purposes hereunder.
(j) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
(k) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS WARRANT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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(l) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(m) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
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FINAL FORM
IN WITNESS WHEREOF, the undersigned have caused this Warrant to be executed by its respective officer thereunto duly authorized as of the date first above indicated.
| TRUMP MEDIA GROUP CRO STRATEGY, INC. | |||
| By: | |||
| Name: | [______] | ||
| Title: | [______] | ||
| [HOLDER] | |||
| By: | |||
| Name: | [______] | ||
| Title: | [______] | ||
Exhibit 10.1
EXECUTION VERSION
SPONSOR SUPPORT AGREEMENT
This SPONSOR SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of August 25, 2025, by and among Yorkville Acquisition Sponsor, LLC, a Delaware limited liability company (“Sponsor”), Yorkville Acquisition Corp., a Cayman Islands exempted company (“SPAC”), YA S3 Inc., a Florida corporation and a wholly owned indirect subsidiary of SPAC (“SPAC Sub”), Foris Holdings KY Limited, a Cayman Islands exempted company (“Crypto.com”), Crypto.com Strategy Holdings, a Cayman Islands exempted company (“Crypto.com Sub”), and Trump Media & Technology Group Corp., a Florida corporation (“TMTG”, and together with Crypto.com Sub, the “Sellers”). Capitalized terms used but not defined herein have the meanings assigned to them in the Business Combination Agreement by and among SPAC, Sponsor, and the Sellers, dated as of August 25, 2025 (as may be amended from time to time, the “BCA”).
WHEREAS, as of the date hereof, Sponsor owns 5,750,000 SPAC Class B Ordinary Shares (the “Founder Shares” and, together with any New Securities (as defined below) of which ownership of record or the power to vote is hereafter acquired by Sponsor prior to the termination of this Agreement, the “Sponsor Shares”) and 351,825 SPAC Private Units (the “Sponsor Units”);
WHEREAS, in connection with SPAC’s initial public offering (the “IPO”), SPAC, Sponsor and the then current officers and directors of SPAC entered into a letter agreement, dated as of June 26, 2025 (as amended, the “Insider Letter”), pursuant to which Sponsor agreed to certain voting requirements, transfer restrictions and waiver of redemption rights with respect to the SPAC Ordinary Shares owned by it;
WHEREAS, Section 17 of SPAC’s Amended and Restated Memorandum and Articles of Association (the “SPAC Charter”) provides, among other matters, that the SPAC Class B Ordinary Shares will automatically convert into SPAC Class A Ordinary Shares upon the consummation of an initial business combination, subject to adjustment if additional SPAC Class A Ordinary Shares or Equity-linked Securities (as defined in the SPAC Charter) are issued or deemed issued in excess of the amounts sold in the IPO (the “Anti-Dilution Right”), excluding certain exempted issuances;
WHEREAS, concurrently with the execution and delivery of this Agreement, SPAC, Sponsor, and the Sellers are entering into the BCA, pursuant to which, upon the consummation of the transactions contemplated thereby (the “Closing”), among other matters, SPAC will acquire (a) 100% of the issued and outstanding membership interests of Trump Media Group, LLC, a Florida limited liability company and wholly owned subsidiary of TMTG and (b) Crypto.com Sub will contribute the 10% of the Cronos Assets to SPAC and 90% of the Cronos Assets to SPAC Sub (such transactions, with the other transactions contemplated by the BCA and the Ancillary Documents, the “Transactions”); and
WHEREAS, as a condition and inducement to the Sellers’ willingness to enter into the BCA, the Sellers have required that Sponsor enter into this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto agree as follows:
1. Sponsor Voting Requirements. At any meeting of the SPAC Shareholders, however called, or at any adjournment or postponement thereof, or in any other circumstance in which the vote, consent or other approval of the SPAC Shareholders is sought, Sponsor shall (i) if a meeting is held, appear at each such meeting (in person or by proxy) or otherwise cause all of the Sponsor Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) covering, all of the Sponsor Shares:
(a) in favor of each SPAC Shareholder Approval Matter;
(b) against any Acquisition Proposal or Alternative Transaction;
[Signature Page to Sponsor Support Agreement]
(c) against any merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by SPAC (other than the Transactions);
(d) against any change in the business of SPAC; and
(e) against any proposal, action or agreement involving SPAC that would or would reasonably be expected to (i) impede, frustrate, prevent or nullify any provision of this Agreement, the BCA or any Ancillary Document, (ii) result in a breach in any material respect of any covenant, representation, warranty or any other obligation or agreement of SPAC under the BCA or any Ancillary Document, (iii) result in any of the conditions in respect of obligations of SPAC or the Parties set forth in Article VIII of the BCA not being fulfilled, or (iv) change in any manner the capitalization of, including the voting rights of any class of share capital of, SPAC (other than in connection with the SPAC Shareholder Approval Matters).
2. Enforcement of Insider Letter. During the Interim Period, for the benefit of the Sellers, (a) Sponsor agrees that it shall fully comply with, and perform all of its obligations, covenants and agreements set forth in, the Insider Letter, including not redeeming its Sponsor Shares in connection with the Transactions and complying with the transfer restrictions with respect to the Founder Shares and Sponsor Units, (b) SPAC agrees to enforce the Insider Letter in accordance with its terms, and (c) each of Sponsor and SPAC agree not to amend, modify or waive any provision of the Insider Letter without the prior written consent of the Sellers (not to be unreasonably withheld, delayed or conditioned); provided, however, that notwithstanding the foregoing, the Sellers acknowledge and agree that, prior to the Closing, SPAC, Sponsor and any other insider party thereto shall enter into an amendment to the Insider Letter to delete Section 5 of the Insider Letter effective as of the Closing Date; and provided, further, that Sponsor and SPAC shall give the Sellers a reasonable opportunity to review and comment on such amendment to the Insider Letter.
3. New Shares. In the event that, during the Interim Period, (a) any SPAC Ordinary Shares or other equity securities of SPAC are issued to Sponsor in respect of the Founder Shares or the Sponsor Units pursuant to the Anti-Dilution Right or any share dividend, share split, recapitalization, reclassification, combination or exchange of SPAC Ordinary Shares owned by Sponsor or otherwise, then such SPAC Ordinary Shares or other equity securities acquired or purchased by Sponsor shall be subject to the terms of this Agreement to the same extent as if they constituted Founder Shares or Sponsor Units, as applicable, or (b) Sponsor (i) purchases or otherwise acquires beneficial ownership of any SPAC Ordinary Shares or other equity securities of SPAC, or (ii) acquires the right to vote any SPAC Ordinary Shares or other equity securities of SPAC (such SPAC Ordinary Shares or other equity securities of SPAC referred to in clauses (b)(i) and (ii), collectively the “New Securities”), then such New Securities acquired or purchased by Sponsor shall be subject to the terms set forth in Sections 1 and 2 to the same extent as if they constituted the Sponsor Shares.
4. Waiver of Anti-Dilution Protection. Sponsor waives (for itself and for its successors, heirs and assigns), to the fullest extent permitted by Law and the SPAC Charter, all anti-dilution rights that would otherwise result in SPAC Class B Ordinary Shares held by Sponsor converting into shares of SPAC Class A Ordinary Shares on a greater than one-for-one basis in connection with the Transactions (including, for the avoidance of doubt, pursuant to Article 17.3 of the SPAC Charter). The waiver specified in this Section 4 shall be applicable only in connection with the Transactions. If the BCA is terminated for any reason, the foregoing waiver shall be void and of no further force and effect.
5. Waiver and Release of Claims. Sponsor covenants and agrees as follows:
(a) Subject to and conditioned upon the Closing, effective as of the Closing (and subject to the limitations set forth in paragraph (c) below), Sponsor, on behalf of itself and its Affiliates and its and their respective successors, assigns, representatives, administrators, executors and agents, and any other person or entity claiming by, through or under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties” provided, for the avoidance of doubt, that SPAC shall not be deemed a Releasing Party hereunder), does hereby unconditionally and irrevocably release, waive and forever discharge SPAC, the Sellers and each of its and their past and present directors, officers, employees, agents, predecessors, successors, assigns, and Subsidiaries, from any and all past or present claims, demands, damages, judgments, causes of action and liabilities of any nature whatsoever, whether or not known, suspected or claimed, arising directly or indirectly from any act, omission, event or transaction occurring (or any circumstances existing) at or prior to the Closing (each a “Claim” and, collectively, the “Claims”); provided, however, that the release, waiver and discharge by Sponsor’s Affiliates is limited to Claims that arise from the Transactions.
(b) Sponsor acknowledges that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to the subject matter of this Agreement, and that it may hereafter come to have a different understanding of the Law that may apply to potential Claims which it is releasing hereunder, but it affirms that, except as is otherwise specifically provided herein, it is its intention to fully, finally and forever settle and release any and all Claims. In furtherance of this intention, Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Law.
(c) Notwithstanding the foregoing provisions of this Section 5 or anything to the contrary set forth herein, the Releasing Parties do not release or discharge, and each Releasing Party expressly does not release or discharge, any Claims that arise under or are based upon the terms of (i) this Agreement, (ii) any Ancillary Document to which Sponsor is a party, (iii) any other document, certificate or Contract executed or delivered in connection with the BCA to which Sponsor is a party, (iv) the Amended and Restated Registration Rights Agreement, (v) any rights a Releasing Party has to indemnification from SPAC arising out of the Transactions, (vi) the Underwriting Agreement, dated June 26, 2025, by and between SPAC and Clear Street LLC, as representative of the several underwriters, or (vii) the SPAC Memorandum and Articles or any indemnity agreement of any director or office of SPAC with SPAC with or for the benefit of a Releasing Party with respect to any Claims for indemnification, contribution, set-off, reimbursement or similar rights.
(d) Notwithstanding the foregoing provisions of this Section 5, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto. Notwithstanding anything to the contrary contained herein, Sponsor (and each of its Affiliates other than SPAC) and SPAC shall be deemed not to be Affiliates of each other for purposes of this Section 5.
6. Representations and Warranties of Sponsor. Except as set forth in the SEC Reports or in any other report filed by Sponsor with the SEC that are available on the SEC’s website through EDGAR, Sponsor represents and warrants to the Sellers, as follows:
(a) Authorization. Sponsor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Florida, has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement by Sponsor and the consummation by Sponsor of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Sponsor and no other proceedings on the part of Sponsor or Sponsor’s equityholders are necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby except as have been obtained prior to the date of this Agreement. This Agreement has been duly and validly executed and delivered by Sponsor, and assuming the due execution and delivery by the Sellers and SPAC, constitutes the legal, valid and binding obligation of Sponsor, enforceable against Sponsor in accordance with its terms, subject to the Enforceability Exceptions.
(b) Consents and Approvals; No Violations.
(i) The execution, delivery and performance of this Agreement by Sponsor and the consummation by Sponsor of the transactions contemplated hereby do not and will not require any filing or registration with, notification to, or authorization, permit, license, declaration, Order, consent or approval of, or other action by or in respect of, any Governmental Authority or Nasdaq on the part of Sponsor.
(ii) The execution, delivery and performance by Sponsor of this Agreement and the consummation by Sponsor of the transactions contemplated by this Agreement do not and will not (A) conflict with or violate any provision of the Organizational Documents of Sponsor in any material respect, (B) conflict with or violate any Law applicable to Sponsor or by which any property or asset of Sponsor is bound, (C) require any material consent or notice, or result in any material violation or breach of, or materially conflict with, or constitute (with or without notice or lapse of time or both) a material default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any material benefit under, or result in the triggering of any material payments pursuant to, any of the terms, conditions or provisions of any Contract to which Sponsor is a party or by which any of Sponsor’s properties or assets are bound or any Law applicable to Sponsor or Sponsor’s properties or assets, or (D) result in the creation of any Lien on any property or asset of Sponsor, except in the case of clauses (B) and (D) above as would not reasonably be expected, either individually or in the aggregate, to impair in any material respect the ability of Sponsor to timely perform its obligations hereunder or consummate the transactions contemplated hereby.
(c) Ownership of Founder Shares and Sponsor Units. As of the date hereof, (i) Sponsor is the sole record and beneficial owner of the Founder Shares and the Sponsor Units, free and clear of all Liens (other than Liens arising under applicable securities Laws and this Agreement), (ii) Sponsor has the sole voting power with respect to the Founder Shares and the Sponsor Units, (iii) Sponsor has not entered into any voting agreement (other than this Agreement) with or granted any Person any proxy (revocable or irrevocable) with respect to the Founder Shares and the Sponsor Units, (iv) there is no limitation on Sponsor’s ability to sell or otherwise dispose of the Founder Shares and the Sponsor Units other than restrictions arising under applicable securities Laws and this Agreement, (v) the Founder Shares and the Sponsor Units are the only equity securities in SPAC owned of record by Sponsor and (vi) Sponsor does not hold or own any rights to acquire (directly or indirectly) any equity securities of SPAC or any equity securities convertible into, or which can be exchanged for, equity securities of SPAC, other than as set forth in this Agreement.
(d) Contracts with SPAC. Except for (i) the Contracts described in Section 5(c) and (ii) any Contract filed as an exhibit to a form, report, schedule, statement or other document that is publicly filed with the SEC, none of Sponsor, any of the Affiliates of Sponsor nor, to the Knowledge of Sponsor, any Person in which Sponsor has a direct or indirect legal, contractual or beneficial ownership of five percent (5%) or greater, is a party to, or has any rights with respect to or arising from, any Contract with SPAC.
(e) Litigation. There is no Action pending, or, to the Knowledge of Sponsor, threatened Action against Sponsor, or, to the Knowledge of Sponsor, any of its directors, managers, officers or employees (in their capacity as such) or otherwise affecting Sponsor or its assets, including any condemnation or similar proceeding, nor is any Order outstanding against or involving Sponsor, whether at law or in equity, before or by any Governmental Authority, which would reasonably be expected to have a Material Adverse Effect on Sponsor. There is no unsatisfied judgment or open injunction binding upon Sponsor that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Sponsor. There is no Action that Sponsor has pending against any other Person. Sponsor is not subject to any Orders of any Governmental Authority, nor are any such Orders pending.
(f) Finders and Brokers. No broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission from Sponsor or SPAC, or any of their respective Affiliates, in connection with the Transactions based upon arrangements made by or on behalf of Sponsor or any of its Affiliates.
(g) Acknowledgment. Sponsor understands and acknowledges that each of SPAC and the Sellers are entering into the BCA in reliance upon Sponsor’s execution and delivery of this Agreement.
7. Further Assurances. Sponsor hereby agrees that it shall (a) execute and deliver, or cause to be executed and delivered, such Ancillary Documents as may be necessary to satisfy any condition to the Closing under the BCA, in substantially the form previously provided to Sponsor as of the date of this Agreement, (b) undertake commercially reasonable efforts to (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments and (ii) take, or cause to be taken, such actions, and do, or cause to be done, and assist and cooperate with the other parties in doing such things, in each case, as are reasonably necessary for the purpose of effectively carrying out the Transactions.
8. General.
(a) Termination. This Agreement shall terminate on the earlier to occur of (i) the Closing or (ii) at such time, if any, as the BCA is terminated in accordance with its terms prior to the Closing (the earliest of (i) and (ii), the “Expiration Time”), and upon such termination this Agreement shall be null and void and of no effect whatsoever, and the parties hereto shall have no obligations under this Agreement; provided, however, that no termination of this Agreement shall relieve or release a party from any obligations or liabilities for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such party, in either case, prior to termination of this Agreement. Notwithstanding the foregoing, Sections 4 and 5 shall survive any termination of this Agreement pursuant to clause (i) of the immediately preceding sentence in accordance with their terms.
(b) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by email during normal business hours, (iii) by overnight courier service, or (iv) after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, and otherwise on the next Business Day, addressed as follows (or at such other address for a party as shall be specified by like notice):
If to SPAC or Sponsor, to:
Yorkville Advisors Global, LP
1012 Springfield Avenue
Mountainside, NJ 07092
Attn: Mark Angelo, Portfolio Manager
with a copy (which will not constitute notice) to:
DLA Piper LLP (US)
3203 Hanover Street, Suite 100
Palo Alto, CA 94304
Attn: Curtis L. Mo; Jeffrey Selman
Email:
If to Crypto.com or Crypto.com Sub, to:
Foris CTRL US, Inc.
110 N College Ave., Suite 500
Tyler, TX 75702
Attn: Nick Lundgren
with a copy (which will not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West,
New York, NY 10001
Attn: Christopher M. Barlow
Email:
If to TMTG, to:
Trump Media & Technology Group Corp.
401 N. Cattlemen Road, Suite 200
Sarasota, FL 34232
Attn: Devin Nunes, Chief Executive Officer
(c) Entire Agreement. This Agreement (together with the other Ancillary Documents, the BCA and each of the other documents and the instruments referred to herein, to the extent incorporated herein) constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and thereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or thereof.
(d) Governing Law; Jurisdiction; Specific Performance. Sections 11.6 and 11.7 of the BCA shall apply to this Agreement mutatis mutandis.
(e) Remedies. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of any rights or remedies otherwise available.
(f) Disclosure. Sponsor hereby authorizes SPAC to publish and disclose in any announcement or disclosure, in each case, required by the SEC or Nasdaq (including all documents and schedules filed with the SEC in connection with the foregoing, including the Registration Statement), Sponsor’s identity and ownership of the SPAC Ordinary Shares and the nature of Sponsor’s commitments and agreements under this Agreement, the BCA, the Ancillary Documents and any other agreements to the extent such disclosure is required by applicable securities Laws, the SEC or Nasdaq; provided that the content of any such disclosure shall require the prior written consent of Sponsor (not to be unreasonably withheld, delayed or conditioned).
(g) Amendments and Waivers. This Agreement may be amended or modified only with the written consent of SPAC, the Sellers and Sponsor. The observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the party against whom enforcement of such waiver is sought. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
(h) Severability. If any provision of this Agreement is held invalid, illegal 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, illegal 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.
(i) Assignment. No party hereto may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties; provided, that in the event that Sponsor transfers any of the Founder Shares or the Sponsor Units to any permitted transferee (a “Permitted Transferee”), Sponsor shall, by providing notice to SPAC and the Sellers prior to such transfer, transfer its rights and obligations under this Agreement with respect to such Founder Shares and/or Sponsor Units to such Permitted Transferee so long as such Permitted Transferee agrees in writing to be bound by the terms and conditions of this Agreement. Any purported assignment in violation of this Section 8(i) shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on the undersigned and their respective successors and permitted assigns.
