8-K
Miluna Acquisition Corp (MMTX)
United
States
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
October22, 2025
Date
of Report (Date of earliest event reported)
MilunaAcquisition Corp
(Exact Name of Registrant as Specified in its Charter)
| Cayman Islands | 001-42911 | N/A00-0000000 |
|---|---|---|
| (State<br> or other jurisdiction of <br><br> incorporation) | (Commission<br><br> <br>File Number) | (I.R.S.<br> Employer <br><br> Identification No.) |
12F, No. 43,
Cheng Gong Road, Sec 4, Neihu
Taipei,
114
Taiwan
(Address of Principal Executive Offices)
Registrant’s
telephone number, including area code: +886 900-605-199
NotApplicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications<br> pursuant to Rule 425 under the Securities Act |
|---|---|
| ☐ | Soliciting material pursuant<br> to Rule 14a-12 under the Exchange Act |
| ☐ | Pre-commencement<br> communications pursuant to Rule 14d-2(b) under the Exchange Act |
| ☐ | Pre-commencement communications<br> pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Units,<br> each consisting of one ordinary share and one redeemable warrant | MMTXU | The Nasdaq Stock Market LLC |
| Ordinary<br> Shares, par value $0.0001 per share | MMTX | The Nasdaq Stock Market LLC |
| Warrants,<br> each warrant exercisable for one ordinary share at an exercise price of $11.50 per share | MMTXW | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item1.01. Entry into a Material Definitive Agreement.
On October 24, 2025, Miluna Acquisition Corp (the “Company”) consummated its initial public offering (the “IPO”) of 6,000,000 units (the “Units”). Each Unit consists of one ordinary share of the Company, par value $0.0001 per share (the “Ordinary Shares”) and one redeemable warrant (the “Warrant”), with each Warrant entitling the holder thereof to purchase one Ordinary Share for $11.50 per share subject to adjustment. The Units were sold at an offering price of $10.00 per Unit, generating total gross proceeds of $60,000,000.
The Company granted D. Boral Capital LLC and ARC Group Securities LLC, as representatives of the underwriters (the “Representatives”) a 45-day option to purchase up to 900,000 additional Units to cover over-allotments, if any.
On September 2, 2025, the Company filed a registration statement on Form S-1 (File No. 333-289973), as amended (the “Initial Registration Statement”), with the U.S. Securities and Exchange Commission (the “Commission”) relating to the IPO, which was declared effective by the Commission on September 30, 2025. On October 22, 2025, the Company filed a subsequent registration statement on Form S-1 (File No. 333- 291019) pursuant to Section 462(b) of the Securities Act of 1933, as amended, and also in connection with the Company’s IPO (together with the Initial Registration Statement, the “Registration Statements”), which subsequent registration statement became automatically effective upon its filing.
In connection with the IPO, on October 22, 2025, the Company entered into the following agreements, the forms of which were previously filed as exhibits to the Company’s Registration Statements:
| ● | An Underwriting Agreement,<br> dated October 22, 2025, by and between the Company and D. Boral Capital LLC and ARC Group Securities LLC, as representatives of the<br> underwriters, a copy of which is attached as Exhibit 1.1 hereto and is incorporated herein by reference; |
|---|---|
| ● | A Warrant Agreement, dated<br> October 22, 2025, by and between the Company and Lucky Lucko, Inc. d/b/a Efficiency, a copy of which is attached as Exhibit 4.1 hereto<br> and is incorporated herein by reference; |
| --- | --- |
| ● | Letter Agreement, dated<br> October 22, 2025, by and between the Company, its executive officers, its directors and MilunaC Technology Limited (the “Sponsor”),<br> a copy of which is attached as Exhibit 10.1 hereto and is incorporated herein by reference; |
| --- | --- |
| ● | An Investment Management<br> Trust Agreement, dated October 22, 2025, by and between the Company and Lucky Lucko, Inc. d/b/a Efficiency, a copy of which is attached<br> as Exhibit 10.2 hereto and is incorporated herein by reference; |
| --- | --- |
| ● | A Registration Rights Agreement,<br> dated October 22, 2025, by and among the Company, the Sponsor and the Holders signatory thereto, a copy of which is attached as Exhibit<br> 10.3 hereto and is incorporated herein by reference. |
| --- | --- |
| ● | A Private Units Purchase<br> Agreement, dated October 22, 2025, by and among the Company and the Sponsor, a copy of which is attached as Exhibit 10.4 hereto and<br> is incorporated herein by reference. |
| ● | An<br> Indemnity Agreement, dated October 22, 2025, by and among the Company and Shang Ju Lin, a copy of which is attached as Exhibit<br> 10.5 hereto and is incorporated herein by reference. |
| ● | An Indemnity Agreement, dated October<br> 22, 2025, by and among the Company and Daniel Mace, a copy of which is attached as Exhibit 10.6 hereto and is incorporated herein<br> by reference. |
| ● | An Indemnity Agreement, dated October 22, 2025,<br> by and among the Company and Luhuan Zhong, a copy of which is attached as Exhibit 10.7 hereto and is incorporated herein by reference. |
| ● | An Indemnity Agreement, dated October 22, 2025,<br> by and among the Company and Ya Ting Lee, a copy of which is attached as Exhibit 10.8 hereto and is incorporated herein by reference. |
| ● | An Indemnity Agreement, dated October 22, 2025, by and among the<br> Company and Mei Chi Tsai, a copy of which is attached as Exhibit 10.9 hereto and is incorporated herein by reference. |
The material terms of such agreements are fully described in the Company’s final prospectus, dated October 22, 2025 as filed with the Commission on October 22, 2025 (the “Prospectus”) and are incorporated herein by reference. Each of the foregoing agreements, are attached hereto as exhibits to this Current Report on Form 8-K, as enumerated below in the table set forth in response to Item 9.01.
Item3.02. Unregistered Sales of Equity Securities.
On October 24, 2025, simultaneously with the closing of the IPO, pursuant to the Private Units Purchase Agreement, the Company completed the private sale of an aggregate of 194,100 units (the “Private Placement Units”) to the Sponsor at a purchase price of $10.00 per Private Placement Units, generating gross proceeds to the Company of $1,941,000 (the “Private Placement”). The Private Placement Units are identical to the Units sold in the IPO, except that, for so long as the Private Placement Units are held by the Sponsor or their permitted transferees, the Private Placement Units (i) may not (including the securities underlying the Private Placement Units), subject to certain limited exceptions, be transferred, assigned or sold until 30 days after the completion of the Company’s initial business combination, and (ii) are entitled to registration rights. The material terms of the Private Placement Units are fully described in the Prospectus and are incorporated herein by reference. No underwriting discounts or commissions were paid with respect to the sale of the Private Placement Units. The issuance of the Private Placement Units was made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act of 1933, as amended.
Item 5.02Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of CertainOfficers.
In connection with the IPO, on October 22, 2025, each of Shang Ju Lin, the Chief Executive Officer and a director of the Company, Daniel Mace, the Chief Financial Officer and a director of the Company, Luhuan Zhong, a director of the Company, Ya Ting Lee, a director of the Company and Mei Chi Tsai, a director of the Company, entered into an indemnity agreement with the Company. On October 22, 2025, all directors and officers of the Company along with the Sponsor and certain other security holders named therein, entered into the Letter Agreement.
Other than the foregoing, none of the directors or officers of the Company is party to any arrangement or understanding with any person pursuant to which they were appointed as directors, nor are they party to any transactions required to be disclosed under Item 404(a) of Regulation S-K involving the Company.
Copies of the Letter Agreement and indemnity agreements are attached as Exhibits 10.1 and 10.5 through 10.9 hereto, respectively, and are incorporated herein by reference.
Item5.03. Amendments to Certificate of Incorporation or Bylaws; Change in Fiscal Year.
On October 24, 2025, in connection with the completion of the IPO, the Company’s Amended and Restated Memorandum and Articles of Association became effective (the “Amended Charter”). The terms of the Amended Charter are set forth in the Registration Statement and are incorporated herein by reference. A copy of the Amended Charter is attached as Exhibit 3.1 hereto and incorporated herein by reference.
Item8.01 Other Events
A total of $60,000,000 of the net proceeds from the IPO and the sale of the Private Placement Units, was placed in a U.S.-based trust account maintained by Lucky Lucko, Inc. d/b/a Efficiency, acting as trustee. Except with respect to the interest earned on the funds held in the trust account that may be released to the Company to pay its taxes and up to $100,000 of interest to pay dissolution expenses, the funds held in the trust account will not be released from the trust account until the earliest of: (i) the completion of its initial business combination; (ii) the redemption of any public shares if it does not complete an initial business combination within the required period; (iii) the redemption of any public shares in connection with an amendment to the Amended Charter (A) that would modify the substance or timing of its obligation to allow redemption in connection with its initial business combination or to redeem 100% of the public shares if it is unable to complete its initial business combination within 18 months from the closing of this initial public offering, subject to extension up to 21 months by means of three one-month extensions provided that $0.033 per public share for each one-month extension is deposited into the trust account and provided that it has entered into an agreement for an initial business combination within that 18-month period, or (B) with respect to any other provision of the Amended Charter relating to the rights of public shareholders; and (iv) our liquidation.
An audited balance sheet as of October 24, 2025 reflecting receipt of the proceeds upon consummation of the IPO and the Private Placement will be included in the next amendment to the Form 8-K.
On October 22, 2025, the Company issued a press release announcing the pricing of the IPO, a copy of which is attached as Exhibit 99.1 to this Current Report on Form 8-K.
On October 24, 2025, the Company issued a press release announcing the closing of the IPO, a copy of which is attached as Exhibit 99.2 to this Current Report on Form 8-K.
Item9.01. Financial Statements and Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: October 27, 2025
MILUNA
ACQUISITION CORP
| By: | /s/ Shang Ju Lin |
|---|---|
| Name: | Shang<br> Ju Lin |
| Title: | Chief<br> Executive Officer |
Exhibit 1.1
UNDERWRITING AGREEMENT
between
MILUNA ACQUISITION CORP
and
D. BORAL CAPITAL LLC
and
ARC Group Securities LLC,
as Representatives of the Several Underwriters
UNDERWRITING AGREEMENT
between
MILUNA ACQUISITION CORP,
and
D. BORAL CAPITAL LLC
and
ARC Group Securities LLC,
as Representatives of the Several Underwriters
New York, New York
October 22, 2025
D. Boral Capital LLC
590 Madison Avenue, 39^th^ Floor
New York, New York 10022
ARC Group Securities LLC
10 East 53^rd^ Street, Suite 3001
New York, New York 10011
as Representatives of the several Underwriters named on Schedule 1 hereto
Ladies and Gentlemen:
The undersigned, MILUNA ACQUISITION CORP, a Cayman Islands exempt company (the “Company”), hereby confirms its agreement (this “Agreement”) with D. Boral Capital LLC and ARC Group Securities LLC (hereinafter referred to as “you” (including its correlatives) or the “Representatives”), and with the other underwriters named on Schedule 1 hereto for which the Representatives are acting as representatives (the Representatives and such other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter”) as follows:
- Purchase and Sale.
1.1. Firm Units.
1.1.1. Purchase of Firm Units. On the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the several Underwriters, severally and not jointly, and the Underwriters agree to purchase from the Company, severally and not jointly, an aggregate of 6,000,000 units (each individually a “Firm Unit” and collectively, “FirmUnits”) of the Company, each Unit representing one ordinary share, par value $0.0001 per share, of the Company (the “OrdinaryShares”) and one warrant to purchase one Ordinary Share at a price of $11.50 per share (the “Warrants”), as set forth opposite their respective names on Schedule 1 hereto, at a purchase price (net of underwriting discounts and commissions) of $9.70 per Unit, being equal to 97% of the initial public offering price of the Firm Units. The Firm Units are to be offered initially to the public (the “Offering”) at the offering price of $10.00 per Firm Unit. The Ordinary Shares and Warrants included in the Firm Units will trade separately on the fifty-second (52nd) day following the date hereof (or if such date is not a Business Day (as defined in Section 1.1.2), the following Business Day) unless the Representatives determine to allow earlier separate trading. Notwithstanding the immediately preceding sentence, in no event will the Ordinary Shares and the Warrants included in the Firm Units trade separately until (i) the Company has filed with the Securities and Exchange Commission (the “Commission”) a Current Report on Form 8-K that includes an audited balance sheet reflecting the Company’s receipt of the gross proceeds of the Offering and the Private Placement (as defined in Section 1.4.2) and updated financial information with respect to any proceeds the Company receives from the exercise of the Over-allotment Option (as defined in Section 1.2.1) if such option is exercised prior to the filing of the Current Report on Form 8-K, and (ii) the Company has issued a press release announcing when such separate trading will begin.
1.1.2. Payment and Delivery. Delivery and payment for the Firm Units shall be made at 11:30 a.m., New York City time, on the first (1st) Business Day (as defined below) following the commencement of trading of the Units (as defined in Section 1.2.1), or at such earlier time as shall be agreed upon by the Representatives and the Company, at the offices of Baker & Hostetler LLP, counsel to the Underwriters (“Baker & Hostetler”), or at such other place (or remotely by facsimile or other electronic transmission) as shall be agreed upon by the Representatives and the Company. The hour and date of delivery and payment for the Firm Units is called the “ClosingDate”. Payment for the Firm Units shall be made on the Closing Date by wire transfer in federal (same day) funds, payable as follows: $60,000,000 of the proceeds received by the Company for the Firm Units and the sale of the Private Placement Units (as defined in Section 1.4.2) shall be deposited in the trust account (the “Trust Account”) established by the Company for the benefit of the Public Shareholders (as defined below), as described in the Registration Statement (as defined in Section 2.1.1) pursuant to the terms of an Investment Management Trust Agreement (the “Trust Agreement”) between the Company and Lucky Lucko, Inc. d/b/a Efficiency (“Efficiency”). The remaining proceeds received by the Company for the Firm Units and the sale of the Private Placement Units (less commissions and actual expense payments or other fees payable pursuant to this Agreement), if any, shall be paid to the order of the Company upon delivery to the Representatives of certificates (in form and substance satisfactory to the Representatives) representing the Firm Units (or through the facilities of The Depository Trust Company (“DTC”)) for the account of the Underwriters. The Firm Units shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two (2) full Business Days prior to the Closing Date. If delivery is not made through the facilities of DTC, the Company will permit the Representatives to examine and package the Firm Units for delivery, at least one (1) full Business Day prior to the Closing Date. The Company shall not be obligated to sell or deliver any of the Firm Units except upon tender of payment by the Representatives for all the Firm Units. The Representatives may, at their option, delegate one of the other Underwriters (with such Underwriter’s consent) to take delivery of the Firm Units and the Option Units and to make payment therefor as set forth above and below. As used herein, the term “Public Shareholders” means the holders of the Ordinary Shares sold as part of the Units in the Offering or acquired in the aftermarket, including the Sponsor (as defined in Section 1.4.1) and any officer or director of the Company, to the extent, he, she or it acquires such Ordinary Shares in the aftermarket (and solely with respect to such Ordinary Shares). The term “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay-at-home,” “shelter-in-place,” “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
1.2. Over-allotment Option.
1.2.1. Option Units. The Representatives are hereby granted an option (the “Over-allotment Option”) to purchase up to an additional 900,000 units (the “Option Units”), the net proceeds of which will be deposited in the Trust Account, solely for the purposes of covering any over-allotments, if any, in connection with the distribution and sale of the Firm Units. Such Option Units shall be identical in all respects to the Firm Units. Such Option Units shall be purchased for each account of the several Underwriters in the same proportion as the number of Firm Units, set forth opposite such Underwriter’s name on Schedule 1 hereto, bears to the total number of Firm Units (subject to adjustment by the Representatives to eliminate fractions). The Firm Units and the Option Units are hereinafter collectively referred to as the “Units,” and the Units, the Ordinary Shares and the Warrants included in the Units, and the Ordinary Shares issuable pursuant to the Warrants are hereinafter referred to collectively as the “Public Securities.” No Option Units shall be sold or delivered unless the Firm Units previously have been, or simultaneously are, sold and delivered. The right to purchase the Option Units, or any portion thereof, may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by the Representatives to the Company. The purchase price to be paid for each Option Unit will be $9.70 per Option Unit.
1.2.2. Exercise of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representatives as to all (at any time) or any part (from time to time) of the Option Units within forty-five (45) days after the effective date (“Effective Date”) of the Registration Statement (as defined in Section 2.1.1 hereof). The Underwriters shall not be under any obligation to purchase any Option Units prior to the exercise of the Over-allotment Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the Representatives, which must be confirmed in accordance with Section 1.2.1 hereof, setting forth the number of Option Units to be purchased and the date and time for delivery of and payment for the Option Units (the “OptionClosing Date”), which shall not be later than five (5) Business Days after the date of the notice or such other time as shall be agreed upon by the Company and the Representatives, at the offices of counsel to the Underwriters or at such other place (including remotely by facsimile or other electronic transmission) as shall be agreed upon by the Company and the Representatives. If such delivery and payment for the Option Units does not occur on the Closing Date, the Option Closing Date will be as set forth in the notice. Upon exercise of the Over-allotment Option with respect to all or any portion of the Option Shares subject to the terms and conditions set forth herein, the Company shall become obligated to sell to the Underwriters the number of Option Units specified in such notice and, subject to the terms and conditions set forth herein, the Underwriters, acting severally and not jointly, shall purchase the number of Option Units specified in such notice.
1.2.3. Payment and Delivery. Payment for the Option Units shall be made on the Option Closing Date by wire transfer in federal (same day) funds, payable as follows: $10.00 per Option Unit from the sale of the Option Units and additional Private Placement Units shall be deposited in the Trust Account pursuant to the Trust Agreement upon delivery to the Representatives of certificates (in form and substance satisfactory to the Representatives) representing the Option Units (or through the facilities of DTC) for the account of the Representatives. The additional Option Units shall be registered in such name or names and in such authorized denominations as the Representatives requests in writing not less than two (2) full Business Days prior to the Closing Date or the Option Closing Date, as the case may be, and will be made available to the Representatives for inspection, checking and packaging at the aforesaid office of the Company’s transfer agent or correspondent not less than one (1) full Business Day prior to such Closing Date. The Company shall not be obligated to sell or deliver the Option Units except upon tender of payment by the Representatives for applicable Option Units. The Option Closing Date may be simultaneous with, but not earlier than, the Closing Date, and in the event that such time and date are simultaneous with the Closing Date, the term “Closing Date” shall refer to the time and date of delivery of the Public Securities and Option Units.
1.3. Deferred UnderwritingCommission. The Representatives agree that the greater of (i) $600,000 (or up to 1.0% of the gross proceeds from the sale of the Firm Units) plus 1.0% of the gross proceeds from the sale of the Option Units (up to $90,000), or (ii) 5.0% of the balance remaining in the Trust Account prior to any other disbursements therefrom, upon the consummation of an initial Business Combination (as defined below, and such amounts, collectively, the “Deferred Underwriting Commission”), shall be payable directly from the Trust Account, without accrued interest, to the Representatives for their own account and the account of the Underwriters upon the consummation of the initial Business Combination (such consummation, the “Specified Event”), subject, in each case, to the reductions provided for in this Section 1.3. The Trust Agreement shall provide that the Trustee is required to obtain a written instruction signed by the Company and acknowledged by the Representatives with respect to the transfer of the funds held in the Trust Account, including the payment of the Deferred Underwriting Commission from the Trust Account, prior to commencing any liquidation of the assets of the Trust Account in connection with the consummation of a merger, share exchange, asset acquisition, share purchase, reorganization or other similar business combination with one or more entities (the “Business Combination”), and such provision of the Trust Agreement shall not be permitted to be amended without the prior written consent of the Representatives. In the event that the Company is unable to consummate a Business Combination and CST, as the trustee of the Trust Account (in this context, the “Trustee”), commences liquidation of the Trust Account as provided in the Trust Agreement, the Representatives, on behalf of themselves and the Underwriters, agree that (i) it shall forfeit any rights or claims to the Deferred Underwriting Commission, including any accrued interest thereon; and (ii) the Deferred Underwriting Commission, together with all other amounts on deposit in the Trust Account, shall be distributed on a pro rata basis among the Public Shareholders. The Representatives shall have the right to agree to any further modifications to the Deferred Underwriting Commission on behalf of the Underwriters and any decisions relating to such modifications shall be made exclusively by the Representatives on behalf of themselves and the Underwriters. For the avoidance of doubt, the obligations of each Underwriter under this Agreement shall be fully satisfied upon the payment of the purchase price for the Public Securities purchased by such Underwriter on the Closing Date or Option Closing Date, and the Underwriters shall be entitled to their portion of the Deferred Underwriting Commission without any further conditions except for those set forth above and below. Notwithstanding anything to the contrary in this Agreement, each Underwriter may at any time prior to the Specified Event and in its sole and absolute discretion, by written notice to the Company, elect to forfeit any right or claim to its Deferred Underwriting Commission, in which case the Company agrees to instruct the Trustee not to pay such Underwriter its Deferred Underwriting Commission upon the occurrence of a Specified Event. For the avoidance of doubt, any such election by an Underwriter shall be without prejudice to any right or claim of any other Underwriter to its respective portion of the Deferred Underwriting Commission or to any other right such Underwriter may have under this Agreement. The Representatives, on behalf of itself and the Underwriters, further agree that the Deferred Underwriting Commission will be based on, and paid out of, funds available in the Trust Account after payments made out of the Trust Account to honor redemption rights of the Public Shareholders and prior to any other disbursements therefrom.
1.4. Private Placements.
1.4.1. Founder Shares. On June 30, 2025, the Company issued an aggregate of 1,725,000 ordinary shares (the “Founder Shares”), $0.0001 par value per share, of the Company in a private placement exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Act”), for a total subscription price of $25,000 to MilunaC Technology Limited**,** a British Virgin Islands company limited by shares, (“Sponsor”). Except as described in the Registration Statement, none of the Founder Shares may be sold, assigned or transferred by the Sponsor until the earlier of (A) six (6) months following the completion of the Business Combination and (B) subsequent to the completion of the Business Combination, (x) if the closing price of the Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share splits, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30- trading day period commencing at least 150 days after the Company’s initial Business Combination or (y) the date on which the Company completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of the Public Shareholders having the right to exchange its Ordinary Shares for cash, securities or other property. The holders of Founder Shares shall have no right to any liquidating distributions with respect to any portion of the Founder Shares in the event the Company fails to consummate a Business Combination. The holders of the Founder Shares shall not have redemption rights with respect to the Founder Shares. In the event that the Over-allotment Option is not exercised at all or in full, the Sponsor will be required to forfeit (up to 225,000 Founder Shares depending on the extent to which the Over-allotment Option is exercised) such that the Founder Shares then outstanding will comprise 20% of the issued and outstanding Ordinary Shares after giving effect to the Offering and exercise, if any, of the Over-allotment Option.
1.4.2. Private Placement. Simultaneously with the Closing Date, the Sponsor will purchase from the Company in a private placement pursuant to the Private Units Purchase Agreement (as defined in Section 2.21.2 hereof), an aggregate of 194,100 private placement units (the “PrivatePlacement Units”) and up to an additional 9,000 Private Placement Units pro rata with the amount of the over-allotment (in the event that the Over-allotment Option is exercised in full or part). Each Private Placement Unit is exercisable to purchase one Ordinary Share at $10.00 per share (“Private Shares”) and one Warrant. Private Placement Units are substantially identical to the Firm Units, subject to certain exceptions. The private placement is exempt from registration under the Act pursuant to Section 4(a)(2) of the Act. The private placement of the Private Placement Units to the Sponsor is referred to herein as the “Private Placement.” Certain proceeds from the sale of the Private Placement Units shall be deposited into the Trust Account. None of the Private Placement Units or Private Shares (collectively, the “Placement Securities”) may be sold, assigned or transferred by the Sponsor or its permitted transferees until thirty (30) days after the consummation of a Business Combination. The Company shall cause to be deposited an amount of additional proceeds from the sale of the Private Placement Units into the Trust Account such that the amount of funds in the Trust Account shall be $10.00 per Public Share sold in the Offering.
1.4.3. No fees. No underwriting discounts, commissions, or placement fees have been or will be payable in connection with the Private Placement Units sold in the Private Placement. The Private Placement Units are identical to the Firm Units except that they (1) are being sold pursuant to an exemption from registration under the Act pursuant to Section 4(a)(2) of the Act and (2) may not be sold, assigned, or transferred by the Sponsor or its permitted transferees until the consummation of a Business Combination. The Public Securities, the Placement Securities, and the Founder Shares are hereinafter referred to collectively as the “Securities.”
1.5. Working Capital. Upon consummation of the Offering and the Private Placement, it is intended that approximately $800,000 (whether or not the Over-allotment Option is exercised in full) of the proceeds from the Offering and the Private Placement Units will be released to the Company and held outside of the Trust Account to fund the working capital requirements of the Company. In the event that the Offering expenses are less than $1,141,000 (or $1,231,000 if the Over-allotment Option is exercised in full), the amount of funds available outside the Trust Account to fund the working capital requirements of the Company would increase by the corresponding difference. Conversely, if the Offering expenses exceed such amounts, the funds available outside the Trust Account for working capital will decrease by the corresponding difference.
1.6. Interest Income. Prior to the Company’s consummation of a Business Combination or the Company’s liquidation, interest earned on the Trust Account may be released to the Company from the Trust Account in accordance with the terms of the Trust Agreement to (i) pay any taxes, other than excise taxes, payable by the Company, and (ii) pay up to $100,000 for liquidation and dissolution expenses, all as more fully described in the Prospectus (as defined in Section 2.1.1) (collectively, items (i) and (ii), “permitted withdrawals”). Additionally, all permitted withdrawals can only be made from interest and not from the principal held in the Trust Account.
1.7 Right of First Refusal. The Company agrees that following the Closing Date and for the period ending twelve (12) months after completion of the Business Combination (such period, the “ROFR Period”), the Representatives (or any affiliate designated by the Representatives) shall have the irrevocable right of first refusal to act as exclusive investment banker, exclusive book-runner and/or exclusive placement agent to the Company, at each of the Representatives’ discretion, for each and every future public and private equity and debt offering, including all equity linked financings, including, a forward purchase agreement or similar type of equity line financing of the Company, or any successor to or any current or future subsidiary of the Company (each, a “Subject Transaction”), during the ROFR Period, on terms and conditions customary to the Representatives for such Subject Transactions. The Representatives shall have the right to determine whether any other broker dealer shall have the right to participate in a Subject Transaction and the economic terms of such participation, which determination shall be in the best interests of the surviving company after the completion of the Business Combination so as not to prevent the surviving company from raising funds if the Representatives cannot match a bona fide offer. For the avoidance of any doubt, the Company shall not retain, engage or solicit any additional investment banker, book-runner, financial advisor, underwriter and/or placement agent in a Subject Transaction without the express written consent of the Representatives.
1.8 Reimbursement ofOffering Expenses. At the Closing of the Offering, the Representatives (or any affiliate designated by the Representatives) shall reimburse the Company for $600,000 of offering expenses (or up to $690,000 if the Over-Allotment Option is exercised in full).
- Representations and Warranties of the Company.
The Company represents and warrants to the Underwriters as of the Time of Sale (as defined below), as of the Closing Date and as of the Option Closing Date, if any, as follows:
2.1. Filing of Registration Statement.
2.1.1. Pursuant to the Act. The Company has filed with the Commission a registration statement and an amendment or amendments thereto, on Form S-1 (File No. 333-289973), including any related preliminary prospectus (“Preliminary Prospectus”), including any prospectus that is included in the Registration Statement immediately prior to the effectiveness of the Registration Statement, for the registration of the offer and sale of the Public Securities under the Act, which registration statement and amendment or amendments have been prepared by the Company in conformity with the requirements of the Act, and the rules and regulations (the “Regulations”) of the Commission under the Act. The conditions for use of Form S-1 to register the Offering under the Act, as set forth in the General Instructions to such Form, have been satisfied. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement becomes effective (including the prospectus, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of such time pursuant to Rule 430A of the Regulations), is hereinafter called the “Registration Statement,” and the form of the final prospectus dated the Effective Date included in the Registration Statement (or, if applicable, the form of final prospectus containing information permitted to be omitted at the time of effectiveness by Rule 430A of the Regulations, filed by the Company with the Commission pursuant to Rule 424 of the Regulations), is hereinafter called the “Prospectus.” For the purposes of this Agreement, “Time of Sale,” as used in the Act, means 4:15 p.m. New York City time, on the date of this Agreement. Prior to the Time of Sale, the Company prepared a Preliminary Prospectus, which was included in the Registration Statement filed on September 29, 2025, for distribution by the Underwriters (such Preliminary Prospectus used most recently prior to the Time of Sale, the “Sale PreliminaryProspectus”). Unless otherwise specified, any reference herein to the term “Registration Statement” shall be deemed to include any Registration Statement filed pursuant to Rule 462(b) under the Act registering additional securities (a “Rule462(b) Registration Statement”). Other than a Rule 462(b) Registration Statement and the Form 8-A registration statement referred to below in Section 2.1.2, which, if filed, becomes effective upon filing, no other document with respect to the Registration Statement has been filed with the Commission. The offer and sale of all Public Securities have been registered under the Act pursuant to the Registration Statement. The Registration Statement has been declared effective by the Commission on the date hereof. If, subsequent to the date of this Agreement, the Company or the Representatives determine that at the Time of Sale, the Sale Preliminary Prospectus includes an untrue statement of a material fact or omits a statement of material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and the Company and the Representatives agree to provide an opportunity to purchasers of the Units to terminate their old purchase contracts and enter into new purchase contracts, then the Sale Preliminary Prospectus will be deemed to include any additional information available to purchasers at the time of entry into the first such new purchase contract.
2.1.2. Pursuant to the Exchange Act. The Company has filed with the Commission a Registration Statement on Form 8-A (File Number 001-42911) providing for the registration under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Units, the Public Shares and the Warrants. The registration of the Units, Public Shares and Warrants under the Exchange Act has been declared effective by the Commission on the date hereof and the Units, the Public Shares and the Warrants have been registered pursuant to Section 12(b) of the Exchange Act.
2.1.3 No Stop Orders, Etc. Neither the Commission nor, to the Company’s knowledge, assuming reasonable inquiry, any federal, state or other regulatory authority has issued any order or threatened to issue any order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus, the Sale Preliminary Prospectus or Prospectus or any part thereof, or has instituted or, to the Company’s knowledge, assuming reasonable inquiry, threatened to institute any proceedings with respect to such an order.
2.2. Disclosures in Registration Statement.
2.2.1. 10b-5 Representation. At the time of effectiveness of the Registration Statement (or at the time of any post-effective amendment to the Registration Statement) and at all times subsequent thereto up to the Closing Date and the Option Closing Date, if any, the Registration Statement, the Sale Preliminary Prospectus and the Prospectus contained and will contain all material statements that are required to be stated therein in accordance with the Act and the Regulations, and did or will, in all material respects, conform to the requirements of the Act and the Regulations. The Registration Statement, as of the Effective Date, did not, and the amendments and supplements thereto, as of their respective dates, 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. The Prospectus, as of its date and the Closing Date or the Option Closing Date, as the case may be, did not and will not, and the amendments and supplements thereto, as of their respective dates, will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Sale Preliminary Prospectus, as of the Time of Sale (or such subsequent Time of Sale pursuant to Section 2.1.1), did not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. When any Preliminary Prospectus or the Sale Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement for the registration of the Public Securities or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus or the Sale Preliminary Prospectus and any amendments thereof and supplements thereto complied or will have been corrected in the Sale Preliminary Prospectus and the Prospectus to comply in all material respects with the applicable provisions of the Act and the Regulations and did not and will not contain an 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 the light of the circumstances under which they were made, not misleading. The representation and warranty made in this Section 2.2.1 does not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Underwriters expressly for use in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of the Underwriters consists solely of the following: the names of the Underwriters, the information with respect to dealers’ concessions and reallowances contained in the section entitled “Underwriting,” the information with respect to short positions and stabilizing transactions contained in the section entitled “Underwriting” and the identity of counsel to the Underwriters contained in the section entitled “Legal Matters” (such information, collectively, the “Underwriters’ Information”).
2.2.2. Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus conform to the descriptions thereof contained therein in all material respects and there are no agreements or other documents required to be described in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which its property or business is or may be bound or affected and (i) that is referred to in the Registration Statement, Sale Preliminary Prospectus or the Prospectus or attached as an exhibit thereto, or (ii) that is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect and is enforceable against the Company and, to the Company’s knowledge, assuming reasonable inquiry, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (y) as enforceability of any indemnification or contribution provision may be limited under the foreign, federal and state securities laws; and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and no such agreement or instrument has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, assuming reasonable inquiry, any other party is in breach or default thereunder and, to the Company’s knowledge, assuming reasonable inquiry, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a breach or default thereunder. To the Company’s knowledge, assuming reasonable inquiry, the performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.
2.2.3. Prior Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by, or under common control with the Company since the date of the Company’s formation, except as disclosed in the Registration Statement.
2.2.4. Regulations. The disclosures in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus concerning the effects of federal, foreign, state and local regulation on the Company’s business as currently contemplated are correct in all material respects and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.
2.3. Changes After Dates in RegistrationStatement.
2.3.1. No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, except as otherwise specifically stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, or business prospects of the Company, (ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement, (iii) no member of the Company’s board of directors (the “Board of Directors”) or management has resigned from any position with the Company and (iv) no event or occurrence has taken place which materially impairs, or would likely materially impair, with the passage of time, the ability of the members of the Board of Directors or management to act in their capacities with the Company as described in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus.
2.3.2. Recent Securities Transactions. Subsequent to the respective dates as of which information is given in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, and except as may otherwise be indicated or contemplated herein or therein, the Company has not (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its share capital.
2.4. Independent Accountants. To the Company’s knowledge, Guangdong Prouden CPAs GP (“Prouden”), whose report is filed with the Commission as part of, and is included in, the Registration Statement, the Sale Preliminary Prospectus, and the Prospectus, is an independent registered public accounting firm as required by the Act, the Regulations and the Public Company Accounting Oversight Board (the “PCAOB”), including the rules and regulations promulgated by such entity. To the Company’s knowledge, Prouden is currently registered with the PCAOB. Prouden has not, during the periods covered by the financial statements included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.5. Financial Statements, etc.
2.5.1. Financial Statements. The financial statements, including the notes thereto and supporting schedules (if any) included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus fairly present the financial position, the results of operations and the cash flows of the Company at the dates and for the periods to which they apply; such financial statements have been prepared in conformity with United States generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus present fairly the information required to be stated therein in conformity with the Regulations. No other financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus. The Registration Statement, the Sale Preliminary Prospectus and the Prospectus disclose all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. There are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus in accordance with Regulation S-X or Form S-1 that have not been included as required.
2.5.2. Statistical Data. The statistical, industry-related and market-related data included in the Registration Statement, the Sale Preliminary Prospectus and/or the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate, and such data materially agree with the sources from which they are derived.
2.6. Authorized Capital;Options, etc. The Company had, at the date or dates indicated in each of the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions stated in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, the Company will have on the Closing Date the adjusted capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, on the Effective Date, as of the Time of the Sale and on the Closing Date and the Option Closing Date, there will be no stock options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued Ordinary Shares or any security convertible or exercisable into Ordinary Shares, or any contracts or commitments to issue or sell Ordinary Shares or any such options, warrants, rights or convertible securities.
2.7. Valid Issuance of Securities, etc.
2.7.1. Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities was issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The authorized and outstanding securities of the Company conform in all material respects to all statements relating thereto contained in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus. All offers and sales and any transfers of the outstanding securities of the Company were at all relevant times either registered under the Act and the applicable state securities or Blue Sky laws or, based in part on the representations and warranties of the purchasers of such securities, exempt from such registration requirements.