(j) Costs and Expenses. Subject to Section 11.5 of the BCA, each party hereto will pay its own costs and expenses (including legal, accounting and other fees) relating to the negotiation, execution, delivery and performance of this Agreement.
(k) No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the parties hereto. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Without in any way limiting the rights or obligations of any party hereto under this Agreement, prior to the Closing, (i) no party shall have the power by virtue of this Agreement to control the activities and operations of any other and (ii) no party shall have any power or authority by virtue of this Agreement to bind or commit any other party. No party shall hold itself out as having any authority or relationship in contravention of this Section 8(k).
(l) Capacity as Shareholder. Sponsor signs this Agreement solely in its capacity as a shareholder of SPAC, and not in its capacity as a director (including “director by deputization”), officer or employee of SPAC, if applicable. Nothing herein shall be construed to (i) restrict, limit, prohibit or affect any actions or inactions by Sponsor or any representative of Sponsor, as applicable, serving in the capacity of a director or officer of SPAC or any Subsidiary of SPAC, acting in such person’s capacity as a director or officer of SPAC or any Subsidiary of SPAC (it being understood and agreed that the BCA contains provisions that govern the actions or inactions by the directors and officers of SPAC with respect to the Transactions) or (ii) prohibit, limit or restrict the exercise of any fiduciary duties as director or officer of SPAC that is otherwise permitted by, and done in compliance with, the terms of the BCA (and in each case of clauses (i) and (ii), without limiting Sponsor’s obligations hereunder in its capacity as a shareholder of SPAC).
(m) Affiliates. In this Agreement, the term “Affiliates”, when used with respect to a particular Person, means any other Person directly or indirectly controlling, controlled by or under common control with such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made, whether through one or more intermediaries or otherwise, and the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise. Notwithstanding the foregoing, (i) Sponsor and SPAC (and each of their respective Affiliates) shall be deemed not to be Affiliates of each other for purposes of this Agreement and (ii) no private investment fund (or similar vehicle) or business development company, or any other investment account, fund, vehicle or other client advised or sub-advised by Sponsor or by Sponsor’s Affiliates or any portfolio companies thereof shall be deemed to be an Affiliate of Sponsor, except to the extent any such Person is expressly requested or directed by Sponsor to take any action which would constitute a breach of this Agreement if taken by Sponsor, and such Person actually takes such prohibited action (it being understood and agreed that this Agreement shall not otherwise apply to, or be binding on, any Persons described in this clause (ii)).
(n) No Recourse. Neither SPAC nor any of its Subsidiaries, nor any of the past, present or future SPAC Shareholders (other than Sponsor or any Permitted Transferee thereof), nor any director, officer, employee, member, partner, shareholder or other owner (whether direct or indirect), Affiliate, agent, attorney or representative of Sponsor, shall have any obligation or liability for the obligations or liabilities of Sponsor under this Agreement. Without limiting the foregoing, this Agreement may only be enforced against the persons or entities that have executed and delivered a counterpart to this Agreement.
(o) Headings; Interpretation. The headings and subheadings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) the term “including” (and with correlative meaning “include”) shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “hereof,” “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; (iv) the term “or” means “and/or”; (v) the word “extent” in the phrase “to the extent” means the degree to which a subject or thing extends, and such phrase shall not simply mean “if”; and (vi) references to “written” or “in writing” include in electronic form. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(p) Counterparts. This Agreement may be executed in two or more counterparts, and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document, but all of which together shall constitute one and the same instrument. Copies of executed counterparts of this Agreement transmitted by electronic transmission (including by email or in .pdf format) or facsimile as well as electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered original executed counterparts of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Sponsor Support Agreement as of the date first written above.
| SPAC: | ||
| YORKVILLE ACQUISITION CORP | ||
| By: | /s/ Kevin McGurn | |
| Name: Kevin McGurn | ||
| Title: Chief Executive Officer | ||
| SPAC SUB: | ||
| YA S3 INC. | ||
| By: | /s/ Troy Rillo | |
| Name: Troy Rillo | ||
| Title: President | ||
| SPONSOR: | ||
| YORKVILLE ACQUISITION SPONSOR LLC | ||
| By: Yorkville Advisors Global, LP | ||
| Its: Manager | ||
| By: Yorkville Advisors Global II, LLC | ||
| Its: General Partner | ||
| By: | /s/ Troy Rillo | |
| Name: Troy Rillo | ||
| Title: Partner | ||
| CRYPTO.COM: | ||
| FORIS HOLDINGS KY Limited | ||
| By: | /s/ Kris Marszalek | |
| Name: Kris Marszalek | ||
| Title: Chief Executive Officer | ||
| SELLERS: | ||
| Crypto.com Strategy Holdings | ||
| By: | /s/ Kris Marszalek | |
| Name: Kris Marszalek | ||
| Title: Chief Executive Officer | ||
| TRUMP MEDIA & TECHNOLOGY GROUP CORP. | ||
| By: | /s/ Devin Nunes | |
| Name: Devin Nunes | ||
| Title: Chief Executive Officer | ||
[Signature Page to Sponsor Support Agreement]
Exhibit 10.2
EXECUTION VERSION
BACKSTOP SUBSCRIPTION AGREEMENT
Yorkville Acquisition Corp.
c/o Yorkville Advisors Global, LP
1012 Springfield Avenue
Mountainside, NJ 07092
Attn: Mark Angelo, Portfolio Manager
Ladies and Gentlemen:
In connection with the proposed business combination among Yorkville Acquisition Corp., a Cayman Islands exempted company (“SPAC”), YA S3 Inc., a Florida corporation and an indirect wholly owned subsidiary of SPAC (“SPAC Sub”), Foris Holdings KY Limited, a Cayman Islands exempted company (“Crypto.com”), Crypto.com Strategy Holdings, a Cayman Islands exempted company (“Crypto.com Sub”), Trump Media & Technology Group Corp., a Florida corporation (“TMTG,” and together with Crypto.com, the “Sellers”), and Yorkville Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”), pursuant to a Business Combination Agreement (as may be amended from time to time, the “Business Combination Agreement”) entered into among SPAC, SPAC Sub, the Sellers, Crypto.com Sub and Sponsor, whereby, among other things, (a) SPAC will continue to and domesticate as a Florida corporation, (b) SPAC and certain of its subsidiaries will acquire certain assets of Crypto.com Sub and (c) SPAC will acquire 100% of the issued and outstanding membership interests of Trump Media Group, LLC, a Florida limited liability company and wholly owned subsidiary of TMTG (such transactions, the “Transactions”). SPAC is seeking, and YA II PN, Ltd., a Cayman Islands exempt limited partnership and an affiliate of Sponsor (“Investor”), desires to make, a commitment to purchase in a private placement, prior to the closing of the Transactions, that number of shares of SPAC’s Class A common stock, par value $0.0001 per share (the “Shares”), equal to (i) $200,000,000 less the amount in SPAC’s Trust Account (as defined below) after redemptions, but subject to the Beneficial Ownership Limitation (as defined below), divided by (ii) $10.00 (such amount, the “Subscribed Shares”), for a purchase price per share equal to $10.00 (the “Per Share Price”). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Business Combination Agreement.
In connection therewith, and in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, set forth herein, and intending to be legally bound hereby, SPAC and Investor agree as follows:
1. Subscription. Investor hereby irrevocably subscribes for and agrees to purchase from SPAC, on the terms provided for herein, the Subscribed Shares; provided, that in no event will the number of Subscribed Shares, together with all Shares beneficially owned by Investor and its affiliates, exceed 9.99% of the number of shares of SPAC Stock outstanding immediately after giving effect to the issuance of the Subscribed Shares at the Closing (as defined below) (the “Beneficial Ownership Limitation”). The aggregate purchase price to be paid by Investor for the Subscribed Shares shall be an amount equal to the product of (x) the number of Subscribed Shares, multiplied by (y) the Per Share Price (the “Subscription Amount”). For the avoidance of doubt, in no event shall the Subscription Amount exceed an amount that would cause the number of Subscribed Shares to exceed the Beneficial Ownership Limitation or be less than $0.
2. Closing. The closing of the sale of the Subscribed Shares contemplated hereby (the “Closing” and the date on which the Closing occurs, the “Closing Date”) shall occur on the date of, and is contingent upon the substantially concurrent consummation of, the Transactions and the satisfaction or waiver of the conditions set forth in Section 3 below. On the Closing Date, Investor shall deliver to SPAC the Subscription Amount by wire transfer of immediately available funds. On the Closing Date, SPAC shall issue the Subscribed Shares to Investor and subsequently cause the Subscribed Shares to be registered in book entry form in the name of Investor on SPAC’s share register; provided, however, that SPAC’s obligation to issue the Subscribed Shares to Investor is contingent upon SPAC having received the Subscription Amount in full in accordance with this Section 2.
3. Closing Conditions.
a. The obligation of the parties hereto to consummate the purchase and sale of the Subscribed Shares pursuant to this Backstop Subscription Agreement shall be subject to the following conditions:
(i) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby (except in the case of a governmental authority located outside the United States where such judgment, order, law, rule or regulation would not be reasonably expected to have a SPAC Material Adverse Effect (as defined below)), and no such governmental authority shall have instituted a proceeding seeking to impose any such restraint or prohibition (except in the case of a governmental authority located outside the United States where such restraint or prohibition would not be reasonably expected to have a SPAC Material Adverse Effect);
(ii) all conditions precedent to the closing of the Transactions under the Business Combination Agreement shall have been satisfied (as determined by the parties to the Business Combination Agreement and other than those conditions which, by their nature, are to be satisfied at the closing of the Transactions, including to the extent that any such condition is dependent upon the consummation of the purchase and sale of the Subscribed Shares pursuant to this Backstop Subscription Agreement) or waived by the party entitled to the benefit thereof under the Business Combination Agreement, and the closing of the Transactions shall be scheduled to occur substantially concurrently with the Closing; and
(iii) the Shares shall have been approved for listing on a national securities exchange (an “Exchange”), subject to official notice of issuance.
b. The obligation of SPAC to consummate the issuance and sale of the Subscribed Shares at the Closing pursuant to this Backstop Subscription Agreement shall be subject to the satisfaction or valid waiver by SPAC of the additional conditions that:
(i) all representations and warranties of Investor contained in this Backstop Subscription Agreement are true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Investor Material Adverse Effect (as defined below), which representations and warranties shall be true and correct in all respects) at and as of the Closing Date, and consummation of the Closing shall constitute a reaffirmation by Investor of each of the representations, warranties, covenants and agreements of Investor contained in this Backstop Subscription Agreement as of the Closing; and
(ii) Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Backstop Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance, satisfaction or compliance has not had or would not reasonably be expected to have an Investor Material Adverse Effect.
c. The obligation of Investor to consummate the purchase of the Subscribed Shares at the Closing pursuant to this Backstop Subscription Agreement shall be subject to the satisfaction or valid waiver by Investor of the additional conditions that:
(i) all representations and warranties of SPAC contained in this Backstop Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or SPAC Material Adverse Effect, which representations and warranties shall be true and correct in all respects) at and as of the Closing Date, and consummation of the Closing shall constitute a reaffirmation by SPAC of each of the representations, warranties, covenants and agreements of SPAC contained in this Backstop Subscription Agreement as of the Closing Date; and
(ii) SPAC shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Backstop Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the ability of SPAC to consummate the Closing.
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4. Further Assurances. After the date hereof, SPAC and Investor shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the subscription as contemplated by this Backstop Subscription Agreement.
5. SPAC Representations and Warranties. SPAC represents and warrants to Investor that:
a. SPAC (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, (ii) has the requisite corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations under this Backstop Subscription Agreement, and (iii) is duly licensed or qualified to conduct its business and, if applicable, is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a SPAC Material Adverse Effect. For purposes of this Backstop Subscription Agreement, a “SPAC Material Adverse Effect” means any event, circumstance, change, development, effect or occurrence (collectively, “Effect”) that, individually or in the aggregate with all other Effects, (a) is or would reasonably be expected to be materially adverse to the business, financial condition or results of operations of SPAC and its subsidiaries taken as a whole; or (b) would prevent, materially delay or materially impede the performance by SPAC or its subsidiaries of their respective obligations under this Backstop Subscription Agreement, the Business Combination Agreement or the consummation of the Transactions; provided, however, that, in the case of clause (a), none of the following shall be deemed to constitute, alone or in combination, or be taken into account in the determination of whether, there has been or will be a SPAC Material Adverse Effect: (i) any change or proposed change in or change in applicable law or GAAP (including, in each case, the interpretation thereof) after the date of this Backstop Subscription Agreement; (ii) events or conditions generally affecting the industries or geographic areas in which SPAC operates; (iii) any downturn in general economic conditions, including changes in the credit, debt, securities, financial or capital markets (including changes in interest or exchange rates, prices of any security or market index or commodity or any disruption of such markets); (iv) acts of war, sabotage, civil unrest or terrorism, or any escalation or worsening of any such acts of war, sabotage, civil unrest or terrorism, or changes in global, national, regional, state or local political or social conditions; (v) any hurricane, tornado, flood, earthquake, mudslide, wildfire, natural disaster, epidemic, disease outbreak, pandemic or other acts of God, (vi) any actions taken or not taken by SPAC as required by this Backstop Subscription Agreement, the Business Combination Agreement or any other agreement executed and delivered in connection with the Transactions and specifically contemplated by the Business Combination Agreement or (vii) any Effect attributable to the announcement or execution, pendency, negotiation or consummation of the Transactions, except in the cases of clauses (i) through (iii), to the extent that SPAC is materially and disproportionately affected thereby as compared with other participants in the industry in which SPAC operates.
b. As of the Closing Date, the Subscribed Shares will be duly authorized and, when issued and delivered to Investor against full payment therefor in accordance with the terms of this Backstop Subscription Agreement, the Subscribed Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under SPAC’s Organizational Documents (as amended to the Closing Date) or under the Florida Business Corporation Act.
c. This Backstop Subscription Agreement has been duly authorized, executed and delivered by SPAC and, assuming that this Backstop Subscription Agreement constitutes the valid and binding agreement of Investor, this Backstop Subscription Agreement is enforceable against SPAC in accordance with its terms, except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally.
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d. The execution and delivery of this Backstop Subscription Agreement, the issuance and sale of the Subscribed Shares and the compliance by SPAC with all of the provisions of this Backstop Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of SPAC pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which SPAC is a party or by which SPAC is bound or to which any of the property or assets of SPAC is subject, (ii) the Organizational Documents of SPAC, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over SPAC or any of its properties that, in each case of clauses (i) and (iii), would reasonably be expected to have a SPAC Material Adverse Effect or have a material adverse effect on SPAC’s ability to consummate the transactions contemplated hereby, including the issuance and sale of the Subscribed Shares.
e. SPAC is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Subscribed Shares pursuant to this Backstop Subscription Agreement, other than (i) filings with the U.S. Securities and Exchange Commission (the “SEC”), (ii) filings required by applicable state securities laws, (iii) the filings required in accordance with Section 12 of this Backstop Subscription Agreement; (iv) filings required by the Exchange, including with respect to obtaining approval of SPAC’s stockholders, (v) those required to consummate the Transactions as provided under the Business Combination Agreement, (vi) those that will be obtained on or prior to the Closing; and (vi) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a SPAC Material Adverse Effect.
f. As of their respective dates, all reports required to be filed by SPAC with the SEC (the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of SPAC included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of SPAC as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.
g. As of the date hereof, the issued and outstanding Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “YORK” (it being understood that the trading symbol will be changed following the entry into the Business Combination Agreement and in connection with the Transactions to “MCGA”). There is no suit, action, proceeding or investigation pending or, to the knowledge of SPAC, threatened against SPAC by Nasdaq or the SEC, respectively, to prohibit or terminate the listing of SPAC’s Shares on the Exchange or to deregister the Shares under the Exchange Act. SPAC has taken no action that is designed to terminate the registration of the Shares under the Exchange Act.
h. No registration under the Securities Act is required for the offer and sale of the Subscribed Shares by SPAC to Investor.
i. Neither SPAC nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in violation of the Securities Act in connection with any offer or sale of the Subscribed Shares.
j. No broker or finder is entitled to any brokerage or finder’s fee or commission from SPAC solely in connection with the sale of the Subscribed Shares to Investor.
k. As of the date hereof, except for such matters as have not had a SPAC Material Adverse Effect, SPAC is in compliance with all state and federal laws applicable to the conduct of its business. SPAC has not received any written, or to its knowledge, other communication from a governmental entity that alleges that SPAC is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not be reasonably likely to have, individually or in the aggregate, a SPAC Material Adverse Effect. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a SPAC Material Adverse Effect, as of the date hereof there is no (i) action, lawsuit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of SPAC, threatened against SPAC or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against SPAC.
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6. Investor Representations and Warranties. Investor represents and warrants to SPAC that:
a. Investor (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, and (ii) has the requisite limited partnership power and authority to enter into and perform its obligations under this Backstop Subscription Agreement.
b. This Backstop Subscription Agreement has been duly executed and delivered by Investor, and assuming the due authorization, execution and delivery of the same by SPAC, this Backstop Subscription Agreement shall constitute the valid and legally binding obligation of Investor, enforceable against Investor in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws affecting creditors generally and by the availability of equitable remedies.
c. The execution and delivery of this Backstop Subscription Agreement, the purchase of the Subscribed Shares and the compliance by Investor with all of the provisions of this Backstop Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Investor pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Investor is a party or by which Investor is bound or to which any of the property or assets of Investor is subject; (ii) the Organizational Documents of Investor; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Investor or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have an Investor Material Adverse Effect. For purposes of this Backstop Subscription Agreement, an “Investor Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Investor that would reasonably be expected to have a material adverse effect on Investor’s ability to consummate the transactions contemplated hereby, including the purchase of the Subscribed Shares.
d. Investor (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act), in either case, satisfying the applicable requirements set forth on Annex A hereto, and an “institutional account” as defined in FINRA Rule 4512(c), (ii) is acquiring the Subscribed Shares only for its own account and not for the account of others, or if Investor is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer and Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and has provided SPAC with the requested information on Annex A). Investor is not an entity formed for the specific purpose of acquiring the Subscribed Shares.
e. Investor understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Investor understands that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Investor absent an effective registration statement under the Securities Act, except (i) to SPAC or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in the case of each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any book-entry positions or certificates representing the Subscribed Shares shall contain a restrictive legend to such effect. Investor acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Investor understands and agrees that the Subscribed Shares will be subject to transfer restrictions under applicable securities laws and, as a result of these transfer restrictions, Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Investor understands that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, pledge, transfer or disposition of any of the Subscribed Shares.
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Each book entry for the Subscribed Shares shall contain a notation, and each certificate (if any) evidencing the Subscribed Shares shall be stamped or otherwise imprinted with a legend, in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE OFFERED OR TRANSFERRED BY SALE, ASSIGNMENT, PLEDGE OR OTHERWISE UNLESS (I) A REGISTRATION STATEMENT FOR THESE SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS IN EFFECT OR (II) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
f. Investor understands and agrees that Investor is purchasing the Subscribed Shares directly from SPAC. Investor further acknowledges that there have not been, and Investor hereby expressly and irrevocably acknowledges and agrees that it is not relying on, any representations, warranties, covenants, agreements or statements made to Investor by or on behalf of SPAC or its affiliates or any of their respective subsidiaries, control persons, officers, directors, employees, partners, agents or representatives, or any other party to the Transactions or any other person or entity, expressly or by implication (including by omission), other than those representations, warranties, covenants, agreements and statements of SPAC expressly set forth in this Backstop Subscription Agreement, and all other purported representations, warranties, covenants, agreements or statements (including by omission) are hereby disclaimed by Investor. Investor acknowledges that certain information provided by SPAC was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections.
g. In making its decision to purchase the Subscribed Shares, Investor has relied solely upon independent investigation made by Investor and upon the representations, warranties and covenants of SPAC expressly set forth herein (and no other representations and warranties). Investor acknowledges and agrees that Investor has received such information as Investor deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to SPAC, the Transactions and the business of the Asset Companies. Without limiting the generality of the foregoing, Investor acknowledges that Investor has reviewed SPAC’s filings with the SEC. Investor represents and agrees that Investor and Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Investor and such undersigned’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares.
h. Investor became aware of this offering of the Subscribed Shares solely by means of direct contact between Investor and SPAC and/or their respective advisors (including, without limitation, attorneys, accountants, bankers, consultants and financial advisors), agents, control persons, representatives, affiliates, directors, officers, managers, members, and/or employees, and/or the representatives of such persons (such parties referred to collectively as “Representatives”). The Subscribed Shares were offered to Investor solely by direct contact between Investor and SPAC and/or their respective Representatives. Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person or entity (including, without limitation, SPAC and/or its Representatives), other than the representations and warranties expressly set forth in this Backstop Subscription Agreement, in making its investment or decision to invest in SPAC. Investor did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Investor, by any other means, and none of SPAC or its Representatives acted as investment advisor, broker or dealer to Investor. Investor acknowledges that SPAC represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
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i. Investor acknowledges that it is aware that there are substantial risks incidental to the purchase and ownership of the Subscribed Shares, including those set forth in SPAC’s filings with the Commission. Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Subscribed Shares, and Investor has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as Investor has considered necessary to make an informed investment decision. Investor acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (ii) has exercised independent judgment in evaluating its purchase of the Subscribed Shares.
j. Alone, or together with any professional advisor(s), Investor represents and acknowledges that Investor has adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Investor and that Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of Investor’s investment in SPAC. Investor acknowledges specifically that a possibility of total loss exists.
k. Investor understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of this investment.
l. Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC, or any other list of prohibited or restricted parties promulgated by OFAC, the Department of Commerce, or the Department of State (“Consolidated Sanctions Lists”), or a person or entity prohibited or restricted by any OFAC sanctions program, or a person or entity whose property and interests in property subject to U.S. jurisdiction are otherwise blocked under any U.S. laws, Executive Orders or regulations, (ii) a person or entity listed on the Sectoral Sanctions Identifications (“SSI”) List maintained by OFAC or otherwise determined by OFAC to be subject to one or more of the Directives issued under Executive Order 13662 of March 20, 2014, or on any other of the Consolidated Sanctions Lists, (iii) an entity owned, directly or indirectly, individually or in the aggregate, 50 percent or more by, acting on behalf of, or controlled by, one or more persons described in subsections (i) or (ii), (iv) organized, incorporated, established, located, resident or born in, or a citizen, national or the government, including any political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Myanmar, Venezuela, the Crimea, Donetsk, or Luhansk regions of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (v) a person or entity named on the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) Denied Persons List, Entity List, or Unverified List (“BIS Lists”), (vi) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (vii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, (i) through (vii), a “Restricted Person”). Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Investor is permitted to do so under applicable law. Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001 and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Investor also represents that Investor maintains policies and procedures reasonably designed for the screening of its investors against the OFAC and BIS sanctions programs, including for Restricted Persons, and otherwise to ensure compliance with all applicable sanctions and embargo laws, statutes, and regulations. Investor further represents and warrants that it maintains policies and procedures reasonably designed to ensure that the funds held by Investor and used to purchase the Subscribed Shares were legally derived and were not obtained, directly or indirectly, from a Restricted Person. Investor is not a “foreign person,” “foreign government,” or a “foreign entity,” in each case, as defined in Section 721 of the Defense Production Act of 1950, as amended, including, without limitation, all implementing regulations thereof (the “DPA”). Investor is not controlled, in whole or in part, by a “foreign person,” as defined in the DPA.
m. Investor does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof, Investor has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of SPAC. Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Subscribed Shares covered by this Backstop Subscription Agreement.
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n. If Investor is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Internal Revenue Code of 1986, as amended, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Investor represents and warrants that neither SPAC, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares.
o. Investor has, and at the Closing Investor will have, sufficient immediately available funds (or commitments therefor) to pay the Subscription Amount pursuant to Section 2 of this Backstop Subscription Agreement.
p. No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in SPAC as a result of the purchase and sale of securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over SPAC from and after the Closing as a result of the purchase and sale of Shares hereunder.
7. Termination. Subject to the last sentence of Section 1, this Backstop Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) such date and time as the Business Combination Agreement is validly terminated in accordance with its terms or (b) upon the mutual written agreement of each of the parties hereto and the Sellers to terminate this Backstop Subscription Agreement; provided that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from any such willful breach. SPAC shall notify Investor of the termination of the Business Combination Agreement promptly after the termination of such agreement.
8. Trust Account Waiver. Investor acknowledges that SPAC is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving SPAC and one or more businesses or assets. Investor further acknowledges that, as described in SPAC’s prospectus relating to its initial public offering dated June 26, 2025 (the “Prospectus”) available at www.sec.gov, substantially all of SPAC’s assets consist of the cash proceeds of SPAC’s initial public offering and private placement of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of SPAC, its public shareholders and the underwriter of SPAC’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to SPAC to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of SPAC entering into this Backstop Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, Investor hereby irrevocably waives any and all right, title and interest, or any claim of any kind it has or may have in the future, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Backstop Subscription Agreement; provided, however, that nothing in this Section 8 shall be deemed to limit Investor’s right, title, interest or claim to any monies held in the Trust Account by virtue of its record or beneficial ownership of any Shares currently outstanding on the date hereof, pursuant to a validly exercised redemption right with respect to any such Shares, except to the extent that Investor has otherwise agreed with SPAC to not exercise such redemption right.
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9. Miscellaneous.
a. Neither this Backstop Subscription Agreement nor any rights that may accrue to any party hereunder (other than the Subscribed Shares acquired hereunder, if any) may be transferred or assigned by a party without the prior written consent of the other party hereto and the Sellers; provided that this Backstop Subscription Agreement and any of Investor’s rights and obligations hereunder may be assigned to any fund or account managed by the same investment manager as Investor or by an affiliate (as defined in Rule 12b-2 of the Exchange Act) of such investment manager without the prior consent of, but with prior written notice to, SPAC and the Sellers. Notwithstanding the foregoing, no assignment pursuant to the prior sentence shall relieve Investor of its obligations hereunder. The parties hereto acknowledge and agree that (i) this Backstop Subscription Agreement is being entered into in order to induce each of SPAC and the Sellers execute and deliver the Business Combination Agreement and without the representations, warranties, covenants and agreements of SPAC and Investor hereunder, the Sellers would not enter into the Business Combination Agreement, (ii) each representation, warranty, covenant and agreement of Investor hereunder is being made also for the benefit of the Sellers and (iii) the Sellers may directly enforce (including by an action for specific performance, injunctive relief or other equitable relief) each of the covenants and agreements in this Backstop Subscription Agreement.
b. SPAC will request from Investor such additional information as necessary to register the resale of the Subscribed Shares and evaluate the eligibility of Investor to acquire the Subscribed Shares, and Investor shall reasonably promptly provide such information as may reasonably be requested; provided, that SPAC agrees to keep any such information provided by Investor confidential other than as necessary to include in any registration statement SPAC is required to file hereunder. Investor acknowledges and agrees that if it does not provide SPAC with such requested information, SPAC may not be able to register the Subscribed Shares acquired by Investor pursuant to this Backstop Subscription Agreement for resale pursuant to Section 1 hereof. Investor hereby agrees that its identity and the Subscription Agreement, as well as the nature of Investor’s obligations hereunder, may be disclosed in any public announcement or disclosure required by the SEC and in any registration statement, proxy statement, consent solicitation statement or any other SEC filing to be filed by SPAC in connection with the issuance of Subscribed Shares contemplated by this Backstop Subscription Agreement and/or the Transactions.
c. Investor acknowledges that SPAC, the Sellers and others will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Backstop Subscription Agreement. Prior to the Closing, Investor agrees to promptly notify SPAC and the Sellers if any of the acknowledgments, understandings, agreements, representations and warranties set forth in Section 6 above are no longer accurate in any material respect (other than those acknowledgments, understandings, agreements, representations and warranties qualified by materiality, in which case Investor shall notify SPAC and the Sellers if they are no longer accurate in all respects). Investor agrees that the purchase by Investor of the Subscribed Shares from SPAC will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notice) by Investor as of the time of such purchase.
d. SPAC and the Sellers are each entitled to rely upon this Backstop Subscription Agreement and each is irrevocably authorized to produce this Backstop Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby; provided, however, that the foregoing clause of this Section 9d shall not give the Sellers any rights other than those expressly set forth herein.
e. All of the agreements, representations and warranties made by each party hereto in this Backstop Subscription Agreement shall survive the Closing.
f. This Backstop Subscription Agreement may not be amended, modified, waived or terminated (other than pursuant to the terms of Section 7 above) except by an instrument in writing, signed by each of the parties hereto and the Sellers. No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.
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g. This Backstop Subscription Agreement (including the schedule hereto) constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof. Except as specified herein, this Backstop Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and assigns, and the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Backstop Subscription Agreement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.
h. Except as otherwise provided herein, this Backstop Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
i. If any provision of this Backstop Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Backstop Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
j. This Backstop Subscription Agreement may be executed in one or more counterparts (including by facsimile or electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
k. The parties hereto acknowledge and agree that irreparable damage would occur to such parties and the Sellers in the event that any of the provisions of this Backstop Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties and the Sellers shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Backstop Subscription Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Backstop Subscription Agreement, this being in addition to any other remedy to which any such party is entitled at law, in equity, in contract, in tort or otherwise. The parties hereto acknowledge and agree that the Sellers shall be entitled to specifically enforce SPAC’s obligations hereunder to issue and sell the Subscribed Shares to Investor and the Investor’s obligations hereunder to purchase the Subscribed Shares from SPAC and the provisions of this Backstop Subscription Agreement of which the Sellers are each an express third-party beneficiary, in each case, on the terms and subject to the conditions set forth in this Backstop Subscription Agreement. The parties hereto further agree not to assert that a remedy of specific enforcement pursuant to this Section 9(k) is unenforceable, invalid, contrary to applicable law or inequitable for any reason and to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate. The parties acknowledge and agree that this Section 9(k) is an integral part of the transactions contemplated hereby and without that right, the parties hereto would not have entered into this Backstop Subscription Agreement.
l. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three Business Days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(i) if to SPAC or Investor, to:
Yorkville Advisors Global, LP
1012 Springfield Avenue
Mountainside, NJ 07092
Attn: Mark Angelo, Portfolio Manager
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with a copy (which will not constitute notice) to:
DLA Piper LLP (US)
3203 Hanover Street, Suite 100
Palo Alto, CA 94304
Attn: Curtis L. Mo; Jeffrey Selman
Email:
| (ii) | if to Crypto.com, to: |
If to Crypto.com, to:
Crypto.com Strategy Holdings
110 N College Ave., Suite 500
Tyler, TX 75702
Attn: Nick Lundgren
with a copy (which will not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001
Attn: Christopher M. Barlow
Email:
| (iii) | if to TMTG, to: |
Trump Media & Technology Group Corp.
401 N. Cattlemen Road, Suite 200
Sarasota, FL 34232
Attn: Devin Nunes, Chief Executive Officer
m. Investor shall pay all of its own expenses in connection with this Backstop Subscription Agreement and the transactions contemplated herein.
n. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE 12th Judicial Circuit Court of Florida in Sarasota, Florida, or, if it has or can acquire jurisdiction, in the United States District Court for the Middle District of Florida SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS BACKSTOP SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS BACKSTOP SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS BACKSTOP SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A FLORIDA STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN THIS SECTION 9n OF THIS BACKSTOP SUBSCRIPTION AGREEMENT OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF. NOTWITHSTANDING THE FOREGOING, A FINAL JUDGMENT IN ANY SUCH ACTION MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
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EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS BACKSTOP SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS BACKSTOP SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS BACKSTOP SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS BACKSTOP SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9n.
10. Non-Reliance and Exculpation11. Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation other than the statements, representations and warranties of SPAC expressly contained in Section 5 of this Backstop Subscription Agreement or in the Business Combination Agreement, in making its investment or decision to invest in SPAC. Investor acknowledges and agrees that no party to the Business Combination Agreement (other than in respect of the representations and warranties set forth in the Business Combination Agreement), including any such party’s representatives, affiliates or any of its or their control persons, officers, directors or employees, that is not a party hereto shall have any liability to Investor, or to any other investor, pursuant to, arising out of or relating to this Backstop Subscription Agreement, the negotiation hereof or thereof or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Subscribed Shares or with respect to any claim (whether in tort, contract or otherwise) for breach of this Backstop Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished by SPAC, the Sellers or any Non-Party Affiliates concerning SPAC, the Sellers any of their controlled affiliates, this Backstop Subscription Agreement or the transactions contemplated hereby. For purposes of this Backstop Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of SPAC, the Sellers or any of their controlled affiliates or any family member of the foregoing.
12. Disclosure. SPAC shall, by 9:00 a.m., New York City time, on the first (1st) Business Day immediately following the date of this Backstop Subscription Agreement, issue one or more press releases or file with the SEC a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby, the Transactions and any other material, nonpublic information that SPAC has provided to Investor at any time prior to the filing of the Disclosure Document. Upon the issuance of the Disclosure Document, to the actual knowledge of SPAC, Investor shall not be in possession of any material, non-public information received from SPAC or any of its officers, directors, or employees or agents, and Investor shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with SPAC or any of their respective affiliates, relating to the transactions contemplated by this Backstop Subscription Agreement. Notwithstanding anything in this Backstop Subscription Agreement to the contrary, SPAC shall not publicly disclose the name of Investor or any of its affiliates or advisers, or include the name of Investor or any of its affiliates or advisers in any press release or in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of Investor, except (i) as required by the federal securities law or pursuant to other routine proceedings of regulatory authorities, (ii) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of any national securities exchange on which SPAC’s securities are listed for trading, (iii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 12 or (iv) as expressly contemplated by the last sentence of Section 9(b) of this Backstop Subscription Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, Investor has executed or caused this Backstop Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.
Name of Subscriber:
YA II PN, LTD
By: Yorkville Advisors Global, LP Its: Investment Manager
By: Yorkville Advisors Global II, LLC Its: General Partner
|
State/Country of Formation or Domicile:
Cayman Islands | |||
| By: | /s/ Matthew Beckman | |||
| Name: Matthew Beckman | ||||
| Title: Manager | ||||
| Name in which Shares are to be registered (if different): | Date: August 25, 2025 | |||
| EIN: | ||||
| Business Address-Street: | Mailing Address-Street (if different): | |||
| City, State, Zip: | City, State, Zip: | |||
| Attn: | Attn: | |||
| Telephone No.: | Telephone No.: | |||
| Email: | Email: | |||
You must pay the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by SPAC. To the extent the offering is oversubscribed, the number of Shares received may be less than the number of Shares subscribed for.
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IN WITNESS WHEREOF, Yorkville Acquisition Corp. has accepted this Backstop Subscription Agreement as of the date set forth below.
| YORKVILLE ACQUISITION CORP. | ||
| By: | /s/ Kevin McGurn | |
| Name: Kevin McGurn | ||
| Title: Chief Executive Officer | ||
Date: August 25, 2025
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SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF INVESTOR
| A. | QUALIFIED INSTITUTIONAL BUYER STATUS |
| (Please check the applicable subparagraphs): | |
| ¨ We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act). |
| B. | INSTITUTIONAL ACCREDITED INVESTOR STATUS |
| (Please check the applicable subparagraphs): |
| 1. | ¨ We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.” |
| 2. | ¨ We are not a natural person. |
Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to Investor and under which Investor accordingly qualifies as an “accredited investor.”
¨ Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company;
¨ Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
¨ Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;
¨ Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
¨ Any trust with assets in excess of $5,000,000, not formed to acquire the securities offered, whose purchase is directed by a sophisticated person; or
¨ Any entity in which all of the equity owners are accredited investors meeting one or more of the above tests.
| C. | FINRA INSTITUTIONAL ACCOUNT STATUS (Please check the applicable subparagraphs): |
| 1. | ¨ We are an “institutional account” under FINRA Rule 4512(c). |
| 2. | ¨ We are not an “institutional account” under FINRA Rule 4512(c). |
This page should be completed by Investor
and constitutes a part of the Subscription Agreement.
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Exhibit 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [-], 2025, is made and entered into by and among Trump Media Group CRO Strategy, Inc., a Florida corporation (the “SPAC”), Yorkville Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”), each of the undersigned parties listed on the signature page hereto under “Holders” (each such party, together with Sponsor, any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement, and solely for purposes of Section 2.2 and ARTICLE V of this Agreement, each of the undersigned parties listed on the signature page hereto under “Piggyback Holders”, a “Holder” and collectively the “Holders”).