2.7.2. Securities Sold Pursuant to this Agreement. The Public Securities have been duly authorized and reserved for issuance and when issued and paid for in accordance with this Agreement, will be validly issued, and the Ordinary Shares will be fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Public Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Public Securities has been duly and validly taken. The form of certificates for the Public Securities conform to the corporate law of the jurisdiction of the Company’s incorporation and applicable securities laws. The Public Securities conform in all material respects to the descriptions thereof contained in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, as the case may be.
2.7.3. Placement Securities. The Placement Securities have been duly authorized and reserved for issuance and when issued and paid for in accordance with the Private Units Purchase Agreement, will be validly issued; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Placement Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Placement Securities has been duly and validly taken.
2.7.4. No Integration. Neither the Company nor any of its affiliates has, prior to the date hereof, made any offer or sale of any securities which are required to be or may be “integrated” pursuant to the Act or the Regulations with the Offering.
2.8. Registration Rightsof Third Parties. Except as set forth in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
2.9. Validity and BindingEffect of Agreements. This Agreement, the Trust Agreement, the Insider Letter (as defined in Section 2.21.1), the Services Agreement (as defined in Section 2.21.3), the Registration Rights Agreement (as defined in Section 2.21.4), the Private Units Purchase Agreement (as defined in Section 2.21.2) and the Warrant Agreement (as defined in Section 2.23) (collectively with this Agreement, the “Transaction Documents”) have been duly and validly authorized by the Company and, when executed and delivered, will constitute the valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) with respect to this Agreement only, as enforceability of any indemnification or contribution provision may be limited under the foreign, federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.10. No Conflicts,etc. The execution, delivery, and performance by the Company of the Transaction Documents, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both, (i) result in a breach or violation of, or conflict with any of the terms and provisions of, or constitute a default under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which its property is subject except pursuant to the Trust Agreement; (ii) result in any violation of the provisions of the Amended and Restated Memorandum and Articles of Association, as may be amended from time to time, of the Company (the “Charter Documents”); or (iii) violate any existing applicable statute, law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties, assets or business constituted as of the date hereof.
2.11. No Defaults; Violations. No default or violation exists in the due performance and observance of any term, covenant or condition of any license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not (a) in violation of any term or provision of its Charter Documents or (b) in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or businesses.
2.12. Corporate Power; Licenses; Consents.
2.12.1. Conduct of Business. The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business purpose as described in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus. The disclosures in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus concerning the effects of foreign, federal, state and local regulation on the Offering and the Company’s business purpose as currently contemplated are correct in all material respects and do not omit 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. Since its formation, the Company has conducted no business and has incurred no liabilities other than in connection with its formation and in furtherance of the Offering or as otherwise described in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus, as applicable.
2.12.2. Transactions Contemplated Herein. The Company has all requisite corporate power and authority to enter into the Transaction Documents and to carry out the provisions and conditions hereof and thereof, and all consents, authorizations, approvals and orders required in connection herewith and therewith have been obtained. No consent, authorization, or order of, and no filing with, any court, government agency or other body, foreign or domestic, is required for the valid issuance, sale and delivery, of the Securities and the consummation of the transactions and agreements contemplated by the Transaction Documents and as contemplated by the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, except with respect to applicable foreign, federal and state securities laws, the rules of The Nasdaq Global Market (“Nasdaq”) and the rules and regulations promulgated by FINRA.
2.12.3. Jurisdiction and Designation. The Company has the power to submit, and pursuant to Section 9.7 of this Agreement has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of any New York State or United States Federal court sitting in the City of New York, Borough of Manhattan.
2.13. D&O Questionnaires. All information contained in the questionnaires (“Questionnaires”) completed by each of the Company’s officers, directors and shareholders as of the date hereof (together with the Sponsor, the “Insiders”) and provided to the Representatives and their counsel and the biographies of the Insiders and other persons contained in the Registration Statement, Sale Preliminary Prospectus and the Prospectus (to the extent a biography is contained) is true and correct in all material respects and the Company has not become aware of any information which would cause the information disclosed in the Questionnaires completed by each Insider to become inaccurate, incorrect or incomplete.
2.14. Litigation; GovernmentalProceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending, or to the Company’s knowledge, assuming reasonable inquiry, threatened against or involving the Company or, to the Company’s knowledge, assuming reasonable inquiry, any Insider or any shareholder or member of an Insider that has not been disclosed, that is required to be disclosed, in the Registration Statement, the Sale Preliminary Prospectus, the Prospectus or the Questionnaires.
2.15. Due Incorporation;Valid Existence. The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its jurisdiction of incorporation. The Company is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify would not have a material adverse effect on the condition (financial or otherwise), earnings, assets, prospects, business, operations or properties of the Company, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
2.16. No Contemplationof a Business Combination. As of the date of this Agreement, the Company has not selected any specific Business Combination target (each a “Target Business”) and it has not, nor has anyone on its behalf, initiated any substantive discussions, directly or indirectly with any Target Business.
2.17. Transactions Affecting Disclosure toFINRA.
2.17.1. Finder’s Fees. Except as disclosed in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a brokerage commission or finder’s, consulting or origination fee by the Company or any Insider with respect to the sale of the Securities hereunder or any other arrangements, agreements or understandings of the Company or to the Company’s knowledge, assuming reasonable inquiry, any Insider that may affect the Underwriters’ compensation, as defined by FINRA.
2.17.2. Payments Within 180 Days. Except as disclosed in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) any FINRA member; (iii) any person or entity that has any direct or indirect affiliation or association with any FINRA member; or (iv) to the Company’s knowledge, any “participating member,” as defined in FINRA Rule 5110(j)(15), (a “ParticipatingMember”), with respect to the Offering, within the 180-day period prior to the initial filing of the Registration Statement, other than any prior payments to the Representatives in connection with the Offering. The Company has not issued any warrants or other securities, or granted any options, directly or indirectly, to any Participating Member within the 180-day period prior to the initial filing date of the Registration Statement. No person to whom securities of the Company have been privately issued within the 180-day period prior to the initial filing date of the Registration Statement has any relationship or affiliation or association with any Participating Member. Except with respect to the Representatives in connection with the Offering, the Company has not entered into any agreement or arrangement (including, without limitation, any consulting agreement or any other type of agreement) during the 180-day period prior to the initial filing date of the Registration Statement with the Commission, which arrangement or agreement provides for the receipt of any “underwriting compensation” as defined in FINRA Rule 5110, by any Participating Member.
2.17.3. FINRA Affiliation. Except as disclosed in the FINRA Questionnaires provided to the Representatives, to the Company’s knowledge, no officer or director or any direct or indirect beneficial owner (including the Insiders) of any class of the Company’s unregistered securities (whether debt or equity, registered or unregistered, regardless of the time acquired or the source from which derived) has any direct or indirect affiliation or association with any Participating Member (as defined in accordance with the rules and regulations of FINRA). The Company will advise the Representatives and Baker & Hostetler if it learns that any officer or director or any direct or indirect beneficial owner (including the Insiders) is or becomes an affiliate or associated person of a Participating Member.
2.17.4. Share Ownership. Except as disclosed in the FINRA Questionnaires provided to the Representatives, to the Company’s knowledge, no officer or director or any direct or indirect beneficial owner (including the Insiders) of any class of the Company’s unregistered securities is an owner of shares or other securities of any Participating Member (other than securities purchased on the open market).
2.17.5. Loans. No officer or director or any direct or indirect beneficial owner (including the Insiders) of any class of the Company’s unregistered securities has made a subordinated loan to any Participating Member in the Offering.
2.17.6. Proceeds of the Offering. Except as disclosed in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus, no proceeds from the sale of the Public Securities (excluding underwriting compensation) or the Private Placement Units, will be paid to any Participating Member, except as specifically authorized herein.
2.17.7. Conflicts of Interest. No Participating Member in the Offering has a conflict of interest with the Company. For this purpose, a “conflict of interest” exists when a Participating Member and/or its associated persons, parent or affiliates in the aggregate beneficially own 10% or more of the Company’s outstanding common equity or 10% or more of the Company’s preferred equity.
2.18. Taxes.
2.18.1. There are no transfer taxes or other similar fees or charges under U.S. federal law or the laws of any U.S. state or any political subdivision of the United States, or under the laws of any non-U.S. jurisdiction, required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Company of the Public Securities, save that Cayman Islands stamp duty may be payable if the original of this Agreement is brought to or executed in the Cayman Islands.
2.18.2. The Company has filed all U.S. federal, state and local, and non-U.S., tax returns required to be filed with taxing authorities prior to the date hereof in a timely manner or has duly obtained extensions of time for the filing thereof. The Company has paid all taxes shown as due on such returns that were filed and has paid all taxes imposed on it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable. In the case of each of the foregoing, except where the failure to file or pay, as applicable, would not have a Material Adverse Effect. The Company has made appropriate provisions in the applicable financial statements referred to in Section 2.5.1 above in respect of all federal, state, local and foreign income and franchise taxes for all current or prior periods as to which the tax liability of the Company has not been finally determined.
2.19. Foreign CorruptPractices Act; Anti-Money Laundering; Patriot Act.
2.19.1. U.S. Foreign Corrupt Practices Act. Neither the Company nor to the Company’s knowledge, assuming reasonable inquiry, any of the Insiders or any other person acting on behalf of the Company has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that (i) might subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding; (ii) if not given in the past, might have had a Material Adverse Effect; or (iii) if not continued in the future, might adversely affect the assets, business or operations of the Company. The Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects with the Foreign Corrupt Practices Act of 1977, as amended.
2.19.2. Compliance with Sanction Laws. None of the Company or, to the knowledge of the Company, any directors, officers or employees of the Company or any agent, affiliate or other person associated with or acting on behalf of the Company is currently the subject or the target of any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, the Office of Financial Sanctions Implementation of the United Kingdom of Great Britain and Northern Ireland (OFSI) or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, the Republic of Belarus, Crimea, the Russian Federation, Republic of Cuba, the Islamic Republic of Iran, Democratic People’s Republic of Korea (North Korea), the Libyan Arab Republic, the Syrian Arab Republic, the Bolivarian Republic of Venezuela and the Republic of Yemen (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. The Company has not knowingly engaged in and is not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
2.19.3. Compliance with Anti-Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with (i) the requirements of the U.S. Treasury Department Office of Foreign Asset Control and (ii) applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transaction Reporting Act of 1970, as amended, including the Money Laundering Control Act of 1986, as amended, the rules and regulations thereunder and any related or similar money laundering statutes, rules, regulations or guidelines, issued, administered or enforced by any Federal governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
2.19.4. Patriot Act. Neither the Company nor to the Company’s knowledge, assuming reasonable inquiry, any Insider has violated the Bank Secrecy Act of 1970, as amended, or the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, and/or the rules and regulations promulgated under any such law, or any successor law.
2.20. Officers’Certificates. Any certificate signed by any duly authorized officer of the Company and delivered to the Representatives or to counsel to the Underwriters on the Closing Date or on the Option Closing Date shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.21. Agreements WithInsiders.
2.21.1. Insider Letter. The Company has caused to be duly executed a legally binding and enforceable agreement, a form of which is annexed as an exhibit to the Registration Statement (the “Insider Letter”), pursuant to which each of the Insiders of the Company agree to certain matters. The Insider Letter shall not be amended, modified or otherwise changed without the prior written consent of the Representatives, which consent shall not be unreasonably delayed, conditioned or withheld by the Representatives.
2.21.2. Private Units Purchase Agreement. The Company and the Sponsor have executed and delivered a Private Units Purchase Agreement, the form of which is annexed as an exhibit to the Registration Statement (the “Private Units Purchase Agreement”), pursuant to which the Sponsor will, among other things, on the Closing Date and on the Option Closing Date, if any, consummate the purchase of and deliver the purchase price for the Private Placement Units to be sold to the Sponsor as provided in the Private Units Purchase Agreement. Pursuant to the Insider Letter, the Sponsor has waived any and all rights and claims it may have to any proceeds, and any interest thereon, held in the Trust Account in respect of the Private Placement Units. Certain proceeds from the sale of the Private Placement Units will be deposited by the Company in the Trust Account in accordance with the terms of the Trust Agreement on the Closing Date and on the Option Closing Date, if any, as provided for in the Private Units Purchase Agreement.
2.21.3. Administrative Services. The Company and the Sponsor have entered into an agreement (“Services Agreement”) substantially in the form annexed as an exhibit to the Registration Statement, pursuant to which the Sponsor will make available to the Company office space, utilities, and secretarial and administrative support for $10,000 per month, and the Company will reimburse the Sponsor for any reasonable and documented out-of-pocket expenses related to identifying, investigating and completing a Business Combination. Upon completion of the Business Combination, the Company will cease paying such monthly fees.
2.21.4. Registration Rights Agreement. The Company, the Sponsor and the Insiders have entered into a Registration Rights Agreement (“Registration RightsAgreement”) substantially in the form annexed as an exhibit to the Registration Statement, whereby such parties will be entitled to certain registration rights with respect to the securities they hold or may hold, as set forth in such Registration Rights Agreement and described more fully in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus.
2.21.5. Loans. The Sponsor has agreed to make loans to the Company in the aggregate amount of up to $350,000 (the “Offering Insider Loans”) pursuant to a promissory note between the Company and the Sponsor dated June 24, 2025. The Offering Insider Loans do not bear any interest and are repayable by the Company after the date on which the Company consummates the Offering or the date on which the Company determines not to conduct the Offering.
2.22. Investment ManagementTrust Agreement. The Company has entered into the Trust Agreement with respect to certain proceeds of the Offering and the Private Placement substantially in the form annexed as an exhibit to the Registration Statement.
2.23. Warrant Agreement. The Company has entered into a warrant agreement with respect to the Warrants with Efficiency (substantially in the form filed as an exhibit to the Registration Statement (the “Warrant Agreement”)).
2.24. No Existing Non-CompetitionAgreements. No Insider is subject to any non-competition agreement or non-solicitation agreement with any employer or prior employer which could materially affect his ability to be an employee, officer and/or director of the Company, except as disclosed in the Registration Statement.
2.25. Investments. No more than 45% of the “value” (as defined in Section 2(a)(41) of the Investment Company Act of 1940, as amended (the “InvestmentCompany Act”)) of the Company’s total assets consist of, and no more than 45% of the Company’s net income after taxes is derived from, securities other than “government securities” (as defined in Section 2(a)(16) of the Investment Company Act) or money market funds meeting the conditions of Rule 2a-7 of the Investment Company Act.
2.26. Investment CompanyAct. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus will not be required, to register as an “investment company” under the Investment Company Act.
2.27. Subsidiaries. The Company does not own an interest in any corporation, partnership, limited liability company, joint venture, trust or other business entity.
2.28. Related PartyTransactions. No relationship, direct or indirect, exists between or among the Company, on the one hand, and any Insider, on the other hand, which is required by the Act, the Exchange Act or the Regulations to be described in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus which is not so described as required. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business), or guarantees of indebtedness by the Company to or for the benefit of any of the officers or directors of the Company or any of their respective family members, except as disclosed in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus. The Company has not extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or officer of the Company.
2.29. No Influence. The Company has not offered, or caused the Underwriters to offer, the Firm Units to any person or entity with the intention of unlawfully influencing (a) a customer or supplier of the Company or any affiliate of the Company to alter the customer’s or supplier’s level or type of business with the Company or such affiliate or (b) a journalist or publication to write or publish favorable information about the Company or any such affiliate.
2.30. Sarbanes-OxleyCompliance. The Company is, and on the Closing Date will be, in material compliance with the provisions of the Sarbanes-Oxley Act of 2002, as amended (“Sarbanes-Oxley Act”), and the rules and regulations promulgated thereunder and related or similar rules or regulations promulgated by any governmental or self-regulatory entity or agency, that are applicable to it as of the date hereof.
2.31 Distribution ofOffering Material by the Company. The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the distribution of the Units, any offering material in connection with the offering and sale of the Units other than the Sale Preliminary Prospectus and the Prospectus, in each case as supplemented and amended.
2.32 The Nasdaq GlobalMarket. The Public Securities have been authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution, on Nasdaq and the Company knows of no reason or set of facts that is likely to adversely affect such authorization.
2.33. Board of Directors. As of the Effective Date, the Board of Directors of the Company will be comprised of the persons set forth as “Directors” or “Director nominees” under the heading of the Sale Preliminary Prospectus and the Prospectus captioned “Management.” As of the Effective Date, the qualifications of the persons serving as board members and the overall composition of the board will comply with the Sarbanes-Oxley Act and the rules promulgated thereunder and the rules of Nasdaq that are, in each case, applicable to the Company. As of the Effective Date, the Company will have an Audit Committee that satisfies the applicable requirements under the Sarbanes-Oxley Act and the rules promulgated thereunder and the rules of Nasdaq, subject to the permitted phase-in requirements under the rules of Nasdaq.
2.34. EmergingGrowth Company Status*.* From its formation through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Act (an “Emerging Growth Company”).
2.35. No DisqualificationEvents. None of the Company, its predecessors, any affiliated issuer, any director, executive officer, or other officer of the Company participating in the Offering, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, or any promoter (as that term is defined in Rule 405 under the Act) connected with the Company in any capacity at the Time of Sale (each, a “Company Covered Person” and, together, “Company Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Act (a “DisqualificationEvent”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Underwriters a copy of any disclosures provided thereunder.
2.36. Free-Writing Prospectusand Testing-the-Waters. The Company has not made any offer relating to the Public Securities that would constitute an issuer free writing prospectus, as defined in Rule 433 under the Act, or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 under the Act. The Company: (a) has not engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the Act or institutions that are accredited investors within the meaning of Rule 501(a) of Regulation D under the Act and (b) has not authorized anyone to engage in Testing-the-Waters Communications other than its officers and the Representatives and individuals engaged by the Representatives. The Company has not distributed any written Testing-the-Waters Communications other than those listed on Schedule 2 hereto. “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act.
2.37. No Fee Arrangements. Except as disclosed in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus, as of the date hereof, the Company has not entered into any agreement, written or oral, pursuant to which the Company will be obligated to pay any Insider or an affiliate of any Insider a consulting, finder or success fee for assisting the Company in consummating a Business Combination.
2.38. Loans to Directorsor Officers. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company for the benefit of any of the officers or directors of the Company, or any of their respective family members, except as disclosed in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus.
2.39. Forward-LookingStatements. 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, the Sale Preliminary Prospectus or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
2.40. Integration. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Offering to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such securities under the Securities Act.
2.41. Corporate Records. The minute books of the Company have been made available to the Representatives and counsel to the Underwriters and such books (i) contain minutes of all material meetings and actions of the Board of Directors (including each board committee) and shareholders of the Company, and (ii) reflect all material transactions referred to in such minutes.
2.42. Disclosures inCommission Filings. None of the Company’s filings with the Commission, at the time of such filings, contained in any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company has made all filings with the Commission required under the Exchange Act and the rules and regulations promulgated of the Commission promulgated thereunder.
- Covenants of the Company.
The Company covenants and agrees as follows:
3.1. Amendments to RegistrationStatement. The Company will deliver to the Representatives, prior to filing, any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus proposed to be filed after the Effective Date and the Company shall not file any such amendment or supplement to which the Representatives reasonably object in writing.
3.2. Federal Securities Laws.
3.2.1. Compliance. During the time when a Prospectus is required to be delivered under the Act, the Company will use its commercially reasonable efforts to comply with all requirements imposed upon it by the Act, the Regulations, and the Exchange Act, and by the regulations under the Exchange Act, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Sale Preliminary Prospectus and the Prospectus. If at any time when a Prospectus relating to the Securities is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or counsel for the Underwriters, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act, the Company will notify the Representatives promptly and prepare and file with the Commission, subject to Section 3.1 hereof, an appropriate amendment or supplement in accordance with Section 10 of the Act.
3.2.2. Filing of Final Prospectus. The Company will file the Prospectus (in form and substance satisfactory to the Underwriters) with the Commission pursuant to the requirements of Rule 424 of the Regulations.
3.2.3. Exchange Act Registration. The Company will use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (and Warrants prior to consummation of the Business Combination) under the provisions of the Exchange Act (except in connection with a going-private transaction) for a period of five (5) years from the Effective Date, or until the Company is required to be liquidated or is acquired, if earlier. The Company will not deregister the Ordinary Shares (and Warrants prior to consummation of the Business Combination) under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
3.2.4. Exchange Act Filings. From the Effective Date until the earlier of the Company’s initial Business Combination, or its liquidation and dissolution, the Company shall timely file with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) such statements and reports as are required to be filed by a company registered under Section 12(b) of the Exchange Act.
3.2.5. Sarbanes-Oxley Act Compliance. As soon as it is legally required to do so, the Company shall take all actions necessary to obtain and thereafter maintain material compliance with each applicable provision of the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder and related or similar rules and regulations promulgated by any other governmental or self-regulatory entity or agency with jurisdiction over the Company.
3.2.6. Free Writing Prospectuses. The Company agrees that it will not make any offer relating to the Public Securities that would constitute an issuer free writing prospectus, as defined in Rule 433 under the Act, or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 under the Act, without the prior consent of the Underwriters.
3.2.7. Testing-the-Waters Communications. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company shall promptly notify the Representatives and shall promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
3.3. Delivery to theUnderwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available to the Representatives and counsel to the Underwriters, without charge, conformed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to each Underwriter, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) upon receipt of a written request therefor from such Underwriter. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.4. Delivery to theUnderwriters of Prospectuses. The Company will deliver to the Underwriters, without charge and from time to time during the period when the Prospectus is required to be delivered under the Act or the Exchange Act, such number of copies of each of the Preliminary Prospectus and the Prospectus as the Underwriters may reasonably request and, as soon as the Registration Statement or any amendment or supplement thereto becomes effective, deliver to the Underwriters, upon their request, two (2) manually executed Registration Statements, including exhibits, and all post-effective amendments thereto and copies of all exhibits filed therewith or incorporated therein by reference and all manually executed consents of certified experts.
3.5. Effectiveness andEvents Requiring Notice to the Representatives. The Company will use its commercially reasonable efforts to cause the Registration Statement to remain effective and will notify the Representatives immediately and confirm the notice in writing (i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any foreign or state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any event that, in the reasonable judgment of the Company, makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, and in the light of the circumstances under which they were made, not misleading. If the Commission or any foreign or state securities commission shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
3.6 Affiliated Transactions.
3.6.1 Business Combinations. In the event the Company seeks to consummate a Business Combination with any entity that is affiliated with any Insider, the Company, or a committee of its independent directors, shall obtain an opinion from an independent investment banking firm, or another independent entity that commonly renders valuation opinions that the price the Company is paying is fair to the Company and its shareholders from a financial point of view.
3.6.2 Compensation to Insiders. Except as disclosed in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus, the Company shall not pay any of the Insiders or any of their affiliates any fees or compensation from the Company, for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination.
3.7. Reports to theRepresentatives. For a period of five (5) years from the Effective Date or until such earlier time upon which the Company is required to be liquidated or is no longer required to file reports under the Exchange Act, the Company will furnish to the Representatives and their counsel copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities, and promptly furnish to the Underwriters (i) a copy of each periodic report the Company shall be required to file with the Commission, (ii) a copy of every press release and every news item and article with respect to the Company or its affairs that was released by the Company, (iii) a copy of each Current Report on Form 8-K or Schedules 13D, 13G, 14D-1 or 13E-4 received or prepared by the Company, (iv) two (2) copies of each registration statement filed by the Company with the Commission under the Act, and (v) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request; provided the Representatives shall sign, if requested by the Company, a Regulation FD compliant confidentiality agreement which is reasonably acceptable to the Representatives and their counsel in connection with the Representatives’ receipt of such information. Documents filed or furnished with the Commission pursuant to its EDGAR system shall be deemed to have been delivered to the Representatives pursuant to this Section 3.7.
3.8. Transfer Agent. For a period of five (5) years following the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company shall retain a transfer agent and warrant agent acceptable to the Representatives. For the avoidance of doubt, Efficiency is acceptable to the Representatives.
3.9. Payment of Expenses. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the extent not paid at the Closing Date, all Company expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to (i) the Company’s legal and accounting fees and disbursements; (ii) the preparation, printing, filing, mailing and delivery (including the payment of postage with respect to such mailing) of the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, including any pre- or post-effective amendments or supplements thereto, and the printing and mailing of this Agreement and related documents, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in quantities as may be required by the Underwriters; (iii) fees incurred in connection with conducting background checks of the Company’s management team; (iv) the preparation, printing, engraving, issuance and delivery of the Units, the Ordinary Shares and the Warrants included in the Units, including any transfer or other taxes payable thereon; (v) filing fees incurred in registering the Offering with FINRA and the reasonable fees of counsel of the Underwriters in connection therewith and including, without limitation, fees associated with qualifying the Offering under the “Blue Sky” laws of any states specified by the Representatives; (vi) fees, costs and expenses incurred in listing the Securities on Nasdaq or such other stock exchanges as the Company and the Underwriters together determine; (vii) all fees and disbursements of the transfer agent and warrant agent; (viii) all of the Company’s expenses associated with “due diligence” and “road show” meetings arranged by the Representatives and any presentations made available by way of a net roadshow, including without limitation, trips for the Company’s management to meet with prospective investors, all travel, food and lodging expenses associated with such trips incurred by the Company or such management; and (ix) all other documented out-of-pocket costs and expenses customarily borne by an issuer incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 3.9, provided that the expenses reimbursed to the underwriters shall not exceed $120,000 in the aggregate. If the Offering is consummated, the Representatives may deduct from the net proceeds of the Offering payable to the Company on the Closing Date the expenses set forth above (which shall be mutually agreed upon between the Company and the Representatives prior to the Closing Date) to be paid by the Company to the Representatives and others. If the Offering is not consummated for any reason (other than a breach by the Representatives of any of its obligations hereunder), then the Company shall reimburse the Representatives in full for its reasonable and documented out-of-pocket expenses actually incurred, including, without limitation, reasonable fees and disbursements of counsel to the Underwriters related to FINRA matters; provided, however, that such reimbursement shall not exceed $60,000 in the aggregate.
3.10. Application ofNet Proceeds. The Company will apply the net proceeds from the Offering and the Private Placement received by it in a manner consistent in all material respects with the application described under the caption “Use of Proceeds” in the Prospectus.
3.11. Delivery of EarningsStatements to Security Holders. The Company will make generally available to its security holders as soon as practicable an earnings statement (which need not be certified by an independent registered public accounting firm unless required by the Act or the Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Act) covering a period of at least twelve (12) consecutive months beginning after the Effective Date.
3.12. Notice to FINRA.
3.12.1. Notice to the Representatives. For a period of sixty (60) days after the date of the Prospectus, in the event any person or entity (regardless of any FINRA affiliation or association) is engaged, in writing, to assist the Company in its search for a Target Business or to provide any other services in connection therewith, the Company will provide the following to the Representatives prior to the consummation of the Business Combination: (i) complete details of all services and copies of agreements governing such services, and (ii) justification as to why the person or entity providing the merger and acquisition services should not be considered a Participating Member with respect to the Offering, as such term is defined in FINRA Rule 5110. The Company also agrees that, if required by law, proper disclosure of such arrangement or potential arrangement will be made in the tender offer documents or proxy statement which the Company will file with the Commission in connection with the Business Combination.
3.12.2. FINRA. The Company shall advise the Representatives if it is aware that any 10% or greater shareholder of the Company becomes an affiliate or associated person of a Participating Member.
3.12.3. Broker/Dealer. In the event the Company intends to register as a broker/dealer, merge with or acquire a registered broker/dealer, or otherwise become a member of FINRA, it shall promptly notify FINRA.
3.13. Stabilization. Neither the Company, nor to its knowledge, any of its employees, directors or shareholders (without the consent of the Representatives) has taken, and the Company will not take, and has directed its employees, directors or shareholders to not take, directly or indirectly, any action without the consent of the Representatives that is designed to or that has constituted or that might reasonably be expected to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Units.
3.14. Existing Lock-UpAgreement. The Company will use its reasonable best efforts to enforce all existing agreements between the Company and any of its security holders that prohibit the sale, transfer, assignment, pledge or hypothecation of any of the Securities in connection with the Offering. In addition, the Company will direct the Company’s transfer agent to place stop transfer restrictions upon any such Securities of the Company that are bound by such existing “lock-up” agreements for the duration of the periods contemplated in such agreements.
3.15. Internal Controls. The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability for assets, (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 existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
3.16 Payment of DeferredUnderwriting Commission on Business Combination. Upon the occurrence of the Specified Event, the Company agrees that it will cause the Trustee to pay the Deferred Underwriting Commission directly from the Trust Account to the Underwriters, in accordance with Section 1.3. The Underwriters shall have no claim to (a) any funds in the Trust Account reserved by the Company and the Trustee for honoring redemption rights of the Public Shareholders or (b) any payment of any interest earned on the portion of the proceeds held in the Trust Account representing the Deferred Underwriting Commission.
3.17. Accounting Firm. Until the earlier of the consummation of the Company’s initial Business Combination or until such earlier time upon which the Company is required to be liquidated, the Company shall retain Prouden or another reasonably qualified independent registered public accounting firm.
3.18. Form 8-K. The Company shall, on or prior to the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (“Audited Financial Statements”) reflecting the receipt by the Company of the proceeds of the Offering and the Private Placement. Within four (4) Business Days after the Closing Date, the Company shall file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. Promptly after the Option Closing Date, if the Over-allotment Option is exercised after the Closing Date and to the extent not reflected in the Current Report on Form 8-K referenced in the immediately preceding sentence, the Company shall file with the Commission a Current Report on Form 8-K or an amendment to the Form 8-K to provide updated financial information to reflect the exercise of such option.
3.19. Corporate Proceedings. All corporate proceedings and other legal matters necessary to carry out the provisions of this Agreement and the transactions contemplated hereby shall have been effected, except where the failure to do so would not have a Material Adverse Effect.
3.20. Investment Company. The Company shall cause the proceeds of the Offering to be held in the Trust Account to be invested only as provided for in the Trust Agreement and disclosed in the Prospectus. The Company will conduct its business in a manner so that it will not become subject to the Investment Company Act. Furthermore, once the Company consummates a Business Combination, it shall be engaged in a business other than that of investing, reinvesting, owning, holding or trading securities.
3.21. Amendments toCharter Documents. The Company covenants and agrees, that prior to its initial Business Combination, it will not seek to amend or modify its Charter Documents, except in accordance with the procedures set forth therein.
3.22. Press Releases. The Company agrees that it will not issue press releases or engage in any other publicity relating to the Offering or which includes the name of any Underwriter, without the Representatives’ prior written consent (not to be unreasonably withheld), for a period of twenty-five (25) days after the Closing Date. Notwithstanding the foregoing, in no event shall the Company be prohibited from issuing any press releases or engaging in any other publicity required by law, except that including the name of any Underwriter therein shall require the prior written consent of such Underwriter.
3.23. Insurance. Until the earlier of the consummation of the Company’s initial Business Combination or until such earlier time upon which the Company is required to be liquidated, the Company will maintain directors’ and officers’ insurance (including, without limitation, insurance covering the Company, its directors and officers for liabilities or losses arising in connection with the Offering, including, without limitation, liabilities or losses arising under the Act, the Exchange Act, the Regulations and any applicable foreign securities laws).
3.24. Electronic Prospectus. The Company shall cause to be prepared and delivered to the Underwriters, at the Company’s expense, promptly, but in no event later than two (2) Business Days from the effective date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representatives, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Units for at least the period during which a prospectus relating to the Units is required to be delivered under the Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to EDGAR, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for on-line time).
3.25. Private PlacementProceeds. On or prior to the Closing Date, the Company shall have caused the applicable proceeds from the Private Placement to be deposited in the Trust Account pursuant to the terms of the Private Units Purchase Agreement.
3.26. Future Financings. The Company agrees that neither it, nor any successor or subsidiary of the Company, will consummate any public or private equity or debt financing prior to the consummation of a Business Combination, unless all investors in such financing expressly waive, in writing, any rights in or claims against the Trust Account.
3.27. Amendments toCertain Agreements. The Company shall not amend, modify or otherwise change the Trust Agreement, the Registration Rights Agreement, the Warrant Agreement, the Private Placement Units Purchase Agreement or the Insider Letter without the prior written consent of the Representatives, which such consent shall not be unreasonably delayed, conditioned or withheld by the Representatives. The Trust Agreement shall provide that the Trustee is required to obtain a joint written instruction signed by both the Company and the Representatives with respect to the transfer of the funds held in the Trust Account from the Trust Account, prior to commencing any liquidation of the assets of the Trust Account in connection with the consummation of any Business Combination, and such provision of the Trust Agreement shall not be permitted to be amended without the prior written consent of the Representatives.
3.28. Maintenance ofListing on Nasdaq. Until the consummation of a Business Combination, the Company will use its commercially reasonable efforts to maintain the listing of the Public Securities on Nasdaq or a national securities exchange acceptable to the Representatives.
3.29. Reservation ofShares. The Company will reserve and keep available that maximum number of its authorized but unissued securities which are issuable (i) pursuant to the Warrants and the Placement Securities and (ii) upon conversion of the Founder Shares.
3.30. Notice of DisqualificationEvents. The Company will notify the Underwriters in writing, prior to the Closing Date, of (i) any Disqualification Event relating to any Company Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Company Covered Person.
3.31. Disqualificationof S-1. Until the earlier of seven (7) years from the date hereof or until the Warrants have either expired and are no longer exercisable or have all been exercised or redeemed or the Company has earlier liquidated and dissolved, the Company will not take any action or actions that prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for the registration of the Ordinary Shares issuable upon exercise of the Warrants under the Act.
3.32. Emerging GrowthCompany Status. The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the earlier of five years after the consummation of the Company’s initial Business Combination, or the liquidation of the Trust Account if a Business Combination is not consummated as required by its Charter Document (the “Termination Date”).
3.33. Business CombinationSecurities Disclosure Documents. If any Underwriter that performs any marketing, capital markets advisory or securities placement activities in connection with a Business Combination at the request of the Company pursuant to a separate agreement between such Underwriter and the Company (such Underwriter, a “Business Combination Advisor”) may be deemed, in its sole judgment, to be an underwriter of any securities issued pursuant to any registration statement or tender offer document filed with the Commission in connection with the consummation of the Business Combination by the Company, a Target Business or any direct or indirect parent or subsidiary of any of them (any such issuer or co-issuer, a “Registrant,” and any such securities, the “Business CombinationSecurities”), the Company shall use its commercially reasonable efforts to provide or cause to be provided to such Business Combination Advisor information and access to all persons, properties and documents to the extent necessary for such Business Combination Advisor to complete a due diligence investigation sufficient (in the view of such Business Combination Advisor in its sole discretion) to provide such Business Combination Advisor with a “reasonable due diligence” defense in respect of any claims that could be brought against an underwriter of the applicable Business Combination Securities under federal and state securities laws, rules and regulations, including, without limitation, Section 11 of the Act. As used herein, the term “reasonable due diligence” means a reasonable investigation that provides the investigating person a reasonable ground to believe that at the time of the applicable offer, issuance or distribution of any Business Combination Securities, no registration statement, preliminary or final prospectus, proxy statement, tender offer document or offering memorandum, including, without limitation, any document incorporated by reference into any of the foregoing, or any amendment or supplement to any of the foregoing, or any other marketing document used by any Registrant, filed with or furnished by the Company to the Commission in connection with the Business Combination but excluding any filing under Rule 425 of the Act or Rule 14a-12 of the Exchange Act (each, a “Business Combination Securities Disclosure Document”), in each case relating to such offer, issuance or distribution, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Company agrees to use its commercially reasonable efforts to provide to such Business Combination Advisor notice of each filing under Rule 425 of the Act or Rule 14a-12 of the Exchange Act and each other form of public communication about the Business Combination reasonably in advance of such filing or public communication. The Company further covenants that it will use its reasonable best efforts to ensure that any projections provided to such Business Combination Advisor by any Registrant or prepared by any Registrant or any representative of such Registrant (a “Registrant Representative”) and contained in any Business Combination Securities Disclosure Document, in each case, at the time they were prepared, will have been prepared in good faith and will be based upon assumptions which, in light of the circumstances under which they are made, are reasonable.
3.34. Obligations inConnection with Business Combination. If requested in writing by a Business Combination Advisor, if it may be deemed, in its sole judgment, to be an underwriter of any Business Combination Securities, the following shall apply:
3.34.1. Prior to entering into any definitive agreement with respect to the Business Combination (or amendment thereto) and until such time as such Business Combination is consummated:
(a) The Company agrees to notify such Business Combination Advisor with respect to, and to permit such Business Combination Advisor, at its request, to participate in, all diligence sessions with any Registrant or any Registrant Representative and all drafting sessions in respect of any Business Combination Securities Disclosure Document.
(b) The Company shall provide drafts of all Business Combination Securities Disclosure Documents to such Business Combination Advisor and its legal counsel reasonably in advance of the filing by the Company (or, if such filing is to be made by a Registrant other than the Company, any filing which is required to be approved by the Company) of any Business Combination Securities Disclosure Document with the Commission or the circulation by any Registrant of any Business Combination Securities Disclosure Document to any prospective investor, sufficient to allow such Business Combination Advisor and its legal counsel to request changes determined by them to be reasonably necessary to such Business Combination Securities Disclosure Document before its filing or circulation. The Company shall not permit the filing with or furnishing to the Commission of any Business Combination Securities Disclosure Document without the consent of such Business Combination Advisor, which consent shall not unreasonably be withheld, delayed or conditioned.
3.34.2. Notwithstanding any provision to the contrary herein, the Company agrees that such Business Combination Advisor shall have the right, in connection with its reasonable due diligence under Section 3.34, (i) to retain counsel and other consultants and experts as it may deem necessary or desirable in connection with its reasonable due diligence under Section 3.34.1 (it being understood that the retention of any such consultant or expert or other advisor, other than outside legal counsel, will be made with the prior written approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed); (ii) to use its commercially reasonable efforts to ensure that each counsel to the Company and to any other Registrant provides customary legal opinions and negative assurance letters to such Business Combination Advisor dated as of (x) the date of effectiveness of the Business Combination Securities Disclosure Document, and (y) the date of the shareholder vote to approve the Business Combination, in form and substance reasonably satisfactory to such Business Combination Advisor, (iii) to use its commercially reasonable efforts to ensure that each accounting firm or firms that were retained by the Company or by any other Registrant and that have audited any financial statements set forth in any Business Combination Securities Disclosure Document provide customary “comfort letters” to such Business Combination Advisor dated as of (x) the date of effectiveness of the Business Combination Securities Disclosure Document, and (y) the date of the shareholder vote to approve the Business Combination; and (iv) to take and shall use its reasonable best efforts to take any other actions reasonably requested by such Business Combination Advisor.
3.34.3. In connection with the Business Combination, to the extent the Company retains an unaffiliated party (the “Fairness Opinion Provider”) to prepare a report and provide an opinion (the “Fairness Opinion”) concerning the fairness, from a financial point of view, of the Business Combination to the Company and its unaffiliated shareholders, the Company shall, pursuant to, and in accordance with, applicable law, disclose in reasonable detail in a Business Combination Securities Disclosure Document the results of that report and, as necessary or appropriate, provide a copy of that report. For the avoidance of doubt, such Fairness Opinion shall be required (i) if such Target Business is affiliated with any Insider or an affiliate of any Insider or (ii) the Board of Directors is unable to independently determine the fair market value of such Target Business. Each Registrant shall provide the Fairness Opinion Provider with all information and access to persons and documents that the Fairness Opinion Provider deems reasonably necessary and appropriate in connection with the preparation of its Fairness Opinion.
3.34.4. Prior to the consummation of the Business Combination, the Company shall include in the definitive agreement for the Business Combination (i) a covenant for the assignment and assumption, by the public entity resulting from the initial Business Combination, of all of the Company’s obligations hereunder and (ii) that such Business Combination Advisor may rely on the representations and warranties contained therein as if it were a party thereto. The Company shall use its commercially reasonable efforts to ensure that each Target Business in the Business Combination agrees to deliver to such Business Combination Advisor a certificate of an officer of such Target Business stating that to such officer’s knowledge the representations and warranties made by the Target Business in the definitive agreement for the Business Combination are true and correct as of the date of such certificate, subject to (i) a customary materiality standard, (ii) any applicable carve-out with reference to disclosure included in the Business Combination Securities Disclosure Document and (iii) required adjustments for such representations and warranties that speak as of a specific date. In addition, in connection with the Business Combination, the Company will, and will use its reasonable best efforts to cause each Registrant to, comply in all material respects with (i) the obligations and covenants of the Company which relate to the period following the consummation of the Business Combination set forth in Sections 3 and 5 of this Agreement and (ii) all laws, rules and regulations applicable either to the Registrant and its business activities or to the Business Combination, as such laws, rules and regulations may be in effect at the time of the consummation of the Business Combination.
3.34.5. Nothing herein shall be deemed to require the Underwriters to limit their rights to compensation or to reimbursement of expenses without their express agreement or otherwise to assume any liability other than as may be expressly required under the Act.
3.34.6. The Company acknowledges and agrees that nothing in this Section 3.34 shall be interpreted to obligate the Underwriters to take any action, including by serving as a Business Combination Advisor, or to refrain from taking any action, in connection with the Business Combination and any such actions will be undertaken by each Underwriter, in respect of itself, in its sole discretion.
- Conditions of Underwriters’ Obligations.
The obligations of the Underwriters to purchase and pay for the Units, as provided herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of each of the Closing Date and the Option Closing Date, if any; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the following conditions:
4.1. Regulatory Matters.
4.1.1. Effectiveness of Registration Statement. The Registration Statement shall have become effective not later than 4:30 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representatives, and, at each of the Closing Date and each Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for the purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives and Baker & Hostetler.
4.1.2. FINRA Clearance. By the Effective Date, the Underwriters shall have received a letter of no objections from FINRA as to the terms and arrangement and amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3 No Blue Sky Stop Orders. No order suspending the sale of the Units in any jurisdiction designated by the Underwriters pursuant to Section 3.5 hereof shall have been issued on each of the Closing Date or the Option Closing Date, and no proceedings for that purpose shall have been instituted or, to the Company’s knowledge, shall be contemplated.
4.1.4 No Commission Stop Order. At the Closing Date and each Option Closing Date, the Commission has not issued any order or threatened to issue any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any part thereof, and has not instituted or, to the Company’s knowledge, assuming reasonable inquiry, threatened to institute any proceedings with respect to such an order.
4.1.5 Approval of Listing on Nasdaq. The Securities shall have been approved for listing on Nasdaq, subject to official notice of issuance and evidence of satisfactory distribution, satisfactory evidence of which shall have been provided to the Representatives.
4.2. Company Counsel Matters.
4.2.1. Closing Date and Option Closing Date Opinions of Counsels. On the Closing Date and each Option Closing Date, if any, the Representatives shall have received the following:
4.2.1.1. a favorable opinion and negative assurance statements of Hunter Taubman Fischer & Li LLC , dated the Closing Date or each Option Closing Date, addressed to the Representatives as representatives for the Underwriters, and in substantially the form agreed to by the parties;
4.2.1.2. a favorable opinion of Harney Westwood & Riegels, dated the Closing Date or each Option Closing Date, addressed to the Representatives as representatives for the Underwriters, and in substantially the form agreed to by the parties; and
4.2.1.3. a favorable opinion and negative assurance statement of Baker & Hostetler, dated the Closing Date, addressed to the Representatives as representatives for the Underwriters.
4.2.2. Reliance. In rendering such required opinions, as set forth in Section 4.2.1, such counsels may rely as to matters of fact, to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements or certificates shall be delivered to the Representatives’ counsel if requested.
4.3. Comfort Letters. At the time this Agreement is executed, and at the Closing Date and Option Closing Date, if any, the Representatives shall have received a letter, addressed to the Representatives as representatives for the Underwriters and in form and substance satisfactory in all respects (including the non-material nature of the changes or decreases, if any, referred to in Section 4.3.3 below) to the Representatives, from Prouden dated, respectively, as of the date of this Agreement and as of the Closing Date and Option Closing Date, if any:
4.3.1. Confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable Regulations and that they have not, during the periods covered by the financial statements included in the Registration Statement, Preliminary Prospectus, the Sale Preliminary Prospectus and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act;
4.3.2. Stating that in their opinion the financial statements of the Company included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the published Regulations thereunder;
4.3.3. Stating that, on the basis of their review, which included a reading of the latest available unaudited interim financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the latest available minutes of the shareholders and Board of Directors and the various committees of the Board of Directors, consultations with officers and other employees of the Company responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention that would lead them to believe that (a) the unaudited financial statements of the Company included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations or are not fairly presented in conformity with GAAP applied on a basis substantially consistent with that of the audited financial statements of the Company included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus; or (b) at a date not later than five (5) days prior to the Effective Date, Closing Date or Option Closing Date, as the case may be, there was any change in the share capital or long-term debt of the Company, or any decrease in the shareholders’ equity of the Company as compared with amounts shown in the most recent balance sheet included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, other than as set forth in or contemplated by the Registration Statement, the Sale Preliminary Prospectus and the Prospectus or, if there was any decrease, setting forth the amount of such decrease; and (c) during the period from the most recent balance sheet included in the Registration Statement to a specified date not later than five (5) days prior to the Effective Date, Closing Date or the Option Closing Date, as the case may be, there was any decrease in revenues, net earnings or net earnings per Ordinary Share, in each case as compared with the corresponding period in the preceding year and as compared with the corresponding period in the preceding quarter, other than as set forth in or contemplated by the Registration Statement the Sale Preliminary Prospectus and the Prospectus, or, if there was any such decrease, setting forth the amount of such decrease;
4.3.4. Stating that they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement;
4.3.5. Stating that they have not, since the Company’s incorporation, brought to the attention of the Company’s management any reportable condition related to internal structure, design or operation as defined in the Statement on Auditing Standards No. 60 “Communication of Internal Control Structure Related Matters Noted in an Audit,” in the Company’s internal controls; and
4.3.6. Statements as to such other matters incident to the transaction contemplated hereby as the Representatives or Baker & Hostetler may reasonably request, including (i) that Prouden is registered with the PCAOB; (ii) that Prouden has sufficient assets and insurance to pay for any liability incurred by it relating to providing the letter; and (iii) that Prouden is not insolvent.
4.4. Officers’ Certificates.
4.4.1. Officers’ Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representatives shall have received a certificate of the Company signed by the Chairman of the Board or the Chief Executive Officer and the Secretary or Assistant Secretary of the Company, or any similar or equivalent officer of the Company (in their capacities as such), dated the Closing Date or the Option Closing Date, as the case may be, respectively, to the effect that the Company has performed in all material respects all covenants and complied with all conditions required by this Agreement to be performed or complied with by the Company prior to and as of the Closing Date, or the Option Closing Date, as the case may be, and that the conditions set forth in Section 4 hereof have been satisfied as of such date and that, as of Closing Date and the Option Closing Date, as the case may be, the representations and warranties of the Company set forth in Section 2 hereof are true and correct. In addition, the Representatives will have received such other and further certificates of officers of the Company (in their capacities as such) as the Representatives may reasonably request.
4.4.2. Secretary’s Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representatives shall have received a certificate of the Company signed by the signed by the Chairman of the Board of Directors or the Chief Executive Officer or the Secretary or Assistant Secretary of the Company, or any similar or equivalent officer of the Company, dated the Closing Date or the Option Closing Date, as the case may be, respectively, certifying (i) that the Charter Documents are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the public offering contemplated by this Agreement are in full force and effect and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company or its counsel and the Commission; (iv) as to the accuracy and completeness of all correspondence between the Company or its counsel and Nasdaq; and (v) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
4.5 No Material Changes. Prior to and on each of the Closing Date and the Option Closing Date, if any, (i) there shall have been no material adverse change or development involving a prospective material adverse change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and the Prospectus; (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Insider before or by any court or federal, foreign or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, or financial condition or income of the Company, except as set forth in the Registration Statement and the Prospectus; (iii) no stop order shall have been issued under the Act and no proceedings therefor shall have been initiated or, to the Company’s knowledge, assuming reasonable inquiry, threatened by the Commission; and (iv) the Registration Statement, the Sale Preliminary Prospectus and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and shall conform in all material respects to the requirements of the Act and the Regulations, and neither the Registration Statement, the Sale Preliminary Prospectus nor the Prospectus nor any amendment or supplement thereto shall 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.
4.6. Delivery of Agreements. On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Transaction Documents.
4.7. Private Placement. On the Closing Date and the Option Closing Date, if any, the Private Placement shall have been completed in accordance with Section 3.25 and the required proceeds of the Private Placement shall have been wired into the Trust Account one Business Day prior to the Closing Date or Option Closing Date, if any.
4.8. Good Standing. The Representatives shall have received on and as of (i) the Effective Date, and (ii) the Closing Date or the Option Closing Date, as the case may be, satisfactory evidence of the good standing of the Company and the Sponsor in their respective jurisdictions of organization in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdiction.
4.9. Trust Waiver. On and as of the Effective Date, the Company shall have received waivers from all vendors and service providers to all claims on amounts in the Trust Account which are to be distributed to the Company’s shareholders in accordance with the terms of the Trust Agreement, except for (i) Prouden and (ii) the Representatives with respect to the Deferred Underwriting Commission.
- Indemnification.
5.1. Indemnificationof the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates and their respective partners, members, directors, officers, employees and agents, and each person, if any, who controls each Underwriter or any affiliate within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Person”) as follows:
(a). against any and all loss, liability, claim, damage and expense whatsoever, whether or not pending or threatened, as reasonably incurred, joint or several, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any Preliminary Prospectus, the Sale Preliminary Prospectus, any Testing-the-Waters Communication or the Prospectus or, in the event a Business Combination Advisor, in its sole judgment, may be deemed to be an underwriter of any Business Combination Securities, any Business Combination Securities Disclosure Document (or any amendment or supplement to the foregoing), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(b). against any and all loss, liability, claim, damage and expense whatsoever, whether or not pending or threatened, as reasonably incurred, joint or several, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental authority, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 5.4) any such settlement is effected with the written consent of the Company, which consent shall not unreasonably be delayed, conditioned or withheld;
(c). against any and all claims, actions, suits, proceedings, damages, liabilities and expenses reasonably incurred by any of them (including the reasonable fees and expenses of counsel), whether or not pending or threatened, as incurred, that are related to or arise out of any Business Combination marketing or capital markets advisory activities by any Underwriter on the Company’s behalf in connection with a Business Combination, provided that the Company will not, however, be responsible to an Indemnified Person for any portion of any such claim, action, suit, proceeding, damage, liability or expense that is finally judicially determined by a court of competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from the bad faith or gross negligence of the Indemnified Person seeking such indemnification; and
(d). against any and all expense whatsoever (including the fees and disbursements of counsel), as reasonably incurred in investigating, preparing, pursuing or defending against any litigation, or any investigation or proceeding by any governmental authority, whether or not pending, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (whether or not a party), to the extent that any such expense is not paid under (a), (b) or (c) above; provided, however, that the foregoing agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Underwriters’ Information (and, in connection with any Business Combination, similar information provided by or on behalf of the Business Combination Advisors expressly for use in any Business Combination Securities Disclosure Document).
5.2. Indemnificationof the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, and its directors, each officer of the Company who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 5.1, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement, any Preliminary Prospectus, the Sale Preliminary Prospectus, any Testing-the-Waters Communication or the Prospectus (or any amendment or supplement to the foregoing), made solely in reliance upon and in conformity with the Underwriters’ Information.
5.3 Notifications andOther Indemnification Procedures.
5.3.1. Any party that proposes to assert the right to be indemnified under this Section 5 will, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section 5.3, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might have to any indemnified party otherwise than under this Section 5 and (ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly within fourteen (14) calendar days of receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of, the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any other legal expenses except as provided below and except for the reasonable and documented out-of-pocket costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (A) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (B) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (C) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party), or (D) the indemnifying party has not in fact employed counsel to assume the defense of such action or counsel reasonably satisfactory to the indemnified party, in each case, within a reasonable time after receiving notice of the commencement of the action; in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction (plus local counsel) at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 5 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (x) includes an express and unconditional release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability arising out of such litigation, investigation, proceeding or claim and (y) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
5.3.2. If at any time the Company assumes the defense of a third-party claim and any of the conditions set forth in this Section 5.3 are not satisfied, the Indemnified Persons shall have the same rights as set forth in this Section 5.3 as if the Company never assumed the defense of such claim. If the Company assumes the defense of any third-party claim in accordance with the terms hereof, the Company shall have the right, upon thirty (30) calendar days’ prior written notice to the Indemnified Persons, to consent to the entry of judgment with respect to, or otherwise settle such third-party claim; provided, however, that with respect to such consent to the entry of judgment or settlement, the Indemnified Person will not have any liability and will be fully indemnified with respect to all third-party claims. Notwithstanding the foregoing, the Company shall not have the right to consent to the entry of judgment with respect to, or otherwise settle a third-party claim if: (i) the consent to judgment or settlement of such third party claim involves equitable or other non-monetary damages against the Indemnified Persons, or (ii) in the reasonable judgment of the Indemnified Person, such settlement would have a continuing effect on the Indemnified Person’s business (including any material impairment of its relationships with customers and suppliers), without the prior written consent of the Indemnified Person. In addition, the Indemnified Person shall have the sole and exclusive right to settle any third-party claim on such terms and conditions as it deems reasonably appropriate, (x) if the Company fails to assume the defense in accordance with the terms hereof, or (y) to the extent such third-party claim involves only equitable or other non-monetary relief, and shall have the right to settle any third-party claim involving monetary damages with consent, which consent shall not be unreasonably withheld.
5.4. Settlement WithoutConsent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 5.1(b) effected without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
5.5. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs of Section 5.1 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient from the Company or the Underwriters, the Company and the Underwriters will contribute to the total losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted) to which any indemnified party may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand. The relative benefits received by the Company on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from the sale of the Public Securities (before deducting expenses) received by the Company bear to the total compensation received by the Underwriters (before deducting expenses) from the sale of the Units on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, with respect to the statements or omissions that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 5.5 were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense or damage, or action in respect thereof, referred to above in this Section 5.5 shall be deemed to include, for the purpose of this Section 5.5, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section 5.3. Notwithstanding the foregoing provisions of Section 5.1 and this Section 5.5, each Underwriter shall not be required to contribute any amount in excess of the commissions actually received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 5.5, any person who controls a party to this Agreement within the meaning of the Act, any affiliates of the respective Underwriters and any officers, directors, partners, employees or agents of the Underwriters or their respective affiliates, will have the same rights to contribution as that party, and each director of the Company and each officer of the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made under this Section 5.5, will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have under this Section 5.5 except to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 5.3, no party will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant to Section 5.3.
- Default by an Underwriter.
6.1. Default Not Exceeding10% of Firm Units. If any Underwriter or Underwriters shall default in its or their obligations to purchase the Firm Units and if the number of the Firm Units with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm Units that all Underwriters have agreed to purchase hereunder, then such Firm Units to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2. Default Exceeding10% of Firm Units. In the event that the default addressed in Section 6.1 above relates to more than 10% of the Firm Units, the Representatives may, in their discretion, arrange for it or for another party or parties satisfactory to the Company to purchase such Firm Units to which such default relates on the terms contained herein. If within one (1) Business Day after such default relating to more than 10% of the Firm Units the Representatives do not arrange for the purchase of such Firm Units, then the Company shall be entitled to a further period of one (1) Business Day within which to procure another party or parties satisfactory to the Representatives to purchase said Firm Units on such terms. In the event that neither the Representatives nor the Company arrange for the purchase of the Firm Units to which a default relates as provided in this Section 6, this Agreement may be terminated by the Representatives or the Company without liability on the part of the Company (except as provided in Sections 3.9, 5, and 9.3 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other several Underwriters and to the Company for damages occasioned by its default hereunder.
6.3. Postponement ofClosing Date. In the event that the Firm Units to which the default relates are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representatives or the Company shall have the right to postpone the Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement and/or the Prospectus, as the case may be, or in any other documents and arrangements, and the Company agrees to file promptly any amendment to, or to supplement, the Registration Statement and/or the Prospectus, as the case may be, that in the reasonable opinion of counsel for the Underwriters may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such securities.
- Additional Covenants.
7.1. Additional Sharesor Options. The Company hereby agrees that, until the consummation of a Business Combination, it shall not issue any Ordinary Shares or any options or other securities convertible into Ordinary Shares, or any preferred shares or other securities of the Company that participate in any manner in the Trust Account or that vote as a class with the Ordinary Shares on a Business Combination.
7.2 Trust Account WaiverAcknowledgments. The Company hereby agrees that it will use its reasonable best efforts prior to commencing its due diligence investigation of any prospective Target Business or prior to obtaining the services of any vendor to have such Target Business and/or vendor, as applicable, acknowledge in writing whether through a letter of intent, memorandum of understanding or other similar document (and subsequently acknowledges the same in any definitive document replacing any of the foregoing), that: (a) it has read the Prospectus and understands that the Company has established the Trust Account, initially in an amount of $60,000,000 (without giving effect to any exercise of the Over-allotment Option) for the benefit of the Public Shareholders and that, except for a portion of the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only (i) to the Public Shareholders in the event they elect to redeem Public Shares in connection with the consummation of a Business Combination, (ii) to the Public Shareholders in the event they elect to redeem Public Shares in connection with a shareholder vote to amend the Charter Documents to modify the substance and timing of the Company’s obligation to redeem 100% of the Public Shares if the Company does not complete its initial Business Combination within the completion window, (iii) to the Public Shareholders if the Company fails to consummate a Business Combination within the time period set forth in the Charter Documents, or (iv) to the Company after or concurrently with the consummation of a Business Combination; and (b) for and in consideration of the Company (i) agreeing to evaluate such Target Business for purposes of consummating a Business Combination with it or (ii) agreeing to engage the services of the vendor, as the case may be, such Target Business or vendor agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Account (“Claim”) and waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever. The Company may forego obtaining such waivers only if the Company shall have received the approval of its Chief Executive Officer and the approving vote of at least a majority of its Board of Directors.
7.3 Insider Letter. The Company shall not take any action or omit to take any action which would cause a breach of the Insider Letter and will not allow any amendments to, or waivers of, such Insider Letter without the prior written consent of the Representatives, which consent shall not be unreasonably delayed, conditioned or withheld by the Representatives.
7.4 Trust Agreement. The Company shall not take any action or omit to take any action which would cause a breach of the Trust Agreement and will not allow any amendments to, or waivers of, such Trust Agreement without the prior written consent of the Representatives, which consent shall not be unreasonably delayed, conditioned or withheld by the Representatives.
7.5 Rule 419. The Company agrees that it will use its commercially reasonable efforts to prevent the Company from becoming subject to Rule 419 under the Act prior to the consummation of any Business Combination, including but not limited to using its commercially reasonable efforts to prevent any of the Company’s outstanding securities from being deemed to be a “penny stock” as defined in Rule 3a-51-1 under the Exchange Act during such period.
7.6 Tender Offer Documents,Proxy Materials and Other Information. The Company shall provide to the Representatives or their counsel (if so instructed by the Representatives) with ten (10) copies of all tender offer documents or proxy information and all related material filed with the Commission in connection with a Business Combination concurrently with such filing with the Commission. Documents filed with the Commission pursuant to its EDGAR system shall be deemed to have been provided to the Representatives pursuant to this Section 7.5. In addition, the Company shall furnish any other state in which its initial public offering was registered, such information as may be requested by such state.
7.7 Emerging GrowthCompany. The Company shall promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the completion of the distribution of the Securities within the meaning of the Act.
7.8 Target Net Assets. The Company agrees that, so long as the Company is listed on a national securities exchange, the Target Business that it acquires must have a fair market value equal to at least 80% of the balance in the Trust Account at the time of signing the definitive agreement for the Business Combination with such Target Business (excluding taxes payable and the Deferred Underwriting Commission). The fair market value of such business must be determined by the Board of Directors of the Company based upon standards generally accepted by the financial community, such as actual and potential sales, earnings, cash flow and book value. If the Board of Directors of the Company is not able to independently determine that the Target Business meets such fair market value requirement, the Company will obtain an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions with respect to the satisfaction of such criteria. The Company is not required to obtain an opinion as to the fair market value if the Company’s Board of Directors independently determines that the Target Business does have sufficient fair market value.
7.9 Representationsand Agreements to Survive Delivery. Except as the context otherwise requires, all representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties and agreements of the Underwriters and the Company, including the indemnity agreements contained in Section 5 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriters, the Company or any controlling person, and shall survive termination of this Agreement or the issuance and delivery of the Public Securities to the Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect.
7.10 Charter Documents. The Company shall not take any action or omit to take any action that would cause the Company to be in breach or violation of any of its Charter Documents.
8. Effective Date of this Agreement and Termination.
8.1. Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission.
8.2. Termination. The Representatives shall have the right to terminate this Agreement at any time prior to the Closing Date by notice given to the Company, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representatives’ opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange (“NYSE”), the NYSE American, The Nasdaq Global Select Market, Nasdaq, or The Nasdaq Capital Market or quotation on the OTCBB shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction; or (iii) if the United States shall have become involved in a new war or a significant increase in existing major hostilities; or (iv) if a banking moratorium has been declared by a New York State or Federal authority; or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market; or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity (including, without limitation, a calamity relating to a public health matter or natural disaster) or malicious act which, whether or not such loss shall have been insured, will, in the Representatives’ opinion, make it inadvisable to proceed with the delivery of the Units; or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder; or (viii) if the Representatives have become aware after the date hereof of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation, as a result of terrorist activities or any other calamity (including, without limitation, a calamity relating to a public health matter or natural disaster) or crisis either within or outside the United States after the date hereof, or a significant increase in any of the foregoing, as in the Representatives’ judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for the sale of the Public Securities.
8.3. Expenses. In the event that this Agreement shall not be carried out for any reason, other than solely because of the termination of this Agreement pursuant to Section 6 hereof, within the time specified herein or any extensions thereof pursuant to the terms herein, (i) the obligations of the Company to pay the out of pocket expenses related to the transactions contemplated herein shall be governed by Section 3.9 hereof and (ii) the Company shall reimburse the Representatives for any reasonable and documented out-of-pocket costs and expenses incurred in connection with enforcing any provisions of this Agreement.
8.4. Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
8.5. Representations,Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its affiliates or selling agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
- General Provisions.
9.1. Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered or certified mail, return receipt requested), personally delivered or sent by facsimile transmission and confirmed and shall be deemed given when so delivered or emailed and confirmed (which may be by email) or if mailed, two (2) days after such mailing.
If to the Representatives:
D. Boral Capital LLC
590 Madison Avenue, 39th Floor
New York, NY 10022
USA
Attention: Syndicate Department
E-Mail: info@dboralcapital.com
and
ARC Group Securities LLC
10 East 53^rd^ Street, Suite 3001
New York, New York 10022
Attention: Ian Hanna
Email: ian.hanna@arc-securities.com
with a copy (which shall not constitute notice) to:
Asim Grabowski-Shaikh, Esq.
James-Paul Cumming, Esq.
Baker & Hostetler LLP
45 Rockefeller Plaza,
New York, NY 10111
Email: agrabowskishaikh@bakerlaw.com;
jcumming@bakerlaw.com
Tel: (212) 589-4200
If to the Company:
Miluna Acquisition Corp.
12F, No. 43, Sec. 4,
Cheng Kong Road,
Taipei, Taiwan
Attn: Shang Ju Lin, CEO
Tel: +886 900-605-199
E-Mail: czhang1@gmail.com
with copies (which shall not constitute notice) to:
Ying Li, Esq.
Sally Yin, Esq.
Hunter Taubman Fischer & Li LLC
950 Third Avenue, 19th Floor
New York, NY 10022
Email: yli@htflawyers.com;
sally.yin@htflawyers.com
Tel: (212) 530-2206
9.2. Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.
9.3. Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.4. Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.5. Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representatives, the Underwriters, the Company and the controlling persons, directors, agents, partners, members, employees and officers referred to in Section 5 hereof, and their respective successors, legal representatives and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns” shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.6. Waiver of Immunity. To the extent that the Company may be entitled in any jurisdiction in which judicial proceedings may at any time be commenced hereunder, to claim for itself or its revenues or assets any immunity, including sovereign immunity, from suit, jurisdiction, attachment in aid of execution of a judgment or prior to a judgment, execution of a judgment or any other legal process with respect to its obligations hereunder and to the extent that in any such jurisdiction there may be attributed to the Company such an immunity (whether or not claimed), the Company hereby irrevocably agrees not to claim and irrevocably waives such immunity to the maximum extent permitted by law.
9.7. Submission to Jurisdiction. Each of the Company and the Representatives irrevocably submit to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in the City of New York, Borough of Manhattan, over any suit, action or proceeding arising out of or relating to this Agreement, the Registration Statement, the Sale Preliminary Prospectus and the Prospectus or the offering of the Securities. Each of the Company and the Representatives irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. Any such process or summons to be served upon the Company or the Representatives may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company or the Representatives in any action, proceeding or claim. Each of the Company and the Representatives waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. Notwithstanding the foregoing, any action based on this Agreement may be instituted by the Underwriters in any competent court. The Company agrees that the Underwriters shall be entitled to recover all of their reasonable attorneys’ fees and expenses relating to any action or proceeding and/or incurred in connection with the preparation therefor if any of them are the prevailing party in such action or proceeding. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
9.8. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
9.9. Execution in Counterparts;Electronic Signatures. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by facsimile, electronic mail (including pdf or any electronic signature complying with U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and valid and effective for all purposes.
9.10. Waiver. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Agreement or any provision hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
9.11. No Fiduciary Relationship. The Company acknowledges and agrees that (i) the purchase and sale of the Units pursuant to this Agreement is an arm’s-length commercial transaction pursuant to a contractual relationship between the Company and the Underwriters; (ii) in connection therewith and with the process leading to such transaction, each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company; (iii) the Underwriters have not assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Underwriters have advised or are currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement; (iv) in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company, its management, shareholders, creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the Offering, either before or after the date hereof; and (v) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Company hereby confirms its understanding and agreement to that effect. The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. The Company and the Underwriters agree that they are each responsible for making their own independent judgment with respect to any such transactions, and that any opinions or views expressed by the Underwriters to the Company regarding such transactions, including but not limited to any opinions or views with respect to the price or market for the Company’s securities, do not constitute advice or recommendations to the Company. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the Company in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions.