RECITALS
WHEREAS, SPAC and Sponsor previously entered into that certain Registration Rights Agreement, dated as of June 26, 2025 (the “Original Registration Rights Agreement”);
WHEREAS, on August 25. 2025, SPAC, YA S3 Inc., a Florida corporation and an indirect wholly owned subsidiary of SPAC, Foris Holdings KY Limited, a Cayman Islands exempted company (“Crypto.com”), Crypto.com Strategy Holdings, a Cayman Islands exempted company, Trump Media & Technology Group Corp., a Florida corporation and Sponsor (“TMTG”, and together with Crypto.com, the “Sellers”) entered into that certain Business Combination Agreement (as may be amended from time to time, the “Business Combination Agreement”);
WHEREAS, on the date hereof, Sponsor and the Sellers are each entering into a Lock-Up Agreement with SPAC (each, a “Lock-Up Agreement”);
WHEREAS, pursuant to Section 5.5 of the Original Registration Rights Agreement, the provisions, covenants, and conditions set forth therein may be amended or modified upon the written consent of SPAC and the holders of a majority in interest of the Registrable Securities (as defined in the Original Registration Rights Agreement) at the time in question, and Sponsor is holder of a majority in interest of the Registrable Securities as of the date hereof;
WHEREAS, SPAC, the Sellers, and Sponsor desire to amend and restate the Original Registration Rights Agreement in its entirety and terminate the Original Registration Rights Agreement, as provided herein; and
WHEREAS, SPAC and the Holders desire to enter into this Agreement, pursuant to which SPAC shall grant the Holders certain registration rights with respect to certain securities of SPAC, as set forth in this Agreement.
ARTICLE I.
DEFINITIONS
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:
1.1 Definitions. The terms defined in this ARTICLE I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“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 SPAC, after consultation with counsel to SPAC, (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) SPAC has a bona fide business purpose for not making such information public.
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“Agreement” shall have the meaning given in the Preamble.
“Board” shall mean the Board of Directors of SPAC.
“Class A Common Stock” shall mean shares of Class A Common Stock of SPAC, par value $0.0001 per share.
“Class B Common Stock” shall mean shares of Class B Common Stock of SPAC, par value $0.0001 per share.
“Closing” shall mean the consummation of the transactions contemplated by the Business Combination Agreement.
“Closing Date” shall mean the date on which the Closing occurs.
“Commission” shall mean the United States Securities and Exchange Commission.
“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.
“Form S-1” shall have the meaning given in subsection 2.1.1.
“Form S-3” shall have the meaning given in subsection 2.3.
“Holders” shall have the meaning given in the Preamble.
“Lock-Up Agreement” shall have the meaning given in the Recitals hereto.
“Lock-up Period” shall have the respective meanings given in the respective Lock-Up Agreements.
“Maximum Number of Securities” shall have the meaning given in subsection 2.1.4.
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.
“Permitted Transferees” shall mean any person or entity to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration of the applicable Lock-up Period or any other lock-up period, under the Lock-Up Agreement, this Agreement and any other applicable agreement between such Holder and SPAC, 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.
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“Registrable Security” shall mean any shares of Class A Common Stock owned by a Holder hereof or issued or issuable upon the conversion or exercise of any other security (including upon the conversion of Class B Common Stock or the exercise of warrants) of SPAC held by a Holder as of the date hereof or acquired prior to or in connection with the Closing, which, for the avoidance of doubt, shall include any shares of Class A Common Stock received by a Holder on or after the date hereof as a distribution from Sponsor in connection with its liquidation and dissolution, and (c) any other equity security of SPAC issued or issuable with respect to any such share of Class A Common Stock by way of a share capitalization or share split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (B) such securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further transfer shall have been delivered by SPAC and subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) (but with no volume or other restrictions or limitations); or (E) 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.
“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 the Class A Common Stock 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 SPAC;
(E) reasonable fees and disbursements of all independent registered public accountants of SPAC 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.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“SPAC” shall have the meaning given in the Preamble.
“Sponsor” shall have the meaning given in the Preamble.
“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 SPAC 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 2.4 hereof, at any time and from time to time on or after the Closing Date, if the SPAC is ineligible to file with the SEC a shelf registration statement on Form S-3 (or successor form) in accordance with Section 2.3 below, the Holders of a majority of the then-outstanding number of Registrable Securities (collectively, the “Demanding Holders”) may make a written demand for Registration of all or part of their Registrable Securities, 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”). SPAC shall, within ten (10) days of SPAC’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 SPAC, in writing, within five (5) days after the receipt by the Holder of the notice from SPAC. Upon receipt by SPAC of any such written notification from a Requesting Holder(s) to SPAC, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and SPAC shall effect, as soon thereafter as practicable, but not more than forty five (45) days immediately after SPAC’s receipt of the Demand Registration, the Registration of all Registrable Securities requested by the Demanding Holder(s) and Requesting Holder(s) pursuant to such Demand Registration, including by filing a Registration Statement relating thereto as soon as practicable. Under no circumstances shall SPAC be obligated to effect more than an aggregate of three (3) Registrations pursuant to a Demand Registration or more than an aggregate of two (2) Registrations in any twelve (12)-month period pursuant to a Demand Registration under this subsection 2.1.1 with respect to any or all Registrable Securities, provided, however, that a Registration shall not be counted for such purposes unless a Form S-1 or any similar long-form registration statement that may be available at such time (“Form S-1”) has become effective and all of the Registrable Securities requested by the Requesting Holders to be registered on behalf of the Requesting Holders in such Form S-1 Registration have been sold, in accordance with Section 3.1 of this Agreement.
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) SPAC 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 SPAC in writing, but in no event later than five (5) days, of such election; and provided, further, that SPAC 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.
2.1.3 Underwritten Offering. Subject to the provisions of subsection 2.1.4 and Section 2.4 hereof, if a majority-in-interest of the Demanding Holders so advise SPAC 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 SPAC and shall be reasonably acceptable to the majority-in-interest of the Demanding Holders initiating the Demand Registration. Notwithstanding the foregoing, SPAC is not obligated to effect (i) more than an aggregate of three (3) Underwritten Offerings pursuant to this subsection 2.1.3 in any twelve (12)-month period, (ii) an Underwritten Offering pursuant to this subsection 2.1.3 within ninety (90) days after the closing of an Underwritten Offering or (iii) an Underwritten Offering unless the aggregate gross proceeds from the sale of all Registrable Securities (regardless of Holder) requested to be included in such Underwritten Offering is reasonably expected by the Requesting Holder to be at least $25,000,000.
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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 SPAC, 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 Class A Common Stock or other equity securities that SPAC desires to sell and the Class A Common Stock, 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 SPAC shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (pro rata based on the respective number of Registrable Securities that each Demanding Holder and Requesting Holder (if any) has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the Demanding Holders and Requesting Holders have requested be included in such Underwritten Registration (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Registrable Securities of Holders (Pro Rata, based on the respective number of Registrable Securities that each Holder has so requested) exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1 hereof, without exceeding the Maximum Number of Securities; (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Class A Common Stock or other equity securities that SPAC desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), the Class A Common Stock or other equity securities of other persons or entities that SPAC 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.
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 SPAC 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, SPAC 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.
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2.2 Piggyback Registration.
2.2.1 Piggyback Rights. If, at any time on or after the Closing Date, SPAC proposes to file a Registration Statement under the Securities Act, other than a registration statement, including any prospectus, amendment (including any post-effective amendment) or supplement in connection with the resale of securities issuable pursuant to the Stock Purchase Agreement (the “SPA Shares”), dated the date hereof, between SPAC and YA II PN, Ltd., 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 SPAC (or by SPAC and by the shareholders of SPAC including, without limitation, pursuant to Section 2.1 hereof), other than a Registration Statement (i) filed in connection with any employee share option or other benefit plan, (ii) for an exchange offer or offering of securities solely to SPAC’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of SPAC, (iv) for a dividend reinvestment plan or (iv) pursuant to a registration statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), then SPAC 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 (a) five (5) days in the case of filing a registration statement, prospectus or prospectus supplement and (b) three (3) days in the case of an Underwritten Offering (unless such offering is an overnight or bought Underwritten Offering, then one (1) day), in each case after receipt of such written notice (such Registration a “Piggyback Registration”); provided, that Devin Nunes will be deemed to have requested the inclusion of all of his then-outstanding Registrable Securities pursuant to the foregoing clauses (a) and (b) unless he provides written notice to SPAC electing to register a lesser number of Registrable Securities or no Registrable Securities. SPAC 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 SPAC 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. If no written request for inclusion from a Holder is received within the specified time, each such Holder shall have no further right to participate in such Piggyback Registration pursuant to this subsection 2.2.1. 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 SPAC.
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 SPAC and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of the Class A Common Stock that SPAC desires to sell, taken together with (i) the Class A Common Stock, 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) the Class A Common Stock, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of SPAC, exceeds the Maximum Number of Securities, then:
(a) If the Registration is undertaken for SPAC’s account, SPAC shall include in any such Registration (A) first, the Class A Common Stock or other equity securities that SPAC 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 Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1 hereof (pro rata based on the respective number of Registrable Securities that such Holder has requested be included in such Registration), 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), the Class A Common Stock, if any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other shareholders of SPAC, 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 SPAC shall include in any such Registration (A) first, the Class A Common Stock 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 Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1, pro rata based on the respective number of Registrable Securities that each Holder has requested be included in such Registration and the aggregate number of Registrable Securities that the Holders have requested to be included in such Registration, 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), the Class A Common Stock or other equity securities that SPAC 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), the Class A Common Stock or other equity securities for the account of other persons or entities that SPAC 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.
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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 SPAC and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the earlier of (x) the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or (y) the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing the Underwritten Offering with respect to such Piggyback Registration. SPAC (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 or abandon an Underwritten Offering in connection with a Piggyback Registration at any time prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Offering. Notwithstanding anything to the contrary in this Agreement, SPAC shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this subsection 2.2.3.
2.2.4 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.
2.2.5 Piggyback Holders. Each reference to the Holders in this Section 2.2 and in ARTICLE V shall include the Piggyback Holders.
2.3 Registrations on Form S-3. The Holders of Registrable Securities may at any time, and from time to time, request in writing that SPAC, 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 S-3 or any similar short form registration statement that may be available at such time (“Form S-3”); provided, however, that SPAC shall not be obligated to effect such request through an Underwritten Offering. Within five (5) days of SPAC’s receipt of a written request from a Holder or Holders of Registrable Securities for a Registration on Form S-3, SPAC shall promptly give written notice of the proposed Registration on Form S-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 S-3 shall so notify SPAC, in writing, within five (5) days after the receipt by the Holder of the notice from SPAC. As soon as practicable thereafter, but not more than twelve (12) days after SPAC’s initial receipt of such written request for a Registration on Form S-3, SPAC shall register 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 SPAC shall not be obligated to effect any such Registration pursuant to Section 2.3 hereof if (i) a Form S-3 is not available for such offering; or (ii) the Holders of Registrable Securities, together with the Holders of any other equity securities of SPAC 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 $25,000,000.
2.4 Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to SPAC’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 SPAC initiated Registration and provided that SPAC 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 SPAC and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; (C) the filing, initial effectiveness, or continued use of a Registration Statement in respect of such Underwritten Offering at any time would require the inclusion in such Registration Statement of financial statements that are unavailable to SPAC for reasons beyond SPAC’s control or (D) in the good faith judgment of the Board such Registration would be seriously detrimental to SPAC 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 SPAC 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 SPAC 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, SPAC shall have the right to defer such filing for a period of not more than thirty (30) days. Notwithstanding anything to the contrary contained in this Agreement, SPAC shall not be required to effect or permit any Registration or cause any Registration Statement to become effective, with respect to any Registrable Securities held by any Holder, until after the expiration of the applicable Lock-up Period.
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ARTICLE III.
SPAC PROCEDURES
3.1 General Procedures. If at any time on or after the Closing Date SPAC is required to effect the Registration of Registrable Securities, SPAC shall use its best 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 SPAC 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 reasonable best 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 requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by SPAC 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 best 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 SPAC 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 SPAC 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;
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 SPAC are then listed;
3.1.6 3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly 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 reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
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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 furnish a copy thereof to each seller of such Registrable Securities and its counsel, including, without limitation, providing copies promptly upon receipt of any comment letters received with respect to any such Registration Statement or Prospectus;
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 Underwriters to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause SPAC’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 representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to SPAC, prior to the release or disclosure of any such information; and provided further, SPAC 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, such consent not to be unreasonably withheld, and providing each such Holder or Underwriter a reasonable amount of time to review and comment on such applicable document, which comments SPAC shall include unless contrary to applicable law;
3.1.11 obtain a comfort letter from SPAC’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 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 SPAC 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 Underwriters 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 SPAC’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 $25,000,000, use its reasonable efforts to make available senior executives of SPAC to participate in customary “road show” presentations that may be reasonably requested by the Underwriters 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.
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3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by SPAC. 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, Underwriters’ 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 SPAC pursuant to a Registration initiated by SPAC hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by SPAC 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.
3.4 Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from SPAC 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 SPAC 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 SPAC 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 require SPAC to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to SPAC for reasons beyond SPAC’s control, SPAC may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than thirty (30) days, determined in good faith by SPAC to be necessary for such purpose. In the event SPAC 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. SPAC 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, SPAC, 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 SPAC 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. SPAC 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 Class A Common Stock 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, SPAC shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
3.6 Requirements for Participation in Underwritten Offerings and Limitations on Registration Rights. No person may participate in any Underwritten Offering for equity securities of SPAC pursuant to a registration initiated by SPAC hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by SPAC 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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ARTICLE IV.
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification.
4.1.1 SPAC 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 SPAC by such Holder expressly for use therein.
4.1.2 In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to SPAC in writing such information and affidavits as SPAC reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify SPAC, its directors and officers and agents and each person who controls SPAC (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; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement.
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 (plus local 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.
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 is held by a court of competent jurisdiction to be 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 to the extent permitted by law 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.
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ARTICLE V.
MISCELLANEOUS
5.1 Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail, telecopy, telegram or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail, telecopy, telegram or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to SPAC, to: Trump Media Group CRO Strategy, Inc., 1012 Springfield Avenue, Mountainside, NJ 07092 Attention: Kevin McGurn, with copy to: DLA Piper LLP (US), 3203 Hanover Street, Suite 100, Palo Alto CA 94304, Attention: Curtis L. Mo and Jeffrey Selman, and, if to any Holder, at such Holder’s address or contact information as set forth in SPAC’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1.
5.2 Assignment; No Third Party Beneficiaries.
5.2.1 This Agreement and the rights, duties and obligations of SPAC hereunder may not be assigned or delegated by SPAC in whole or in part.
5.2.2 Prior to the expiration of the applicable Lock-up Period, no Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee but only if such Permitted Transferee agrees to become bound by the transfer restrictions set forth in this Agreement. After the expiration of the applicable Lock-up Period, the Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, to any transferee.
5.2.3 This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.
5.2.4 This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2 hereof.
5.2.5 No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate SPAC unless and until SPAC 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 SPAC, 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.
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.
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5.4 Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF FLORIDA AS APPLIED TO AGREEMENTS AMONG FLORIDA RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN FLORIDA, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION. ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF FLORIDA IN EACH CASE LOCATED IN THE CITY OF FLORIDA, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING.
5.5 Amendments and Modifications. Upon the written consent of SPAC 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 capital shares of SPAC, 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 SPAC and any other party hereto or any failure or delay on the part of a Holder or SPAC in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or SPAC. 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.
5.6 Other Registration Rights. Other than with respect to an obligation to effect a Registration of the SPA Shares, SPAC represents and warrants that no person, other than a Holder of Registrable Securities, has any right to require SPAC to register any securities of SPAC for sale or to include such securities of SPAC in any Registration filed by SPAC for the sale of securities for its own account or for the account of any other person. Further, SPAC 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.
5.7 Establishment of 10b5-1 Program. SPAC shall ensure that, at all times after any registration statement covering a public offering of securities of SPAC under the Securities Act shall have become effective, its insider trading policy shall provide that SPAC’s directors may implement a trading program under Rule 10b5-1 of the Exchange Act.
5.8 Term. This Agreement shall terminate upon the earlier of (i) the tenth 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 without registration pursuant to Rule 144 (or any similar provision) under the Securities Act with no volume or other restrictions or limitations. The provisions of Section 3.5 and ARTICLE IV shall survive any termination.
5.9 Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior contracts or agreements with respect to the subject matter hereof and the matters addressed or governed hereby, whether oral or written, including, without limitation, the Original Registration Rights Agreement.
5.9 Termination of Business Combination Agreement. This Agreement shall be binding upon each party upon each party’s execution and delivery of this Agreement. At the Closing, this Agreement shall become effective and shall amend and restate the Original Registration Rights Agreement in its entirety. In the event that the Business Combination Agreement is validly terminated in accordance with its terms prior to the Closing, this Agreement shall automatically terminate and become null and void and be of no further force or effect, and the Original Registration Rights Agreement shall instead remain in full force and effect.
[Signature Page Follows]
| 13 |
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| SPAC: | ||
| Trump Media GROUP CRO Strategy, Inc. | ||
| By: | ||
| Name: | ||
| Title | ||
| SPONSOR: | ||
| YORKVILLE ACQUISITION SPONSOR LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| HOLDERS: | ||
| CRYPTO.COM STRATEGY HOLDINGS | ||
| By: | ||
| Name: | ||
| Title: | ||
| TRUMP MEDIA & TECHNOLOGY GROUP CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
| 14 |
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| PIGGYBACK HOLDERS: | ||
| DEVIN NUNES | ||
| YA II PN, LTD. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
| 15 |
Exhibit 10.4
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of [●], 2025 by and between Trump Media Group CRO Strategy, Inc., a Florida corporation (“SPAC”), and the undersigned (“Holder”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement (as defined below).