9.12. Recognition ofthe U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Agreement, (a) “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (b) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (c) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (d) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Signature page follows]
If the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us as of the date first above written.
| Very truly yours, | |
|---|---|
| MILUNA ACQUISITION CORP. | |
| By: | /s/ Shang Ju Lin |
| Name: | Shang Ju Lin |
| Title: | Chief Executive Officer |
Confirmed as of the date first written above on behalf of itself and as Representatives of the several Underwriters named on Schedule 1 hereto:
| D. BORAL CAPITAL LLC | |
|---|---|
| By: | /s/ Gaurav Verma |
| Name: | Gaurav Verma |
| Title: | Co-Head of Investment Banking |
| ARC Group Securities LLC | |
| --- | --- |
| By: | /s/ Ian Hanna |
| Name: | Ian Hanna |
| Title: | Chief Executive Officer |
[Signature page to the Underwriting Agreement]
SCHEDULE 1
| Underwriter | Total Number of<br> Firm Units to be<br> Purchased | |
|---|---|---|
| D. Boral Capital LLC | 373,832 | |
| Bancroft Capital LLC | 5,626,168 | |
| ARC Group Securities LLC | 0 | |
| TOTAL | 6,000,000 |
SCHEDULE 2
Testing-the-Water Communication
[_____]
Exhibit3.1
THECOMPANIES ACT (REVISED) OF
THECAYMAN ISLANDS COMPANY
LIMITEDBY SHARES
AMENDEDAND RESTATED
MEMORANDUMOF ASSOCIATION
OF
Miluna Acquisition Corp
(adopted by a Special Resolution passed on 28 August 2025 and effective immediately prior to the completion of the initial public offering of the Company’s ordinary shares)
| 1. | The<br> name of the Company is Miluna Acquisition Corp. |
|---|---|
| 2. | The<br> Company is an exempted company limited by shares. |
| --- | --- |
| 3. | The<br> Registered Office of the Company is at Harneys Fiduciary (Cayman) Limited, 4th Floor, Harbour<br> Place, 103 South Church Street, P.O. Box 10240, Grand Cayman KY1-1002, Cayman Islands or<br> at such other place as the Directors may from time to time decide. |
| --- | --- |
| 4. | The<br> objects for which the Company is established are unrestricted and the Company shall have<br> full power and authority to carry out any object not prohibited by the Companies Act or any<br> other law of the Cayman Islands. |
| --- | --- |
| 5. | The<br> Company shall have and be capable of exercising all the functions of a natural person of<br> full capacity irrespective of any question of corporate benefit as provided by the Companies<br> Act. |
| --- | --- |
| 6. | The<br> Company will not trade in the Cayman Islands with any person, firm or corporation except<br> in furtherance of the business of the Company carried on outside the Cayman Islands; provided<br> that nothing in this section shall be construed as to prevent the Company effecting and concluding<br> contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary<br> for the carrying on of its business outside the Cayman Islands. |
| --- | --- |
| 7. | The<br> liability of each Member is limited to the amount from time to time unpaid on the Shares<br> held by such Member. |
| --- | --- |
| 8. | The<br> authorised share capital of the Company is US$55,500 divided into 555,000,000 shares of par<br> value of US$0.0001 each, comprising (i) 550,000,000 ordinary shares of a par value of US$0.0001<br> each and (ii) 5,000,000 preferred shares of a par value of US$0.0001 each. Subject to the<br> Companies Act and the Articles, the Company shall have power to redeem or purchase any of<br> its Shares and to increase or reduce its authorised share capital and to sub-divide or consolidate<br> the said Shares or any of them and to issue all or any part of its capital whether original,<br> redeemed, increased or reduced with or without any preference, priority, special privilege<br> or other rights or subject to any postponement of rights or to any conditions or restrictions<br> whatsoever and so that unless the conditions of issue shall otherwise expressly provide every<br> issue of shares whether stated to be ordinary, preference or otherwise shall be subject to<br> the powers on the part of the Company hereinbefore provided. |
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| 9. | Unless<br> the Directors otherwise prescribe, the financial year of the Company shall end on December<br> 31 in each calendar year and shall begin on January 1 in each calendar year. |
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| 10. | The<br> Company has the power contained in the Companies Act to deregister in the Cayman Islands<br> and be registered by way of continuation in some other jurisdiction. |
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| 11. | Capitalised<br> terms that are not defined in this Memorandum of Association bear the same meanings as those<br> given in the Articles of Association of the Company. |
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| | *Filed: 09-Sep-2025 15:41 EST* |
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THECOMPANIES ACT (REVISED) OF
THECAYMAN ISLANDS COMPANY
LIMITEDBY SHARES
AMENDEDAND RESTATED
ARTICLESOF ASSOCIATION
OF
Miluna Acquisition Corp
(adopted by a Special Resolution passed on 28 August 2025 and effective immediately prior to the completion of the initial public offering of the Company’s ordinary shares)
TABLE A
The regulations contained or incorporated in Table A in the First Schedule of the Companies Act shall not apply to the Company and the following Articles shall comprise the Articles of Association of the Company.
| 1. | In<br> these Articles the following defined terms will have the meanings ascribed to them, if not<br> inconsistent with the subject or context: | ||
|---|---|---|---|
| “Affiliate” | means<br> in respect of a Person, any other Person that, directly or indirectly, through one or more intermediaries,<br> controls, is controlled by, or is under common control with, such Person, and (i) in the case of<br> a natural person, shall include, without limitation, such person’s spouse, parents, children,<br> siblings, mother-in-law, father-in-law, brothers-in-law and sisters-in-law, whether by blood, marriage<br> or adoption, a trust for the benefit of any of the foregoing, and a corporation, partnership or<br> any other entity wholly or jointly owned by any of the foregoing, and (ii) in the case of an entity,<br> shall include a partnership, a corporation or any other entity or any natural person which directly,<br> or indirectly through one or more intermediaries, controls, is controlled by, or is under common<br> control with, such entity. The term “control” shall mean the ownership, directly or<br> indirectly, of shares possessing more than fifty per cent (50%) of the voting power of the corporation,<br> partnership or other entity (other than, in the case of a corporation, securities having such power<br> only by reason of the happening of a contingency), or having the power to control the management<br> or elect a majority of members to the board of directors or equivalent decision-making body of such<br> corporation, partnership or other entity; | ||
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| “Articles”means ; | these<br> articles of association of the Company, as amended, restated and/or substituted from time to time; | ||
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| “BusinessCombination” | means<br> a merger, share exchange, asset acquisition, share purchase, reorganisation or similar business combination involving<br> the Company, with one or more businesses or entities (each a “target business”), which Business<br> Combination: (a) must occur with one or more target businesses that together have an aggregate fair market value of<br> at least 80% of the net assets held in the Trust Account (excluding the deferred underwriting discounts held in trust<br> and taxes payable on the interest earned on the Trust Account) at the time of signing the agreement to enter into<br> the Business Combination; and (b) must not be effectuated solely with another blank cheque company or a similar company<br> with nominal operations; | ||
| “BusinessDay” | means<br> any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies<br> are authorized or obligated by law to close in New York City; | ||
| “CompaniesAct” | means<br> the Companies Act (Revised) of the Cayman Islands, as amended or re-enacted from time to time; | ||
| “Company” | means<br> Miluna Acquisition Corp, a Cayman Islands exempted company; | ||
| “Director” | means<br> a director of the Company appointed in accordance with these Articles; | ||
| “Distribution” | means<br> a distribution, dividend (including an interim dividend) or other payment or transfer of property of the Company on<br> or in respect of a Share (save in respect of its redemption or repurchase); | ||
| “ElectronicRecord” | has<br> the meaning given to it in the Electronic Transactions Act and any amendment thereto or re- enactments thereof for<br> the time being in force and includes every other law incorporated therewith or substituted therefor; | ||
| “ElectronicTransactions Act” | means<br> the Electronic Transactions Act (Revised) of the Cayman Islands and any statutory amendment or re-enactment thereof; | ||
| Filed: 09-Sep-2025 15:41 EST | |||
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| “ExchangeAct” | means<br> the United States Securities Exchange Act of 1934, as amended; | ||
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| “IndependentDirector” | means<br> a director who is an independent director as defined in the rules and regulations of the Designated Stock Exchange<br> as determined by the Directors | ||
| “IPO” | means<br> the Company’s initial public offering of securities; | ||
| “Member”or “Member” | means<br> a Person who is registered as the holder of one or more Shares in the Register; | ||
| “Memorandum” | means<br> the memorandum of association of the Company, as amended or substituted from time to time; | ||
| “NominatingCommittee” | means<br> the nominating committee of the board of directors of the Company established pursuant to the Articles, or any successor<br> committee; | ||
| “Officer” | means<br> any person appointed by the Directors to hold an office in the Company; | ||
| “OrdinaryResolution” | means<br> a resolution: | ||
| (a) | passed<br> by a simple majority of the votes cast by such Members as, being entitled to do so, vote<br> in person or, where proxies are allowed, by proxy or, in the case of corporations, by their<br> duly authorised representatives, at a general meeting of the Company held in accordance with<br> these Articles; or | ||
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| (b) | approved<br> in writing by all of the Members entitled to vote at a general meeting of the Company in<br> one or more instruments each signed by one or more of the Members and the effective date<br> of the resolution so adopted shall be the date on which the instrument, or the last of such<br> instruments, if more than one, is executed; | ||
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| “Ordinary Share” | means<br> an ordinary share of a par value of US$0.0001 in the capital of the Company, designated as an Ordinary Share and having the rights<br> provided for in these Articles; | ||
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| “Person” | means<br> any natural person, firm, company, joint venture, partnership, corporation, association or other entity (whether or not having a<br> separate legal personality) or any of them as the context so requires; | ||
| “Public Share” | means<br> an Ordinary Share issued as part of the units (as described in the Articles) issued in the IPO | ||
| “Redemption Notice” | means<br> a notice in a form approved by the Company by which a holder of Public Shares is entitled to require the Company to redeem its Public<br> Shares, subject to any conditions contained therein; | ||
| “Register of Directors and Officers” | means<br> the register of Directors and Officers maintained by the Company in accordance with these Articles; | ||
| “Register of Members” | means<br> the register of Members referred to in these Articles; | ||
| “Registrar” | means<br> the Registrar of Companies and includes the Deputy Registrar of Companies; | ||
| “Registered Office” | means<br> the registered office of the Company as required by the Companies Act; | ||
| “Representative” | means<br> a representative of the Underwriters; | ||
| “Seal” | means<br> any seal which has been duly adopted as the common seal of the Company and includes every duplicate seal; | ||
| “Secretary” | means<br> the person appointed to perform any or all of the duties of secretary of the Company, including any assistant secretary; | ||
| “Securities and Exchange Commission” | means<br> the United States Securities and Exchange Commission; | ||
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| “Share” | means<br> a share in the capital of the Company. All references to “Shares” herein shall be deemed<br> to be Shares of any or all Classes as the context may require. For the avoidance of doubt in these<br> Articles the expression “Share” shall include a fraction of a Share; | ||
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| “SpecialResolution” | means<br> a special resolution of the Company passed in accordance with the Companies Act, being a resolution: | ||
| (a) | passed<br> by not less than two-thirds of the votes cast by such Members as, being entitled to do so,<br> vote in person or, where proxies are allowed, by proxy or, in the case of corporations, by<br> their duly authorised representatives, at a general meeting of the Company of which notice<br> specifying the intention to propose the resolution as a special resolution has been duly<br> given; or | ||
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| (b) | approved<br> in writing by all of the Members entitled to vote at a general meeting of the Company in<br> one or more instruments each signed by one or more of the Members; | ||
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| “Sponsor” | means<br> MilunaC Technology Limited, a British Virgin Islands company limited by shares, and its successors<br> or assigns; | ||
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| “TreasuryShare” | means<br> a Share that has been repurchased, redeemed, surrendered to or otherwise acquired by the Company and not cancelled; | ||
| “TrustAccount” | means<br> the trust account established by the Company upon the consummation of its IPO and into which a certain amount of the<br> net proceeds of the IPO, together with a certain amount of the proceeds of the sale of the Private Placement Shares,<br> will be deposited; | ||
| “Underwriter” | means<br> an underwriter of the IPO from time to time and any successor underwriter; and; | ||
| “Written” | includes<br> information generated, sent, received or stored by electronic, electrical, digital, magnetic, optical, electromagnetic,<br> biometric or photonic means, including electronic data interchange and electronic mail in accordance with the Electronic<br> Transactions Act and in writing shall be construed accordingly. | ||
| Filed: 09-Sep-2025 15:41 EST | |||
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| 2. | In<br> these Articles, save where the context requires otherwise: | ||
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| (a) | words<br> importing the singular number shall include the plural number and vice versa; | ||
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| (b) | words<br> importing the masculine gender only shall include the feminine gender and any Person as the<br> context may require; | ||
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| (c) | the<br> word “may” shall be construed as permissive and the word “shall”<br> shall be construed as imperative; | ||
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| (d) | reference<br> to a dollar or dollars (or US$) and to a cent or cents is reference to dollars and cents<br> of the United States of America; | ||
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| (e) | reference<br> to a statutory enactment shall include reference to any amendment or re-enactment thereof<br> for the time being in force; | ||
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| (f) | reference<br> to any determination by the Directors shall be construed as a determination by the Directors<br> in their sole and absolute discretion and shall be applicable either generally or in any<br> particular case; | ||
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| (g) | any<br> phrase introduced by the terms “including”, “include” or “in<br> particular” or similar expression shall be construed as illustrative and shall not<br> limit the sense of the words preceding those terms; | ||
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| (h) | reference<br> to “in writing” shall be construed as written or represented by any means reproducible<br> in writing, including any form of print, lithograph, email, facsimile, photograph or telex<br> or represented by any other substitute or format for storage or transmission for writing<br> including in the form of an electronic record or partly one and partly another; | ||
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| (i) | any<br> requirements as to delivery under the Articles include delivery in the form of an electronic<br> record or an electronic communication; | ||
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| (j) | any<br> requirements as to execution or signature under the Articles, including the execution of<br> the Articles themselves, can be satisfied in the form of an electronic signature as defined<br> in the Electronic Transactions Act; and | ||
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| (k) | Sections<br> 8 and 19(3) of the Electronic Transactions Act shall not apply. | ||
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| 3. | Subject<br> to the last two preceding Articles, any words defined in the Companies Act shall, if not<br> inconsistent with the subject or context, bear the same meaning in these Articles. | ||
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PRELIMINARY
| 4. | The<br> business of the Company may be conducted as the Directors see fit. |
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| 5. | The<br> Registered Office shall be at such address in the Cayman Islands as the Directors may from<br> time to time determine. The Company may in addition establish and maintain such other offices<br> and places of business and agencies in such places as the Directors may from time to time<br> determine. |
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| 6. | The<br> expenses incurred in the formation of the Company and in connection with the offer for subscription<br> and issue of Shares shall be paid by the Company. Such expenses may be amortised over such<br> period as the Directors may determine and the amount so paid shall be charged against income<br> and/or capital in the accounts of the Company as the Directors shall determine. |
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| 7. | The<br> Directors shall keep, or cause to be kept, the Register at such place as the Directors may<br> from time to time determine and, in the absence of any such determination, the Register shall<br> be kept at the Registered Office. |
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SHARES
| 8. | Subject<br> to these Articles and where applicable the Designated Stock Exchange Rules, all Shares for<br> the time being unissued shall be under the control of the Directors who may, in their absolute<br> discretion and without the approval of the Members, cause the Company to: |
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| (a) | issue,<br> allot, or otherwise dispose of Shares (including, without limitation, preferred shares) (whether<br> in certificated form or non-certificated form) to such Persons, in such manner, at such times<br> and on such terms and having such rights and being subject to such restrictions as they may<br> from time to time determine; |
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| (b) | grant<br> rights over Shares or other securities to be issued in one or more classes or series as they<br> deem necessary or appropriate and determine the designations, powers, preferences, privileges<br> and other rights attaching to such Shares or securities, including dividend rights, voting<br> rights, conversion rights, terms of redemption and liquidation preferences, any or all of<br> which may be greater than the powers, preferences, privileges and rights associated with<br> the then issued and outstanding Shares, at such times and on such other terms as they think<br> proper; and |
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| (c) | grant<br> options with respect to Shares and issue warrants or similar instruments with respect thereto,<br> at such times and on such terms and having such rights and being subject to such restrictions<br> as they may from time to time determine. |
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| 9. | Prior<br> to the consummation of the Company’s initial Business Combination, the Company shall<br> not issue any additional shares of capital stock of the Company that would entitle the holders<br> thereof to receive funds from the Trust Account or vote on any initial Business Combination,<br> on any pre-Business Combination activity or any amendment to Articles 165 to 184. |
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| 10. | The<br> Directors may authorise the division of Shares into any number of Classes and the different<br> Classes shall be authorised, established and designated (or re-designated as the case may<br> be) and the variations in the relative rights (including, without limitation, voting, dividend<br> and redemption rights), restrictions, preferences, privileges and payment obligations as<br> between the different Classes (if any) may be fixed and determined by the Directors or by<br> an Ordinary Resolution. The Directors may issue Shares with such preferred or other rights,<br> all or any of which may be greater than the rights of Ordinary Shares, at such time and on<br> such terms as they may think appropriate. Notwithstanding Article 12, the Directors may issue<br> from time to time, out of the authorised share capital of the Company, series of preferred<br> shares in their absolute discretion and without approval of the Members; provided, however,<br> before any preferred shares of any such series are issued, the Directors may by resolution<br> of Directors determine, with respect to any series of preferred shares, the terms and rights<br> of that series, including: |
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| (a) | the<br> designation of such series, the number of preferred shares to constitute such series and<br> the subscription price thereof if different from the par value thereof; |
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| (b) | whether<br> the preferred shares of such series shall have voting rights, in addition to any voting rights<br> provided by law, and, if so, the terms of such voting rights, which may be general or limited; |
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| (c) | the<br> dividends, if any, payable on such series, whether any such dividends shall be cumulative,<br> and, if so, from what dates, the conditions and dates upon which such dividends shall be<br> payable, and the preference or relation which such dividends shall bear to the dividends<br> payable on any shares of any other class or any other series of shares; |
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| (d) | whether<br> the preferred shares of such series shall be subject to redemption by the Company, and, if<br> so, the times, prices and other conditions of such redemption; |
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| (e) | whether<br> the preferred shares of such series shall have any rights to receive any part of the assets<br> available for distribution amongst the Members upon the liquidation of the Company, and,<br> if so, the terms of such liquidation preference, and the relation which such liquidation<br> preference shall bear to the entitlements of the holders of shares of any other class or<br> any other series of shares; |
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| (f) | whether<br> the preferred shares of such series shall be subject to the operation of a retirement or<br> sinking fund and, if so, the extent to and manner in which any such retirement or sinking<br> fund shall be applied to the purchase or redemption of the preferred shares of such series<br> for retirement or other corporate purposes and the terms and provisions relative to the operation<br> thereof; |
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| (g) | whether<br> the preferred shares of such series shall be convertible into, or exchangeable for, shares<br> of any other class or any other series of preferred shares or any other securities and, if<br> so, the price or prices or the rate or rates of conversion or exchange and the method, if<br> any, of adjusting the same, and any other terms and conditions of conversion or exchange; |
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| (h) | the<br> limitations and restrictions, if any, to be effective while any preferred shares of such<br> series are outstanding upon the payment of dividends or the making of other distributions<br> on, and upon the purchase, redemption or other acquisition by the Company of, the existing<br> shares or shares of any other class of shares or any other series of preferred shares; |
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| (i) | the<br> conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon<br> the issue of any additional shares, including additional shares of such series or of any<br> other class of shares or any other series of preferred shares; and |
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| (j) | any<br> other powers, preferences and relative, participating, optional and other special rights,<br> and any qualifications, limitations and restrictions thereof; and, for such purposes, the<br> Directors may reserve an appropriate number of Shares for the time being unissued. The Company<br> shall not issue Shares to bearer. |
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| 10. | The<br> Company may insofar as may be permitted by law, pay a commission to any Person in consideration<br> of his subscribing or agreeing to subscribe whether absolutely or conditionally for any Shares.<br> Such commissions may be satisfied by the payment of cash or the lodgment of fully or partly<br> paid-up Shares or partly in one way and partly in the other. The Company may also pay such<br> brokerage as may be lawful on any issue of Shares. |
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| 11. | The<br> Directors may refuse to accept any application for Shares, and may accept any application<br> in whole or in part, for any reason or for no reason. |
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MODIFICATION OF RIGHTS
| 12. | Whenever<br> the capital of the Company is divided into different Classes the rights attached to any such<br> Class may, subject to any rights or restrictions for the time being attached to any Class,<br> only be materially and adversely varied with the consent in writing of the holders of two-thirds<br> of the issued Shares of that Class or with the sanction of a Special Resolution passed at<br> a separate meeting of the holders of the Shares of that Class. To every such separate meeting<br> all the provisions of these Articles relating to general meetings of the Company or to the<br> proceedings thereat shall, mutatis mutandis, apply, except that the necessary quorum<br> shall be one or more Persons holding or representing by proxy at least one-thirds in nominal<br> or par value amount of the issued Shares of the relevant Class (but so that if at any adjourned<br> meeting of such holders a quorum as above defined is not Present, those Members who are Present<br> shall form a quorum) and that, subject to any rights or restrictions for the time being attached<br> to the Shares of that Class, every Member of the Class shall on a poll have one (1) vote<br> for each Share of which such Member is the holder. For the purposes of this Article the Directors<br> may treat all the Classes or any two or more Classes as forming one Class if they consider<br> that all such Classes would be affected in the same way by the proposals under consideration,<br> but in any other case shall treat them as separate Classes. |
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| 13. | The<br> rights conferred upon the holders of the Shares of any Class issued with preferred or other<br> rights shall not, subject to any rights or restrictions for the time being attached to the<br> Shares of that Class, be deemed to be materially and adversely varied by, inter alia, the<br> creation, allotment or issue of further Shares ranking pari passu with or subsequent<br> to them or the redemption or purchase of any Shares of any Class by the Company. The rights<br> of the holders of Shares shall not be deemed to be materially and adversely varied by the<br> creation or issue of Shares with preferred or other rights including, without limitation,<br> the creation of Shares with enhanced or weighted voting rights. |
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CERTIFICATES
| 14. | A<br> Member may only be entitled to a share certificate if the Directors resolve that share certificates<br> shall be issued. Share certificates representing Shares, if any, shall be in such form as<br> the Directors may determine. Share certificates shall be signed by one or more Directors<br> or other person authorised by the Directors. The Directors may authorise certificates to<br> be issued with the authorised signature(s) affixed by mechanical process. All certificates<br> for Shares shall be numbered or otherwise identified and shall specify the Shares to which<br> they relate. All certificates surrendered to the Company for transfer shall be cancelled<br> and, subject to these Articles, no new certificate shall be issued until the former certificate<br> representing a like number of relevant Shares shall have been surrendered and cancelled. |
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| 15. | Every<br> share certificate of the Company shall bear such legends as may be required under applicable<br> laws, including the Securities Act. |
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| 16. | No<br> certificate shall be issued representing shares of more than one class. |
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| 17. | If<br> a share certificate shall be damaged or defaced or alleged to have been lost, stolen or destroyed,<br> a new certificate representing the same Shares may be issued to the relevant Member upon<br> request, subject to delivery up of the old certificate or (if alleged to have been lost,<br> stolen or destroyed) compliance with such conditions as to evidence and indemnity and the<br> payment of out-of-pocket expenses of the Company in connection with the request as the Directors<br> may think fit. |
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| 18. | The<br> Company shall not be bound to issue more than one certificate for Shares held jointly by<br> more than one person. In the event that Shares are held jointly by several Persons, any request<br> may be made by any one of the joint holders and if so made shall be binding on all of the<br> joint holders. |
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FRACTIONAL SHARES
| 19. | The<br> Directors may issue fractions of a Share and, if so issued, a fraction of a Share shall be<br> subject to and carry the corresponding fraction of liabilities (whether with respect to nominal<br> or par value, premium, contributions, calls or otherwise), limitations, preferences, privileges,<br> qualifications, restrictions, rights (including, without prejudice to the generality of the<br> foregoing, voting and participation rights) and other attributes of a whole Share. If more<br> than one fraction of a Share of the same Class is issued to or acquired by the same Member<br> such fractions shall be accumulated. |
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LIEN
| 20. | The<br> Company has a first and paramount lien on every Share (whether or not fully paid) for all<br> amounts (whether presently payable or not) payable at a fixed time or called in respect of<br> that Share. The Company also has a first and paramount lien on every Share registered in<br> the name of a Person indebted or under liability to the Company (whether he is the sole registered<br> holder of a Share or one of two or more joint holders) for all amounts owing by him or his<br> estate to the Company (whether or not presently payable). The Directors may at any time declare<br> a Share to be wholly or in part exempt from the provisions of this Article. The Company’s<br> lien on a Share extends to any amount payable in respect of it, including but not limited<br> to dividends. |
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| 21. | The<br> Company may sell, in such manner as the Directors in their absolute discretion think fit,<br> any Share on which the Company has a lien, but no sale shall be made unless an amount in<br> respect of which the lien exists is presently payable nor until the expiration of fourteen<br> calendar days after a notice in writing, demanding payment of such part of the amount in<br> respect of which the lien exists as is presently payable, has been given to the registered<br> holder for the time being of the Share, or the Persons entitled thereto by reason of his<br> death or bankruptcy. |
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| 22. | For<br> giving effect to any such sale the Directors may authorise a Person to transfer the Shares<br> sold to the purchaser thereof. The purchaser shall be registered as the holder of the Shares<br> comprised in any such transfer and he shall not be bound to see to the application of the<br> purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity<br> in the proceedings in reference to the sale. |
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| 23. | The<br> proceeds of the sale after deduction of expenses, fees and commissions incurred by the Company<br> shall be received by the Company and applied in payment of such part of the amount in respect<br> of which the lien exists as is presently payable, and the residue shall (subject to a like<br> lien for sums not presently payable as existed upon the Shares prior to the sale) be paid<br> to the Person entitled to the Shares immediately prior to the sale. |
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CALLS ON SHARES
| 24. | Subject<br> to the terms of the allotment, the Directors may from time to time make calls upon the Members<br> in respect of any moneys unpaid on their Shares, and each Member shall (subject to receiving<br> at least fourteen calendar days’ notice specifying the time or times of payment) pay<br> to the Company at the time or times so specified the amount called on such Shares. A call<br> shall be deemed to have been made at the time when the resolution of the Directors authorising<br> such call was passed. |
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| 25. | The<br> joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof. |
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| 26. | If<br> a sum called in respect of a Share is not paid before or on the day appointed for payment<br> thereof, the Person from whom the sum is due shall pay interest upon the sum at such rate<br> as the Directors may determine from time to time (and in addition all expenses that have<br> been incurred by the Company by reason of such non-payment), from the day appointed for the<br> payment thereof to the time of the actual payment, but the Directors shall be at liberty<br> to waive payment of that interest wholly or in part. |
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| 27. | The<br> provisions of these Articles as to the liability of joint holders and as to payment of interest<br> shall apply in the case of non- payment of any sum which, by the terms of issue of a Share,<br> becomes payable at a fixed time, whether on account of the amount of the Share, or by way<br> of premium, as if the same had become payable by virtue of a call duly made and notified. |
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| 28. | The<br> Directors may make arrangements with respect to the issue of partly paid Shares for a difference<br> between the Members, or the particular Shares, in the amount of calls to be paid and in the<br> times of payment. |
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| 29. | The<br> Directors may, if they think fit, receive from any Member willing to advance the same all<br> or any part of the moneys uncalled and unpaid upon any partly paid Shares held by him, and<br> upon all or any of the moneys so advanced may (until the same would, but for such advance,<br> become presently payable) pay interest at such rate (not exceeding without the sanction of<br> an Ordinary Resolution), at the rate per annum as the Directors may determine from time to<br> time as may be agreed upon between the Member paying the sum in advance and the Directors.<br> No such sum paid in advance of calls shall entitle the Member paying such sum to any portion<br> of a dividend declared in respect of any period prior to the date upon which such sum would,<br> but for such payment, become presently payable. |
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FORFEITURE OF SHARES
| 30. | If<br> a Member fails to pay any call or instalment of a call in respect of partly paid Shares on<br> the day appointed for payment, the Directors may, at any time thereafter during such time<br> as any part of such call or instalment remains unpaid, serve a notice on him requiring payment<br> of so much of the call or instalment as is unpaid, together with any interest which may have<br> accrued. |
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| 31. | The<br> notice shall name a further day (not earlier than the expiration of fourteen calendar days<br> from the date of the notice) on or before which the payment required by the notice is to<br> be made, and shall state that in the event of non-payment at or before the time appointed,<br> the Shares in respect of which the call was made will be liable to be forfeited. |
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| 32. | If<br> the requirements of any such notice as aforesaid are not complied with, any Share in respect<br> of which the notice has been given may at any time thereafter, before the payment required<br> by notice has been made, be forfeited by a resolution of the Directors to that effect. |
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| 33. | A<br> forfeited Share may be sold or otherwise disposed of on such terms and in such manner as<br> the Directors think fit, and at any time before a sale or disposition the forfeiture may<br> be cancelled on such terms as the Directors think fit. |
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| 34. | A<br> Person whose Shares have been forfeited shall cease to be a Member in respect of the forfeited<br> Shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which<br> at the date of forfeiture were payable by him to the Company in respect of the Shares forfeited,<br> but his liability shall cease if and when the Company receives payment in full of the amount<br> unpaid on the Shares forfeited. |
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| 35. | A<br> certificate in writing under the hand of a Director that a Share has been duly forfeited<br> on a date stated in the certificate shall be conclusive evidence of the facts in the declaration<br> as against all Persons claiming to be entitled to the Share. |
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| 36. | The<br> Company may receive the consideration, if any, given for a Share on any sale or disposition<br> thereof pursuant to the provisions of these Articles as to forfeiture and may execute a transfer<br> of the Share in favour of the Person to whom the Share is sold or disposed of and that Person<br> shall be registered as the holder of the Share and shall not be bound to see to the application<br> of the purchase money, if any, nor shall his title to the Shares be affected by any irregularity<br> or invalidity in the proceedings in reference to the disposition or sale. |
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| 37. | The<br> provisions of these Articles as to forfeiture shall apply in the case of non-payment of any<br> sum which by the terms of issue of a Share becomes due and payable, whether on account of<br> the amount of the Share, or by way of premium, as if the same had been payable by virtue<br> of a call duly made and notified. |
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TRANSFER OF SHARES
| 38. | The<br> instrument of transfer of any Share shall be in writing and in any usual or common form or<br> such other form as the Directors may, in their absolute discretion, approve and be executed<br> by or on behalf of the transferor and if in respect of a nil or partly paid up Share, or<br> if so required by the Directors, shall also be executed on behalf of the transferee and shall<br> be accompanied by the certificate (if any) of the Shares to which it relates and such other<br> evidence as the Directors may reasonably require to show the right of the transferor to make<br> the transfer. The transferor shall be deemed to remain a Member until the name of the transferee<br> is entered in the Register in respect of the relevant Shares. Subject to these Articles,<br> any Member may transfer all or any of his shares by an instrument of transfer in the usual<br> or common form or in a form prescribed by the Designated Stock Exchange or in any other form<br> approved by the Board and may be under hand or, if the transferor or transferee is a clearing<br> house or a central depository house or its nominee(s), by hand or by machine imprinted signature<br> or by such other manner of execution as the Board may approve from time to time. |
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| 39. | |
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| (a) | The<br> Directors may in their absolute discretion decline to register any transfer of Shares which<br> is not fully paid up or on which the Company has a lien. |
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| (b) | The<br> Directors may also decline to register any transfer of any Share unless: |
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| (i) | the<br> instrument of transfer is lodged with the Company, accompanied by the certificate for the<br> Shares to which it relates and such other evidence as the Board may reasonably require to<br> show the right of the transferor to make the transfer; |
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| (ii) | the<br> instrument of transfer is in respect of only one Class of Shares; |
| (iii) | the<br> instrument of transfer is properly stamped, if required; |
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| (iv) | in<br> the case of a transfer to joint holders, the number of joint holders to whom the Share is<br> to be transferred does not exceed four; and |
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| (v) | a<br> fee of such maximum sum as the Designated Stock Exchange may determine to be payable, or<br> such lesser sum as the Board of Directors may from time to time require, is paid to the Company<br> in respect thereof. |
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| 40. | The<br> registration of transfers may, after compliance with any notice required by the Designated<br> Stock Exchange Rules, be suspended and the Register closed at such times and for such periods<br> as the Directors may, in their absolute discretion, from time to time determine, provided<br> always that such registration of transfer shall not be suspended nor the Register closed<br> for more than thirty calendar days in any calendar year. |
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| 41. | All<br> instruments of transfer that are registered shall be retained by the Company. If the Directors<br> refuse to register a transfer of any Shares, they shall within two calendar months after<br> the date on which the transfer was lodged with the Company send notice of the refusal to<br> each of the transferor and the transferee. |
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TRANSMISSION OF SHARES
| 42. | The<br> legal personal representative of a deceased sole holder of a Share shall be the only Person<br> recognised by the Company as having any title to the Share. In the case of a Share registered<br> in the name of two or more holders, the survivors or survivor, or the legal personal representatives<br> of the deceased survivor, shall be the only Person recognised by the Company as having any<br> title to the Share. |
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| 43. | Any<br> Person becoming entitled to a Share in consequence of the death or bankruptcy of a Member<br> shall, upon such evidence being produced as may from time to time be required by the Directors,<br> have the right either to be registered as a Member in respect of the Share or, instead of<br> being registered himself, to make such transfer of the Share as the deceased or bankrupt<br> Person could have made; but the Directors shall, in either case, have the same right to decline<br> or suspend registration as they would have had in the case of a transfer of the Share by<br> the deceased or bankrupt Person before the death or bankruptcy. |
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| 44. | A<br> Person becoming entitled to a Share by reason of the death or bankruptcy of a Member shall<br> be entitled to the same dividends and other advantages to which he would be entitled if he<br> were the registered Member, except that he shall not, before being registered as a Member<br> in respect of the Share, be entitled in respect of it to exercise any right conferred by<br> membership in relation to meetings of the Company, provided however, that the Directors may<br> at any time give notice requiring any such Person to elect either to be registered himself<br> or to transfer the Share, and if the notice is not complied with within ninety calendar days,<br> the Directors may thereafter withhold payment of all dividends, bonuses or other monies payable<br> in respect of the Share until the requirements of the notice have been complied with. |
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REGISTRATION OF EMPOWERING INSTRUMENTS
| 45. | The<br> Company shall be entitled to charge a fee not exceeding one dollar (US$1.00) on the registration<br> of every probate, letters of administration, certificate of death or marriage, power of attorney,<br> notice in lieu of distringas, or other instrument. |
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ALTERATION OF SHARE CAPITAL
| 46. | The<br> Company may from time to time by Ordinary Resolution increase the share capital by such sum,<br> to be divided into Shares of such Classes and amount, as the resolution shall prescribe and<br> with such rights, priorities and privileges annexed thereto, as the Company in general meeting<br> may determine. |
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| 47. | The<br> Company may by Ordinary Resolution: |
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| (a) | increase<br> its share capital by new Shares of such amount as it thinks appropriate; |
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| (b) | consolidate<br> and divide all or any of its share capital into Shares of a larger amount than its existing<br> Shares; |
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| (c) | divide<br> its Shares into several classes and without prejudice to any special rights previously conferred<br> on the holders of existing Shares attach thereto respectively any preferential, deferred,<br> qualified or special rights, privileges, conditions or such restrictions which in the absence<br> of any such determination by the Company in general meeting, as the Directors may determine<br> provided always that, for the avoidance of doubt, where a Class of Shares has been authorised<br> by the Company, no resolution of the Company in general meeting is required for the issuance<br> of Shares of that Class and the Directors may issue Shares of that Class and determine such<br> rights, privileges, conditions or restrictions attaching thereto as aforesaid, and further<br> provided that where the Company issues shares which do not carry voting rights, the words<br> “non- voting” shall appear in the designation of such Shares and where the equity<br> capital includes shares with different voting rights, the designation of each Class of Shares,<br> other than those with the most favourable voting rights, must include the words “restricted<br> voting” or “limited voting”; |
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| (d) | subdivide<br> its Shares, or any of them, into Shares of an amount smaller than that fixed by the Memorandum,<br> provided that in the subdivision the proportion between the amount paid and the amount, if<br> any, unpaid on each reduced Share shall be the same as it was in case of the Share from which<br> the reduced Share is derived; and |
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| (e) | cancel<br> any Shares that, at the date of the passing of the resolution, have not been taken or agreed<br> to be taken by any Person and diminish the amount of its share capital by the amount of the<br> Shares so cancelled. |
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| 48. | All<br> new Shares created in accordance with the provisions of the preceding Article shall be subject<br> to the same provisions of the Articles with reference to the payment of calls, Liens, transfer,<br> transmission, forfeiture and otherwise as the Shares in the original share capital. The Board<br> may settle as it considers expedient any difficulty which arises in relation to any consolidation<br> and division under the preceding Article and in particular but without prejudice to the generality<br> of the foregoing may arrange for the sale of the shares representing fractions and the distribution<br> of the net proceeds of sale (after deduction of the expenses of such sale) in due proportion<br> amongst the Members who would have been entitled to the fractions, and for this purpose the<br> Board may authorise some person to transfer the shares representing fractions to their purchaser<br> or resolve that such net proceeds be paid to the Company for the Company’s benefit.<br> Such purchaser will not be bound to see to the application of the purchase money nor will<br> his title to the shares be affected by any irregularity or invalidity in the proceedings<br> relating to the sale. |
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| 49. | The<br> Company may by Special Resolution reduce its share capital and any capital redemption reserve<br> in any manner authorised by the Companies Act. |
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REDEMPTION, PURCHASE AND SURRENDER OF SHARES
| 50. | Subject<br> to the provisions of the Companies Act and these Articles, the Company may: |
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| (a) | issue<br> Shares that are to be redeemed or are liable to be redeemed at the option of the Member or<br> the Company. The redemption of Shares shall be effected in such manner and upon such terms<br> as may be determined, before the issue of such Shares, by the Board; |
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| (b) | purchase<br> its own Shares (including any redeemable Shares) on such terms and in such manner and terms<br> as have been approved by the Board, or are otherwise authorised by these Articles; and |
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| (c) | make<br> a payment in respect of the redemption or purchase of its own Shares in any manner permitted<br> by the Companies Act, including out of capital. |
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| 51. | The<br> purchase of any Share shall not oblige the Company to purchase any other Share other than<br> as may be required pursuant to applicable law and any other contractual obligations of the<br> Company. |
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| 52. | The<br> holder of the Shares being purchased shall be bound to deliver up to the Company the certificate(s)<br> (if any) thereof for cancellation and thereupon the Company shall pay to him the purchase<br> or redemption monies or consideration in respect thereof. |
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| 53. | The<br> Directors may accept the surrender for no consideration of any fully paid Share. |
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| 54. | With<br> respect to redeeming or repurchasing the Shares: |
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| (a) | Members<br> who hold Public Shares are entitled to request the redemption of such Shares, or for such<br> Public Shares to otherwise be redeemed, in the circumstances described in Article 166; |
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| (b) | Shares<br> held by the Sponsor shall be surrendered by the Sponsor on a pro rata basis for no consideration<br> to the extent that the over-allotment option granted in the IPO is not exercised in full<br> so that the Shares held by the Sponsor, Advisor and non-managing investors will represent<br> approximately 20% of the Company’s issued Shares after the IPO; and |
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| (c) | Public<br> Shares shall be repurchased by way of tender offer in the circumstances set out in Article<br> 166. |
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TREASURY SHARES
| 55. | The<br> Directors may, prior to the purchase, redemption or surrender of any Share, determine that<br> such Share shall be held as a Treasury Share. |
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| 56. | The<br> Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms<br> as they think proper (including, without limitation, for nil consideration). |
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GENERAL MEETINGS
| 57. | All<br> general meetings other than annual general meetings shall be called extraordinary general<br> meetings. |
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| 58. | |
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| (a) | The<br> Company may (but shall not be obliged to) in each calendar year hold a general meeting as<br> its annual general meeting and shall specify the meeting as such in the notices calling it.<br> The annual general meeting shall be held at such time and place as may be determined by the<br> Directors. |
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| (b) | At<br> these meetings the report of the Directors (if any) shall be presented. |
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| 59. | |
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| (a) | The<br> Chairman or a majority of the Directors (acting by a resolution of the Board) may call general<br> meetings, and they shall on a Members’ requisition forthwith proceed to convene an<br> extraordinary general meeting of the Company. |
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| (b) | A<br> Members’ requisition is a requisition of Members holding at the date of deposit of<br> the requisition Shares which carry in aggregate not less than one-third (1/3) of the total<br> number of votes attaching to all issued and outstanding Shares that as at the date of the<br> deposit carry the right to vote at general meetings of the Company. |
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| (c) | The<br> requisition must state the objects of the meeting and must be signed by the requisitionists<br> and deposited at the Registered Office, and may consist of several documents in like form<br> each signed by one or more requisitionists. |
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| (d) | If<br> there are no Directors as at the date of the deposit of the Members’ requisition, or<br> if the Directors do not within twenty-one (21) calendar days from the date of the deposit<br> of the requisition duly proceed to convene a general meeting to be held within a further<br> twenty-one (21) calendar days, the requisitionists, or any of them representing more than<br> one-half of the total voting rights of all of them, may themselves convene a general meeting,<br> but any meeting so convened shall not be held after the expiration of three calendar months<br> after the expiration of the said twenty-one (21) calendar days. |
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| (e) | A<br> general meeting convened as aforesaid by requisitionists shall be convened in the same manner<br> as nearly as possible as that in which general meetings are to be convened by Directors. |
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NOTICE OF GENERAL MEETINGS
| 60. | At<br> least ten (10) calendar days’ notice (except that for any shareholders meeting in connection<br> with the Business Combination, at least twenty (20) calendar days’ notice) shall be<br> given for any general meeting. Every notice shall be exclusive of the day on which it is<br> given or deemed to be given and of the day for which it is given and shall specify the place,<br> the day and the hour of the meeting and the general nature of the business and shall be given<br> in the manner hereinafter mentioned or in such other manner if any as may be prescribed by<br> the Company, provided that a general meeting of the Company shall, whether or not the notice<br> specified in this Article has been given and whether or not the provisions of these Articles<br> regarding general meetings have been complied with, be deemed to have been duly convened<br> if it is so agreed: |
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| (a) | in<br> the case of an annual general meeting, by all the Members (or their proxies) entitled to<br> attend and vote thereat; and |
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| (b) | in<br> the case of an extraordinary general meeting, by holders of at least two-thirds of the votes<br> and having a right to attend and vote at the meeting Present or, in the case of a corporation<br> or other non-natural person, represented by its duly authorised representative or proxy. |
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| 61. | The<br> accidental omission to give notice of a meeting to or the non-receipt of a notice of a meeting<br> by any Member shall not invalidate the proceedings at any meeting. |
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PROCEEDINGS AT GENERAL MEETINGS
| 62. | No<br> business except for the appointment of a chairman for the meeting shall be transacted at<br> any general meeting unless a quorum of Members is Present at the time when the meeting proceeds<br> to business. One or more Members holding Shares which carry in aggregate (or representing<br> by proxy) not less than a majority of all votes attaching to all Shares in issue and entitled<br> to vote at such general meeting Present shall be a quorum for all purposes. |
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| 63. | If<br> within half an hour from the time appointed for the meeting a quorum is not Present, the<br> meeting shall be dissolved. |
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| 64. | If<br> the Directors wish to make this facility available for a specific general meeting or all<br> general meetings of the Company, attendance and participation in any general meeting of the<br> Company may be by means of Communication Facilities. Without limiting the generality of the<br> foregoing, the Directors may determine that any general meeting may be held as a Virtual<br> Meeting. The notice of any general meeting at which Communication Facilities will be utilised<br> (including any Virtual Meeting) must disclose the Communication Facilities that will be used,<br> including the procedures to be followed by any Member or other participant of the meeting<br> who wishes to utilise such Communication Facilities for the purposes of attending and participating<br> in such meeting, including attending and casting any vote thereat. |
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| 65. | The<br> Chairman, if any, shall preside as chairman at every general meeting of the Company. If there<br> is no such Chairman, or if at any general meeting he is not Present within fifteen minutes<br> after the time appointed for holding the meeting or is unwilling to act as chairman of the<br> meeting, any Director or Person nominated by the Directors shall preside as chairman of that<br> meeting, failing which the Members Present shall choose any Person Present to be chairman<br> of that meeting. |
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| 66. | The<br> chairman of any general meeting shall be entitled to attend and participate at any such general<br> meeting by means of Communication Facilities, and to act as the chairman of such general<br> meeting, in which event the following provisions shall apply: |
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| (a) | The<br> chairman of the meeting shall be deemed to be Present at the meeting; and |
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| (b) | If<br> the Communication Facilities are interrupted or fail for any reason to enable the chairman<br> of the meeting to hear and be heard by all other Persons participating in the meeting, then<br> the other Directors Present at the meeting shall choose another Director Present to act as<br> chairman of the meeting for the remainder of the meeting; provided that if no other Director<br> is Present at the meeting, or if all the Directors Present decline to take the chair, then<br> the meeting shall be automatically adjourned to the same day in the next week and at such<br> time and place as shall be decided by the Board of Directors. |
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| 67. | The<br> chairman of any general meeting at which a quorum is Present may with the consent of the<br> meeting (and shall if so directed by the meeting) adjourn the meeting from time to time and<br> from place to place, but no business shall be transacted at any adjourned meeting other than<br> the business left unfinished at the meeting from which the adjournment took place. When a<br> meeting, or adjourned meeting, is adjourned for fourteen calendar days or more, notice of<br> the adjourned meeting shall be given as in the case of an original meeting. Save as aforesaid<br> it shall not be necessary to give any notice of an adjournment or of the business to be transacted<br> at an adjourned meeting. |
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| 68. | The<br> Directors may cancel or postpone any duly convened general meeting at any time prior to such<br> meeting, except for general meetings requisitioned by the Members in accordance with these<br> Articles, for any reason or for no reason, upon notice in writing to Members. A postponement<br> may be for a stated period of any length or indefinitely as the Directors may determine. |
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| 69. | At<br> any general meeting a resolution put to the vote of the meeting shall be decided on a show<br> of hands, unless a poll is (before or on the declaration of the result of the show of hands)<br> demanded, and unless a poll is so demanded, a declaration by the chairman of the meeting<br> that a resolution has, on a show of hands, been carried, or carried unanimously, or by a<br> particular majority, or lost, and an entry to that effect in the book of the proceedings<br> of the Company, shall be conclusive evidence of the fact, without proof of the number or<br> proportion of the votes recorded in favour of, or against, that resolution. A poll may be<br> demanded by (i) the chairman of such meeting; (ii) at least three Members Present in person<br> or by proxy or (in the case of a Member being a corporation) by its duly authorised representative<br> for the time being entitled to vote at the meeting; (iii) Member(s) present in person or<br> by proxy or (in the case of a Member being a corporation) by its duly authorised representative<br> representing not less than one-tenth of the total voting rights of all Members having the<br> right to vote at the meeting; and (iv) Member(s) present in person or by proxy or (in the<br> case of a Member being a corporation) by its duly authorised representative and holding Shares<br> conferring a right to vote at the meeting being Shares on which an aggregate sum has been<br> paid up equal to not less than one-tenth of the total sum paid up on all Shares conferring<br> that right. |
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| 70. | If<br> a poll is duly demanded it shall be taken in such manner as the chairman of the meeting directs,<br> and the result of the poll shall be deemed to be the resolution of the meeting at which the<br> poll was demanded. |
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| 71. | All<br> questions submitted to a meeting shall be decided by an Ordinary Resolution except where<br> a greater majority is required by these Articles or by the Companies Act. In the case of<br> an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting<br> at which the show of hands takes place or at which the poll is demanded, shall be entitled<br> to a second or casting vote. |
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| 72. | A<br> poll demanded on the election of a chairman of the meeting or on a question of adjournment<br> shall be taken forthwith. A poll demanded on any other question shall be taken at such time<br> as the chairman of the meeting directs. |
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VOTES OF MEMBERS
| 73. | Subject<br> to any rights and restrictions for the time being attached to any Share, on a show of hands<br> every Member Present in person or represented by its duly authorised representative or proxy<br> shall, at a general meeting of the Company, each have one (1) vote and on a poll every Member<br> Present in person or represented by its duly authorised representative or proxy shall have<br> one (1) vote for each Share of which such Member is the holder. |
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| 74. | In<br> the case of joint holders the vote of the senior who tenders a vote whether in person or<br> by proxy (or, if a corporation or other non-natural person, by its duly authorised representative<br> or proxy) shall be accepted to the exclusion of the votes of the other joint holders and<br> for this purpose seniority shall be determined by the order in which the names stand in the<br> Register. |
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| 75. | Shares<br> carrying the right to vote that are held by a Member of unsound mind, or in respect of whom<br> an order has been made by any court having jurisdiction in lunacy, may be voted, whether<br> on a show of hands or on a poll, by his committee, or other Person in the nature of a committee<br> appointed by that court, and any such committee or other Person may vote in respect of such<br> Shares by proxy. |
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| 76. | No<br> Member shall be entitled to vote at any general meeting of the Company unless all calls,<br> if any, or other sums presently payable by him in respect of Shares carrying the right to<br> vote held by him have been paid. |
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| 77. | On<br> a poll votes may be given either personally or by proxy. |
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| 78. | Each<br> Member, other than a recognised clearing house (or its nominee(s)) or depositary (or its<br> nominee(s)), may only appoint one proxy on a show of hand. The instrument appointing a proxy<br> shall be in writing under the hand of the appointor or of his attorney duly authorised in<br> writing or, if the appointor is a corporation, either under Seal or under the hand of an<br> officer or attorney duly authorised. A proxy need not be a Member. |
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| 79. | An<br> instrument appointing a proxy may be in any usual or common form or such other form as the<br> Directors may approve. |
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| 80. | The<br> instrument appointing a proxy shall be deposited at the Registered Office or at such other<br> place as is specified for that purpose in the notice convening the meeting, or in any instrument<br> of proxy sent out by the Company: |
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| (a) | not<br> less than 48 hours before the time for holding the meeting or adjourned meeting at which<br> the person named in the instrument proposes to vote; or |
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| (b) | in<br> the case of a poll taken more than 48 hours after it is demanded, be deposited as aforesaid<br> after the poll has been demanded and not less than 24 hours before the time appointed for<br> the taking of the poll; or |
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| (c) | where<br> the poll is not taken forthwith but is taken not more than 48 hours after it was demanded<br> be delivered at the meeting at which the poll was demanded to the chairman or to the secretary<br> or to any director; |
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provided that the Directors may in the notice convening the meeting, or in an instrument of proxy sent out by the Company, direct that the instrument appointing a proxy may be deposited at such other time (no later than the time for holding the meeting or adjourned meeting) at the Registered Office or at such other place as is specified for that purpose in the notice convening the meeting, or in any instrument of proxy sent out by the Company. The chairman of the meeting may in any event at his discretion direct that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted shall be invalid.
| Filed: 09-Sep-2025 15:41 EST | |
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| 81. | The<br> instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding<br> a poll. |
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| 82. | A<br> resolution in writing signed by all the Members for the time being entitled to receive notice<br> of and to attend and vote at general meetings of the Company (or being corporations by their<br> duly authorised representatives) shall be as valid and effective as if the same had been<br> passed at a general meeting of the Company duly convened and held. |
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CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
| 83. | Any<br> corporation which is a Member or a Director may by resolution of its directors or other governing<br> body authorise such Person as it thinks fit to act as its representative at any meeting of<br> the Company or of any meeting of holders of a Class or of the Directors or of a committee<br> of Directors, and the Person so authorised shall be entitled to exercise the same powers<br> on behalf of the corporation which he represents as that corporation could exercise if it<br> were an individual Member or Director. |
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DEPOSITARY AND CLEARING HOUSES
| 84. | If<br> a recognised clearing house (or its nominee(s)) or depositary (or its nominee(s)) is a Member<br> of the Company it may, by resolution of its directors or other governing body or by power<br> of attorney, authorise such Person(s) as it thinks fit to act as its representative(s) at<br> any general meeting of the Company or of any Class of Members provided that, if more than<br> one Person is so authorised, the authorisation shall specify the number and Class of Shares<br> in respect of which each such Person is so authorised. A Person so authorised pursuant to<br> this Article shall be entitled to exercise the same powers on behalf of the recognised clearing<br> house (or its nominee(s)) or depositary (or its nominee(s)) which he represents as that recognised<br> clearing house (or its nominee(s)) or depositary (or its nominee(s)) could exercise if it<br> were an individual Member holding the number and Class of Shares specified in such authorisation,<br> including the right to vote individually on a show of hands. |
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DIRECTORS
| 85. | |
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| (a) | Unless<br> otherwise determined by the Company in general meeting, the number of Directors shall not<br> be less than one (1) Director, the exact number of Directors to be determined from time to<br> time by the Board of Directors. |
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| www.verify.gov.ky File#: 422740 | Auth Code: D15320341086 |
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| (b) | The<br> Board of Directors shall elect and appoint a Chairman by a majority of the Directors then<br> in office. The period for which the Chairman will hold office will also be determined by<br> a majority of all of the Directors then in office. The Chairman shall preside as chairman<br> at every meeting of the Board of Directors. To the extent the Chairman is not present at<br> a meeting of the Board of Directors within fifteen minutes after the time appointed for holding<br> the same, the attending Directors may choose one of their number to be the chairman of the<br> meeting. |
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| (c) | The<br> Company may by Ordinary Resolution appoint any person to be a Director or may by Ordinary<br> Resolution remove any Director. |
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| (d) | The<br> Board may, by the affirmative vote of a simple majority of the remaining Directors present<br> and voting at a Board meeting, appoint any person as a Director, to fill a casual vacancy<br> on the Board or as an addition to the Board. |
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| (e) | An<br> appointment of a Director may be on terms that the Director shall automatically retire from<br> office (unless he has sooner vacated office) at the next or a subsequent annual general meeting<br> or upon any specified event or after any specified period in a written agreement between<br> the Company and the Director, if any; but no such term shall be implied in the absence of<br> express provision. Any Director whose term of office expires shall be eligible for re-election<br> at a meeting of the Members or re-appointment by the Board. |
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| 86. | A<br> Director may be removed from office by an Ordinary Resolution, notwithstanding anything in<br> these Articles or in any agreement between the Company and such Director (but without prejudice<br> to any claim for damages under such agreement). A vacancy on the Board created by the removal<br> of a Director under the previous sentence may be filled by an Ordinary Resolution or by the<br> affirmative vote of a simple majority of the remaining Directors present and voting at a<br> Board meeting. The notice of any meeting at which a resolution to remove a Director shall<br> be proposed or voted upon must contain a statement of the intention to remove that Director<br> and such notice must be served on that Director not less than ten (10) calendar days before<br> the meeting. Such Director is entitled to attend the meeting and be heard on the motion for<br> his removal. |
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| 87. | The<br> Board may, from time to time, and except as required by applicable law or Designated Stock<br> Exchange Rules, adopt, institute, amend, modify or revoke the corporate governance policies<br> or initiatives of the Company and determine on various corporate governance related matters<br> of the Company as the Board shall determine by resolution of Directors from time to time. |
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| 88. | A<br> Director shall not be required to hold any Shares in the Company by way of qualification.<br> A Director who is not a Member of the Company shall nevertheless be entitled to attend and<br> speak at general meetings. |
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| 89. | The<br> remuneration of the Directors may be determined by the Directors or by Ordinary Resolution. |
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| 90. | The<br> Directors shall be entitled to be paid for their travelling, hotel and other expenses properly<br> incurred by them in going to, attending and returning from meetings of the Directors, or<br> any committee of the Directors, or general meetings of the Company, or otherwise in connection<br> with the business of the Company, or to receive such fixed allowance in respect thereof as<br> may be determined by the Directors from time to time, or a combination partly of one such<br> method and partly the other. |
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ALTERNATE DIRECTOR OR PROXY
| 91. | Any<br> Director may in writing appoint another Person to be his alternate and, save to the extent<br> provided otherwise in the form of appointment, such alternate shall have authority to sign<br> written resolutions on behalf of the appointing Director, but shall not be required to sign<br> such written resolutions where they have been signed by the appointing director, and to act<br> in such Director’s place at any meeting of the Directors at which the appointing Director<br> is unable to be present. Every such alternate shall be entitled to attend and vote at meetings<br> of the Directors as a Director when the Director appointing him is not personally present<br> and where he is a Director to have a separate vote on behalf of the Director he is representing<br> in addition to his own vote. A Director may at any time in writing revoke the appointment<br> of an alternate appointed by him. Such alternate shall be deemed for all purposes to be a<br> Director and shall not be deemed to be the agent of the Director appointing him. The remuneration<br> of such alternate shall be payable out of the remuneration of the Director appointing him<br> and the proportion thereof shall be agreed between them. |
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| 92. | Any<br> Director may appoint any Person, whether or not a Director, to be the proxy of that Director<br> to attend and vote on his behalf, in accordance with instructions given by that Director,<br> or in the absence of such instructions at the discretion of the proxy, at a meeting or meetings<br> of the Directors which that Director is unable to attend personally. The instrument appointing<br> the proxy shall be in writing under the hand of the appointing Director and shall be in any<br> usual or common form or such other form as the Directors may approve, and must be lodged<br> with the chairman of the meeting of the Directors at which such proxy is to be used, or first<br> used, prior to the commencement of the meeting. |
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POWERS AND DUTIES OF DIRECTORS
| 93. | Subject<br> to the Companies Act, these Articles and any resolutions passed in a general meeting, the<br> business of the Company shall be managed by the Directors, who may pay all expenses incurred<br> in setting up and registering the Company and may exercise all powers of the Company. No<br> resolution passed by the Company in general meeting shall invalidate any prior act of the<br> Directors that would have been valid if that resolution had not been passed. |
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| 94. | Subject<br> to these Articles, the Directors may from time to time appoint any natural person or corporation,<br> whether or not a Director to hold such office in the Company as the Directors may think necessary<br> for the administration of the Company, including but not limited to, chief executive officer,<br> one or more other executive officers, president, one or more vice presidents, treasurer,<br> assistant treasurer, manager or controller, and for such term and at such remuneration (whether<br> by way of salary or commission or participation in profits or partly in one way and partly<br> in another), and with such powers and duties as the Directors may think fit. Any natural<br> person or corporation so appointed by the Directors may be removed by the Directors. The<br> Directors may also appoint one or more of their number to the office of managing director<br> upon like terms, but any such appointment shall ipso facto terminate if any managing director<br> ceases for any cause to be a Director, or if the Company by Ordinary Resolution resolves<br> that his tenure of office be terminated. |
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| 95. | The<br> Directors may appoint any natural person or corporation to be a Secretary (and if need be<br> an assistant Secretary or assistant Secretaries) who shall hold office for such term, at<br> such remuneration and upon such conditions and with such powers as they think fit. Any Secretary<br> or assistant Secretary so appointed by the Directors may be removed by the Directors or by<br> the Company by Ordinary Resolution. |
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| 96. | The<br> Directors may delegate any of their powers to committees consisting of such member or members<br> of their body as they think fit; any committee so formed shall in the exercise of the powers<br> so delegated conform to any regulations that may be imposed on it by the Directors. |
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| 97. | The<br> Directors may from time to time and at any time by power of attorney (whether under Seal<br> or under hand) or otherwise appoint any company, firm or Person or body of Persons, whether<br> nominated directly or indirectly by the Directors, to be the attorney or attorneys or authorised<br> signatory (any such Person being an “Attorney” or “Authorised Signatory”,<br> respectively) of the Company for such purposes and with such powers, authorities and discretion<br> (not exceeding those vested in or exercisable by the Directors under these Articles) and<br> for such period and subject to such conditions as they may think fit, and any such power<br> of attorney or other appointment may contain such provisions for the protection and convenience<br> of Persons dealing with any such Attorney or Authorised Signatory as the Directors may think<br> fit, and may also authorise any such Attorney or Authorised Signatory to delegate all or<br> any of the powers, authorities and discretion vested in him. |
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| 98. | The<br> Directors may from time to time provide for the management of the affairs of the Company<br> in such manner as they shall think fit and the provisions contained in the three next following<br> Articles shall not limit the general powers conferred by this Article. |
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| 99. | The<br> Directors from time to time and at any time may establish any committees, local boards or<br> agencies for managing any of the affairs of the Company and may appoint any natural person<br> or corporation to be a member of such committees or local boards and may appoint any managers<br> or agents of the Company and may fix the remuneration of any such natural person or corporation. |
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| 100. | The<br> Directors from time to time and at any time may delegate to any such committee, local board,<br> manager or agent any of the powers, authorities and discretions for the time being vested<br> in the Directors and may authorise the members for the time being of any such local board,<br> or any of them to fill any vacancies therein and to act notwithstanding vacancies and any<br> such appointment or delegation may be made on such terms and subject to such conditions as<br> the Directors may think fit and the Directors may at any time remove any natural person or<br> corporation so appointed and may annul or vary any such delegation, but no Person dealing<br> in good faith and without notice of any such annulment or variation shall be affected thereby. |
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| 101. | Any<br> such delegates as aforesaid may be authorised by the Directors to sub-delegate all or any<br> of the powers, authorities, and discretion for the time being vested in them. |
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BORROWING POWERS OF DIRECTORS
| 102. | The<br> Directors may from time to time at their discretion exercise all the powers of the Company<br> to raise or borrow money and to mortgage or charge its undertaking, property and assets (present<br> and future) and uncalled capital or any part thereof, to issue debentures, debenture stock,<br> bonds and other securities, whether outright or as collateral security for any debt, liability<br> or obligation of the Company or of any third party. |
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| Filed: 09-Sep-2025 15:41 EST | |
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THE SEAL
| 103. | The<br> Seal shall not be affixed to any instrument except by the authority of a resolution of the<br> Directors provided always that such authority may be given prior to or after the affixing<br> of the Seal and if given after may be in general form confirming a number of affixing of<br> the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an assistant<br> Secretary) or in the presence of any one or more Persons as the Directors may appoint for<br> the purpose and every Person as aforesaid shall sign every instrument to which the Seal is<br> so affixed in their presence. |
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| 104. | The<br> Company may maintain a facsimile of the Seal in such countries or places as the Directors<br> may appoint and such facsimile Seal shall not be affixed to any instrument except by the<br> authority of a resolution of the Directors provided always that such authority may be given<br> prior to or after the affixing of such facsimile Seal and if given after may be in general<br> form confirming a number of affixing of such facsimile Seal. The facsimile Seal shall be<br> affixed in the presence of such Person or Persons as the Directors shall for this purpose<br> appoint and such Person or Persons as aforesaid shall sign every instrument to which the<br> facsimile Seal is so affixed in their presence and such affixing of the facsimile Seal and<br> signing as aforesaid shall have the same meaning and effect as if the Seal had been affixed<br> in the presence of and the instrument signed by a Director or a Secretary (or an assistant<br> Secretary) or in the presence of any one or more Persons as the Directors may appoint for<br> the purpose. |
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| 105. | Notwithstanding<br> the foregoing, a Secretary or any assistant Secretary shall have the authority to affix the<br> Seal, or the facsimile Seal, to any instrument for the purposes of attesting authenticity<br> of the matter contained therein but which does not create any obligation binding on the Company. |
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DISQUALIFICATION OF DIRECTORS
| 106. | The<br> office of Director shall be vacated, if the Director: |
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| (a) | becomes<br> bankrupt or makes any arrangement or composition with his creditors; |
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| (b) | dies<br> or is found to be or becomes of unsound mind; |
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| (c) | resigns<br> his office by notice in writing to the Company; |
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| (d) | without<br> special leave of absence from the Board, is absent from meetings of the Board for three consecutive<br> meetings and the Board resolves that his office be vacated; |
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| (e) | is<br> prohibited by law from being a director; or |
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| (f) | is<br> removed from office pursuant to any other provision of these Articles. |
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| Filed: 09-Sep-2025 15:41 EST | |
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PROCEEDINGS OF DIRECTORS
| 107. | The<br> Directors may meet together (either within or outside the Cayman Islands) for the despatch<br> of business, adjourn, and otherwise regulate their meetings and proceedings as they think<br> fit. Questions arising at any meeting shall be decided by a majority of votes. At any meeting<br> of the Directors, each Director present in person or represented by his proxy or alternate<br> shall be entitled to one vote. In case of an equality of votes the chairman of the meeting<br> shall have a second or casting vote. A Director may, and a Secretary or assistant Secretary<br> on the requisition of a Director shall, at any time summon a meeting of the Directors. |
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| 108. | A<br> Director may participate in any meeting of the Directors, or of any committee appointed by<br> the Directors of which such Director is a member, by means of telephone or similar communication<br> equipment by way of which all Persons participating in such meeting can communicate with<br> each other and such participation shall be deemed to constitute presence in person at the<br> meeting. |
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| 109. | The<br> quorum necessary for the transaction of the business of the Board may be fixed by the Directors,<br> and unless so fixed the presence of a majority of Directors then in office shall constitute<br> a quorum. A Director represented by proxy or by an alternate Director at any meeting shall<br> be deemed to be present for the purposes of determining whether or not a quorum is present. |
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| 110. | A<br> Director who is in any way, whether directly or indirectly, interested in a contract or transaction<br> or proposed contract or transaction with the Company shall declare the nature of his interest<br> at a meeting of the Directors. A general notice given to the Directors by any Director to<br> the effect that he is a member of any specified company or firm and is to be regarded as<br> interested in any contract or transaction which may thereafter be made with that company<br> or firm shall be deemed a sufficient declaration of interest in regard to any contract so<br> made or transaction so consummated. Subject to the Designated Stock Exchange Rules and disqualification<br> by the chairman of the relevant Board meeting, a Director may vote in respect of any contract<br> or transaction or proposed contract or transaction notwithstanding that he may be interested<br> therein and if he does so his vote shall be counted and he may be counted in the quorum at<br> any meeting of the Directors at which any such contract or transaction or proposed contract<br> or transaction shall come before the meeting for consideration. |
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| 111. | A<br> Director may hold any other office or place of profit under the Company (other than the office<br> of auditor) in conjunction with his office of Director for such period and on such terms<br> (as to remuneration and otherwise) as the Directors may determine and no Director or intending<br> Director shall be disqualified by his office from contracting with the Company either with<br> regard to his tenure of any such other office or place of profit or as vendor, purchaser<br> or otherwise, nor shall any such contract or arrangement entered into by or on behalf of<br> the Company in which any Director is in any way interested be liable to be avoided, nor shall<br> any Director so contracting or being so interested be liable to account to the Company for<br> any profit realised by any such contract or arrangement by reason of such Director holding<br> that office or of the fiduciary relation thereby established. A Director, notwithstanding<br> his interest, may be counted in the quorum present at any meeting of the Directors whereat<br> he or any other Director is appointed to hold any such office or place of profit under the<br> Company or whereat the terms of any such appointment are arranged and he may vote on any<br> such appointment or arrangement. |
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| 112. | Any<br> Director may act by himself or through his firm in a professional capacity for the Company,<br> and he or his firm shall be entitled to remuneration for professional services as if he were<br> not a Director; provided that nothing herein contained shall authorise a Director or his<br> firm to act as auditor to the Company. |
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| 113. | The<br> Directors shall cause minutes to be made for the purpose of recording: |
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| (a) | all<br> appointments of officers made by the Directors; |
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| (b) | the<br> names of the Directors present at each meeting of the Directors and of any committee of the<br> Directors; and |
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| (c) | all<br> resolutions and proceedings at all meetings of the Company, and of the Directors and of committees<br> of Directors. |
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| 114. | When<br> the chairman of a meeting of the Directors signs the minutes of such meeting the same shall<br> be deemed to have been duly held notwithstanding that all the Directors have not actually<br> come together or that there may have been a technical defect in the proceedings. |
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| 115. | A<br> resolution in writing signed by all the Directors or all the members of a committee of Directors<br> entitled to receive notice of a meeting of Directors or committee of Directors, as the case<br> may be (an alternate Director, subject as provided otherwise in the terms of appointment<br> of the alternate Director, being entitled to sign such a resolution on behalf of his appointer),<br> shall be as valid and effectual as if it had been passed at a duly called and constituted<br> meeting of Directors or committee of Directors, as the case may be. When signed a resolution<br> may consist of several documents each signed by one or more of the Directors or his duly<br> appointed alternate. |
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| 116. | A<br> Director may, or other officer on the requisition of a Director shall, call a meeting of<br> the Directors by at least two calendar days’ notice in writing to every Director which<br> notice shall set forth the general nature of the business to be considered unless notice<br> is waived by all the Directors either at, before or after the meeting is held. |
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| 117. | The<br> continuing Directors may act notwithstanding any vacancy in their body but if and for so<br> long as their number is reduced below the number fixed by or pursuant to these Articles as<br> the necessary quorum of Directors, the continuing Directors may act for the purpose of increasing<br> the number, or of summoning a general meeting of the Company, but for no other purpose. |
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| 118. | Subject<br> to any regulations imposed on it by the Directors, a committee appointed by the Directors<br> may elect a chairman of its meetings. If no such chairman is elected, or if at any meeting<br> the chairman is not present within fifteen minutes after the time appointed for holding the<br> meeting, the committee members present may choose one of their number to be chairman of the<br> meeting. |
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| 119. | A<br> committee appointed by the Directors may meet and adjourn as it thinks proper. Subject to<br> any regulations imposed on it by the Directors, questions arising at any meeting shall be<br> determined by a majority of votes of the committee members present and in case of an equality<br> of votes the chairman shall have a second or casting vote. |
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| 120. | All<br> acts done by any meeting of the Directors or of a committee of Directors, or by any Person<br> acting as a Director, shall notwithstanding that it be afterwards discovered that there was<br> some defect in the appointment of any such Director or Person acting as aforesaid, or that<br> they or any of them were disqualified, be as valid as if every such Person had been duly<br> appointed and was qualified to be a Director. |
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PRESUMPTION OF ASSENT
| 121. | A<br> Director who is present at a meeting of the Board of Directors at which an action on any<br> Company matter is taken shall be presumed to have assented to the action taken unless his<br> dissent shall be entered in the minutes of the meeting or unless he shall file his written<br> dissent from such action with the person acting as the chairman or secretary of the meeting<br> before the adjournment thereof or shall forward such dissent by registered post to such person<br> immediately after the adjournment of the meeting. Such right to dissent shall not apply to<br> a Director who voted in favour of such action. |
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DIVIDENDS
| 122. | Subject<br> to any rights and restrictions for the time being attached to any Shares, the Directors may<br> from time to time declare dividends (including interim dividends) and other distributions<br> on Shares in issue and authorise payment of the same out of the funds of the Company lawfully<br> available therefor. |
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| 123. | Subject<br> to any rights and restrictions for the time being attached to any Shares, the Company by<br> Ordinary Resolution may declare dividends, but no dividend shall exceed the amount recommended<br> by the Directors. |
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| 124. | The<br> Directors may, before recommending or declaring any dividend, set aside out of the funds<br> legally available for distribution such sums as they think proper as a reserve or reserves<br> which shall, in the absolute discretion of the Directors, be applicable for meeting contingencies<br> or for equalising dividends or for any other purpose to which those funds may be properly<br> applied, and pending such application may in the absolute discretion of the Directors, either<br> be employed in the business of the Company or be invested in such investments (other than<br> Shares of the Company) as the Directors may from time to time think fit. |
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| 125. | Any<br> dividend payable in cash to the holder of Shares may be paid in any manner determined by<br> the Directors. If paid by cheque it will be sent by mail addressed to the holder at his address<br> in the Register, or addressed to such person and at such addresses as the holder may direct.<br> Every such cheque or warrant shall, unless the holder or joint holders otherwise direct,<br> be made payable to the order of the holder or, in the case of joint holders, to the order<br> of the holder whose name stands first on the Register in respect of such Shares, and shall<br> be sent at his or their risk and payment of the cheque or warrant by the bank on which it<br> is drawn shall constitute a good discharge to the Company. |
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| 126. | The<br> Directors may determine that a dividend shall be paid wholly or partly by the distribution<br> of specific assets (which may consist of the shares or securities of any other company) and<br> may settle all questions concerning such distribution. Without limiting the generality of<br> the foregoing, the Directors may fix the value of such specific assets, may determine that<br> cash payment shall be made to some Members in lieu of specific assets and may vest any such<br> specific assets in trustees on such terms as the Directors think fit. |
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| 127. | Subject<br> to any rights and restrictions for the time being attached to any Shares, all dividends shall<br> be declared and paid according to the amounts paid up on the Shares, but if and for so long<br> as nothing is paid up on any of the Shares dividends may be declared and paid according to<br> the par value of the Shares. No amount paid on a Share in advance of calls shall, while carrying<br> interest, be treated for the purposes of this Article as paid on the Share. |
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| 128. | If<br> several Persons are registered as joint holders of any Share, any of them may give effective<br> receipts for any dividend or other moneys payable on or in respect of the Share. |
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| 129. | No<br> dividend shall bear interest against the Company. |
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| 130. | Any<br> dividend unclaimed after a period of six calendar years from the date of declaration of such<br> dividend may be forfeited by the Board of Directors and, if so forfeited, shall revert to<br> the Company. |
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ACCOUNTS, AUDIT AND ANNUAL RETURN AND DECLARATION
| 131. | The<br> books of account relating to the Company’s affairs shall be kept in such manner as<br> may be determined from time to time by the Directors. |
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| 132. | The<br> books of account shall be kept at the Registered Office, or at such other place or places<br> as the Directors think fit, and shall always be open to the inspection of the Directors. |
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| 133. | The<br> Directors may from time to time determine whether and to what extent and at what times and<br> places and under what conditions or regulations the accounts and books of the Company or<br> any of them shall be open to the inspection of Members not being Directors, and no Member<br> (not being a Director) shall have any right to inspect any account or book or document of<br> the Company except as conferred by law or authorised by the Directors or by Ordinary Resolution,<br> provided that the Members may inspect the Register without charge, and receive the annual<br> audited financial statements of the Company. |
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| 134. | The<br> accounts relating to the Company’s affairs shall be audited in such manner and with<br> such financial year end as may be determined from time to time by the Directors or failing<br> any determination as aforesaid shall not be audited. |
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| 135. | The<br> Directors may appoint an auditor of the Company who shall hold office until removed from<br> office by a resolution of the Directors and may fix his or their remuneration. |
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| 136. | Every<br> auditor of the Company shall have a right of access at all times to the books and accounts<br> and vouchers of the Company and shall be entitled to require from the Directors and officers<br> of the Company such information and explanation as may be necessary for the performance of<br> the duties of the auditors. |
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| 137. | The<br> auditors shall, if so required by the Directors, make a report on the accounts of the Company<br> during their tenure of office at the next annual general meeting following their appointment,<br> and at any time during their term of office, upon request of the Directors or any general<br> meeting of the Members. |
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| 138. | The<br> Directors in each calendar year shall prepare, or cause to be prepared, an annual return<br> and declaration setting forth the particulars required by the Companies Act and deliver a<br> copy thereof to the Registrar of Companies in the Cayman Islands. |
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CAPITALISATION OF RESERVES
| 139. | Subject<br> to the Companies Act, the Directors may: |
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| (a) | resolve<br> to capitalise an amount standing to the credit of reserves (including a Share Premium Account,<br> capital redemption reserve and profit and loss account), which is available for distribution; |
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| (b) | appropriate<br> the sum resolved to be capitalised to the Members in proportion to the nominal amount of<br> Shares (whether or not fully paid) held by them respectively and apply that sum on their<br> behalf in or towards: |
| --- | --- |
| (i) | paying<br> up the amounts (if any) for the time being unpaid on Shares held by them respectively, or |
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| (ii) | paying<br> up in full unissued Shares or debentures of a nominal amount equal to that sum, |
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and allot the Shares or debentures, credited as fully paid, to the Members (or as they may direct) in those proportions, or partly in one way and partly in the other, but the Share Premium Account, the capital redemption reserve and profits which are not available for distribution may, for the purposes of this Article, only be applied in paying up unissued Shares to be allotted to Members credited as fully paid;
| (c) | make<br> any arrangements they think fit to resolve a difficulty arising in the distribution of a<br> capitalised reserve and in particular, without limitation, where Shares or debentures become<br> distributable in fractions the Directors may deal with the fractions as they think fit; |
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| (d) | authorise<br> a Person to enter (on behalf of all the Members concerned) into an agreement with the Company<br> providing for either: |
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| (i) | the<br> allotment to the Members respectively, credited as fully paid, of Shares or debentures to<br> which they may be entitled on the capitalisation, or |
| --- | --- |
| (ii) | the<br> payment by the Company on behalf of the Members (by the application of their respective proportions<br> of the reserves resolved to be capitalised) of the amounts or part of the amounts remaining<br> unpaid on their existing Shares, |
| --- | --- |
and any such agreement made under this authority being effective and binding on all those Members; and
| (e) | generally<br> do all acts and things required to give effect to the resolution. |
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| 140. | Notwithstanding<br> any provisions in these Articles and subject to the Companies Act, the Directors may resolve<br> to capitalise an amount standing to the credit of reserves (including the share premium account,<br> capital redemption reserve and profit and loss account) or otherwise available for distribution<br> by applying such sum in paying up in full unissued Shares to be allotted and issued to: |
| --- | --- |
| (a) | employees<br> (including Directors) or service providers of the Company or its Affiliates upon exercise<br> or vesting of any options or awards granted under any share incentive scheme or employee<br> benefit scheme or other arrangement which relates to such persons that has been adopted or<br> approved by the Directors or the Members; or |
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| (b) | any<br> trustee of any trust or administrator of any share incentive scheme or employee benefit scheme<br> to whom shares are to be allotted and issued by the Company in connection with the operation<br> of any share incentive scheme or employee benefit scheme or other arrangement which relates<br> to such persons that has been adopted or approved by the Directors or Members. |
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SHARE PREMIUM ACCOUNT
| 141. | The<br> Directors shall in accordance with the Companies Act establish a Share Premium Account and<br> shall carry to the credit of such account from time to time a sum equal to the amount or<br> value of the premium paid on the issue of any Share. |
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| 142. | There<br> shall be debited to any Share Premium Account on the redemption or purchase of a Share the<br> difference between the nominal value of such Share and the redemption or purchase price provided<br> always that at the discretion of the Directors such sum may be paid out of the profits of<br> the Company or, if permitted by the Companies Act, out of capital. |
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NOTICES
| 143. | Except<br> as otherwise provided in these Articles, any notice or document may be served by the Company<br> or by the Person entitled to give notice to any Member either personally, or by posting it<br> by airmail or a recognised courier service in a prepaid letter addressed to such Member at<br> his address as appearing in the Register, or by electronic mail to any electronic mail address<br> such Member may have specified in writing for the purpose of such service of notices, or<br> by facsimile to any facsimile number such Member may have specified in writing for the purpose<br> of such service of notices, or by placing it on the Company’s Website should the Directors<br> deem it appropriate. In the case of joint holders of a Share, all notices shall be given<br> to that one of the joint holders whose name stands first in the Register in respect of the<br> joint holding, and notice so given shall be sufficient notice to all the joint holders. |
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| 144. | Notices<br> sent from one country to another shall be sent or forwarded by prepaid airmail or a recognised<br> courier service. |
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| 145. | Any<br> Member Present at any meeting of the Company shall for all purposes be deemed to have received<br> due notice of such meeting and, where requisite, of the purposes for which such meeting was<br> convened. |
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| 146. | Any<br> notice or other document, if served by: |
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| (a) | post,<br> shall be deemed to have been served five calendar days after the time when the letter containing<br> the same is posted; |
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| (b) | facsimile,<br> shall be deemed to have been served upon production by the transmitting facsimile machine<br> of a report confirming transmission of the facsimile in full to the facsimile number of the<br> recipient; |
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| (c) | recognised<br> courier service, shall be deemed to have been served 48 hours after the time when the letter<br> containing the same is delivered to the courier service; or |
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| (d) | electronic<br> means, shall be deemed to have been served immediately (i) upon the time of the transmission<br> to the electronic mail address supplied by the Member to the Company or (ii) upon the time<br> of its placement on the Company’s Website. |
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In proving service by post or courier service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier service.
| 147. | Any<br> notice or document delivered or sent by post to or left at the registered address of any<br> Member in accordance with the terms of these Articles shall notwithstanding that such Member<br> be then dead or bankrupt, and whether or not the Company has notice of his death or bankruptcy,<br> be deemed to have been duly served in respect of any Share registered in the name of such<br> Member as sole or joint holder, unless his name shall at the time of the service of the notice<br> or document have been removed from the Register as the holder of the Share, and such service<br> shall for all purposes be deemed a sufficient service of such notice or document on all Persons<br> interested (whether jointly with or as claiming through or under him) in the Share. |
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| 148. | Notice<br> of every general meeting of the Company shall be given to: |
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| (a) | all<br> Members holding Shares with the right to receive notice and who have supplied to the Company<br> an address for the giving of notices to them; and |
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| (b) | every<br> Person entitled to a Share in consequence of the death or bankruptcy of a Member, who but<br> for his death or bankruptcy would be entitled to receive notice of the meeting. |
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No other Person shall be entitled to receive notices of general meetings.