WHEREAS, on August 25, 2025, SPAC, YA S3 Inc., a Florida corporation and an indirect wholly owned subsidiary of SPAC (“SPAC Sub”), Foris Holdings KY Limited, a Cayman Islands exempted company (“Crypto.com”), Crypto.com Strategy Holdings, a Cayman Islands exempted company (“Crypto.com Sub”), Trump Media & Technology Group Corp., a Florida corporation (“TMTG”), and Yorkville Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”) entered into that certain Business Combination Agreement (as amended from time to time, the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement and certain of the Ancillary Agreements, subject to the terms and conditions thereof, among other matters, pursuant to and in accordance with applicable laws and upon the consummation of the transactions contemplated by the Business Combination Agreement (the “Closing”), each of Crypto.com Sub and TMTG will contribute certain assets and/or license certain rights, knowhow and Intellectual Property to SPAC or SPAC Sub (as applicable) (such transactions, with the other transactions contemplated by the Business Combination Agreement, the “Transactions”);
WHEREAS, immediately following the Closing, Holder will be a holder of shares of SPAC Stock, SPAC Warrants and SPAC Units in such amount as set forth underneath Holder’s name on the signature page hereto (collectively, including any securities exercisable or issuable from such securities, the “Restricted Securities”); [provided, however, that any SPAC Stock purchased or acquired by Holder or any of its Affiliates following the execution of the Business Combination Agreement, including without limitation pursuant to the Stock Purchase Agreement or the Backstop Agreement, shall not be deemed Restricted Securities hereunder;]1 and
WHEREAS, pursuant to the Business Combination Agreement and the transactions contemplated thereby and the Ancillary Documents, and in view of the valuable consideration to be received by Holder thereunder, the receipt and sufficiency of which is hereby acknowledged, the parties hereto desire to set forth herein certain understandings between such parties with respect to restrictions on transfer of the Restricted Securities;
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:
| 1. | Lock-Up Provisions. |
(a) Without the prior written consent of SPAC, during the 12-month period beginning on the Closing Date and ending on the first anniversary of the Closing Date [(the “Initial Lock-Up Period”)2 / (the “Lock-Up Period”)3], Holder hereby agrees not to, and agrees not cause any direct or indirect Affiliate to, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidation with respect to or decrease a call equivalent position within the meaning of Section 16 of the Securities and Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder with respect to, any Restricted Securities, (ii) enter into any hedging, swap or other arrangement or transaction that transfers to another, in whole or in part, any of the economic consequences of ownership of any Restricted Securities, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) publicly announce the intention to effect any transaction specified in clause (i) or (ii) (any of the foregoing described in clauses (i), (ii) or (iii), a “Prohibited Transfer”). [During the 6-month period following the Initial Lockup Period (“Window 1”), Holder and any direct or indirect Affiliate may sell up to 10% of Holder’s Restricted Securities. During the 6-month period following Window 1 (“Window 2”), Holder and any direct or indirect Affiliate may sell up to 15% of Holder’s aggregate Restricted Securities. During the 12-month period following Window 2 (“Window 3”) Holder and any direct or indirect Affiliate may sell up to 25% of Holder’s aggregate Restricted Securities so long as no more than 10% of Holder’s aggregate Restricted Securities are sold within any 3-month period. During the 12-month period following Window 3 (“Window 4”), Holder and any direct or indirect Affiliate may sell up to 25% of Holder’s aggregate Restricted Securities so long as no more than 10% of Holder’s aggregate Restricted Securities are sold within any 3-month period. At the conclusion of Window 4, Holder and any direct or indirect Affiliate may sell all remaining aggregate shares. The Initial Lock-Up Period, together with Window 1, Window 2, Window 3, and Window 4, are collectively the “Lock-Up Period”.]4
1 To be included in the agreements between SPAC and the Sponsor.
2 To be included in the agreements between SPAC and the Sellers.
3 To be included in the agreements between SPAC and all Holders other than the Sellers.
4 To be included in the agreements between SPAC and the Sellers.
(b) Section 1(a) above shall not apply to the transfer of any or all of the Restricted Securities owned by Holder (each, a “Permitted Transferee”): (I) in the case of an entity, transfers (A) to another entity that is an Affiliate of the Holder, (B) as part of a distribution to members, partners or stockholders of Holder and (C) to officers or directors of Holder, any Affiliate or family member of any of Holder’s officers or directors, or to any members, officers, directors or employees of Holder or any of its Affiliates; (II) in the case of an individual, transfers by gift to members of the individual’s immediate family or to a trust, the beneficiary of which is a member of one of the individual’s immediate family, an Affiliate of such person; (III) to a charitable organization; (IV) in the case of an individual, transfers by virtue of laws of descent and distribution upon death of the individual; (V) in the case of an individual, transfers pursuant to a qualified domestic relations order; [or] (VI) in the case of an entity, transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; [(VII) transfers to satisfy any U.S. federal, state, or local income tax obligations of Holder (or its direct or indirect owners) to the extent necessary to cover any tax liability as a direct result of the Transactions; [or] (VIII) transfers to Sponsor or its Affiliates or transfers to Crypto.com or its Affiliates];5 provided, however, that it shall be a condition to any transfer pursuant to clauses (I) through [(VI) / (VIII)] above that the Permitted Transferee executes and delivers to SPAC an agreement stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to Holder, and there shall be no further transfer of such Restricted Securities except in accordance with this Agreement. Holder further agrees to execute such agreements as may be reasonably requested by SPAC that are consistent with the foregoing or that are necessary to give further effect thereto. The restrictions set forth herein shall not restrict Holder from making a request for inclusion of its Restricted Securities in any registration statement pursuant to any registration rights agreement between SPAC and the Holder, provided that no public filing or public disclosure relating to such sale of securities is made during the Lock-Up Period.
(c) If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and SPAC shall refuse to recognize any such purported transferee of the Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 1, SPAC may impose stop-transfer instructions with respect to the Restricted Securities of Holder (and Permitted Transferees and assigns thereof) until the end of the Lock-Up Period.
(d) During the Lock-Up Period, each certificate evidencing any Restricted Securities shall be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF [●], 2025, BY AND BETWEEN THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN, AS AMENDED. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(e) For the avoidance of any doubt, Holder shall retain all of its rights as a stockholder of SPAC during the Lock-Up Period, including the right to vote any Restricted Securities. Any securities of SPAC held by Holder or any of its Affiliates that are not Restricted Securities (including any securities that are released from the restrictions set forth in Section 1 following the expiration of the applicable Lock-Up Period) may be sold, transferred, hedged, encumbered, hypothecated, or otherwise disposed of without restriction, subject only to Federal Securities Laws or any other applicable Law.
5 To be included in the agreements between SPAC and the management team.
| 2. | Miscellaneous. |
(a) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal to Holder and may not be transferred or delegated by Holder at any time without the prior written consent of SPAC, except in accordance with the procedures set forth for transfers of Restricted Securities to Permitted Transferees in Section 1(a), and any such purported transfer shall be null and void. SPAC may freely assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder.
(b) Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a party hereto or thereto or a successor or permitted assign of such a party.
(c) Governing Law; Jurisdiction; Specific Performance. Sections 11.6 and 11.7 of the Business Combination Agreement shall apply to this Agreement mutatis mutandis.
(d) Interpretation. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neutral forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(e) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by electronic means (including email), with affirmative confirmation of receipt, (iii) one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
If to SPAC or Sponsor, to:
Yorkville Advisors Global, LP
1012 Springfield Avenue
Mountainside, NJ 07092
Attn: Mark Angelo, Portfolio Manager
with a copy (which will not constitute notice) to:
DLA Piper LLP (US)
3203 Hanover Street, Suite 100
Palo Alto, CA 94304
Attn: Curtis L. Mo; Jeffrey Selman
Email:
If to Holder, to the address set forth below Holder’s name on the signature page to this Agreement.
(f) Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of SPAC and Holder; provided, however, that if any waiver of any of the Lock-Up Agreements executed in connection with the Business Combination Agreement is granted by SPAC, SPAC will provide notice to Holder, and if Holder so elects, such waiver shall be deemed granted mutatis mutandis for this Agreement. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
(g) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a court of competent jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(h) Entire Agreement. This Agreement, together with the Business Combination Agreement to the extent referred to herein, constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of SPAC or any of the rights, remedies or obligations of Holder under any other agreement between Holder and SPAC or any certificate or instrument executed by Holder in favor of SPAC, and nothing in any other agreement, certificate or instrument shall limit any of the rights, remedies or obligations of SPAC or any of the rights, remedies or obligations of Holder under this Agreement.
(i) Further Assurances. From time to time, at another party’s reasonable request and without further consideration (but at the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(j) Counterparts. This Agreement may be executed and delivered (including by electronic signature or by email in portable document form) in two 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.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
SPAC:
TRUMP MEDIA GROUP CRO STRATEGY, INC.
By:
Name:
Title:
HOLDER:
[___________]
By:
Name:
Title:
Number and Type of Restricted Securities:
Class A Common Stock:
Class B Common Stock:
Converted SPAC Warrants:
Address for Notice:
Address:
Telephone No.:
Email:
[Signature Page to Lock-Up Agreement]
Exhibit 10.5
FINAL FORM
STOCK PURCHASE AGREEMENT1
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) dated as of [_____________] is made by and between YA II PN, LTD., a Cayman Islands exempt limited company (the “Investor”), and [YORKVILLE ACQUISITION CORP.], a company incorporated under the laws of [the Cayman Islands] (the “Company”). The Investor and the Company may be referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, the Parties desire that, upon the terms and subject to the conditions contained herein, the Company shall have the right to issue and sell to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $5 billion of the Company’s [Class A common stock], par value [$0.0001] per share (the “Common Shares”);
WHEREAS, the Common Shares are listed for trading on the [Nasdaq Stock Market] under the symbol “[YORK];”
WHEREAS, the offer and sale of the Common Shares issuable hereunder will be made in reliance upon Section 4(a)(2) under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the transactions to be made hereunder; and
WHEREAS, in consideration of the Investor’s execution and delivery of this Agreement, the Company shall issue to the Investor the Commitment Shares pursuant to and in accordance with Section 11.04.
NOW, THEREFORE, the Parties hereto agree as follows:
Article I. Certain Definitions
Capitalized terms used in this Agreement meanings ascribed to such terms in Annex I hereto, and hereby made a part hereof, or as otherwise set forth in this Agreement.
1 Universal Note to Draft: Company name, ticker symbol, par value, etc. to be updated as necessary to reflect any changes following consummation of the Business Combination.
Article II. Advances
Section 2.01 Advances; Mechanics. Upon the terms and subject to the conditions of this Agreement, during the Commitment Period, the Company, at its sole discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor shall purchase from the Company, Advance Shares by the delivery to the Investor of Advance Notices on the following terms:
| (a) | Advance Notice. At any time during the Commitment Period the Company may require the Investor to purchase Shares by delivering an Advance Notice to the Investor, subject to the satisfaction or waiver by the Investor of the conditions set forth in Annex II hereto, and in accordance with the following provisions: |
| (i) | The Company shall, in its sole discretion, select the number of Advance Shares, not to exceed the Maximum Advance Amount (unless otherwise agreed to in writing by the Company and the Investor), it desires to issue and sell to the Investor in each Advance Notice and the time it desires to deliver each Advance Notice. |
| (ii) | There shall be no mandatory minimum Advances and there shall be no non-usage fee for not utilizing the Commitment Amount or any part thereof. |
| (b) | Date of Delivery of Advance Notice. Advance Notices shall be delivered in accordance with the instructions set forth on the bottom of Exhibit A attached hereto. An Advance Notice shall be deemed delivered on (i) the day it is received by the Investor if such notice is received by email at or before 9:00 a.m. New York City time (or at such later time if agreed to by the Investor in its sole discretion), or (ii) the immediately succeeding day if it is received by email after 9:00 a.m. New York City time. Upon receipt of an Advance Notice, the Investor shall promptly provide written confirmation (which may be by e-mail) of receipt of such Advance Notice, and which confirmation shall specify the commencement time of the applicable Pricing Period. |
| (c) | [Reserved]. |
| (d) | Advance Limitations, Regulatory. Regardless of the number of Advance Shares requested by the Company in an Advance Notice, the final number of Advance Shares to be issued and sold pursuant to such Advance Notice shall be reduced (if at all) in accordance with each of the following limitations: |
| (i) | Ownership Limitation; Commitment Amount. At the request of the Company, the Investor shall inform the Company of the number of Common Shares the Investor and each of its Affiliates beneficially owns. Notwithstanding anything to the contrary contained in this Agreement, the Investor shall not be obligated to purchase or acquire, and shall not purchase or acquire, any Common Shares under this Agreement which, when aggregated with all other Common Shares beneficially owned by the Investor and its Affiliates (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor and its Affiliates (on an aggregated basis) of a number of Common Shares exceeding 4.99% of the then outstanding voting power or number of Common Shares (the “Ownership Limitation”). Upon the written request of the Investor, the Company shall promptly (but no later than the next Business Day on which the transfer agent for the Common Shares is open for business) confirm orally or in writing to the Investor the number of Common Shares then outstanding. In connection with each Advance Notice delivered by the Company, any portion of an Advance that would (i) cause the Investor to exceed the Ownership Limitation or (ii) cause the aggregate number of Advance Shares issued and sold to the Investor hereunder to exceed the Commitment Amount shall automatically be withdrawn with no further action required by the Company, and such Advance Notice shall be deemed automatically modified to reduce the number of Advance Shares requested by an amount equal to such withdrawn portion; provided that in the event of any such automatic withdrawal and automatic modification, the Investor will promptly notify the Company of such event. |
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| (ii) | Registration Limitation. In no event shall an Advance exceed the number of Common Shares registered in respect of the transactions contemplated hereby under the Registration Statement then in effect (the “Registration Limitation”). In connection with each Advance Notice, any portion of an Advance that would exceed the Registration Limitation shall automatically be withdrawn with no further action required by the Company and such Advance Notice shall be deemed automatically modified to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn portion; provided that in the event of any such automatic withdrawal and automatic modification, the Investor will promptly notify the Company of such event. |
| (iii) | Compliance with Rules of Principal Market. Notwithstanding anything to the contrary herein, the Company shall not effect any sales under this Agreement and the Investor shall not have the obligation to purchase Common Shares under this Agreement to the extent (but only to the extent) that after giving effect to such purchase and sale, the aggregate number of Common Shares issued under this Agreement would exceed [_____________] Common Shares (representing 19.99% of the aggregate number of Common Shares issued and outstanding as of the Effective Date of this Agreement (subject to adjustment for any stock splits, combinations or the like)), calculated in accordance with the rules of the Principal Market, which number shall be reduced, on a share-for-share basis, by the number of Common Shares issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under the applicable rules of the Principal Market (such maximum number of shares, the “Exchange Cap”) provided that, the Exchange Cap will not apply if (a) the Company’s stockholders have approved the issuance of Common Shares pursuant to this Agreement in excess of the Exchange Cap in accordance with the rules of the Principal Market, (b) the Exchange Cap is otherwise no longer applicable to the transactions contemplated by this Agreement in accordance with the rules of the Principal Market, or (c) the Average Price of all applicable sales of Common Shares hereunder (including any sales covered by an Advance Notice that has been delivered prior to the determination of whether this clause (c) applies) equals or exceeds [$____] per share (which represents the lower of (i) the Nasdaq Official Closing Price (as reflected on Nasdaq.com) immediately preceding the Effective Date; or (ii) the average Nasdaq Official Closing Price for the five Trading Days immediately preceding the Effective Date). In connection with each Advance Notice, any portion of an Advance that would exceed the Exchange Cap shall automatically be withdrawn with no further action required by the Company and such Advance Notice shall be deemed automatically modified to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn portion in respect of each Advance Notice. |
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| (e) | Minimum Acceptable Price. |
| (i) | With respect to each Advance Notice, the Company may notify the Investor of the Minimum Acceptable Price with respect to such Advance by indicating a Minimum Acceptable Price on such Advance Notice. If no Minimum Acceptable Price is specified in an Advance Notice, then no Minimum Acceptable Price shall be in effect in connection with such Advance. Each Trading Day during a Pricing Period for which (A) with respect to each Advance Notice with a Minimum Acceptable Price, the VWAP of the Common Shares is below the Minimum Acceptable Price in effect with respect to such Advance Notice, or (B) there is no VWAP (each such day in the foregoing clauses (A) and (B), an “Excluded Day”), shall result in an automatic reduction to the number of Advance Shares set forth in such Advance Notice by one-third (1/3) (the resulting amount of each Advance being the “Adjusted Advance Amount”), and each Excluded Day shall be excluded from the Pricing Period for purposes of determining the Market Price. |
| (ii) | The total number of Advance Shares in respect of each Advance with any Excluded Day(s) (after reductions have been made to arrive at the Adjusted Advance Amount) shall be automatically increased by such number of Common Shares (the “Additional Shares”) equal to the greater of (a) the number of Common Shares sold by the Investor on such Excluded Day(s), if any, or (b) such number of Common Shares elected to be subscribed for by the Investor, and the subscription price per share for each Additional Share shall be equal to the Minimum Acceptable Price in effect with respect to such Advance Notice multiplied by 97.25%, provided that this increase shall not cause the total Advance Shares to exceed the amount set forth in the applicable Advance Notice or any limitations set forth in Section 2.01(d). |
| (f) | Unconditional Contract. Notwithstanding any other provision in this Agreement, the Company and the Investor acknowledge and agree that upon the Investor’s receipt of a valid Advance Notice from the Company the Parties shall be deemed to have entered into an unconditional contract binding on both Parties for the purchase and sale of the applicable number of Advance Shares pursuant to such Advance Notice in accordance with the terms of this Agreement and (i) subject to Applicable Laws and (ii) subject to Section 6.18, the Investor may sell Common Shares during the Pricing Period for such Advance Notice (including with respect to any Advance Shares subject to such Pricing Period). |
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Section 2.02 Closings. The closing of each Advance and each sale and purchase of Advance Shares (each, a “Closing”) shall take place as soon as practicable on or after each Advance Date in accordance with the procedures set forth below. The Parties acknowledge that the Purchase Price is not known at the time the Advance Notice is delivered (at which time the Investor is irrevocably bound) but shall be determined on each Closing based on the daily prices of the Common Shares that are the inputs to the determination of the Purchase Price as set forth further below (provided that for the purposes of determining the daily VWAP for any Trading Day, the Parties may use only a specified period within a Trading Day upon mutual consent). In connection with each Closing, the Company and the Investor shall fulfill each of its obligations as set forth below:
| (a) | On each Advance Date, the Investor shall deliver to the Company a written document, in the form attached hereto as Exhibit B (each a “Settlement Document”), setting forth the final number of Shares to be purchased by the Investor (taking into account any adjustments pursuant to Section 2.01), the Market Price, the Purchase Price, the aggregate proceeds to be paid by the Investor to the Company, and a report by Bloomberg, L.P. indicating the VWAP for each of the Trading Days during the Pricing Period (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed to by the parties), in each case in accordance with the terms and conditions of this Agreement. |
| (b) | Promptly after receipt of the Settlement Document with respect to each Advance (and, in any event, not later than one Trading Day after such receipt), the Company will, or will cause its transfer agent to, electronically transfer such number of Advance Shares to be purchased by the Investor (as set forth in the Settlement Document) by crediting the Investor’s account or its designee’s account at the Depository Trust Company through its Deposit Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto, and transmit notification to the Investor that such share transfer has been requested. Promptly upon receipt of such notification, the Investor shall pay to the Company the aggregate purchase price of the Shares (as set forth in the Settlement Document) in cash in immediately available funds to an account designated by the Company in writing and transmit notification to the Company that such funds transfer has been requested. No fractional shares shall be issued, and any fractional shares that would otherwise be issued in connection with an Advance shall be rounded to the next higher whole number of shares. To facilitate the transfer of the Common Shares by the Investor, the Common Shares will not bear any restrictive legends so long as there is an effective Registration Statement covering the resale of such Common Shares (it being understood and agreed by the Investor that notwithstanding the lack of restrictive legends, the Investor may only sell such Common Shares pursuant to the Plan of Distribution set forth in the Prospectus included in the applicable Registration Statement and otherwise in compliance with the requirements of the Securities Act (including any applicable prospectus delivery requirements) or pursuant to an available exemption). |
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| (c) | Notwithstanding Section 2.02(b), the certificate(s) or book-entry statement(s) representing the Commitment Shares, if applicable, issued prior to the date the Registration Statement is declared effective by the SEC, shall bear a restrictive legend in substantially the following form (and stop transfer instructions may be placed against transfer of such shares): |
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO AN OPINION OF COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.”
| (d) | On or prior to the Advance Date, each of the Company and the Investor shall deliver to the other all documents, instruments and writings expressly required to be delivered by either of them pursuant to this Agreement in order to implement and effect the transactions contemplated herein. |
| (e) | Notwithstanding anything to the contrary in this Agreement, if on any day during the Pricing Period (i) the Company notifies the Investor that a Material Outside Event has occurred, or (ii) the Company notifies the Investor of a Black Out Period, the parties agree that the pending Advance shall end and the final number of Advance Shares to be purchased by the Investor at the Closing for such Advance shall be equal to the number of Common Shares sold by the Investor during the applicable Pricing Period prior to the notification from the Company of a Material Outside Event or Black Out Period. |
Section 2.03 Hardship. In the event the Investor sells Common Shares after receipt of an Advance Notice and the Company fails to perform its obligations as mandated in this Agreement, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Article V hereto and in addition to any other remedy to which the Investor is entitled at law or in equity, including, without limitation, specific performance, it will hold the Investor harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and acknowledges that irreparable damage may occur in the event of any such default. It is accordingly agreed that the Investor shall be entitled to an injunction or injunctions to prevent such breaches of this Agreement and to specifically enforce (subject to Applicable Laws and the rules of the Principal Market), without the posting of a bond or other security, the terms and provisions of this Agreement.
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Section 2.04 Completion of Resale Pursuant to the Registration Statement. After the Investor has purchased the full Commitment Amount and has completed the subsequent resale of the full Commitment Amount pursuant to the Registration Statement, the Investor will notify the Company in writing (which may be by e-mail) that all subsequent resales are completed and the Company will be under no further obligation to maintain the effectiveness of the Registration Statement.
Article III. Representations and Warranties of the Investor
The Investor represents and warrants to the Company, as of the date hereof, as of each Advance Notice Date and as of each Advance Date that:
Section 3.01 Organization and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of the Cayman Islands and has the requisite corporate power and authority to enter into and perform its obligations under the Transaction Documents to which it is a party and to purchase or acquire the Shares in accordance with the terms hereof. The decision to invest and the execution and delivery of the Transaction Documents to which it is a party by the Investor, the performance by the Investor of its obligations hereunder and the consummation by the Investor of the transactions contemplated hereby have been duly authorized and require no other proceedings on the part of the Investor. The undersigned has the right, power and authority to execute and deliver the Transaction Documents to which it is a party and all other instruments on behalf of the Investor or its shareholders. This Agreement and the Transaction Documents to which it is a party have been duly executed and delivered by the Investor and, assuming the execution and delivery hereof and acceptance thereof by the Company, will constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with its terms.
Section 3.02 Evaluation of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable of evaluating the merits and risks of, and bearing the economic risks entailed by, an investment in the Common Shares of the Company and of protecting its interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment in the Company involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section 3.03 No Legal, Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to review the Transaction Documents and the transactions contemplated by the Transaction Documents with its own legal counsel and investment and tax advisors. The Investor is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of the Company’s representatives or agents for legal, tax, investment or other advice with respect to the Investor’s acquisition of Common Shares hereunder, the transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges that the Investor may lose all or a part of its investment.
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Section 3.04 Investment Purpose. The Investor is acquiring the Common Shares for its own account, for investment purposes and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the registration requirements of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree, or make any representation or warranty, to hold any of the Shares for any minimum or other specific term and reserves the right to dispose of the Shares at any time in accordance with, or pursuant to, a Registration Statement filed pursuant to this Agreement or an applicable exemption under the Securities Act. The Investor does not presently have any agreement or understanding, directly or indirectly, with any Person to sell or distribute any of the Shares. The Investor acknowledges that it will be disclosed as an “underwriter” and a “selling stockholder” in each Registration Statement and in any prospectus contained therein to the extent required by applicable law and to the extent the prospectus is related to the resale of Registrable Securities.
Section 3.05 Accredited Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of Regulation D.
Section 3.06 Information. The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to the business, finances and operations of the Company and information the Investor deemed material to making an informed investment decision. The Investor and its advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management and have received answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor or its advisors (and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the Company has not made to the Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties of the Company, its employees or any third party other than the representations and warranties of the Company contained in this Agreement. The Investor understands that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice, as it has considered necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section 3.07 No Prior Short Sales. The Investor has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with the Investor, engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) involving the Company's securities) during the period commencing as of the time that the Investor first contacted the Company or the Company's agents regarding the specific investment in the Company contemplated by this Agreement and ending immediately prior to the execution of this Agreement by the Investor.
Section 3.08 General Solicitation. Neither the Investor, nor any of its affiliates, nor any person acting on its or their behalf, has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Common Shares by the Investor.
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Article IV. Representations and Warranties of the Company
Except as set forth in the SEC Documents, the Company represents and warrants to the Investor that, as of the date hereof, each Advance Notice Date and each Advance Date (other than representations and warranties which address matters only as of a certain date, which shall be true and correct as written as of such certain date):
Section 4.01 Organization and Qualification. The Company and each of its Subsidiaries are entities duly organized and validly existing and in good standing under the laws of their respective jurisdiction of organization, and has the requisite power and authority to own its properties and to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly qualified to do business and is in good standing (to the extent applicable) in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing has not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.02 Authorization, Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and the other Transaction Documents to which it is a party and to issue the Shares in accordance with the terms hereof and thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents to which it is a party, and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Shares) have been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further consent or authorization will be required by the Company, its board of directors or its shareholders. This Agreement and the other Transaction Documents to which the Company is a party have been (or, when executed and delivered, will be) duly executed and delivered by the Company and, assuming the execution and delivery thereof and acceptance by the Investor, constitute (or, when duly executed and delivered, will be) the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law.
Section 4.03 Authorization of the Shares. The Shares to be issued under this Agreement have been, or with respect to Shares to be purchased by the Investor pursuant to an Advance Notice, will be, when issued and delivered pursuant to the terms approved by the board of directors of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein, duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Shares, when issued, will conform to the description thereof set forth in or incorporated into the Prospectus.
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Section 4.04 No Conflict. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares) will not (i) result in a violation of the articles of incorporation or other organizational documents of the Company or its Subsidiaries (with respect to consummation, as the same may be amended prior to the date on which any of the transactions contemplated hereby are consummated), (ii) conflict with, or constitute a default (or an event which 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, any agreement, indenture or instrument to which the Company or its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or its Subsidiaries or by which any property or asset of the Company or its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations have not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.05 SEC Documents; Financial Statements. Since the Company has been subject to the requirements of Section 12 of the Exchange Act, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the Exchange Act, including, without limitation, the Current Report, each Registration Statement, as the same may be amended from time to time, the Prospectus contained therein and each Prospectus Supplement thereto, and all information contained in such filings and all documents and disclosures that have been or may in the future be incorporated by reference therein (all such documents hereinafter referred to as the “SEC Documents”) and all such filings required to be filed within the last 12 months (or since the Company has been subject to the requirements of Section 12 of the Exchange Act, if shorter) have been made on a timely basis (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act). The Company has delivered or made available to the Investor through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents, as applicable. Except as disclosed in amendments or subsequent filings to the SEC Documents, as of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such amended or superseded filing), each of the SEC Documents complied in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and did not contain any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Section 4.06 Financial Statements. The consolidated financial statements of the Company included or incorporated by reference in the SEC Documents, together with the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis (except for (i) such adjustments to accounting standards and practices as are noted therein, (ii) in the case of unaudited interim financial statements, to the extent such financial statements may not include footnotes required by GAAP or may be condensed or summary statements and (iii) such adjustments which are not material, either individually or in the aggregate) during the periods involved; the other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the SEC Documents are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the SEC Documents that are not included or incorporated by reference as required; the Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in the SEC Documents (excluding the exhibits thereto); and all disclosures contained or incorporated by reference in the SEC Documents regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the SEC) comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the SEC Documents fairly presents the information called for in all material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable thereto.
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Section 4.07 Registration Statement and Prospectus. Each Registration Statement and the offer and sale of Shares as contemplated hereby, if and when filed, will meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents that are required to be described in a Registration Statement or a Prospectus, or any amendment or supplement thereto, or to be filed as exhibits to a Registration Statement have been so described or filed. Copies of each Registration Statement, any Prospectus, and any such amendments or supplements thereto and all documents incorporated by reference therein that were filed with the SEC on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Investor and its counsel. The Company has not distributed and, prior to the later to occur of each Advance Date and completion of the distribution of the Shares, will not distribute any offering material in connection with the offering or sale of the Shares other than a Registration Statement, the Prospectus contained therein, and each other prospectus supplement, in each case as reviewed and consented to by the Investor.
Section 4.08 No Misstatement or Omission. Each Registration Statement, when it became or becomes effective, and any Prospectus, on the date of such Prospectus or any amendment or supplement thereto, conformed and will conform in all material respects with the requirements of the Securities Act. At each Advance Notice Date and applicable Advance Date, the Registration Statement, and the Prospectus, as of such date, will conform in all material respects with the requirements of the Securities Act. Each Registration Statement, when it became or becomes effective, did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Each Prospectus did not, or will not, include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The documents incorporated by reference in a Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated by reference therein will not, when filed with the SEC, contain an untrue statement of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by the Investor specifically for use in the preparation thereof.
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Section 4.09 Conformity with Securities Act and Exchange Act. Each Registration Statement, each Prospectus, or any amendment or supplement thereto, and the documents incorporated by reference in each Registration Statement, Prospectus or any amendment or supplement thereto, when such documents were or are filed with the SEC under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
Section 4.10 Equity Capitalization.
| (a) | As of the date hereof, the authorized capital of the Company consists of [_______________] shares of capital stock, of which [____________] shares are designated common stock, par value $0.0001 per share, and [___________] shares are undesignated preferred stock. As of the date hereof, the Company had [__________] shares of common stock outstanding and no shares of preferred stock outstanding. |
| (b) | The Common Shares are registered pursuant to Section 12(b) of the Exchange Act and are currently listed on a Principal Market under the trading symbol “[YORK].” The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Shares under the Exchange Act, delisting the Common Shares from the Principal Market, nor has the Company received any notification that the Commission or the Principal Market is contemplating terminating such registration or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements of the Principal Market. |
Section 4.11 Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted, except as has not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement by the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, or trade secrets, except as has not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other infringement; and, except as has not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect, the Company is not aware of any facts or circumstances which might give rise to any of the foregoing.
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Section 4.12 Employee Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge of the Company or any of its Subsidiaries, has any such dispute threatened, in each case which is reasonably likely to cause a Material Adverse Effect.
Section 4.13 Environmental Laws. The Company and its Subsidiaries (i) have not received written notice alleging any failure to comply in all material respects with all Environmental Laws (as defined below), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received written notice alleging any failure to comply with all terms and conditions of any such permit, license or approval, except, in each of the foregoing clauses (i), (ii) and (iii), as has not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all applicable federal, state and local laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
Section 4.14 Title. Except as has not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect, the Company (or its Subsidiaries) has indefeasible fee simple or leasehold title to its properties and material assets owned by it, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest other than such as are not material to the business of the Company. Any real property and facilities held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.
Section 4.15 Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. The Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.16 Regulatory Permits. Except as has not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect, the Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to own their respective businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating to the revocation or modification of any such certificate, authorization or permits.
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Section 4.17 Internal Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles 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, and management is not aware of any material weaknesses that are not disclosed in the SEC Documents as and when required.
Section 4.18 Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending against or affecting the Company, the Common Shares or any of the Company’s Subsidiaries, wherein an unfavorable decision, ruling or finding would have or be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.19 Subsidiaries. The Company does not presently own or control, directly or indirectly, any interest in any other corporation, partnership, association or other business entity.
Section 4.20 Tax Status. Each of the Company and its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. The Company has not received written notification of any unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any such claim where the failure to pay would have or would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.21 Certain Transactions. Except as not required to be disclosed pursuant to Applicable Laws, none of the officers or directors of the Company is presently a party to any transaction with the Company (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer or director, or to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer or director has a substantial interest or is an officer, director, trustee or partner.
Section 4.22 Rights of First Refusal. The Company is not obligated to offer the Common Shares offered hereunder on a right of first refusal basis or otherwise to any third parties including, but not limited to, current or former shareholders of the Company, underwriters, brokers, agents or other third parties.
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Section 4.23 Dilution. The Company is aware and acknowledges that issuance of Common Shares hereunder could cause dilution to existing shareholders and could significantly increase the outstanding number of Common Shares.
Section 4.24 Acknowledgment Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor is acting solely in the capacity of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereunder and any advice given by the Investor or any of its representatives or agents in connection with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s purchase of the Shares hereunder. The Company is aware and acknowledges that it shall not be able to request Advances under this Agreement if a Registration Statement is not effective or if any issuances of Common Shares pursuant to any Advances would violate any rules of the Principal Market. The Company acknowledges and agrees that it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement.
Section 4.25 Finder’s Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions or similar payments in connection with the transactions herein contemplated.
Section 4.26 Relationship of the Parties. Neither the Company, nor any of its Subsidiaries, affiliates, nor any person acting on its or their behalf is a client or customer of the Investor or any of its affiliates and neither the Investor nor any of its affiliates has provided, or will provide, any services to the Company or any of its affiliates, its subsidiaries, or any person acting on its or their behalf. The Investor’s relationship to Company is solely as investor as provided for in the Transaction Documents.
Section 4.27 Operations. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with Applicable Law and neither the Company nor the Subsidiaries, nor any director, officer, or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has, not complied with Applicable Law; and no action, suit or proceeding by or before any governmental authority involving the Company or any of its Subsidiaries with respect to Applicable Laws is pending or, to the knowledge of the Company, threatened.
Section 4.28 Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement or a Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
Section 4.29 Compliance with Laws. The Company and each of its Subsidiaries are in compliance with Applicable Law; the Company has not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that any director, officer, or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, Affiliate or other person acting on behalf of the Company or any Subsidiary has, has not complied with Applicable Laws, or could give rise to a notice of non-compliance with Applicable Laws, and is not aware of any pending change or contemplated change to any applicable law or regulation or governmental position; in each case that would have or would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
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Section 4.30 Sanctions Matters. Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer or controlled Affiliate of the Company or any director or officer of any Subsidiary, is a Person that is, or is owned or controlled by a Person that is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Asset Control (“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions of Ukraine, the Donetsk People’s Republic and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned Countries”)). Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the sale of Advance Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (a) for the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result in a violation of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions contemplated by this Agreement, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of its Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country. Neither the Company nor any of its Subsidiaries nor any director, officer or controlled Affiliate of the Company or any of its Subsidiaries, has ever had funds blocked by a United States bank or financial institution, temporarily or otherwise, as a result of OFAC concerns.
Section 4.31 General Solicitation. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Common Shares.
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Article V. Indemnification
The Investor and the Company represent to the other the following with respect to itself:
Section 5.01 Indemnification by the Company. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Shares hereunder, and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless the Investor, its investment manager, Yorkville Advisors Global, LP, and their respective Affiliates, and each of the foregoing’s respective officers, directors, managers, members, partners, employees and agents (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) and each person who controls any of the foregoing within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Investor Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable and documented expenses in connection therewith (irrespective of whether any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable and attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by the Investor Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor specifically for inclusion therein; (b) any material misrepresentation or breach of any material representation or material warranty made by the Company in this Agreement or any other certificate, instrument or document contemplated hereby or thereby; or (c) any material breach of any material covenant, material agreement or material obligation of the Company contained in this Agreement or any other certificate, instrument or document contemplated hereby or thereby. To the extent that the foregoing undertaking by the Company may be unenforceable under Applicable Law, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under Applicable Law.
Section 5.02 Indemnification by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in addition to all of the Investor’s other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold harmless the Company and all of its officers, directors, shareholders, employees and agents (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) and each person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”) from and against any and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Investor will only be liable for written information relating to the Investor furnished to the Company by or on behalf of the Investor specifically for inclusion in the documents referred to in the foregoing indemnity, and will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Investor by or on behalf of the Company specifically for inclusion therein; (b) any misrepresentation or breach of any representation or warranty made by the Investor in this Agreement or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any breach of any covenant, agreement or obligation of the Investor contained in this Agreement or any other certificate, instrument or document contemplated hereby or thereby executed by the Investor. To the extent that the foregoing undertaking by the Investor may be unenforceable under Applicable Laws, the Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under Applicable Laws.
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Section 5.03 Notice of Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee or Company Indemnitee, as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying party under this Article V, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify the indemnifying party will not relieve it of liability under this Article V except to the extent the indemnifying party is prejudiced by such failure. The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably satisfactory to the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party fees and expenses of not more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee or Company Indemnitee and the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor Indemnitee or Company Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company Indemnitee shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee or Company Indemnitee which relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee reasonably apprised as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Investor Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The indemnification required by this Article V shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received and payment therefor is due.