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INFORMATION
| 149. | Subject<br> to the relevant laws, rules and regulations applicable to the Company, no Member shall be<br> entitled to require discovery of any information in respect of any detail of the Company’s<br> trading or any information which is or may be in the nature of a trade secret or secret process<br> which may relate to the conduct of the business of the Company and which in the opinion of<br> the Board would not be in the interests of the Members of the Company to communicate to the<br> public. |
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| 150. | Subject<br> to due compliance with the relevant laws, rules and regulations applicable to the Company,<br> the Board shall be entitled to release or disclose any information in its possession, custody<br> or control regarding the Company or its affairs to any of its Members including, without<br> limitation, information contained in the Register and transfer books of the Company. |
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INDEMNITY
| 151. | Every<br> Director (including for the purposes of this Article any alternate Director appointed pursuant<br> to the provisions of these Articles), Secretary, assistant Secretary, or other officer for<br> the time being and from time to time of the Company (but not including the Company’s<br> auditors) and the personal representatives of the same (each an “Indemnified Person”)<br> shall be indemnified and secured harmless against all actions, proceedings, costs, charges,<br> expenses, losses, damages or liabilities incurred or sustained by such Indemnified Person,<br> other than by reason of such Indemnified Person’s own dishonesty, willful default or<br> fraud, in or about the conduct of the Company’s business or affairs (including as a<br> result of any mistake of judgment) or in the execution or discharge of his duties, powers,<br> authorities or discretions, including without prejudice to the generality of the foregoing,<br> any costs, expenses, losses or liabilities incurred by such Indemnified Person in defending<br> (whether successfully or otherwise) any civil proceedings concerning the Company or its affairs<br> in any court whether in the Cayman Islands or elsewhere. To the extent permissible under<br> applicable laws, the Members waive any claim or right of action that they may have, both<br> individually and on the Company’s behalf, against any Director in relation to any action<br> or failure to take action by such Director in the performance of his or her duties with or<br> for the Company, except in respect of any dishonesty, willful default or fraud of such Director. |
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| 152. | No<br> Indemnified Person shall be liable: |
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| (a) | for<br> the acts, receipts, neglects, defaults or omissions of any other Director or officer or agent<br> of the Company; or |
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| (b) | for<br> any loss on account of defect of title to any property of the Company; or |
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| (c) | on<br> account of the insufficiency of any security in or upon which any money of the Company shall<br> be invested; or |
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| (d) | for<br> any loss incurred through any bank, broker or other similar Person; or |
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| (e) | for<br> any loss occasioned by any negligence, default, breach of duty, breach of trust, error of<br> judgement or oversight on such Indemnified Person’s part; or |
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| (f) | for<br> any loss, damage or misfortune whatsoever which may happen in or arise from the execution<br> or discharge of the duties, powers, authorities, or discretions of such Indemnified Person’s<br> office or in relation thereto; |
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unless the same shall happen through such Indemnified Person’s own dishonesty, willful default or fraud.
FINANCIAL YEAR
| 153. | Unless<br> the Directors otherwise prescribe, the financial year of the Company shall end on 31 December<br> in each calendar year and shall begin on 1 January in each calendar year. |
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NON-RECOGNITION OF TRUSTS
| 154. | No<br> Person shall be recognised by the Company as holding any Share upon any trust and the Company<br> shall not, unless required by law, be bound by or be compelled in any way to recognise (even<br> when having notice thereof) any equitable, contingent, future or partial interest in any<br> Share or (except only as otherwise provided by these Articles or as the Companies Act requires)<br> any other right in respect of any Share except an absolute right to the entirety thereof<br> in each Member registered in the Register. |
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WINDING UP
| 155. | If<br> the Company shall be wound up the liquidator may, with the sanction of a Special Resolution<br> of the Company and any other sanction required by the Companies Act, divide amongst the Members<br> in species or in kind the whole or any part of the assets of the Company (whether they shall<br> consist of property of the same kind or not) and may for that purpose value any assets and<br> determine how the division shall be carried out as between the Members or different classes<br> of Members. The liquidator may, with the like sanction, vest the whole or any part of such<br> assets in trustees upon such trusts for the benefit of the Members as the liquidator, with<br> the like sanction, shall think fit, but so that no Member shall be compelled to accept any<br> asset upon which there is a liability. |
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| 156. | If<br> the Company shall be wound up, and the assets available for distribution amongst the Members<br> shall be insufficient to repay the whole of the share capital, such assets shall be distributed<br> so that, as nearly as may be, the losses shall be borne by the Members in proportion to the<br> par value of the Shares held by them. If in a winding up the assets available for distribution<br> amongst the Members shall be more than sufficient to repay the whole of the share capital<br> at the commencement of the winding up, the surplus shall be distributed amongst the Members<br> in proportion to the par value of the Shares held by them at the commencement of the winding<br> up subject to a deduction from those Shares in respect of which there are monies due, of<br> all monies payable to the Company for unpaid calls or otherwise. This Article is without<br> prejudice to the rights of the holders of Shares issued upon special terms and conditions. |
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AMENDMENT OF ARTICLES OF ASSOCIATION
| 157. | Subject<br> to the Companies Act, the Company may at any time and from time to time by Special Resolution<br> alter or amend these Articles in whole or in part. |
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CLOSING OF REGISTER OR FIXING RECORD DATE
| 158. | For<br> the purpose of determining those Members that are entitled to receive notice of, attend or<br> vote at any meeting of Members or any adjournment thereof, or those Members that are entitled<br> to receive payment of any dividend, or in order to make a determination as to who is a Member<br> for any other purpose, the Directors may provide that the Register shall be closed for transfers<br> for a stated period which shall not exceed in any case thirty calendar days in any calendar<br> year. |
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| 159. | In<br> lieu of or apart from closing the Register, the Directors may fix in advance a date as the<br> record date for any such determination of those Members that are entitled to receive notice<br> of, attend or vote at a meeting of the Members and for the purpose of determining those Members<br> that are entitled to receive payment of any dividend the Directors may, at or within ninety<br> calendar days prior to the date of declaration of such dividend, fix a subsequent date as<br> the record date for such determination. |
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| 160. | If<br> the Register is not so closed and no record date is fixed for the determination of those<br> Members entitled to receive notice of, attend or vote at a meeting of Members or those Members<br> that are entitled to receive payment of a dividend, the date on which notice of the meeting<br> is posted or the date on which the resolution of the Directors declaring such dividend is<br> adopted, as the case may be, shall be the record date for such determination of Members.<br> When a determination of those Members that are entitled to receive notice of, attend or vote<br> at a meeting of Members has been made as provided in this Article, such determination shall<br> apply to any adjournment thereof. |
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REGISTRATION BY WAY OF CONTINUATION
| 161. | The<br> Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction<br> outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated,<br> registered or existing. In furtherance of a resolution adopted pursuant to this Article,<br> the Directors may cause an application to be made to the Registrar of Companies to deregister<br> the Company in the Cayman Islands or such other jurisdiction in which it is for the time<br> being incorporated, registered or existing and may cause all such further steps as they consider<br> appropriate to be taken to effect the transfer by way of continuation of the Company. |
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DISCLOSURE
| 162. | The<br> Directors, or any service providers (including the officers, the Secretary and the registered<br> office provider of the Company) specifically authorised by the Directors, shall be entitled<br> to disclose to any regulatory or judicial authority any information regarding the affairs<br> of the Company including without limitation information contained in the Register and books<br> of the Company. |
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MERGERS AND CONSOLIDATIONS
| 163. | The<br> Company shall have the power to merge or consolidate with one or more other constituent companies<br> (as defined in the Statute) upon such terms as the Directors may determine and (to the extent<br> required by the Statute) with the approval of a Special Resolution. |
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CERTAIN TAX FILINGS
| 164. | Each<br> Tax Filing Authorised Person and any such other person, acting alone, as any Director shall<br> designate from time to time, are authorised to file IRS forms SS-4, W-8 BEN, W-8 IMY, W-9,<br> 8832 and 2553 and such other similar tax forms as are customary to file with any US state<br> or federal governmental authorities or foreign governmental authorities in connection with<br> the formation, activities and/or elections of the Company and such other tax forms as may<br> be approved from time to time by any Director or officer. The Company further ratifies and<br> approves any such filing made by any Tax Filing Authorised Person or such other person prior<br> to the date of the Articles. |
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BUSINESS COMBINATION
| 165. | Notwithstanding<br> any other provision of the Articles, these Articles 165 to 184 shall apply during the period<br> commencing upon the adoption of the Articles and terminating upon the first to occur of the<br> consummation of any Business Combination and the distribution of the Trust Account pursuant<br> to Article 172. In the event of a conflict between these Articles 165 to 184 and any other<br> Articles, the provisions of these Articles 165 to 184 shall prevail and this Article may<br> not be amended prior to the consummation of a Business Combination without a Special Resolution. |
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| 166. | Prior<br> to the consummation of any Business Combination, the Company shall either: |
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| (a) | submit<br> such Business Combination to its Members for approval; or |
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| (b) | provide<br> Members with the opportunity to have their Shares repurchased by means of a tender offer<br> (a “Tender Offer”) for a per-Share repurchase price payable in cash, equal<br> to the aggregate amount then on deposit in the Trust Account, calculated as of two Business<br> Days prior to the consummation of such Business Combination, including interest earned on<br> the funds held in the Trust Account (net of tax amounts paid by the Company) (such withdrawals,<br> the “Permitted Withdrawals”), divided by the number of then-outstanding<br> Public Shares in issue. |
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| 167. | If<br> the Company initiates any Tender Offer in accordance with Rule 13e-4 and Regulation 14E of<br> the Exchange Act in connection with a Business Combination, it shall file Tender Offer documents<br> with the SEC prior to completing a Business Combination which contain substantially the same<br> financial and other information about such Business Combination and the redemption rights<br> as is required under Regulation 14A of the Exchange Act. |
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| 168. | If,<br> alternatively, the Company holds a Member vote to approve a proposed Business Combination,<br> the Company will conduct any compulsory redemption in conjunction with a proxy solicitation<br> pursuant to Regulation 14A of the Exchange Act and not pursuant to the tender offer rules<br> and file proxy materials with the SEC. |
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| 169. | At<br> a general meeting called for the purposes of approving a Business Combination pursuant to<br> this Article, in the event that such Business Combination is approved by Ordinary Resolution,<br> the Company shall be authorised to consummate such Business Combination. |
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| 170. | Any<br> Member holding Public Shares who is not the Sponsor, officer or Director may, contemporaneously<br> with any vote on a Business Combination, elect to have their Public Shares redeemed for cash<br> (the “IPO Redemption”), provided that no such Member together with any<br> Affiliate of such Member or any other person with whom such Member is acting in concert or<br> as a “group” (as defined under Section 13 of the Exchange Act) may exercise this<br> redemption right with respect to more than 15% of the Public Shares sold in the IPO without<br> the Company’s prior consent, and provided further that any holder that holds Public<br> Shares beneficially through a nominee must identify itself to the Company in connection with<br> any redemption election in order to validly redeem such Public Shares. In connection with<br> any vote held to approve a proposed Business Combination, holders of Public Shares seeking<br> to exercise their redemption rights will be required to either tender their certificates<br> (if any) to the Company’s transfer agent or to deliver their shares to the transfer<br> agent electronically using The Depository Trust Company’s DWAC (Deposit/Withdrawal<br> At Custodian) System, at the holder’s option, in each case up to two Business Days<br> prior to the initially scheduled vote on the proposal to approve a Business Combination.<br> If so demanded, the Company shall pay any such redeeming Member, regardless of whether he<br> is voting for or against such proposed Business Combination or abstains from voting, a per-Share<br> redemption price payable in cash, equal to the aggregate amount then on deposit in the Trust<br> Account calculated as of two Business Days prior to the consummation of a Business Combination,<br> including interest earned on the Trust Account not previously released to the Company for<br> Permitted Withdrawals, divided by the number of then- outstanding Public Shares in issue<br> (such redemption price being referred to herein as the “Redemption Price”). |
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| 171. | The<br> Redemption Price shall be paid promptly following the consummation of the relevant Business<br> Combination. If the proposed Business Combination is not approved or completed for any reason<br> then such redemptions shall be cancelled and share certificates (if any) returned to the<br> relevant Members as appropriate. |
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| 172. | In<br> the event that the Company does not consummate a Business Combination by twenty-one months<br> after the closing of the IPO, such earlier time as the Directors may approve or such later<br> time as the Members of the Company may approve in accordance with the Articles, the Company<br> shall: (i) cease all operations except for the purpose of winding up; (ii) as promptly as<br> reasonably possible but not more than ten Business Days thereafter, redeem the Public Shares,<br> at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the<br> Trust Account, including interest earned on the funds held in the Trust Account and not previously<br> released to the Company for Permitted Withdrawals (less up to US$100,000 of interest to pay<br> dissolution expenses), divided by the number of the then-outstanding Public Shares in issue,<br> which redemption will completely extinguish public Members’ rights as Members (including<br> the right to receive further liquidation distributions, if any); and (iii) as promptly as<br> reasonably possible following such redemption, subject to the approval of the Company’s<br> remaining Members and the directors, liquidate and dissolve, subject in the case of sub-articles<br> (ii) and (iii), to its obligations under Cayman Islands law to provide for claims of creditors<br> and in all cases subject to the other requirements of applicable law. If the Company shall<br> wind up for any other reason prior to the consummation of a Business Combination, the Company<br> shall, as promptly as reasonably possible but not more than ten Business Days thereafter,<br> follow the foregoing procedures set out in this Article 172 with respect to the liquidation<br> of the Trust Account, subject to its obligations under Cayman Islands law to provide for<br> claims of creditors and subject to the other requirements of applicable law. |
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| 173. | In<br> the event that any amendment is made to these Articles: |
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| (a) | that<br> would modify the substance or timing of the Company’s obligation to provide holders<br> of Public Shares the right to: |
| --- | --- |
| (i) | have<br> their shares redeemed or repurchased in connection with a Business Combination pursuant to<br> Articles 166(b) or 170; or |
| --- | --- |
| (ii) | redeem<br> 100% of the Public Shares if the Company has not consummated an initial Business Combination<br> within twenty-one months after the date of the closing of the IPO pursuant to Article 172;<br> or |
| --- | --- |
| (b) | with<br> respect to any other provision relating to the rights of holders of Public Shares, each holder<br> of Public Shares who is not the Sponsor, officer or Director shall be provided with the opportunity<br> to redeem their Public Shares following the approval, and upon the implementation by the<br> Directors, of any such amendment (an “Amendment Redemption”) at a per-Share<br> price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account,<br> including interest earned on the funds held in the Trust Account (less Permitted Withdrawals),<br> divided by the number of then-outstanding Public Shares in issue. |
| --- | --- |
| 174. | Except<br> for Permitted Withdrawals, none of the funds held in the Trust Account shall be released<br> from the Trust Account: |
| --- | --- |
| (a) | to<br> the Company, until completion of any Business Combination; or |
| --- | --- |
| (b) | to<br> the Members holding Public Shares, until the earliest of: |
| --- | --- |
| (i) | repurchase<br> of Shares by means of a Tender Offer pursuant to Article 166(b); |
| --- | --- |
| (ii) | an<br> IPO Redemption pursuant to Article 170; |
| --- | --- |
| (iii) | a<br> distribution of the Trust Account pursuant to Article 172; or |
| --- | --- |
| (iv) | an<br> Amendment Redemption pursuant to Article 173. |
| --- | --- |
In no other circumstance shall a holder of Public Shares have any right or interest of any kind in the Trust Account. The Company shall have no obligation to deposit any funds held outside of the Trust Account into the Trust Account for the benefit of holders of Public Shares following the deposit in connection with the IPO of the net proceeds of the IPO and certain of the proceeds of the sale of the Private Placement Shares into the Trust Account. Holders of Public Shares shall have no rights to any funds held by the Company outside of the Trust Account upon or following their redemption pursuant to Articles 166(b), 170, 172 or 173.
| Filed: 09-Sep-2025 15:41 EST | |
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| 175. | After<br> the issue of Public Shares (including pursuant to the over-allotment option granted in the<br> IPO), and prior to the consummation of a Business Combination, the Directors shall not, issue<br> additional Shares or any other securities that would entitle the holders thereof to: |
| --- | --- |
| (a) | receive<br> funds from the Trust Account; or |
| --- | --- |
| (b) | vote<br> as a class with the Public Shares: |
| --- | --- |
| (i) | on<br> a Business Combination or on any other proposal presented to Members prior to or in connection<br> with the completion of a Business Combination; or |
| --- | --- |
| (ii) | to<br> approve an amendment to these Articles to: (A) extend the time the Company has to consummate<br> a Business Combination beyond twenty-one (21) months from the closing of the IPO; or (B)<br> amend the foregoing provisions of these Articles. |
| --- | --- |
| 176. | The<br> Company must complete one or more Business Combinations having an aggregate fair market value<br> of at least 80% of the net assets held in the Trust Account (excluding the amount of deferred<br> underwriting discounts held in the Trust Account and taxes payable on the interest earned<br> on the Trust Account) at the time of the Company signing the agreement to enter into a Business<br> Combination. An initial Business Combination must not be effectuated solely with another<br> blank cheque company or a similar company with nominal operations. |
| --- | --- |
| 177. | The<br> uninterested Independent Directors shall approve any transaction or transactions between<br> the Company and any of the following parties: |
| --- | --- |
| (a) | any<br> Member owning an interest in the voting power of the Company that gives such Member a significant<br> influence over the Company; and |
| --- | --- |
| (b) | any<br> Director or officer of the Company and any Affiliate or relative of such Director or officer. |
| --- | --- |
| 178. | Any<br> payment made to members of the audit committee (if one exists) shall require the review and<br> approval of the Directors, with any Director interested in such payment abstaining from such<br> review and approval. |
| --- | --- |
| 179. | A<br> Director may vote in respect of any Business Combination in which such Director has a conflict<br> of interest with respect to the evaluation of such Business Combination. Such Director must<br> disclose such interest or conflict to the other Directors. |
| --- | --- |
| 180. | The<br> audit committee shall monitor compliance with the terms of the IPO and, if any non-compliance<br> is identified, the audit committee shall be charged with the responsibility to take all action<br> necessary to rectify such non-compliance or otherwise cause compliance with the terms of<br> the IPO. |
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| Filed: 09-Sep-2025 15:41 EST | |
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| 181. | The<br> Company may enter into a Business Combination with a target business that is affiliated with<br> a member of the Investor Group, the Directors or officers of the Company. In the event the<br> Company seeks to complete the Business Combination with a target business that is affiliated<br> with the Sponsor, officers or Directors, the Company, or a committee of Independent Directors,<br> will obtain an opinion from an independent investment banking firm or another independent<br> valuation or accounting firm that such a Business Combination or transaction is fair to the<br> Company from a financial point of view. |
| --- | --- |
| 182. | Any<br> Business Combination must be approved by a majority of the Independent Directors. |
| --- | --- |
| 183. | Transactions with Affiliates. In the event the Company enters into an initial Business Combination<br> with a target business that is affiliated with the Sponsor, any Director or officer of the<br> Company or any of their respective affiliates, the Company, or a committee of the Independent<br> Directors of the Company, shall obtain an opinion from an independent accounting firm or<br> an independent investment banking firm that is a member of the Financial Industry Regulatory<br> Authority that such Business Combination is fair to the Company from a financial point of<br> view. |
| --- | --- |
| 184. | No Transactions with Other Blank Check Companies. The Company shall not enter into an initial<br> Business Combination with another blank check company or a similar company with nominal operations. |
| --- | --- |
BUSINESS OPPORTUNITY
| 185. | To<br> the fullest extent permitted by applicable law, no individual serving as a Director or an<br> officer shall have any duty, except and to the extent expressly assumed by contract, to refrain<br> from engaging directly or indirectly in the same or similar business activities or lines<br> of business as the Company. To the fullest extent permitted by applicable law, the Company<br> renounces any interest or expectancy of the Company in, or in being offered an opportunity<br> to participate in, any potential transaction or matter which may be a corporate opportunity<br> for a Director or officer, on the one hand, and the Company, on the other. Except to the<br> extent expressly assumed by contract, to the fullest extent permitted by applicable law,<br> a Director or officer shall have no duty to communicate or offer any such corporate opportunity<br> to the Company and shall not be liable to the Company or its Members for breach of any fiduciary<br> duty as a Member, Director and/or officer solely by reason of the fact that such party pursues<br> or acquires such corporate opportunity for itself, himself or herself, directs such corporate<br> opportunity to another person, or does not communicate information regarding such corporate<br> opportunity to the Company. |
|---|---|
| 186. | Except<br> as provided elsewhere in this Article, the Company hereby renounces any interest or expectancy<br> of the Company in, or in being offered an opportunity to participate in, any potential transaction<br> or matter which may be a corporate opportunity for both the Company and a Director or officer,<br> about which a Director and/or officer acquires knowledge. |
| --- | --- |
| 187. | To<br> the extent a court might hold that the conduct of any activity related to a corporate opportunity<br> that is renounced in this Article to be a breach of duty to the Company or its Members, the<br> Company hereby waives, to the fullest extent permitted by applicable law, any and all claims<br> and causes of action that the Company may have for such activities. To the fullest extent<br> permitted by applicable law, the provisions of this Article apply equally to activities conducted<br> in the future and that have been conducted in the past. |
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| Filed: 09-Sep-2025 15:41 EST | |
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Exhibit4.1
WARRANTAGREEMENT
THIS WARRANT AGREEMENT (this “Agreement”), dated as of October 22, 2025, is by and between Miluna Acquisition Corp, a Cayman Islands exempted company (the “Company”), and Lucky Lucko, Inc. d/b/a Efficiency as warrant agent (in such capacity, the “Warrant Agent,” and also referred to herein as the “Transfer Agent”).