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Section 5.04 Remedies. The remedies provided for in this Article V are not exclusive and shall not limit any right or remedy which may be available to any indemnified person at law or equity. The obligations of the parties to indemnify or make contribution under this Article V shall survive expiration or termination of this Agreement.
Section 5.05 Limitation of liability. Notwithstanding the foregoing, no Party shall seek, nor shall any be entitled to recover from the other Party be liable for, punitive or exemplary damages.
Article VI.
Covenants
The Company covenants with the Investor, and the Investor covenants with the Company, as follows, which covenants of one party are for the benefit of the other party, during the Commitment Period:
Section 6.01 Registration Statement.
| (a) | Filing of a Registration Statement. The Company shall prepare and file with the SEC a Registration Statement, or multiple Registration Statements for the resale by the Investor of the Registrable Securities. The Company in its sole discretion may choose when to file such Registration Statements; provided, however, that the Company shall not have the ability to request any Advances until the effectiveness of a Registration Statement. |
| (b) | Maintaining a Registration Statement. The Company shall use commercially reasonable efforts to maintain the effectiveness of any Registration Statement that has been declared effective at all times during the Commitment Period, provided, however, that if the Company has received notification pursuant to Section 2.04 that the Investor has completed resales of Advance Shares pursuant to the Registration Statement for the full Commitment Amount, then the Company shall be under no further obligation to maintain the effectiveness of the Registration Statement. Notwithstanding anything to the contrary contained in this Agreement, the Company shall ensure that, when filed, each Registration Statement (including, without limitation, all amendments and supplements thereto) and the prospectus (including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading. During the Commitment Period, the Company shall notify the Investor promptly if (i) the Registration Statement shall cease to be effective under the Securities Act, (ii) the Common Shares shall cease to be authorized for listing on the Principal Market, (iii) the Common Shares cease to be registered under Section 12(b) or Section 12(g) of the Exchange Act or (iv) the Company fails to file in a timely manner all reports and other documents required of it as a reporting company under the Exchange Act. |
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| (c) | Filing Procedures. The Company shall (A) permit counsel to the Investor an opportunity to review and comment upon (i) each Registration Statement at least three (3) Trading Days prior to its filing with the SEC and (ii) all amendments and supplements to each Registration Statement (including, without limitation, the Prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports or Prospectus Supplements the contents of which is limited to that set forth in such reports) within a reasonable number of days prior to their filing with the SEC, and (B) shall reasonably consider any comments of the Investor and its counsel on any such Registration Statement or amendment or supplement thereto or to any Prospectus contained therein. The Company shall promptly furnish to the Investor, without charge, (i) electronic copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to each Registration Statement (which correspondence shall be redacted to exclude any material, non-public information regarding the Company or any of its Subsidiaries), (ii) after the same is prepared and filed with the SEC, one (1) electronic copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by the Investor, and all exhibits and (iii) upon the effectiveness of each Registration Statement, one (1) electronic copy of the Prospectus included in such Registration Statement and all amendments and supplements thereto; provided, however, the Company shall not be required to furnish any document to the extent such document is available on EDGAR). |
| (d) | Amendments and Other Filings. The Company shall use commercially reasonable efforts to (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the related prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Commitment Period, and prepare and file with the SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related prospectus to be amended or supplemented by any required prospectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 promulgated under the Securities Act; (iii) provide the Investor copies of all correspondence from and to the SEC relating to a Registration Statement (provided that the Company may excise any information contained therein which would constitute material non-public information, and (iv) comply with the provisions of the Securities Act with respect to the Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 6.01(d) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Exchange Act, the Company shall file such report in a prospectus supplement filed pursuant to Rule 424 promulgated under the Securities Act to incorporate such filing into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC either on the day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement, if feasible, or otherwise promptly thereafter. |
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| (e) | Blue-Sky. The Company shall use its commercially reasonable efforts to, if required by Applicable Laws, (i) register and qualify the Common Shares covered by a Registration Statement under such other securities or “blue sky” laws of such jurisdictions in the United States as the Investor reasonably requests, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Commitment Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Commitment Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Common Shares for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (w) make any change to its Certificate of Incorporation or Bylaws or any other organizational documents of the Company or any of its Subsidiaries, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 6.01(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify the Investor of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Common Shares for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threat of any proceeding for such purpose. |
Section 6.02 Suspension of Registration Statement.
| (a) | Establishment of a Black Out Period. During the Commitment Period, the Company from time to time may suspend the use of the Registration Statement by written notice to the Investor in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interest of the Company, provided at least two Trading Days have elapsed since the last Advance Date, or (B) amend or supplement the Registration Statement or Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (a “Black Out Period”). |
| (b) | No Sales by Investor During the Black Out Period. During such Black Out Period, the Investor agrees not to sell any Common Shares of the Company pursuant to such Registration Statement, but may sell shares pursuant to an exemption from registration, if available, subject to the Investor’s compliance with Applicable Laws. |
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| (c) | Limitations on the Black Out Period. The Company shall not impose any Black Out Period that is longer than 20 days or in a manner that is more restrictive (including, without limitation, as to duration) than the comparable restrictions that the Company may impose on transfers of the Company’s equity securities by its directors and senior executive officers. In addition, the Company shall not deliver any Advance Notice during any Black Out Period. If the public announcement of such material, nonpublic information is made during a Black Out Period, the Black Out Period shall terminate immediately after such announcement, and the Company shall immediately notify the Investor of the termination of the Black Out Period. |
Section 6.03 Listing of Common Shares. As of each Advance Notice Date and the relevant Advance Date, the Shares to be sold by the Company from time to time hereunder will have been registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject to official notice of issuance.
Section 6.04 Opinion of Counsel. Prior to the date of the delivery by the Company of the first Advance Notice, the Investor shall have received an opinion letter from counsel to the Company in form and substance reasonably satisfactory to the Investor.
Section 6.05 Exchange Act Registration. During the Commitment Period, the Company will file in a timely manner all reports and other documents required of it as a reporting company under the Exchange Act and will not take any action or file any document (whether or not permitted by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange Act.
Section 6.06 Transfer Agent Instructions. During the Commitment Period (or such shorter time as permitted by Section 2.04 of this Agreement) and subject to Applicable Laws, the Company shall cause (including, if necessary, by causing legal counsel for the Company to deliver an opinion) the transfer agent for the Common Shares to remove restrictive legends from Common Shares purchased by the Investor pursuant to this Agreement, provided that counsel for the Company shall have been furnished with such documents as they may require for the purpose of enabling them to render the opinions or make the statements requested by the transfer agent, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the covenants, obligations or conditions, contained herein.
Section 6.07 Corporate Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence of the Company during the Commitment Period.
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Section 6.08 Notice of Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly notify the Investor, and confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of a Registration Statement or related Prospectus (in each of which cases the information provided to the Investor will be kept confidential): (i) except for requests made in connection with SEC investigations disclosed in the SEC Documents, receipt of any request for additional information by the SEC or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement the response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the SEC or any other Federal governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Common Shares for sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose; (iv) the happening of any event that makes any statement made in the Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related Prospectus or documents so that, in the case of the Registration Statement, it will not 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, and that in the case of the related Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or of the necessity to amend the Registration Statement or supplement a related Prospectus to comply with the Securities Act or any other law (and the Company will promptly make available to the Investor any such supplement or amendment to the related Prospectus; provided, however, the Company shall not be required to furnish any document to the extent such document is available on EDGAR); (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be required under Applicable Law; (vi) the Common Shares shall cease to be authorized for listing on the Principal Market; or (vii) the Company fails to file in a timely manner all reports and other documents required of it as a reporting company under the Exchange Act. The Company shall not deliver to the Investor any Advance Notice, and the Company shall not sell any Shares pursuant to any pending Advance Notice (other than as required pursuant to Section 2.02(d)), during the continuation of any of the foregoing events (each of the events described in the immediately preceding clauses (i) through (vii), inclusive, a “Material Outside Event”).
Section 6.09 Consolidation. If an Advance Notice has been delivered to the Investor, then the Company shall not effect any consolidation of the Company with or into, or a transfer of all or substantially all the assets of the Company to another entity before the transaction contemplated in such Advance Notice has been closed in accordance with Section 2.02 hereof, and all Shares in connection with such Advance have been received by the Investor.
Section 6.10 Issuance of the Company’s Common Shares. The issuance and sale of the Common Shares hereunder shall be made in accordance with the provisions and requirements of Section 4(a)(2) of the Securities Act and any applicable state securities law.
Section 6.11 Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses incident to the performance of its obligations hereunder, including but not limited to (i) the preparation, printing and filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto; (ii) the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all fees and disbursements of the Company’s counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and disbursements of the Investor’s counsel, accountants and other advisors), (iv) the qualification of the Shares under securities laws in accordance with the provisions of this Agreement, including filing fees in connection therewith, (v) the printing and delivery of copies of any Prospectus and any amendments or supplements thereto requested by the Investor, (vi) the fees and expenses incurred in connection with the listing or qualification of the Shares for trading on the Principal Market, and (vii) filing fees of the SEC and the Principal Market.
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Section 6.12 Current Report. The Company shall, not later than 5:30 p.m., New York City time, on the fourth Business Day after the date of this Agreement, file with the SEC a current report on Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by the Exchange Act and attaching all the material Transaction Documents (including any exhibits thereto, the “Current Report”). The Company shall provide the Investor and its legal counsel a reasonable opportunity to comment on a draft of the Current Report, including any exhibits to be filed related thereto, as applicable, prior to filing the Current Report with the SEC and shall reasonably consider all such comments. Notwithstanding anything contained in this Agreement to the contrary, the Company expressly agrees that from and after the filing of the Current Report with the SEC, the Company shall have publicly disclosed all material, non-public information provided to the Investor (or the Investor’s representatives or agents) by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, agents or representatives (if any) in connection with the transactions contemplated by the Transaction Documents. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide the Investor with any material, non-public information regarding the Company or any of its Subsidiaries without the express prior written consent of the Investor (which may be granted or withheld in the Investor’s sole discretion. Notwithstanding anything contained in this Agreement to the contrary, the Company expressly agrees that it shall publicly disclose in the Current Report or otherwise make publicly available any information communicated to the Investor by or, to the knowledge of the Company, on behalf of the Company in connection with the transactions contemplated by the Transaction Documents, which, following the Effective Date would, if not so disclosed, constitute material, non-public information regarding the Company or its Subsidiaries. The Company understands and confirms that the Investor will rely on the foregoing representations in effecting resales of Shares. In addition, effective upon the filing of the Current Report, the Company acknowledges and agrees that any and all confidentiality or similar obligations with respect to the transactions contemplated by the Transaction Documents under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, Affiliates, employees or agents, on the one hand, and the Investor or any of its respective officers, directors, Affiliates, employees or agents, on the other hand, shall terminate.
Section 6.13 Advance Notice Limitation. The Company shall not deliver an Advance Notice if a shareholder meeting or corporate action, or the record date for any shareholder meeting or any corporate action, would fall during the period beginning two Trading Days prior to the date of delivery of such Advance Notice and ending two Trading Days following the Closing of such Advance.
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Section 6.14 Use of Proceeds. The proceeds from the sale of the Shares by the Company to the Investor shall be used by the Company in the manner as will be set forth in the Prospectus included in any Registration Statement (and any post-effective amendment thereto) and any Prospectus Supplement thereto filed pursuant to this Agreement. Neither the Company nor any Subsidiary will, directly or indirectly, use the proceeds of the transactions contemplated herein, or lend, contribute, facilitate or otherwise make available such proceeds to any Person (i) to fund, either directly or indirectly, any activities or business of or with any Person that is identified on the list of Specially Designated Nationals and Blocker Persons maintained by OFAC, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions or Sanctions Programs, or (ii) in any other manner that will result in a violation of Sanctions or Applicable Laws.
Section 6.15 Compliance with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section 6.16 Market Activities. Neither the Company, nor any Subsidiary, nor any of their respective officers, directors or controlling persons will, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of Common Shares or (ii) sell, bid for, or purchase Common Shares in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Shares.
Section 6.17 Trading Information. The Investor agrees to provide the Company with weekly trading reports setting forth the number and average sales prices of Common Shares sold by the Investor during the prior trading week.
Section 6.18 Selling Restrictions. Except as expressly set forth below, the Investor covenants that from and after the date hereof through and including the Trading Day next following the expiration or termination of this Agreement as provided in Section 9.01 (the “Restricted Period”), none of the Investor, any of its officers, or any entity managed or controlled by the Investor (collectively, the “Restricted Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall engage in any “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Shares, either for its own principal account or for the principal account of any other Restricted Person, solely to the extent such “short sale” establishes a net short position in the Common Shares. Notwithstanding the foregoing, it is expressly understood and agreed that nothing contained herein shall (without implication that the contrary would otherwise be true) prohibit any Restricted Person during the Restricted Period from: (1) selling “long” (as defined under Rule 200 promulgated under Regulation SHO) any Common Shares; or (2) selling a number of Common Shares equal to the number of Advance Shares that such Restricted Person is unconditionally obligated to purchase under a pending Advance Notice but has not yet received from the Company or the transfer agent pursuant to this Agreement.
Section 6.19 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. No Party shall have any power or any right to assign or transfer, in whole or in part, this Agreement, or any of its rights or any of its obligations hereunder, including, without limitation, any right to pursue any claim for damages pursuant to this Agreement or the transactions contemplated herein, or to pursue any claim for any breach or default of this Agreement, or any right arising from the purported assignor’s due performance of its obligations hereunder, without the prior written consent of the other Party and any such purported assignment in contravention of the provisions herein shall be null and void and of no force or effect. Without the consent of the Investor, the Company shall not have the right to assign or transfer any of its rights or provide any third party the right to bind or obligate the Company, to deliver Advance Notices or effect Advances hereunder.
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Section 6.20 Non-Public Information. The Company covenants and agrees that, other than as expressly required by Section 6.08 hereof, it shall refrain from disclosing, and shall cause its officers, directors, employees and agents to refrain from disclosing, any material non-public information (as determined under the Securities Act, the Exchange Act, or the rules and regulations of the SEC) to the Investor without also disseminating such information to the public, unless prior to disclosure of such information the Company identifies such information as being material non-public information and the Investor agrees in writing to accept such material non-public information for review. Unless specifically agreed to in writing, in no event shall the Investor have a duty of confidentiality or be deemed to have agreed to maintain information in confidence, with respect to the delivery of any Advance Notices.
Section 6.21 No Frustration. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the Company to perform its obligations under the Transaction Documents to which it is a party, including, without limitation, the obligation of the Company to deliver the Shares to the Investor in respect of an Advance Notice.
Article VII.
Non Exclusive Agreement
Notwithstanding anything contained herein, this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any time throughout the term of this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities and/or convertible notes, bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted into or replaced by Common Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures, and/or grant any rights with respect to its existing and/or future share capital.
Article VIII.
Choice of Law/Jurisdiction; Waiver of Jury Trial
Section 8.01 This Agreement, and any and all claims, proceedings or causes of action relating to this Agreement or arising from this Agreement or the transactions contemplated herein, including, without limitation, tort claims, statutory claims and contract claims, shall be interpreted, construed, governed and enforced under and solely in accordance with the substantive and procedural laws of the State of Florida, in each case as in effect from time to time and as the same may be amended from time to time, and as applied to agreements performed wholly within the State of Florida. The Parties further agree that any action between them shall be heard in Sarasota County, Florida, and expressly consent to the jurisdiction and venue of the 12th Judicial Circuit Court, sitting in Sarasota, Florida, and the United States District Court of the Middle District of Florida, Tampa Division, for the adjudication of any civil action asserted pursuant to this Agreement.
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Section 8.02 EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (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 PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
Article IX. Termination
Section 9.01 Termination.
| (a) | Unless earlier terminated as provided hereunder, this Agreement shall terminate automatically on the earliest of (i) the 36-month anniversary of the Effective Date or (ii) the date on which the Investor shall have made payment of Advances pursuant to this Agreement for Common Shares equal to the Commitment Amount. |
| (b) | The Company may terminate this Agreement effective upon five Trading Days’ prior written notice to the Investor; provided that (i) there are no outstanding Advance Notices, the Common Shares under which have yet to be issued, and (ii) the Company has paid all amounts owed to the Investor pursuant to this Agreement. This Agreement may be terminated at any time by the mutual written consent of the parties, effective as of the date of such mutual written consent unless otherwise provided in such written consent. |
| (c) | Nothing in this Section 9.01 shall be deemed to release the Company or the Investor from any liability for any breach under this Agreement prior to the valid termination hereof, or to impair the rights of the Company and the Investor to compel specific performance by the other party of its obligations under this Agreement prior to the valid termination hereof. The indemnification provisions contained in Article V shall survive termination hereunder. |
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Article X. Notices
Other than with respect to Advance Notices, which must be in writing delivered in accordance with Section 2.01(b) and will be deemed delivered on the day set forth in Section 2.01(b), any notices, consents, waivers, or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered (i) upon receipt, when delivered personally, (ii) upon receipt, when sent by e-mail if sent on a Trading Day, or, if not sent on a Trading Day, on the immediately following Trading Day, (iii) 5 days after being sent by U.S. certified mail, return receipt requested, or (iv) 1 day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses for such communications (except for Advance Notices which shall be delivered in accordance with Exhibit A hereof) shall be:
| If to the Company, to: | [Yorkville Acquisition Corp.]
|
|
With copies (which shall not constitute notice or delivery of process) to: |
[Company Counsel] [Address] [Address] Attn: [ ] E-mail: [ ]
|
| If to the Investor: |
YA II PN, Ltd.
|
|
With a copy (which shall not constitute notice or delivery of process) to: |
Robert Harrison, Esq. |
or at such other address and/or e-mail and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three Business Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver or other communication, (ii) electronically generated by the sender’s email service provider containing the time, date, recipient email address or (iii) provided by a nationally recognized overnight delivery service shall be rebuttable evidence of personal service in accordance with clause (i), (ii) or (iii) above, respectively.
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Article XI. Miscellaneous
Section 11.01 Counterparts. This Agreement may be executed in identical counterparts, both which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. Facsimile or other electronically scanned and delivered signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), including by e-mail attachment, shall be deemed to have been duly and validly delivered and be valid and effective for all purposes of this Agreement.
Section 11.02 Entire Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their respective Affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement contains the entire understanding of the parties with respect to the matters covered herein and, except as specifically set forth herein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by agreement of the parties to this Agreement. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon strict compliance by any other party hereto with its obligations hereunder, shall not constitute a waiver by such party of its right to exercise any such right, power or remedy or any other right, power or remedy or to demand strict compliance with such obligations hereunder. No custom or practice of the parties at variance with the terms hereof shall constitute a waiver by any party of its right to exercise any right, power or remedy available to it hereunder or any other right, power or remedy or to demand strict compliance with the terms of this Agreement.
Section 11.03 Reporting Entity for the Common Shares. The reporting entity relied upon for the determination of the trading price or trading volume of the Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto. The written mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
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Section 11.04 Commitment and Structuring Fee. Each of the parties shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or others engaged by such party) in connection with this Agreement and the transactions contemplated hereby, except that the Company shall pay a commitment fee to the Investor (i) in an amount equal to $2,500,000 by the issuance to the Investor on the Effective Date of 250,000 Common Shares, (ii) at such time that the Company has sold an aggregate of $1 billion of Common Shares to the Investor under this Agreement (the “First Trigger Event”), in an amount equal to an additional $2,500,000 by the issuance to the Investor of a number of Common Shares equal to $2,500,000 divided by the average daily VWAP of the Common Shares during the three Trading Days immediately preceding the First Trigger Event, (iii) at such time that the Company has sold an aggregate of $2 billion of Common Shares to the Investor under this Agreement (the “Second Trigger Event”), in an amount equal to an additional $2,500,000 by the issuance to the Investor of a number of Common Shares equal to $2,500,000 divided by the average daily VWAP of the Common Shares during the three Trading Days immediately preceding the Second Trigger Event, (iv) at such time that the Company has sold an aggregate of $3 billion of Common Shares to the Investor under this Agreement (the “Third Trigger Event”), in an amount equal to an additional $2,500,000 by the issuance to the Investor of a number of Common Shares equal to $2,500,000 divided by the average daily VWAP of the Common Shares during the three Trading Days immediately preceding the Third Trigger Event and (v) at such time that the Company has sold an aggregate of $4 billion of Common Shares to the Investor under this Agreement (the “Fourth Trigger Event,” and each of the First Trigger Event, the Second Trigger Event, the Third Trigger Event and the Fourth Trigger Event, a “Trigger Event”), in an amount equal to an additional $2,500,000 by the issuance to the Investor of a number of Common Shares equal to $2,500,000 divided by the average daily VWAP of the Common Shares during the three Trading Days immediately preceding the Fourth Trigger Event (collectively, the “Commitment Shares”); provided that, with respect to the commitment fees specified in (ii) to (v), the Company may, in its sole discretion, elect to pay such amounts in cash. The Commitment Shares issued and issuable hereunder shall be included on the initial Registration Statement. The Commitment Shares to be issued following the First Trigger Event, the Second Trigger Event, the Third Trigger Event and the Fourth Trigger Event shall be issued within two Trading Days of the applicable Trigger Event.
Section 11.05 Brokerage. Each of the parties hereto represents that it has had no dealings in connection with this transaction with any finder or broker who will demand payment of any fee or commission from the other party. The Company on the one hand, and the Investor, on the other hand, agree to indemnify the other against and hold the other harmless from any and all liabilities to any person claiming brokerage commissions or finder’s fees on account of services purported to have been rendered on behalf of the indemnifying party in connection with this Agreement or the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above.
| COMPANY: | ||
| [YORKVILLE ACQUISITION CORP.] | ||
| By: | ||
| Name: | ||
| Title: | ||
| INVESTOR: | ||
| YA II PN, Ltd. | ||
| By: | Yorkville Advisors Global, LP | |
| Its: | Investment Manager | |
| By: | Yorkville Advisors Global II, LLC | |
| Its: | General Partner | |
| By: | ||
| Name: | Matthew Beckman | |
| Title: | Manager | |
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ANNEX I TO THE
STOCK PURCHASE AGREEMENT
DEFINITIONS
“Additional Shares” shall have the meaning set forth in Section 2.01(e)(ii).
“Adjusted Advance Amount” shall have the meaning set forth in Section 2.01(e)(i).
“Advance” shall mean any issuance and sale of Advance Shares by the Company to the Investor pursuant to this Agreement.
“Advance Date” shall mean the first Trading Day after expiration of the applicable Pricing Period for each Advance.
“Advance Notice” shall mean a written notice in the form of Exhibit A attached hereto to the Investor executed by an officer of the Company and setting forth the number of Advance Shares that the Company desires to issue and sell to the Investor.
“Advance Notice Date” shall mean each date the Company is deemed to have delivered (in accordance with Section 2.01(b) of this Agreement) an Advance Notice to the Investor, subject to the terms of this Agreement.
“Advance Shares” shall mean the Common Shares that the Company shall issue and sell to the Investor pursuant to an Advance Notice delivered in accordance with the terms of this Agreement.
“Affiliate” shall have the meaning set forth in Rule 405 promulgated under the Securities Act.
“Agreement” shall have the meaning set forth in the preamble of this Agreement.
“Applicable Laws” shall mean all applicable laws, statutes, rules, regulations, orders, decrees, rulings, injunctions, executive orders, directives, policies, guidelines and codes having the force of law, whether local, national, or international, as amended from time to time, including without limitation (i) all applicable laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable laws that relate to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign Corrupt Practices Act of 1977, and (iii) any Sanctions laws.
“Average Price” shall mean a price per Share equal to the quotient obtained by dividing (i) the aggregate gross purchase price paid by the Investor for all Shares purchased pursuant to this Agreement, by (ii) the aggregate number of Shares issued pursuant to this Agreement.
“Black Out Period” shall have the meaning set forth in Section 6.02(a).
“Business Day” shall mean any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by Applicable Law to close.
“Closing” shall have the meaning set forth in Section 2.02.
“Commitment Amount” shall mean $1,000,000,000 of Common Shares.
“Commitment Period” shall mean the period commencing on the Effective Date and expiring upon the date of termination of this Agreement in accordance with Section 9.01.
“Commitment Shares” shall have the meaning set forth in Section 11.04.
“Common Shares” shall have the meaning set forth in the recitals of this Agreement.
“Company” shall have the meaning set forth in the preamble of this Agreement.
“Company Indemnitees” shall have the meaning set forth in Section 5.02.
“Condition Satisfaction Date” shall have the meaning set forth in Annex II.
“Current Report” shall have the meaning set forth in Section 6.12.
“Daily Traded Amount” shall mean the daily trading volume of the Common Shares on the Principal Market during regular trading hours as reported by Bloomberg L.P.
“Effective Date” shall mean the date hereof.
“Environmental Laws” shall have the meaning set forth in Section 4.13.
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap” shall have the meaning set forth in Section 2.01(d)(iii).
“Excluded Day” shall have the meaning set forth in Section 2.01(e)(i).
“First Trigger Event” shall have the meaning set forth in Section 11.04.
“Fourth Trigger Event” shall have the meaning set forth in Section 11.04.
“GAAP” shall have the meaning set forth in Section 4.06.
“Hazardous Materials” shall have the meaning set forth in Section 4.13.
“Indemnified Liabilities” shall have the meaning set forth in Section 5.01.
“Investor” shall have the meaning set forth in the preamble of this Agreement.
“Investor Indemnitees” shall have the meaning set forth in Section 5.01.
“Market Price” shall mean the lowest of the daily VWAPs of the Common Shares during the relevant Pricing Period, other than the daily VWAP on any Excluded Days.
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“Material Adverse Effect” shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a material adverse effect on the legality, validity or enforceability of this Agreement or the transactions contemplated herein, (ii) a material adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement.
“Material Outside Event” shall have the meaning set forth in Section 6.08.
“Maximum Advance Amount” in respect of each Advance Notice means the average Daily Traded Amount during the five consecutive Trading Days immediately preceding an Advance Notice.
“Minimum Acceptable Price” shall mean the minimum price notified by the Company to the Investor in each Advance Notice, if applicable.
[“Nasdaq” shall mean The Nasdaq Stock Market LLC.]
“OFAC” shall have the meaning set forth in Section 4.30.
“Ownership Limitation” shall have the meaning set forth in Section 2.01(d)(i).
“Person” shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Plan of Distribution” shall mean the section of a Registration Statement disclosing the plan of distribution of the Shares.
“Pricing Period” shall mean the three (3) consecutive Trading Days commencing on the Advance Notice Date, unless otherwise agreed between the Parties.
“Principal Market” shall mean the [Nasdaq Capital Market]; provided however, that in the event the Common Shares are ever listed or traded on the [Nasdaq Global Select Market, the Nasdaq Global Market], the [New York Stock Exchange, or the NYSE American], then the “Principal Market” shall mean such other market or exchange on which the Common Shares are then listed or traded to the extent such other market or exchange is the principal trading market or exchange for the Common Shares.
“Prospectus” shall mean any prospectus (including, without limitation, all amendments and supplements thereto) used by the Company in connection with a Registration Statement.
“Prospectus Supplement” shall mean any prospectus supplement to a Prospectus filed with the SEC from time to time pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein, including, without limitation, any prospectus supplement to be filed in accordance with Section 6.01 hereof.
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“Purchase Price” shall mean the price per Advance Share obtained by multiplying the Market Price by 97.25%.
“Registrable Securities” shall mean (i) the Shares, and (ii) any securities issued or issuable with respect to the Shares by way of exchange, stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise.
“Registration Limitation” shall have the meaning set forth in Section 2.01(d)(ii).
“Registration Statement” shall mean a registration statement on Form S-1 or Form S-3 or on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate, and which form shall be available for the registration of the resale by the Investor of the Registrable Securities under the Securities Act, which registration statement provides for the resale from time to time of the Shares as provided herein.
“Regulation D” shall mean the provisions of Regulation D promulgated under the Securities Act.
“Sanctions” shall have the meaning set forth in Section 4.30.
“Sanctioned Countries” shall have the meaning set forth in Section 4.30.
“SEC” shall mean the U.S. Securities and Exchange Commission.
“SEC Documents” shall have the meaning set forth in Section 4.05.
“Second Trigger Event” shall have the meaning set forth in Section 11.04.
“Securities Act” shall have the meaning set forth in the recitals of this Agreement.
“Settlement Document” shall have the meaning set forth in Section 2.02(a).
“Shares” shall mean the Commitment Shares and the Common Shares to be issued from time to time hereunder pursuant to an Advance.
“Subsidiaries” shall mean any Person in which the Company, directly or indirectly, (x) owns a majority of the outstanding capital stock or holds a majority of the equity or similar interest of such Person or (y) controls or operates all or substantially all of the business, operations or administration of such Person, and the foregoing are collectively referred to herein as “Subsidiaries.”
“Third Trigger Event” shall have the meaning set forth in Section 11.04.
“Trading Day” shall mean any day during which the Principal Market shall be open for business.
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“Transaction Documents” means, collectively, this Agreement and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as may be amended from time to time.
“Trigger Event” shall have the meaning set forth in Section 11.04.
“VWAP” shall mean for any Trading Day or specified period, the volume weighted average price of the Common Shares on the Principal Market, for such period as reported by Bloomberg L.P. through its “AQR” function.
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ANNEX II
TO THE STOCK PURCHASE AGREEMENT
CONDITIONS PRECEDENT TO THE RIGTH OF THE COMPANY
TO DELIVERY AN ADVANCE NOTICE
The right of the Company to deliver an Advance Notice and the obligations of the Investor hereunder with respect to an Advance are subject to the satisfaction or waiver (any such waiver by the Investor shall only be valid and recognized if pursuant to a written agreement signed by the Investor), on each Advance Notice Date (a “Condition Satisfaction Date”), of each of the following conditions:
| (a) | Accuracy of the Company’s Representations and Warranties. The representations and warranties of the Company in this Agreement shall be true and correct in all material respects as of the Advance Notice Date (except to the extent such representations and warranties are as of another date, such representations and warranties shall be true and correct as of such other date). |
| (b) | Issuance of Commitment Shares. The Company shall have issued the Commitment Shares to an account designated by the Investor, in accordance with Section 11.04, all of which Commitment Shares shall be fully earned and non-refundable, regardless of whether any Advance Notices are made or settled hereunder or any subsequent termination of this Agreement. |
| (c) | Registration of the Common Shares with the SEC. There is an effective Registration Statement pursuant to which the Investor is permitted to utilize the prospectus thereunder to resell all of the Common Shares issuable pursuant to such Advance Notice. The Current Report shall have been filed with the SEC, and the Company shall have filed with the SEC in a timely manner all reports, notices and other documents required under the Exchange Act and applicable SEC regulations during the twelve-month period immediately preceding the applicable Condition Satisfaction Date. |
| (d) | Authority. The Company shall have obtained all permits and qualifications required by any applicable state for the offer and sale of all the Common Shares issuable pursuant to such Advance Notice or shall have the availability of exemptions therefrom. The sale and issuance of such Common Shares shall be legally permitted by all laws and regulations to which the Company is subject. |
| (e) | No Material Outside Event. No Material Outside Event shall have occurred and be continuing. |
| (f) | Board. (I) The board of directors of the Company has approved the transactions contemplated by the Transaction Documents, (II) said approval has not been amended, rescinded or modified and remains in full force and effect as of the date hereof, and (III) a true, correct and complete copy of such resolutions duly adopted by the board of directors of the Company shall have been provided to the Investor. |
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| (g) | Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior the applicable Condition Satisfaction Date. |
| (h) | No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits or materially and adversely affects any of the transactions contemplated by the Transaction Documents. |
| (i) | No Suspension of Trading in or Delisting of Common Shares. (I) Trading in the Common Shares shall not have been suspended by the SEC, the Principal Market or FINRA, (II) the Company shall not have received any notice that the listing or quotation of the Common Shares on the Principal Market shall be terminated, nor shall there have been imposed any suspension of, or restriction on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the Common Shares that is continuing, and (III) the Company shall not have received any notice from DTC to the effect that a suspension of, or restriction on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the Common Shares is being imposed or is contemplated, and (IV) all of the Common Shares issuable pursuant to the applicable Advance Notice shall be eligible for deposit at the brokerage account provided by the Investor for the delivery of such Common Shares. |
| (j) | Authorized. All of the Common Shares issuable pursuant to the applicable Advance Notice shall have been duly authorized by all necessary corporate action of the Company. All Common Shares relating to all prior Advance Notices required to have been received by the Investor under this Agreement shall have been delivered to the Investor in accordance with this Agreement. |
| (k) | Executed Advance Notice. The representations contained in the applicable Advance Notice shall be true and correct in all material respects as of the applicable Condition Satisfaction Date. |
| (l) | Consecutive Advance Notices. Except with respect to the first Advance Notice, the Company shall have delivered all Shares relating to all prior Advances. |
| (m) | Other Agreements. The Company shall not have breached or failed to observe any term of any debenture, note, or other instrument held by the Investor in the Company or any other agreement between or among the Company and the Investor. |
| (n) | Material Non-Public Information. Neither the Company nor the Investor shall be in possession of any material non-public information regarding the Company. |
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EXHIBIT A
ADVANCE NOTICE
[YORKVILLE ACQUISITION CORP.]
| Dated: ______________ | Advance Notice Number: ____ |
The undersigned, _______________________, hereby certifies, with respect to the sale of Common Shares of [YORKVILLE ACQUISITION CORP.] (the “Company”) issuable in connection with this Advance Notice, delivered pursuant to that certain Stock Purchase Agreement, dated as of [____________] (the “Agreement”), as follows (with capitalized terms used herein without definition having the same meanings as given to them in the Agreement):
1. The undersigned is the duly elected ______________ of the Company.
2. There are no fundamental changes to the information set forth in the Registration Statement which would require the Company to file a post-effective amendment to the Registration Statement.
3. The Company has performed in all material respects all covenants and agreements to be performed by the Company contained in the Agreement on or prior to the Advance Notice Date. All conditions to the delivery of this Advance Notice are satisfied as of the date hereof.
4. The number of Advance Shares the Company is requesting is _____________________.
5. The Minimum Acceptable Price with respect to this Advance Notice is ____________ (if left blank then no Minimum Acceptable Price will be applicable to this Advance).
6. The number of Common Shares of the Company outstanding as of the date hereof is ___________.
The undersigned has executed this Advance Notice as of the date first set forth above.
| [YORKVILLE ACQUISITION CORP.] | ||
| By: | ||
| Name: | ||
| Title: | ||
Please deliver this Advance Notice by email to:
Email: Attention: Trading Department
Telephone: 201-985-8300
EXHIBIT B
FORM OF SETTLEMENT DOCUMENT
VIA EMAIL
[YORKVILLE ACQUISITION CORP.]
Attn:
Email:
| Below please find the settlement information with respect to the Advance Notice Date of: | ||
| 1.a. | Number of Common Shares requested in the Advance Notice | |
| 1.b. | Number of Common Shares traded during Pricing Period | |
| 2. | Minimum Acceptable Price for this Advance (if any) | |
| 3. | Number of Excluded Days (if any) | |
| 4. | Adjusted Advance Amount (if applicable) | |
| 5. | Market Price | |
| 6. | Purchase Price (Market Price x 97.25%) per share | |
| 7. | Number of Advance Shares due to the Investor | |
| 8. | Total Purchase Price due to Company (row 6 x row 7) |
If there were any Excluded Days then add the following
| 9. | Number of Additional Shares to be issued to the Investor | |
| 10. | Additional amount to be paid to the Company by the Investor (Additional Shares in row 9 x Minimum Acceptable Price x 97.25%) | |
| 11. | Total Amount to be paid to the Company (Purchase Price in row 8 + additional amount in row 10) | |
| 12. | Total Advance Shares to be issued to the Investor (Advance Shares due to the Investor in row 7 + Additional Shares in row 9) |
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Please issue the number of Advance Shares due to the Investor to the account of the Investor as follows:
Investor’s DTC participant #:
ACCOUNT NAME:
ACCOUNT NUMBER:
ADDRESS:
CITY:
COUNTRY:
Contact person:
Number and/or email:
| Sincerely, | |
| YA II PN, LTD. |
| Agreed and approved by | |
| [YORKVILLE ACQUISITION CORP.] | |
| Name: | |
| Title: |
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