WHEREAS, the Company is engaged in an initial public offering (the “Offering”) of units of the Company’s equity securities, each such unit comprised of one ordinary share of the Company, par value $0.0001 per share (“Shares” and each a “Share”) and one redeemable Public Warrant (as defined below) (the “Units”) and, in connection therewith, has determined to issue and deliver 6,000,000 warrants (or up to 6,900,000 warrants if the Over-allotment Option (as defined below) is exercised in full) to public investors in the Offering (the “Public Warrants”);
WHEREAS, the Company entered into that certain Private Units Purchase Agreement with MilunaC Technology Limited, a British Virgin Islands company limited by shares (the “Sponsor”), pursuant to which the Sponsor agreed to purchase an aggregate of 194,100 private placement units or up to 203,100 private placement units if the underwriters’ over-allotment option is exercised in full simultaneously with the closing of the Offering (the “Private Placement Units”) at a purchase price of $10.00 per Private Placement Unit, and in connection therewith, the issuance of up to 194,100 private warrants or up to 203,100 private warrants if the underwriters’ over-allotment option is exercised in full underlying the Private Placement Units (the “PrivatePlacement Warrants”), each bearing the legend set forth in Exhibit A hereto;
WHEREAS, the Company was incorporated for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities (a “Business Combination”);
WHEREAS, in order to finance the Company’s transaction costs in connection with an intended initial Business Combination, the Sponsor or an affiliate of the Sponsor or the Company’s officers and directors (collectively, the “Initial Purchasers”) may, but are not obligated to, loan to the Company funds as the Company may require, of which up to $3,000,000 of such loans may be convertible into up to an additional 300,000 units, at a purchase price of $10.00 per unit (the “Working Capital Units”), each comprised of one Share and one redeemable private warrants, which will be identical to the Private Placement Warrants (the “Working Capital Warrants” and together with the Public Warrants and the Private Placement Warrants, the “Warrants”);
WHEREAS, each Warrant entitles the holder thereof to purchase one Share at a price of $11.50 per share, subject to adjustment as described herein;
WHEREAS, the Company has filed with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1, File No. 333-289973 (the “Registration Statement”), and a prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units, the Public Warrants and the Shares included in the Units;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW,THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
| 1. | Appointment<br> of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant<br> Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this<br> Agreement. |
|---|---|
| 2. | Warrants. |
| --- | --- |
| 2.1. | Form<br> of Warrant. Each Warrant shall be issued in registered form only, and, if a physical certificate is issued, shall be in substantially<br> the form of Exhibit B hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile<br> signature of, any director of the Company, the Chairperson of the Company’s board of directors (the “Board”),<br> President, Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of the Company. In the event the<br> person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person<br> signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such<br> at the date of issuance. All of the Public Warrants shall initially be represented by one or more book-entry certificates (each,<br> a “Book-Entry Warrant Certificate”). |
| --- | --- |
| 2.2. | Effect<br> of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this<br> Agreement, a Warrant certificate shall be invalid and of no effect and may not be exercised by the holder thereof. |
| 2.3. | Registration. |
| --- | --- |
| 2.3.1. | Warrant<br> Register. The Warrant Agent shall maintain books (the “Warrant Register”) for the registration of original<br> issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue<br> and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions<br> delivered to the Warrant Agent by the Company. All of the Public Warrants shall initially be represented by one or more Book-Entry<br> Warrant Certificates deposited with The Depository Trust Company (the “Depositary”) and registered in the<br> name of Cede & Co., a nominee of the Depositary. Ownership of beneficial interests in the Public Warrants shall be shown on,<br> and the transfer of such ownership shall be effected through, records maintained by (i) the Depositary or its nominee for each Book-Entry<br> Warrant Certificate, or (ii) institutions that have accounts with the Depositary (each such institution, with respect to a Warrant<br> in its account, a “Participant”). If the Depositary subsequently ceases to make its book-entry settlement<br> system available for the Public Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry<br> settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants<br> available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent<br> for cancellation each Book-Entry Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver to the Depositary<br> definitive certificates in physical form evidencing such Warrants (“Definitive Warrant Certificate”). Such Definitive<br> Warrant Certificate shall be in the form annexed hereto as Exhibit B, with appropriate insertions, modifications and omissions, as<br> provided above. |
| --- | --- |
| 2.3.2. | Registered<br> Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and<br> treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”)<br> as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other<br> writing on a Definitive Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise<br> thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. |
| 2.4. | Detachability<br> of Warrants. The Shares and Public Warrants comprising the Units shall begin separate trading on the 52nd day following the date<br> of the Prospectus or, if such 52nd day is not on a day, other than a Saturday, Sunday or federal holiday, on which banks in New York<br> City are generally open for normal business (a “Business Day”), then on the immediately succeeding Business<br> Day following such date, or earlier (the “Detachment Date”) with the consent of D. Boral Capital LLC, as<br> representatives of the several underwriters, but in no event shall the Shares and the Public Warrants comprising the Units be separately<br> traded until the Company issues a press release and files with the Commission a Current Report on Form 8-K announcing when such separate<br> trading shall begin. The Private Placement Units shall be eligible to be separated into their component Shares and Warrants on the<br> Detachment Date. Holders of Warrants shall contact the Transfer Agent in order to effect such separation. |
| --- | --- |
| 2.5. | No<br> Fractional Warrants. The Company shall not issue fractional Warrants. |
| 2.6. | Private<br> Placement Warrants and Working Capital Warrants. The Private Placement Warrants and Working Capital Warrants shall be identical<br> to the Public Warrants, except that until the date that is thirty (30) days after the completion by the Company of an initial Business<br> Combination the Private Placement Warrants and the Working Capital Warrants may not be transferred, assigned or sold by the holders<br> thereof, other than: |
| 2.6.1. | to<br> the Company’s officers or directors, any affiliate or family member of any of the Company’s officers or directors, any<br> members or partners of the Sponsor or their affiliates, any affiliates of the Sponsor or any employees of such affiliates; |
| --- | --- |
| 2.6.2. | in<br> the case of an individual, by gift to a member of such individual’s immediate family or to a trust, the beneficiary of which<br> is a member of such individual’s immediate family, an affiliate of such individual or to a charitable organization; |
| 2.6.3. | in<br> the case of an individual, by virtue of the laws of descent and distribution upon death of such person; |
| 2.6.4. | in<br> the case of an individual, pursuant to a qualified domestic relations order; |
| 2.6.5. | by<br> private sales or transfers made in connection with any forward purchase agreement or similar arrangement, in connection with an extension<br> of the timeframe for the Company to consummate a Business Combination or in connection with the consummation of an initial Business<br> Combination at prices no greater than the price at which the Warrants were originally purchased; |
| 2.6.6 | by<br> pro rata distributions from the Sponsor to its respective members, partners or shareholders pursuant to the Sponsor’s limited<br> liability company agreement or other charter documents; |
| 2.6.7. | by<br> virtue of the laws of the Cayman Islands or the limited liability company agreement of the Sponsor upon dissolution of the Sponsor; |
| 2.6.8. | in<br> the event of the Company’s liquidation prior to the consummation of a Business Combination; |
| 2.6.9. | to<br> a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses 2.6.1 through<br> 2.6.7 above; |
| 2.6.10 | to<br> the Company for no value for cancellation in connection with the consummation of an initial Business Combination; and |
| 2.6.11. | in<br> the event that, subsequent to the consummation of an initial Business Combination, the Company completes a liquidation, merger, share<br> exchange or other similar transaction which results in all of its shareholders having the right to exchange their Shares for cash,<br> securities or other property; provided, however, that, in the case of clauses 2.6.1 through 2.6.7, and 2.6.9<br> these transferees (the “Permitted Transferees”) enter into a written agreement with the Company agreeing<br> to be bound by the transfer restrictions in this Agreement and the other restrictions contained in the letter agreement, dated as<br> of the date hereof, by and among the Company, the Sponsor, and the Company’s officers and directors. |
| --- | --- |
| 2.7. | Working<br> Capital Warrants. Each of the Working Capital Warrants shall be identical to the Private Placement Warrants. |
| --- | --- |
| 3. | Terms and Exercise of Warrants. |
| --- | --- |
| 3.1. | Warrant<br> Price. Each Warrant shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement,<br> including without limitation, subsection 3.3.5, to purchase from the Company the number of Shares stated therein, at the price<br> of $11.50 per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1.<br> The term “Warrant Price” as used in this Agreement shall mean the price per share (including in cash or by payment<br> of Warrants pursuant to a “cashless exercise,” to the extent permitted hereunder) described in the prior sentence at<br> which the Shares may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price<br> at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days (unless otherwise<br> required by the Commission, any national securities exchange on which the Warrants are listed or applicable law), provided, that<br> the Company shall provide at least three (3) days’ prior written notice of such reduction to Registered Holders of the Warrants<br> and, provided further that any such reduction shall be identical among all of the Warrants. |
| --- | --- |
| 3.2. | Duration<br> of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) (A) commencing<br> on the later of (1) the date on which the Company completes a Business Combination or (2) 12 months after the registration statement<br> is declared effective by the Securities and Exchange Commission, and terminating on the earliest to occur of: (x) 5:00 p.m., New<br> York City time on the date that is five (5) years after the date on which the Company completes its initial Business Combination,<br> (y) the liquidation of the Company, and (z) with respect to a redemption pursuant to Section 6.1 hereof, 5:00 p.m., New York<br> City time on the Redemption Date (as defined below) as provided in Section 6.2 hereof (the “Expiration Date”);<br> provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth<br> in subsection 3.3.2 below, with respect to an effective registration statement or a valid exemption therefrom being available.<br> Each outstanding Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights<br> in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole<br> discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, that the Company shall provide at least<br> twenty (20) days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any<br> such extension shall be identical in duration among all the Warrants. |
| 3.3. | Exercise<br> of Warrants. |
| 3.3.1. | Payment.<br> Subject to the provisions of the Warrant and this Agreement, including without limitation, subsection 3.3.5, a Warrant may<br> be exercised by the Registered Holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Definitive<br> Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Book-Entry Warrant Certificate, the Warrants to<br> be exercised (the “Book-Entry Warrants”) on the records of the Depositary to an account of the Warrant<br> Agent at the Depositary designated for such purposes in writing by the Warrant Agent to the Depositary from time to time, (ii) an<br> election to purchase (“Election to Purchase”) Shares pursuant to the exercise of a Warrant, properly completed<br> and executed by the Registered Holder on the reverse of the Definitive Warrant Certificate or, in the case of a Book-Entry Warrant<br> Certificate, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) payment in full<br> of the Warrant Price for each Share as to which the Warrant is exercised and any and all applicable taxes due in connection with<br> the exercise of the Warrant, the exchange of the Warrant for the Shares and the issuance of such Shares, as follows: |
| --- | --- |
| (a) | in<br> lawful money of the United States, in good bank draft or good certified check payable to the order of the Warrant Agent or by wire<br> transfer of immediately available funds; |
| --- | --- |
| (b) | in<br> the event of a redemption pursuant to Section 6 hereof in which the Company’s board of directors (the “Board”)<br> has elected to require all holders of the Warrants to exercise such Warrants on a “cashless basis,” by surrendering the<br> Warrants for that number of Shares equal to the quotient obtained by dividing (x) the product of the number of Shares underlying<br> the Warrants, multiplied by the excess of the “Fair Market Value”, as defined in this subsection 3.3.1(b), over<br> the Warrant Price by (y) the Fair Market Value. Solely for purposes of this subsection 3.3.1(b) and Section 6.3, the<br> “Fair Market Value” shall mean the average reported closing price of the Shares for the ten (10) trading days<br> ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of the Warrants, pursuant<br> to Section 6 hereof; or |
| --- | --- |
| (c) | on<br> a cashless basis as provided in Section 7.4 hereof. |
| 3.3.2. | Issuance<br> of Shares on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of<br> the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such<br> Warrant a book-entry position or certificate, as applicable, for the number of Shares to which he, she or it is entitled, registered<br> in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new book-entry<br> position or countersigned Warrant, as applicable, for the number of Shares as to which such Warrant shall not have been exercised.<br> If fewer than all the Warrants evidenced by a Book-Entry Warrant Certificate are exercised, a notation shall be made to the records<br> maintained by the Depositary, its nominee for each Book-Entry Warrant Certificate, or a Participant, as appropriate, evidencing the<br> balance of the Warrants remaining after such exercise. Notwithstanding the foregoing, the Company shall not be obligated to deliver<br> any Shares pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration<br> statement under the Securities Act with respect to the Shares underlying the Public Warrants is then effective and a prospectus relating<br> thereto is current, subject to the Company’s satisfying its obligations under Section 7.4 or a valid exemption from<br> registration is available. no Warrant shall be exercisable and the Company shall not be obligated to issue Shares upon exercise of<br> a Warrant unless the Shares issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt from registration<br> or qualification under the securities laws of the state of residence of the Registered Holder of the Warrants. In the event that<br> the conditions in the two immediately preceding sentences are not satisfied with respect to a Warrant, the holder of such Warrant<br> shall not be entitled to exercise such Warrant. In no event will the Company be required to net cash settle the Warrant exercise.<br> The Company may require holders of Public Warrants to settle the Warrant on a “cashless basis” pursuant to Section<br> 7.4. If, by reason of any exercise of Warrants on a “cashless basis,” the holder of any Warrant would be entitled,<br> upon the exercise of such Warrant, to receive a fractional interest in a Share, the Company shall round down to the nearest whole<br> number, the number of Shares to be issued to such holder. |
| --- | --- |
| 3.3.3. | Valid<br> Issuance. All Shares issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued,<br> fully paid and non-assessable. |
| 3.3.4. | Date<br> of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for Shares is issued shall for<br> all purposes be deemed to have become the holder of record of such Shares on the date on which the Warrant, or book-entry position<br> representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such<br> certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the share<br> transfer books of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the<br> holder of such Shares at the close of business on the next succeeding date on which the share transfer books or book-entry system<br> are open. |
| 3.3.5. | Maximum<br> Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained<br> in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he,<br> she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s<br> Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise,<br> such person (together with such person’s affiliates) or any “group” of which the holder or its affiliate is a member,<br> would beneficially own in excess of 4.9% or 9.8% (or such other amount as a holder may specify)(the “Maximum Percentage”)<br> of the Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate<br> number of Shares beneficially owned by such person and its affiliates, or any group of which such person and its affiliates is a<br> member, shall include the number of Shares issuable upon exercise of the Warrant with respect to which the determination of such<br> sentence is being made, but shall exclude Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of<br> the Warrant beneficially owned by such person and its affiliates, or any group of which any such person or its affiliates is a member,<br> and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned<br> by such person and its affiliates, or any group of which such person or its affiliates is a member (including, without limitation,<br> any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to<br> the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership<br> shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable regulations of the Commission. For purposes hereof, “group” has the meaning set forth<br> in Section 13(d) of the Exchange Act and applicable regulations of the Commission, and the percentage held by the holder shall be<br> determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. To the extent that a holder makes the<br> election described in this subsection 3.3.5, the Warrant Agent shall not effect the exercise of the holder’s Warrant,<br> and such holder shall not have the right to exercise such Warrant unless it provides to the Warrant Agent in its Election to Purchase,<br> a certification that, upon after giving effect to such exercise, such person (together with such person’s affiliates) or any<br> “group” of which such holder or its affiliates is a member, would not beneficially own in excess of the Maximum Percentage<br> of the Shares outstanding immediately after giving effect to such exercise as determined in accordance with this subsection 3.3.5.<br> For purposes of the Warrant, in determining the number of outstanding Shares, the holder may rely on the number of outstanding Shares<br> as reflected in (1) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on<br> Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3)<br> any other notice by the Company or the Transfer Agent setting forth the number of Shares outstanding. For any reason at any time,<br> upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing<br> to such holder the number of Shares then outstanding. In any case, the number of outstanding Shares shall be determined after giving<br> effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which<br> such number of outstanding Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase<br> or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however,<br> that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company. |
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| 4. | Adjustments. |
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| 4.1. | Share<br> Capitalizations. |
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| 4.1.1. | Sub-division.<br> If after the date hereof, and subject to the provisions of Section 4.6 below, the number of outstanding Shares is increased<br> by a share capitalization payable in Shares, or by a sub-division of Shares or other similar event, then, on the effective date of<br> such share capitalization, sub-division or similar event, the number of Shares issuable on exercise of each Warrant shall be increased<br> in proportion to such increase in the outstanding Shares. A rights offering made to all or substantially all holders of the Shares<br> entitling holders to purchase Shares at a price less than the “Historical Fair Market Value” (as defined below) shall<br> be deemed a share capitalization of a number of Shares equal to the product of (i) the number of Shares actually sold in such rights<br> offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for<br> Shares) and (ii) one (1) minus the quotient of (x) the price per Share paid in such rights offering divided by (y) the Historical<br> Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or<br> exercisable for Shares, in determining the price payable for Shares, there shall be taken into account any consideration received<br> for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Historical Fair Market Value” means the volume weighted average price of the Shares as reported during the ten (10) trading day period ending<br> on the trading day prior to the first date on which the Shares trade on the applicable exchange or in the applicable market, regular<br> way, without the right to receive such rights. no Shares shall be issued at less than their par value. |
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| 4.1.2. | Extraordinary<br> Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution<br> in cash, securities or other assets to all or substantially all of the holders of Shares on account of such Shares (or other shares<br> of the Company’s share capital into which the Warrants are convertible), other than (a) as described in subsection 4.1.1<br> above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption rights of the holders of Shares in connection<br> with a proposed initial Business Combination, (d) to satisfy the redemption rights of the holders of Shares in connection with a<br> shareholder vote to amend the Company’s amended and restated memorandum and articles of association (as amended from time to<br> time, the “Charter”) (A) to modify the substance or timing of the Company’s obligation to allow redemption<br> in connection with the Company’s initial Business Combination or to redeem 100% of the Shares included in the Units sold in<br> the Offering (the “Public Shares”) if the Company does not complete the Business Combination within the<br> period set forth in the Charter or (B) with respect to any other material provisions relating to the rights of holders of Shares<br> or pre-initial Business Combination activity or (e) in connection with the redemption of Public Shares upon the failure of the Company<br> to complete its initial Business Combination and any subsequent distribution of its assets upon its liquidation (any such non-excluded<br> event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased,<br> effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value<br> (as determined by the Board, in good faith) of any securities or other assets paid on each Share in respect of such Extraordinary<br> Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash Dividends” means any cash dividend<br> or cash distribution which, when combined on a per share basis, with the per share amounts of all other cash dividends and cash distributions<br> paid on the Shares during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately<br> reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions<br> that resulted in an adjustment to the Warrant Price or to the number of Shares issuable on exercise of each Warrant) does not exceed<br> $0.50 (being 5% of the offering price of the Units in the Offering) but only with respect to the amount of the aggregate cash dividends<br> or cash distributions equal to or less than $0.50. Solely for purposes of illustration, if the Company, at a time while the Warrants<br> are outstanding and unexpired, pays a cash dividend of $0.35 and previously paid an aggregate of $0.40 of cash dividends and cash<br> distributions on the Shares during the 365-day period ending on the date of declaration of such $0.35 dividend, then the Warrant<br> Price will be decreased, effectively immediately after the effective date of such $0.35 dividend, by $0.25 (the absolute value of<br> the difference between $0.75 (the aggregate amount of all cash dividends and cash distributions paid or made in such 365-day period,<br> including such $0.35 dividend) and $0.50 (the greater of (x) $0.50 and (y) the aggregate amount of all cash dividends and cash distributions<br> paid or made in such 365-day period prior to such $0.35 dividend)). |
| 4.2. | Aggregation<br> of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of outstanding Shares<br> is decreased by a consolidation, combination, reverse share sub-division or reclassification of Shares or other similar event, then,<br> on the effective date of such consolidation, combination, reverse share sub-division, reclassification or similar event, the number<br> of Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding Shares. |
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| 4.3. | Adjustments in Warrant Price. |
| 4.3.1. | Whenever<br> the number of Shares purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or Section<br> 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such<br> adjustment by a fraction (x) the numerator of which shall be the number of Shares purchasable upon the exercise of the Warrants immediately<br> prior to such adjustment, and (y) the denominator of which shall be the number of Shares so purchasable immediately thereafter. |
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| 4.3.2. | If<br> (x) the Company issues additional Shares or equity-linked securities for capital raising purposes in connection with the closing<br> of the initial Business Combination at an issue price or effective issue price of less than $9.20 per Share (with such issue price<br> or effective issue price to be determined in good faith by the Board and, in the case of any such issuance to the initial shareholder<br> (as defined in the Prospectus) or its affiliates, without taking into account any insider shares held by such shareholders or their<br> affiliates, as applicable, prior to such issuance (the “Newly Issued Price”)), (y) the aggregate gross<br> proceeds from such issuances represent more than 60% of the total equity proceeds, and interest thereon, available for funding the<br> initial Business Combination on the date of the consummation of the initial Business Combination (net of redemptions), and (z) the<br> volume weighted average trading price of the Shares during the 20 trading day period starting on the trading day prior to the day<br> on which the Company consummates the Business Combination (such price, the “Market Value”) is below $9.20<br> per share, the Warrant Price shall be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the<br> Newly Issued Price, the $18.00 per share redemption trigger price described in Section 6.1 below shall be adjusted (to the<br> nearest cent) to be equal to 180% of the higher of the Market Value and the Newly Issued Price. |
| 4.4. | Replacement<br> of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Shares (other than<br> a change covered by subsections 4.1.1, 4.1.2 or Section 4.2 hereof or that solely affects the par value of such<br> Shares), or in the case of any merger or consolidation of the Company with or into another entity or conversion of the Company as<br> another entity (other than a consolidation or merger in which the Company is the continuing corporation and is not a subsidiary of<br> another entity whose shareholders did not own all or substantially all of the Shares of the Company in substantially the same proportions<br> immediately before such transaction and that does not result in any reclassification or reorganization of the outstanding Shares),<br> or in the case of any sale or conveyance to another entity of the assets or other property of the Company as an entirety or substantially<br> as an entirety in connection with which the Company is dissolved, the holders of the Warrants shall thereafter have the right to<br> purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Shares of the<br> Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount<br> of shares or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation,<br> or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had<br> exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance”). If any<br> reclassification or reorganization also results in a change in Shares covered by subsection 4.1.1, then such adjustment shall<br> be made pursuant to subsection 4.1.1 or Sections 4.2, 4.3 and this Section 4.4. The provisions of this<br> Section 4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other<br> transfers. In no event will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant. |
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| 4.5. | Notices<br> of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of Shares issuable upon exercise of a Warrant,<br> the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such<br> adjustment and the increase or decrease, if any, in the number of Shares purchasable at such price upon the exercise of a Warrant,<br> setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence<br> of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, the Company shall give written notice of the<br> occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the<br> record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality<br> or validity of such event. |
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| 4.6. | No<br> Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional<br> Shares upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant<br> would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise,<br> round down to the nearest whole number the number of Shares to be issued to such holder. |
| 4.7. | Form<br> of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants<br> issued after such adjustment may state the same Warrant Price and the same number of Shares as is stated in the Warrants initially<br> issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make<br> any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant<br> thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form<br> as so changed. |
| 4.8. | Other<br> Events. In case any event shall occur affecting the Company as to which none of the provisions of the preceding subsections of<br> this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i)<br> avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case,<br> the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national<br> standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary<br> to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of<br> such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended<br> in such opinion. For the avoidance of doubt, all adjustments made pursuant to this Section 4.8 shall be made equally to all<br> outstanding Warrants. |
| 5. | Transfer and Exchange of Warrants. |
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| 5.1. | Registration<br> of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register,<br> upon surrender of such Warrant for transfer, in the case of a certificated Warrant, properly endorsed with signatures properly guaranteed<br> and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number<br> of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the<br> Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request. |
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| 5.2. | Procedure<br> for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or<br> transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered<br> Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that<br> except as otherwise provided herein or in any Book-Entry Warrant Certificate or Definitive Warrant Certificate, each Book-Entry Warrant<br> Certificate and Definitive Warrant Certificate may be transferred only in whole and only to the Depositary, to another nominee of<br> the Depositary, to a successor depository, or to a nominee of a successor depository; provided further, however, that<br> in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Private Placement Warrants<br> and the Working Capital Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until<br> the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether<br> the new Warrants must also bear a restrictive legend. |
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| 5.3. | Fractional<br> Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the<br> issuance of a warrant certificate or book-entry position for a fraction of a warrant. |
| 5.4. | Service<br> Charges. no service charge shall be made for any exchange or registration of transfer of Warrants. |
| 5.5. | Warrant<br> Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the<br> terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company,<br> whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such<br> purpose. |
| 5.6. | Transfer<br> of Warrants. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the Unit in<br> which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of such Unit.<br> Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants included<br> in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.6 shall have no effect on any transfer of Warrants<br> on and after the Detachment Date. |
| 6. | Redemption. |
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| 6.1. | Redemption<br> of Warrants for Cash. All, but not less than all, of the outstanding Warrants may be redeemed (in whole and not in part), at<br> the option of the Company, at any time during the Exercise Period, at the office of the Warrant Agent, upon notice to the Registered<br> Holders of the Warrants, as described in Section 6.2 below, at a Redemption Price (as defined below) of $0.01 per Warrant;<br> provided that (a) the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section<br> 4 hereof) and (b) there is an effective registration statement covering the Shares issuable upon exercise of the Warrants, and<br> a current prospectus relating thereto, available throughout the Measurement Period and the 30-day Redemption Period (each as defined<br> in Section 6.2 below). |
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| 6.2. | Date<br> Fixed for, and Notice of, Redemption; Redemption Price; Reference Value. In the event that the Company elects to redeem the Warrants<br> pursuant to Section 6.1, the Company shall fix a date for the redemption (the “Redemption Date”).<br> Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to<br> the Redemption Date (such period, the “Redemption Period”) to the Registered Holders of the Warrants to<br> be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided<br> shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice. As used in this<br> Agreement, (a) “Redemption Price” shall mean the price per Warrant at which any Warrants are redeemed pursuant<br> to Sections 6.1 and (b) “Reference Value” shall mean the last reported sales price of the Shares<br> for any twenty (20) trading days within the thirty (30) trading-day period commencing once warrants become exercisable and ending<br> on the third trading day prior to the date on which notice of the redemption is given (the “Measurement Period”). |
| 6.3. | Exercise<br> After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with<br> Section 3 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section<br> 6.2 hereof and prior to the Redemption Date. In the event the Company determines to require all holders of Warrants to exercise<br> their Warrants on a “cashless basis” pursuant to subsection 3.3.1(b), the notice of redemption will contain the<br> information necessary to calculate the number of Shares to be received upon exercise of the Warrants, including the “Fair Market<br> Value” (as such term is defined in subsection 3.3.1(b) hereof) in such case. On and after the Redemption Date, the record holder<br> of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price. |
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| 7. | Other Provisions Relating to Rights of Holders of Warrants. |
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| 7.1. | No<br> Rights as Shareholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the<br> Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to<br> vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of<br> the Company or any other matter. |
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| 7.2. | Lost,<br> Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant<br> Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated<br> Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen,<br> mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not<br> the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone. |
| 7.3. | Reservation<br> of Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Shares that shall<br> be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement. |
| 7.4. | Registration of Shares; Cashless Exercise at Company’s<br>Option. |
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| 7.4.1. | Registration of the Shares. The Company agrees that as soon as practicable, but in no event later than twenty (20) Business Days after the closing of its initial Business Combination, it shall use its commercially reasonable efforts to file with the Commission a post-effective amendment to the Registration Statement, or a new registration statement registering, under the Securities Act, the issuance of the Shares issuable upon exercise of the Warrants. The Company shall use its commercially reasonable efforts to cause the same to become effective and to maintain the effectiveness of such post-effective amendment or registration statement, and a current prospectus relating thereto, until the expiration or redemption of the Warrants in accordance with the provisions of this Agreement. If any such post-effective or registration statement has not been declared effective by the sixtieth (60th) Business Day following the closing of the initial Business Combination, holders of the Warrants shall have the right, during the period beginning on the sixty-first (61st) Business Day after the closing of the initial Business Combination and ending upon such post-effective amendment or registration statement being declared effective by the Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act (or any successor rule) or another exemption) for that number of Shares equal to the quotient obtained by dividing (x) the product of the number of Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value” (as defined below) over the Warrant Price by (y) the Fair Market Value. Solely for purposes of this subsection 7.4.1, “Fair Market Value” shall mean the average reported closing price of the Shares as reported during the ten (10) trading day period ending on the third (3^rd)^ trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of “cashless exercise” is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. In connection with the “cashless exercise” of a Public Warrant, the Company shall, upon request, provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a “cashless basis” in accordance with this subsection 7.4.1 is not required to be registered under the Securities Act and (ii) the Shares issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities Act (or any successor rule)) of the Company and, accordingly, shall not be required to bear a restrictive legend. Except as provided in subsection 7.4.2, for the avoidance of any doubt, unless and until all of the Warrants have been exercised or have expired, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this subsection 7.4.1. |
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| 7.4.2. | Cashless<br> Exercise at Company’s Option. If the Shares are at the time of any exercise of a Warrant not listed on a national securities<br> exchange such that they satisfy the definition of “covered securities” under Section 18(b)(1) of the Securities Act (or<br> any successor rule), the Company may, at its option, require holders of Warrants who exercise their Warrants to exercise such Public<br> Warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act (or any successor rule) as described<br> in subsection 7.4.1 and (i) in the event the Company so elects, the Company shall not be required to file or maintain in effect<br> a registration statement for the registration, under the Securities Act, of the Shares issuable upon exercise of the Warrants, notwithstanding<br> anything in this Agreement to the contrary or (ii) if the Company does not so file or maintain such registration statement, the Company<br> agrees to use its commercially reasonable efforts to register or qualify for sale the Shares issuable upon exercise of the Public<br> Warrants under the applicable blue sky laws of the state of residence of the exercising Public Warrant holder to the extent an exemption<br> is not available. |
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| 8. | Concerning the Warrant Agent and Other Matters. |
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| 8.1. | Payment<br> of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the<br> Warrant Agent in respect of the issuance or delivery of Shares upon the exercise of the Warrants, but the Company shall not be obligated<br> to pay any transfer taxes in respect of the Warrants or such Shares. |
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| 8.2. | Resignation,<br> Consolidation, or Merger of Warrant Agent. |
| --- | --- |
| 8.2.1. | Appointment<br> of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged<br> from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office<br> of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor<br> Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days<br> after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall,<br> with such notice, submit his, her or its Warrant for inspection by the Company), then the holder of any Warrant may apply to the<br> Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s<br> cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation or other entity organized<br> and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan,<br> City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination<br> by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights,<br> immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder,<br> without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute<br> and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers,<br> and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute,<br> acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor<br> Warrant Agent all such authority, powers, rights, immunities, duties, and obligations. |
| --- | --- |
| 8.2.2. | Notice<br> of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof<br> to the predecessor Warrant Agent and the Transfer Agent for the Shares not later than the effective date of any such appointment. |
| --- | --- |
| 8.2.3. | Merger<br> or Consolidation of Warrant Agent. Any entity into which the Warrant Agent may be merged or with which it may be consolidated<br> or any entity resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant<br> Agent under this Agreement without any further act. |
| 8.3. | Fees<br> and Expenses of Warrant Agent. |
| --- | --- |
| 8.3.1. | Remuneration.<br> The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant<br> to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may<br> reasonably incur in the execution of its duties hereunder. |
| --- | --- |
| 8.3.2. | Further<br> Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged,<br> and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for<br> the carrying out or performing of the provisions of this Agreement. |
| 8.4. | Liability<br> of Warrant Agent. |
| --- | --- |
| 8.4.1. | Reliance<br> on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary<br> or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such<br> fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved<br> and established by a statement signed by any director of the Company, the Chief Executive Officer, Chief Financial Officer, Executive<br> Vice President, Vice President, Secretary or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant<br> Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement. |
| --- | --- |
| 8.4.2. | Indemnity.<br> The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct, fraud or bad faith. The Company<br> agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, out of pocket costs<br> and reasonable outside counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except<br> as a result of the Warrant Agent’s gross negligence, willful misconduct, fraud or bad faith. |
| --- | --- |
| 8.4.3. | Exclusions.<br> The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or<br> execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the<br> Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to<br> make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of<br> any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act<br> hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Shares to be issued pursuant<br> to this Agreement or any Warrant or as to whether any Shares shall, when issued, be valid and fully paid and non-assessable. |
| 8.5. | Acceptance<br> of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the<br> terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised<br> and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of Shares through<br> the exercise of the Warrants. |
| --- | --- |
| 8.6. | Waiver.<br> The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (“Claim”)<br> in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the<br> date hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement,<br> payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby irrevocably waives<br> any and all Claims against the Trust Account, including any monies therein or any distribution therefrom, and any and all rights<br> to seek access to the Trust Account. |
| 9. | Miscellaneous Provisions. |
| --- | --- |
| 9.1. | Successors.<br> All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure<br> to the benefit of their respective successors and assigns. |
| --- | --- |
| 9.2. | Notices.<br> Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant<br> to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail<br> or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is<br> filed in writing by the Company with the Warrant Agent), as follows: |
Miluna Acquisition Corp
12F, No. 43,
Cheng Gong Road, Sec 4, Neihu
Taipei, Taiwan
Attention: Shang Ju Lin, Chief Executive Officer
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Lucky Lucko Inc. d/b/a Efficiency
415 Mission St.
San Francisco, CA 94105
Attn: Carol Nguyen
Email: carol@useefficiency.com
in each case, with copies to:
Hunter Taubman Fischer & Li LLC
950 Third Avenue, 19th Floor
New York, New York 10022
Attention: Sally Yin
Email: sally.yin@htflawyers.com
| 9.3. | Applicable<br> Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed<br> in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the<br> application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against<br> it arising out of or relating in any way to this Agreement, including under the Securities Act, shall be brought and enforced in<br> the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits<br> to such jurisdiction, which jurisdiction shall be the exclusive forum for any such action, proceeding or claim. The Company hereby<br> waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing,<br> the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or<br> any other claim for which the federal district courts of the United States of America are the sole and exclusive forum. Any person<br> or entity purchasing or otherwise acquiring any interest in the Warrants shall be deemed to have notice of and to have consented<br> to the forum provisions in this Section 9.3. If any action, the subject matter of which is within the scope the forum provisions<br> above, is filed in a court other than a court located within the State of New York or the United States District Court for the Southern<br> District of New York (a “foreign action”) in the name of any warrant holder, such warrant holder shall<br> be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of New York<br> or the United States District Court for the Southern District of New York in connection with any action brought in any such court<br> to enforce the forum provisions (an “enforcement action”), and (y) having service of process made upon<br> such warrant holder in any such enforcement action by service upon such warrant holder’s counsel in the foreign action as agent<br> for such warrant holder. |
|---|---|
| 9.4. | Persons<br> Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person, corporation<br> or other entity other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by<br> reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations,<br> promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their<br> successors and assigns and of the Registered Holders of the Warrants. |
| 9.5. | Examination<br> of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent<br> in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent<br> may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent. |
| 9.6. | Counterparts.<br> This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes<br> be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. |
| 9.7. | Effect<br> of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the<br> interpretation thereof. |
| 9.8. | Amendments.<br> This Agreement may be amended by the parties hereto without the consent of any Registered Holder (i) for the purpose of (x) curing<br> any ambiguity or to correct any defective provision contained herein, including to conform the provisions hereof to the description<br> of the terms of the Warrants and this Agreement set forth in the Prospectus, (y) adjusting the definition of “Ordinary Cash<br> Dividend” as contemplated by and in accordance with the second sentence of subsection 4.1.2 or (z) adding or changing<br> any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable<br> and that the parties deem shall not adversely affect the interest of the Registered Holders, and (ii) to provide for the delivery<br> of an Alternative Issuance pursuant to Section 4.4. All other modifications or amendments, including any modification or amendment<br> to increase the Warrant Price or shorten the Exercise Period shall require the vote or written consent of the Registered Holders<br> of 50% of the number of the then outstanding Public Warrants and, solely with respect to any amendment to the terms of the Private<br> Placement Warrants or Working Capital Warrants or any provision of this Agreement with respect to the Private Placement Warrants,<br> or Working Capital Warrants (including, for the avoidance of doubt, the forfeiture or cancellation of any Private Placement Warrants<br> or Working Capital Warrants), 50% of the number of then outstanding Private Placement Warrants (including the vote or written consent<br> of D. Boral Capital LLC) and Working Capital Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or<br> extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the<br> Registered Holders. |
| --- | --- |
| 9.9. | Severability.<br> This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect<br> the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid<br> or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as<br> similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. |
[SignaturePage Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| MILUNA ACQUISITION CORP | |
|---|---|
| By: | /s/ Shang Ju Lin |
| Name: | Shang<br> Ju Lin |
| Title: | Chief<br> Executive Officer |
| LUCKY LUCKO, INC. D/B/A EFFICIENCY<br><br><br><br>as Warrant Agent | |
| --- | --- |
| By: | /s/ Carol Nguyen |
| Name: | Carol Nguyen |
| Title: | Chief Executive Officer |
EXHIBITA
PRIVATEPLACEMENT WARRANTS LEGEND
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN ADDITION, SUBJECT TO ANY ADDITIONAL LIMITATIONS ON TRANSFER DESCRIBED IN THE AGREEMENTS BY AND AMONG MILUNA ACQUISITION CORP (THE “COMPANY”), milunaC Technology Limited AND THE OTHER SIGNATORIES THERETO, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED PRIOR TO THE DATE THAT IS THIRTY (30) DAYS AFTER THE DATE UPON WHICH THE COMPANY COMPLETES ITS INITIAL BUSINESS COMBINATION (AS DEFINED IN SECTION 3 OF THE WARRANT AGREEMENT REFERRED TO HEREIN) EXCEPT TO A PERMITTED TRANSFEREE WHO AGREES IN WRITING WITH THE COMPANY TO BE SUBJECT TO SUCH TRANSFER PROVISIONS.
SECURITIES EVIDENCED BY THIS CERTIFICATE AND ORDINARY SHARES OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
EXHIBITB
[Form of Warrant Certificate]
[FACE]
Number
Warrant
THISWARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THEEXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR IN THE
WARRANTAGREEMENT DESCRIBED BELOW
MILUNAACQUISITION CORP
IncorporatedUnder the Laws of the Cayman Islands
CUSIP[ ]
WarrantCertificate
ThisWarrant Certificate certifies that [_________], or registered assigns, is the registered holder of warrants evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase ordinary shares, $0.0001 par value per share (the “Ordinary Shares”), of Miluna Acquisition Corp, a Cayman Islands exempted company (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable Ordinary Shares as set forth below, at the exercise price (the “WarrantPrice”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through cashless exercise as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Each Warrant is initially exercisable for one fully paid and non-assessable Ordinary Share. no fractional shares will be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in an Ordinary Share, the Company will, upon exercise, round down to the nearest whole number the number of Ordinary Shares to be issued to the Warrant holder. The number of Ordinary Shares issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Warrant Price per Ordinary Share for any Warrant is equal to $11.50 per share. The Warrant Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void. The Warrants may be redeemed, subject to certain conditions, as set forth in the Warrant Agreement. In addition, and notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, to the extent that the holder of a Warrant has delivered a notice contemplated by subsection 3.3.5 of the Warrant Agreement, neither the Company nor the Warrant Agent shall issue to Holder, and Holder may not acquire, any right it might have to acquire, a number of Ordinary Shares upon exercise of any Warrant to the extent that, upon such exercise, the number of Ordinary Shares then beneficially owned by Holder would exceed the Maximum Percentage of Ordinary Shares outstanding immediately after giving effect to such exercise as determined in accordance with subsection 3.3.5 of the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York.
| MILUNA<br> ACQUISITION CORP | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Lucky Lucko, Inc. (d/b/a Efficiency), | |
| as<br> Warrant Agent | |
| By: | |
| Name: | Carol<br>Nguyen |
| Title: | Chief Executive Officer |
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive Ordinary Shares and are issued or to be issued pursuant to a Warrant Agreement dated as of ____, 2025 (the “Warrant Agreement”), duly executed and delivered by the Company to Lucko, Inc. d/b/a Efficiency as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Warrant Price as specified in the Warrant Agreement (or through cashless exercise as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the Ordinary Shares to be issued upon exercise is effective under the Securities Act of 1933, as amended, and (ii) a prospectus thereunder relating to the Ordinary Shares is current, except through “cashless exercise” as provided for in the Warrant Agreement.
The Warrant Agreement provides that upon the occurrence of certain events the number of Ordinary Shares issuable upon the exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.
Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive Ordinary Shares and herewith tenders payment for such Ordinary Shares to the order of Miluna Acquisition Corp (the “Company”) in the amount of $_____ in accordance with the terms hereof. The undersigned requests that a certificate for such Ordinary Shares be registered in the name of ________, whose address is, and that such Ordinary Shares be delivered to , whose address is . If said number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of , ______ whose address is _______and that such Warrant Certificate be delivered to ______ , whose address is ________.
In the event that the Warrant has been called for redemption by the Company pursuant to Section 6.1 of the Warrant Agreement and the Company has required “cashless” exercise pursuant to Section 6.3 and Section 3.3.1(b) of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with Section 6.3 and Section 3.3.1(b) of the Warrant Agreement.
In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.
In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of Ordinary Shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive Ordinary Shares. If said number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of, whose address is and that such Warrant Certificate be delivered to , whose address is.
[To be included in any Election to Purchase of a holder who has provided the notice set forth in subsection 3.3.5 of the Warrant Agreement.
By signing this Election to Purchase, the undersigned hereby certifies that upon after giving effect to such exercise, the undersigned (together with such person’s affiliates) or any “group” of which holder or its affiliates is a member, would not beneficially own in excess of the Maximum Percentage of the Ordinary Shares outstanding immediately after giving effect to such exercise as determined in accordance with subsection 3.3.5 of the Warrant Agreement.]
[Signature Page Follows]
| Date: | |
|---|---|
| (Signature) | |
| (Address) | |
| (Tax<br> Identification Number) |
Signature Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO SEC RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE)).
| End of Document |
|---|
Exhibit 10.1
October 22, 2025
Miluna Acquisition Corp
12F, No. 43, Cheng Kong Road, Sec. 4, Neihu
Taipei, Taiwan
Re: Initial Public Offering
Ladies and Gentlemen:
This letter (“Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between Miluna Acquisition Corp, a Cayman Islands exempted company (the “Company”), and D. Boral Capital LLC and ARC Group Securities LLC as the representatives (the “Representatives”) of the several underwriters named in Schedule 1 thereto (the “Underwriters”), relating to an underwritten initial public offering (the “IPO”) of the Company’s units (the “Units”), each Unit comprised of one ordinary share of the Company, par value $0.0001 (“Ordinary Share”), and one redeemable warrant (a “Warrant”).
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the benefit that such IPO will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees, severally but not jointly, with the Company as follows:
1. If the Company solicits approval of a Business Combination from its shareholders, the undersigned will vote all Ordinary Shares beneficially owned by him, her, or it, directly or indirectly, whether acquired before, in, or after the IPO, in favor of such Business Combination.
2. (a) In the event that the Company fails to consummate a Business Combination within the time period (the “Combination Period”) set forth in the Company’s Amended and Restated Memorandum and Articles of Association, as the same may be amended from time to time (the “Articles of Association”), the undersigned will, as promptly as possible, take all necessary actions to cause the Company to (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but not more than ten business days after the Combination Period, redeem the Ordinary Shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account calculated as of the date that is two business days prior to the distribution date, including interest (net of taxes payable and up to $100,000 of interest to pay dissolution expenses), divided by the number of the then-outstanding Ordinary Shares, which redemption will completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidation distributions, if any), and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining shareholders and the Company’s board of directors, liquidate and dissolve, subject in each case to the Company’s obligations under Cayman Islands law to provide for claims of creditors and, in all cases, to the other requirements of applicable law.
(b) The undersigned hereby waives any and all right, title, interest or claim of any kind in or to any distribution of the Trust Account (“Claim”) with respect to the undersigned’s Insider Shares and Ordinary Shares underlying the Private Securities, if any, and hereby waives any Claim the undersigned may have in the future as a result of, or arising out of, any contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever. The undersigned acknowledges and agrees that there will be no distribution from the Trust Account with respect to any Warrants, all rights of which will terminate on the Company’s liquidation.
(c) In the event of the liquidation of the Trust Account, MilunaC Technology Limited (the “Sponsor”) agrees to indemnify and hold harmless the Company for any debts and obligations to target businesses or vendors or other entities that are owed money by the Company for services rendered or contracted for or products sold to the Company, but only to the extent necessary to ensure that such debt or obligation does not reduce the amount of funds in the Trust Account below $10.00 per share; provided that such indemnity shall not apply if such vendor or prospective target business executed an agreement waiving any right, title, interest or claim of any kind they may have in or to any monies held in the Trust Account.
3. The undersigned acknowledges and agrees that (i) the Company shall not enter into a definitive agreement regarding a proposed Business Combination without the prior written consent of the Sponsor and (ii) prior to entering into a Business Combination with a target business that is affiliated with any Insiders of the Company or their affiliates, (a) such transaction must be approved by a majority of the Company’s disinterested independent directors and (b) the Company must obtain a fairness opinion from an unaffiliated third party indicating that the price that the Company is paying is fair to the Company and its shareholders from a financial point of view.
4. Neither the undersigned nor any affiliate of the undersigned will be entitled to receive and will not accept a finder’s fee or any other compensation prior to, or for services rendered in order to effectuate, the consummation of the Business Combination; provided that the Company shall be allowed to make the payments set forth in the Registration Statement under the caption “Prospectus Summary – The Offering – Limited payments to insiders.”
5. (a) The undersigned agree that they shall not Transfer (as defined below) any Insider Shares until the earlier of (i) six months after completion of an initial Business Combination, or (ii) subsequent to an initial Business Combination, (A) if the last reported sale price of the Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share sub-divisions, share dividends, reorganizations, recapitalizations and other similar transactions) for any 20 trading days within any 30-trading day period commencing any time 150 days after completion of an initial Business Combination or (B) the date the Company completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of its public shareholders having the right to exchange their Ordinary Shares for cash, securities or other property, and, if applicable, that they shall not Transfer any Private Securities until 30 days after the completion of an initial Business Combination.
(b) Notwithstanding the provisions set forth in paragraph 5(a), Transfers of the Insider Shares and Private Securities, if any, are permitted (i) among the undersigned or to an undersigned’s member, partner, officer, director, or affiliate; (ii) by gift to a member of the holder’s immediate family or to a trust, the beneficiary of which is a member of the holder’s immediate family or an affiliate of such individual, or to a charitable organization; (iii) by virtue of laws of descent and distribution upon death; (iv) pursuant to a qualified domestic relations order; (v) by virtue of the Sponsor’s organizational documents upon liquidation or dissolution of the Sponsor; or (vi) in the event of the Company’s liquidation prior to the completion of an initial Business Combination; provided, however, that, in the case of clauses (i) through (v), each transferee agrees in writing to be bound by the Transfer restrictions and the other restrictions contained in this Letter Agreement.
6. (a) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees that until the earlier of the Company’s initial Business Combination or liquidation, the undersigned shall present to the Company for its consideration, prior to presentation to any other entity, any suitable opportunity to acquire a target business, subject to any pre-existing fiduciary or contractual obligations the undersigned might have.
(b) The undersigned hereby agrees and acknowledges that (i) the Underwriters and the Company may be irreparably injured in the event of a breach of any of the obligations contained in this Letter Agreement, (ii) monetary damages may not be an adequate remedy for such breach, and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach.
7. The undersigned’s biographical information previously furnished to the Company and the Representative is true and accurate in all material respects, does not omit any material information with respect to the undersigned’s background and contains all of the information required to be disclosed pursuant to Item 401 of Regulation S-K, promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The undersigned’s FINRA Questionnaire previously furnished to the Company and the Representative is true and accurate in all material respects. The undersigned represents and warrants that:
(a) he/she/it has never had a petition under the federal bankruptcy laws or any state insolvency law been filed by or against (i) him/her/it or any partnership in which he/she/it was a general partner at or within two years before the time of filing; or (ii) any corporation or business association of which he/she/it was an executive officer at or within two years before the time of such filing;
(b) he/she/it has never had a receiver, fiscal agent or similar officer been appointed by a court for his/her/its business or property, or any such partnership;
(c) he/she/it has never been convicted of fraud in a civil or criminal proceeding;
(d) he/she/it has never been convicted in a criminal proceeding or named the subject of a pending criminal proceeding (excluding traffic violations and minor offenses);
(e) he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining or otherwise limiting him/her/it from (i) acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission (“CFTC”) or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or from engaging in or continuing any conduct or practice in connection with any such activity; or (ii) engaging in any type of business practice; or (iii) engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of federal or state securities or federal commodities laws;
(f) he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days his/her/its right to engage in any activity described in paragraph 7(e)(i) above, or to be associated with persons engaged in any such activity;
(g) he/she/it has never been found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission (the “SEC”) to have violated any federal or state securities law, where the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended or vacated;
(h) he/she/it has never been found by a court of competent jurisdiction in a civil action or by the CFTC to have violated any federal commodities law, where the judgment in such civil action or finding by the CFTC has not been subsequently reversed, suspended or vacated;
(i) he/she/it has never been the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (i) any federal or state securities or commodities law or regulation, (ii) any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and desist order, or removal or prohibition order or (iii) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity;
(j) he/she/it has never been the subject of, or party to, any sanction or order, not subsequently reversed, suspended or vacated, or any self-regulatory organization, any registered entity, or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member;
(k) he/she/it has never been convicted of any felony or misdemeanor: (i) in connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment advisor or paid solicitor of purchasers of securities;
(l) he/she/it was never subject to a final order of a state securities commission (or an agency of officer of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit unions; a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking agency; the Commodity Futures Trading Commission; or the National Credit Union Administration that is based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct;
(m) he/she/it has never been subject to any order, judgment or decree of any court of competent jurisdiction, that, at the time of such sale, restrained or enjoined him/her/it from engaging or continuing to engage in any conduct or practice: (i) in connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities;
(n) he/she/it has never been subject to any order of the SEC that orders him/her/it to cease and desist from committing or causing a future violation of: (i) any scienter-based anti-fraud provision of the federal securities laws, including, but not limited to, Section 17(a)(1) of the Securities Act, Section 10(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Rule 10b-5 thereunder, and Section 206(1) of the Investment Advisers Act of 1940, as amended (the “Advisers Act”) or any other rule or regulation thereunder; or (ii) Section 5 of the Securities Act;
(o) he/she/it has never been named as an underwriter in any registration statement or Regulation A offering statement filed with the SEC that was the subject of a refusal order, stop order, or order suspending the Regulation A exemption, or is the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued;
(p) he/she/it has never been subject to a United States Postal Service false representation order, or is currently subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations;
(q) he/she/it is not subject to a final order of a state securities commission (or an agency of officer of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit unions; a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking agency; the Commodity Futures Trading Commission; or the National Credit Union Administration that bars the undersigned from: (i) association with an entity regulated by such commission, authority, agency or officer; (ii) engaging in the business of securities, insurance or banking; or (iii) engaging in savings association or credit union activities;
(r) he/she/it is not subject to an order of the SEC entered pursuant to section 15(b) or 15B(c) of the Exchange Act, or section 203(e) or 203(f) of the Advisers Act, that: (i) suspends or revokes the undersigned’s registration as a broker, dealer, municipal securities dealer or investment adviser; (ii) places limitations on the activities, functions or operations of, or imposes civil money penalties on, such person; or (iii) bars the undersigned from being associated with any entity or from participating in the offering of any penny stock; and
(s) he/she/it has never been suspended or expelled from membership in, or suspended or barred from association with a member of, a securities self-regulatory organization (e.g., a registered national securities exchange or a registered national or affiliated securities association) for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
8. The undersigned has full right and power, without violating any agreement by which he, she, or it is bound, to enter into this Letter Agreement.
9. The undersigned hereby waives any right to exercise redemption rights with respect to any Ordinary Shares beneficially owned or to be owned by the undersigned, directly or indirectly, whether acquired before, in, or after the IPO (or to sell such shares to the Company in a tender offer).
10. The undersigned hereby agrees to not propose, or vote all Ordinary Shares beneficially owned by him, her, or it, directly or indirectly, whether acquired before, in, or after the IPO, in favor of, an amendment to the Articles of Association with respect to the Company’s pre-Business Combination activities prior to the consummation of a Business Combination unless the Company provides public shareholders with the opportunity to redeem their Ordinary Shares for cash upon such approval in accordance with such Articles of Association.
11. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of the Company and the undersigned hereby (i) agrees that any action, proceeding or claim against him/her/it arising out of or relating in any way to this Letter Agreement shall be brought and enforced in the courts of the State of New York of the United States of America for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive and (ii) waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
12. As used herein, (i) a “Business Combination” means a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities; (ii) “Insiders” means all officers, directors and sponsors of the Company immediately prior to the IPO; (iii) “Insider Shares” means all of the ordinary shares of the Company, par value $0.0001 per share, outstanding upon the consummation of the IPO; (iv) “PrivateSecurities” means the units that are being sold privately by the Company simultaneously with the consummation of the IPO, the underlying rights and shares, and the shares issuable upon the conversion of the rights; (v) “Trust Account” means the trust account into which a portion of the net proceeds of the IPO and sale of Private Securities will be deposited; (vi) “RegistrationStatement” means the Company’s registration statement on Form S-1 (SEC File No. 333-289973) filed with the Securities and Exchange Commission; and (vii) “Transfer” means the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the SEC promulgated thereunder with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).
13. The Company will maintain an insurance policy or policies providing directors’ and officers’ liability insurance, and each director of the Company shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any of the Company’s directors or officers.
14. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof 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 the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error), except by a written instrument executed by all parties hereto.
15. Each of the undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations and warranties set forth herein in proceeding with the IPO. Nothing contained herein shall be deemed to render the Underwriters a representative of, or a fiduciary with respect to, the Company, its shareholders or any creditor or vendor of the Company with respect to the subject matter hereof.
16. No party hereto may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to Transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the Sponsor, each of the undersigned, and each of the successors, heirs, personal representatives, and assigns of the forgoing and permitted transferees.
17. This Letter Agreement may be executed in any number of original or facsimile counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
18. This Letter Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Letter Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Letter Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[SignaturePage Follows]
| MilunaC Technology Limited | |
|---|---|
| By: | /s/ Shang Ju Lin |
| Name: | Shang<br>Ju Lin |
| Title: | Director |
| /s/ Shang Ju Lin | |
| --- | |
| Shang<br>Ju Lin | |
| /s/ Daniel Albert Mace | |
| --- | |
| Daniel<br>Albert Mace | |
| /s/ Luhuan Zhong | |
| --- | |
| Luhuan<br>Zhong | |
| /s/ Ya Ting Lee | |
| --- | |
| Ya<br>Ting Lee | |
| /s/ Mei Chi Tsai | |
| --- | |
| Mei<br>Chi Tsai |
Acknowledged and Agreed:
Miluna Acquisition Corp
| By: | /s/ Shang Ju Lin |
|---|---|
| Name: | Shang<br>Ju Lin |
| Title: | Chief<br> Executive Officer |
Exhibit10.2
INVESTMENTMANAGEMENT TRUST AGREEMENT
This Investment Management Trust Agreement (this “Agreement”) is made effective as of October 22, 2025, by and between Miluna Acquisition Corp, a Cayman Islands exempted company (the “Company”), and Lucky Lucko, Inc. d/b/a Efficiency (the “Trustee”).
WHEREAS, the Company’s registration statement on Form S-1 (File No. 333-289973) (the “Registration Statement”) and prospectus (the “Prospectus”) for the initial public offering of the Company’s units (the “Units”), each of which consists of one of the Company’s ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), and one redeemable warrant, each whole warrant entitling the holder thereof to purchase one Ordinary Share (such initial public offering hereinafter referred to as the “Offering”), has been declared effective as of the date hereof by the U.S. Securities and Exchange Commission;
WHEREAS, the Company has entered into an Underwriting Agreement (the “Underwriting Agreement”) with D. Boral Capital LLC and ARC Group Securities LLC, as the representatives (the “Representatives”) of the underwriters (the “Underwriters”) named therein;
WHEREAS, as described in the Registration Statement, $60,000,000 of the gross proceeds of the Offering and sale of the Private Placement Units (as defined in the Underwriting Agreement) (or $69,000,000 if the Underwriters’ over-allotment option is exercised in full) will be delivered to the Trustee to be deposited and held in a segregated trust account located at all times in the United States (the “TrustAccount”) for the benefit of the Company and the holders of the Ordinary Shares included in the Units issued in the Offering as hereinafter provided (the amount to be delivered to the Trustee (and any interest subsequently earned thereon) is referred to herein as the “Property,” the shareholders for whose benefit the Trustee shall hold the Property will be referred to as the “Public Shareholders,” and the Public Shareholders and the Company will be referred to together as the “Beneficiaries”); and
WHEREAS, pursuant to the Underwriting Agreement, the Underwriters are entitled to a deferred fee that is one percent (1.00%) of the gross proceedings of the Offering, or $600,000 (or up to $690,000 if the Underwriters’ over-allotment option is exercised in full) that is attributable to deferred underwriting discounts and commissions that will be payable by the Company to the Underwriters upon and concurrently with the consummation of the Business Combination (as defined below) (or an amount equal to 5.0% of the balance remaining in the trust account, adjusted only to account for payment of redemptions and prior to any other disbursements therefrom, upon the consummation of the Business Combination, whichever amount is greater)(such discounts and commissions, the “Deferred Discount”); and
WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee shall hold the Property.
NOW THEREFORE, IT IS AGREED:
1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:
(a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in the Trust Account established by the Trustee in the United States at J.P. Morgan Chase Bank, N.A. (or at another U.S. chartered commercial bank with consolidated assets of $100 billion or more) and at a brokerage institution selected by the Trustee that is reasonably satisfactory to the Company;
(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;
(c) Promptly upon receipt of written instruction of the Company, (i) invest and reinvest the Property, initially solely in United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended (or any successor rule), which invest only in direct U.S. government treasury obligations, (ii) hold the Property as uninvested cash or (iii) hold the Property in an interest or non-interest bearing demand deposit account at a U.S. chartered commercial bank with consolidated assets of $100 billion or more selected by the Trustee that is reasonably satisfactory to the Company; it being understood that the Trust Account will earn no interest while account funds are uninvested awaiting the Company’s instructions hereunder; and while invested or uninvested, the Trustee may earn bank credits or other consideration during such periods;
(d) Collect and receive, when due, all interest or other income arising from the Property, which shall become part of the “Property,” as such term is used herein;
(e) Promptly notify the Company and the Representatives of all communications received by the Trustee with respect to any Property requiring action by the Company;
(f) Supply any necessary information or documents as may be requested by the Company (or its authorized agents) in connection with the Company’s preparation of the tax returns relating to assets held in the Trust Account or in connection with the preparation of the Company’s financial statements or completion of the audit of the Company’s financial statements by the Company’s auditors;
(g) Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed by the Company to do so;
(h) Render to the Company monthly written statements of the activities of, and amounts in, the Trust Account reflecting all receipts and disbursements of the Trust Account;
(i) Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with, the terms of a letter from the Company (“Termination Letter”) in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, as applicable, signed on behalf of the Company by its Chief Executive Officer, President, Chief Financial Officer, Secretary or Chairperson of the board of directors of the Company (the “Board”) or other authorized officer of the Company, and, in the case of Exhibit A, acknowledged and agreed to by the Representatives, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including interest earned on the funds held in the Trust Account (which interest shall be net of taxes payable and in the case of Exhibit B, less up to $100,000 of interest to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the date which is the later of (1) 18 months after the closing of the Offering, subject to extension up to 21 months by means of three one-month extensions (or such earlier date as the Company’s board of directors may approve); and (2) such later date as may be approved by the Company’s shareholders in accordance with the Company’s amended and restated memorandum and articles of association, as may be amended from time to time (the “Memorandum and Articles”) (such period, the “Completion Window”), if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest earned on the funds held in the Trust Account (which interest shall be net of taxes payable and up to $100,000 of interest to pay dissolution expenses), shall be distributed to the Public Shareholders of record as of such date;
(j) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C (a “Tax Payment Withdrawal Instruction”), withdraw from the Trust Account and distribute to the Company the amount of interest earned on the Property requested by the Company to cover any tax obligation owed by the Company, which amount shall be delivered directly to the Company by electronic funds transfer or other method of prompt payment, and the Company shall forward such payment to the relevant taxing authority, so long as there is no reduction in the aggregate principal amount per share initially deposited in the Trust Account; provided, however, that to the extent there is not sufficient cash in the Trust Account to pay such tax obligation, the Trustee shall liquidate such assets held in the Trust Account as shall be designated by the Company in writing to make such distribution (it being acknowledged and agreed that any such amount in excess of interest income earned on the Property shall not be payable from the Trust Account). The written request of the Company referenced above shall constitute presumptive evidence that the Company is entitled to said funds, and the Trustee shall have no responsibility to look beyond said request;
(k) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit D (a “Shareholder Redemption Withdrawal Instruction”), the Trustee shall distribute on behalf of the Company the amount requested by the Company to be used to redeem Ordinary Shares from Public Shareholders properly submitted in connection with a shareholder vote to approve an amendment to the Memorandum and Articles not for the purposes of approving, or in conjunction with the consummation of, a Business Combination (as defined below) (A) to modify the substance or timing of the Company’s obligation to allow redemption in connection with a Business Combination or to redeem one hundred per cent (100%) of the Public Shares if the Company has not consummated a Business Combination within the Completion Window or (B) with respect to any other material provisions relating to the rights of holders of Ordinary Shares or pre-initial Business Combination activity. The written request of the Company referenced above shall constitute presumptive evidence that the Company is entitled to distribute said funds, and the Trustee shall have no responsibility to look beyond said request; and
(l) Not make any withdrawals or distributions from the Trust Account other than pursuant to Sections 1(i), 1(j), or 1(k) above.
2. Agreements and Covenants of the Company.
The Company hereby agrees and covenants to:
(a) Give all instructions to the Trustee hereunder in writing, signed by the Company’s Chairperson of the Board, President, Chief Executive Officer, Chief Financial Officer, Secretary or other authorized officer of the Company. In addition, except with respect to its duties under Sections 1(i), 1(j) and 1(k) hereof, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or telephonic advice or instruction which it, in good faith and with reasonable care, believes to be given by any one of the persons authorized above to give written instructions, provided that the Company shall promptly confirm such instructions in writing;
(b) Subject to Section 4 hereof, hold the Trustee harmless and indemnify the Trustee from and against any and all expenses, including reasonable counsel fees and disbursements, or losses suffered by the Trustee in connection with any action taken by it hereunder and in connection with any action, suit or other proceeding brought against the Trustee involving any claim, or in connection with any claim or demand, which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the Property or any interest earned on the Property, except for expenses and losses resulting from the Trustee’s gross negligence, fraud or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this Section 2(b), it shall notify the Company in writing of such claim (hereinafter referred to as the “Indemnified Claim”). The Trustee shall have the right to conduct and manage the defense against such Indemnified Claim; provided that the Trustee shall obtain the consent of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee may not agree to settle any Indemnified Claim without the prior written consent of the Company, which such consent shall not be unreasonably withheld, conditioned, or delayed; provided, further that the Company may conduct and manage the defense against any Indemnified Claim if the Trustee does not promptly take reasonable steps to mount such a defense. The Company may participate in such action with its own counsel;
(c) Pay the Trustee the fees set forth on Schedule A hereto, including an initial acceptance fee, annual administration fee and transaction processing fee which fees shall be subject to modification by the parties from time to time. It is expressly understood that the Property shall not be used to pay such fees unless and until it is distributed to the Company pursuant to Sections 1(i) through 1(k) hereof. The Company shall pay the Trustee the initial acceptance fee and the first annual administration fee at the consummation of the Offering. The Company shall not be responsible for any other fees or charges of the Trustee except as set forth in this Section 2(c), Schedule A and as may be provided in Section 2(b) hereof;
(d) In connection with any vote of the Company’s shareholders regarding a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination involving the Company and one or more businesses or entities (the “BusinessCombination”), provide to the Trustee an affidavit or certificate of the inspector of elections for the general meeting verifying the vote of such shareholders regarding such Business Combination;
(e) Provide the Representatives with a copy of any Termination Letter(s) and/or any other correspondence that is sent to the Trustee with respect to any proposed withdrawal from the Trust Account promptly after it issues the same;
(f) Unless otherwise agreed between the Company and the Representatives, ensure that any Instruction Letter (as defined in Exhibit A) delivered in connection with a Termination Letter in the form of Exhibit A expressly provides that the Deferred Discount is paid directly to the account or accounts directed by the Representatives on behalf of the Underwriters after payments made out of the Trust Account to honor redemption rights of the Public Shareholders and prior to any other disbursements therefrom;
(g) Instruct the Trustee to make only those distributions that are permitted under this Agreement, and refrain from instructing the Trustee to make any distributions that are not permitted under this Agreement; and
(h) Within four (4) business days after the Underwriters exercise the over-allotment option (or any unexercised portion thereof) or such over-allotment option expires, provide the Trustee with a notice in writing of the total amount of the Deferred Discount.
3. Limitations of Liability. The Trustee shall have no responsibility or liability to:
(a) Imply obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this Agreement and that which is expressly set forth herein;
(b) Take any action with respect to the Property, other than as directed in Section 1 hereof, and the Trustee shall have no liability to any third party except for liability arising out of the Trustee’s gross negligence, fraud or willful misconduct;
(c) Institute any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of any kind with respect to, any of the Property unless and until it shall have received instructions from the Company given as provided herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;
(d) Refund any depreciation in principal of any Property;
(e) Assume that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided otherwise in such designation, or unless the Company shall have delivered a written revocation of such authority to the Trustee;
(f) The other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the Trustee’s best judgment, except for the Trustee’s gross negligence, fraud or willful misconduct. The Trustee may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Trustee, which counsel may be the Company’s counsel), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which the Trustee believes, in good faith and with reasonable care, to be genuine and to be signed or presented by the proper person or persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee, signed by the proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;
(g) Verify the accuracy of the information contained in the Registration Statement;
(h) Provide any assurance that any Business Combination entered into by the Company or any other action taken by the Company is as contemplated by the Registration Statement;
(i) File information returns with respect to the Trust Account with any local, state or federal taxing authority or provide periodic written statements to the Company documenting the taxes payable by the Company, if any, relating to any interest income earned on the Property;
(j) Prepare, execute and file tax reports, income or other tax returns and pay any taxes with respect to any income generated by, and activities relating to, the Trust Account, regardless of whether such tax is payable by the Trust Account or the Company, including, but not limited to, tax obligations, except pursuant to Section 1(j) hereof; or
(k) Verify calculations, qualify or otherwise approve the Company’s written requests for distributions pursuant to Sections 1(i), 1(j) and 1(k) hereof.
4. Trust Account Waiver. The Trustee has no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future. In the event the Trustee has any Claim against the Company under this Agreement, including, without limitation, under Section 2(b) or Section 2(c) hereof, the Trustee shall pursue such Claim solely against the Company and its assets outside the Trust Account and not against the Property or any monies in the Trust Account.
5. Termination. This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee, pending which the Trustee shall continue to act in accordance with this Agreement. At such time that the Company notifies the Trustee that a successor trustee has been appointed and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that in the event that the Company does not locate a successor trustee within ninety (90) days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with any court in the State of New York or with the United States District Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever;
(b) At such time that the Trustee has completed the liquidation of the Trust Account and its obligations in accordance with the provisions of Section 1(i) hereof and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate except with respect to Section 2(b); or
(c) If the Offering is not consummated within ten (10) business days of the date of this Agreement, any funds received by the Trustee from the Company or Sponsor for purposes of funding the Trust Account shall be promptly returned to the Company or Sponsor, as applicable.
6. Miscellaneous.
(a) The Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds transferred from the Trust Account. The Company and the Trustee will each restrict access to confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such confidential information, or of any change in its authorized personnel. In executing funds transfers, the Trustee shall rely upon all information supplied to it by the Company, including, account names, account numbers and all other identifying information relating to a Beneficiary, Beneficiary’s bank or intermediary bank. Except for any liability arising out of the Trustee’s gross negligence, fraud or willful misconduct, the Trustee shall not be liable for any loss, liability or expense resulting from any error in the information or transmission of the funds.
(b) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. This Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
(c) This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except for Sections 1(i), 1(j), 1(k), and 1(l) hereof (which sections may not be modified, amended or deleted unless such modification, amendment or deletion is approved by the affirmative vote of two-thirds of the then outstanding Ordinary Shares of the Company, which are represented in person or by proxy and are voted at a general meeting of the Company; provided that no such amendment will affect any Public Shareholder who has properly elected to redeem his, her or its Ordinary Shares in connection with a shareholder vote to approve an amendment to this Agreement (A) to modify the substance or timing of the Company’s obligation to allow redemption in connection with a Business Combination or to redeem one hundred per cent (100%) of the Public Shares if the Company has not consummated a Business Combination within the Completion Window or (B) with respect to any other material provisions relating to the rights of holders of Ordinary Shares or pre-initial Business Combination activity) this Agreement or any provision hereof may only be changed, amended or modified (other than to correct a typographical error) by a writing signed by each of the parties hereto.
(d) The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, State of New York, for purposes of resolving any disputes hereunder. AS TO ANY CLAIM, CROSS-CLAIM OR COUNTERCLAIM IN ANY WAY RELATING TO THIS AGREEMENT, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.
(e) Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or by facsimile or email transmission:
if to the Trustee, to:
Efficiency
415 Mission Street
San Francisco, California 94105
Attn: Carol Nguyen
Email: carol@useefficiency.com
if to the Company, to:
Miluna Acquisition Corp
12F, No. 43,
Cheng Gong Road, Sec 4, Neihu
Taipei, Taiwan
Attn: Shang Ju Lin, Chief Executive Officer and Director
in each case, with copies to:
Hunter Taubman Fischer & Li LLC
950 Third Avenue, 19th Floor
New York, New York 10022
Attn: Sally Ying, Esq.
(f) Each of the Company and the Trustee hereby represents that it has the full right and power and has been duly authorized to enter into this Agreement and to perform its respective obligations as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance.
(g) This Agreement is the joint product of the Trustee and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.
(h) Each of the Company and the Trustee hereby acknowledges and agrees that each Representative, on behalf of the Underwriters, is a third-party beneficiary of this Agreement.
(i) Except as specified herein, no party to this Agreement may assign its rights or delegate its obligations hereunder to any other person or entity without the prior written consent of the other.
[SignaturePage Follows]
INWITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement as of the date first written above.
| Lucky Lucko, Inc. d/b/a Efficiency, as Trustee | |
|---|---|
| By: | /s/Carol Nguyen |
| Name: | Carol<br> Nguyen |
| Title: | Chief<br> Executive Officer |
| Miluna Acquisition Corp | |
| --- | --- |
| By: | /s/ Shang Ju Lin |
| Name: | Shang<br> Ju Lin |
| Title: | Chief<br> Executive Officer and Director |
SIGNATURE PAGE TO
INVESTMENT MANAGEMENT TRUST AGREEMENT
SCHEDULEA
| Fee Item | Time and method<br> of payment | Amount |
|---|---|---|
| Initial set-up fee | Initial closing of Offering by<br> wire transfer. | |
| Trustee administration fee | Payable annually. First year fee payable at<br> initial closing of Offering by wire transfer; thereafter, payable by wire transfer or check. | |
| Transaction processing fee for disbursements<br> to Company under Sections 1(i), 1(j) and 1(k) | Billed to Company following disbursement made<br> to Company under Section 1. | |
| Paying Agent services as required pursuant<br> to Sections 1(i) and 1(k) | Billed to Company upon delivery of service<br> pursuant to Sections 1(i) and 1(k). |
All values are in US Dollars.
ExhibitA
[Letterheadof Company]
[Insertdate]
[ ]
Attn: [ ]
| Re: | Trust<br> Account—Termination Letter |
|---|
Dear [ ]:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between Miluna Acquisition Corp (the “Company”) and Lucky Lucko, Inc. d/b/a Efficiency (the “Trustee”), dated as of __, 2025 (the “Trust Agreement”), this is to advise you that the Company has entered into an agreement with [●] (the “Target Business”) to consummate a business combination with Target Business (the “Business Combination”) on or about [insert date]. The Company shall notify you at least seventy-two (72) hours in advance of the actual date of the consummation of the Business Combination (the “ConsummationDate”). Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to commence to liquidate all of the assets of the Trust Account and to transfer the proceeds into the trust operating account in the United States at Citibank N.A. to the effect that, on the Consummation Date, all of the funds held in the Trust Account will be immediately available for transfer to the account or accounts that the Company shall direct on the Consummation Date (including as directed to it by the Representatives on behalf of the Underwriters (with respect to the Deferred Discount). It is acknowledged and agreed that while the funds are on deposit in the trust operating account at Citibank N.A. awaiting distribution, the Company will not earn any interest or dividends.
On the Consummation Date (i) counsel for the Company shall deliver to you written notification that the Business Combination has been consummated, or will be consummated concurrently with your transfer of funds to the accounts as directed by the Company (the “Notification”), (ii) the Company shall deliver to you (a) a certificate of the Chief Executive Officer or Chief Financial Officer of the Company, which verifies that the Business Combination has been approved by a vote of the Company’s shareholders, if a vote is held and (b) a joint written instruction signed by the Company and the Representatives with respect to the transfer of the funds held in the Trust Account, including payment of amounts owed to Public Shareholders who have properly exercised their redemption rights directly to the account or accounts directed by the Representatives from the Trust Account (the “Instruction Letter”). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your receipt of the Notification and the Instruction Letter, in accordance with the terms of the Instruction Letter. In the event that certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the Company in writing of the same and the Company shall direct you as to whether such funds should remain in the Trust Account and be distributed after the Consummation Date to the Company. Upon the distribution of all the funds, net of any payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated.
In the event that the Business Combination is not consummated on the Consummation Date described in the notice thereof and we have not notified you on or before the original Consummation Date of a new Consummation Date, then upon receipt by the Trustee of written instructions from the Company, the funds held in the Trust Account shall be reinvested as provided in Section 1(c) of the Trust Agreement on the business day immediately following the Consummation Date as set forth in such written instructions as soon thereafter as possible.
| Very<br> truly yours, |
|---|
| Miluna<br> Acquisition Corp |
| By: |
| Name: |
| Title: |
| Agreed<br> and acknowledged by: |
| --- |
| D.<br> Boral Capital LLC |
| By: |
| Name: |
| Title: |
ExhibitB
[Letterheadof Company]
[Insertdate]
[ ]
Attn: [ ]
| Re: | Trust<br> Account—Termination Letter |
|---|
Dear [ ]:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between Miluna Acquisition Corp (the “Company”) and Lucky Lucko, Inc. d/b/a Efficiency (the “Trustee”), dated as of __, 2025 (the “Trust Agreement”), this is to advise you that [the Company has been unable to effect a business combination with a Target Business within the time frame specified in the Company’s amended and restated memorandum and articles of association, as may be amended from time to time (the “Memorandumand Articles”)] OR [the Company’s board of directors has determined to terminate the period in which the Company must consummate a Business Combination on ____, 20___ pursuant to the Company’s amended and restated memorandum and articles of association, as may be amended from time to time (the “Memorandum and Articles”)] as described in the Company’s Prospectus relating to the Offering. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all of the assets in the Trust Account and to transfer the total proceeds into the trust operating account in the United States at [ ] to await distribution to the Public Shareholders.
The Company has selected [●], 20[ ]^1^ as the effective date for the purpose of determining when the Public Shareholders will be entitled to receive their share of the liquidation proceeds. You agree to be the Paying Agent of record and, in your separate capacity as Paying Agent, agree to distribute said funds directly to the Company’s Public Shareholders in accordance with the terms of the Trust Agreement and the Amended and Restated Memorandum and Articles of Association. Upon the distribution of all the funds, net of any payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated, except to the extent otherwise provided in Section 1(j) of the Trust Agreement.
| Very<br> truly yours, | |
|---|---|
| Miluna<br> Acquisition Corp | |
| By: | |
| Name: | |
| Title: | |
| cc: | D.<br> Boral Capital LLC |
| --- | --- |
| ^1^ | 18<br> months after the closing date of the Offering, such earlier date as the Company’s board of directors may approve, or such later<br> date as the Company’s shareholders may approve. |
| --- | --- |
ExhibitC
[Letterheadof Company]
[Insertdate]
[ ]
Attn: [ ]
| Re: | Trust<br> Account—Tax Payment Withdrawal Instruction |
|---|
Dear [ ]:
Pursuant to Section 1(j) of the Investment Management Trust Agreement between Miluna Acquisition Corp (the “Company”) and Lucky Lucko, Inc. d/b/a Efficiency (the “Trustee”), dated as of __, 2025 (the “Trust Agreement”), the Company hereby requests that you deliver to the Company $[●] of the interest income earned on the Property as of the date hereof. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
The Company needs such funds to pay for the tax obligations as set forth on the attached tax return or tax statement. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIREINSTRUCTION INFORMATION]
| Very truly yours, | |
|---|---|
| Miluna Acquisition Corp | |
| By: | |
| Name: | |
| Title: | |
| cc: | D.<br> Boral Capital LLC |
| --- | --- |
ExhibitD
[Letterheadof Company]
[Insertdate]
[ ]
Attn: [ ]
| Re: | Trust<br> Account—Shareholder Redemption Withdrawal Instruction |
|---|
Dear [ ]:
Pursuant to Section 1(k) of the Investment Management Trust Agreement between Miluna Acquisition Corp (the “Company”) and Lucky Lucko, Inc. d/b/a Efficiency (the “Trustee”), dated as of __, 2025 (the “Trust Agreement”), the Company hereby requests that you deliver to the redeeming Public Shareholders of the Company $[●] of the principal and interest income earned on the Property as of the date hereof to a segregated account held by you on behalf of the Beneficiaries for distribution to the Public Shareholders who have requested redemption of their Ordinary Shares. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
The Company needs such funds to pay its Public Shareholders who have properly elected to have their Ordinary Shares redeemed by the Company in connection with a shareholder vote to approve an amendment to the Company’s amended and restated memorandum and articles of association, as may be amended from time to time (the “Memorandum and Articles”) not for the purposes of approving, or in conjunction with the consummation of, a Business Combination (A) to modify the substance or timing of the Company’s obligation to allow redemption in connection with a Business Combination or to redeem one hundred per cent (100%) of the Public Shares if the Company has not consummated a Business Combination within the Completion Window or (B) with respect to any other material provisions relating to the rights of holders of Ordinary Shares or pre-initial Business Combination activity. As such, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the redeeming Public Shareholders in accordance with your customary procedures.
| Very truly yours, | |
|---|---|
| Miluna Acquisition Corp. | |
| By: | |
| Name: | |
| Title: | |
| cc: | D.<br> Boral Capital LLC |
| --- | --- |
Exhibit10.3
REGISTRATIONRIGHTS AGREEMENT
REGISTRATIONRIGHTS AGREEMENT (this “Agreement”), dated as of October 22, 2025, is made and entered into by and among Miluna Acquisition Corp, a Cayman Islands exempted company (the “Company”), MilunaC Technology Limited,a British Virgin Islands company limited by shares, (the “Sponsor”), and each of the undersigned parties listed on the signature page hereto under “Holders” (each such party, together with the Sponsor and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement, a “Holder” and collectively the “Holders”).
RECITALS
WHEREAS, the Company has 1,725,000 ordinary shares, par value $0.0001 per share (the “Insider Shares”), issued and outstanding;
WHEREAS, 225,000 Insider Shares are subject to forfeiture by Holders to the extent that the underwriters’ over-allotment option is not exercised in full or only in part;
WHEREAS, on October 22, 2025, the Company and the Sponsor entered into that certain Placement Units Purchase Agreement (the “PlacementUnits Purchase Agreement”), pursuant to which the Sponsor agreed to purchase an aggregate of 194,100 placement units comprising one ordinary share and one redeemable warrant to purchase one ordinary share (the “Placement Units”) if the over-allotment option is not exercised by the Company’s underwriters at a price of $10.00 per unit or 203,100 Placement Units if the over-allotment option is exercised in full by the Company’s underwriters, for an aggregate purchase price of $1,941,000 (or $2,031,000 if the over-allotment option is exercised in full), in a private placement transaction occurring simultaneously with the closing of the Company’s initial public offering;
WHEREAS, in order to finance the Company’s transaction costs in connection with its search for and consummation of an initial Business Combination, the Sponsor may lend to the Company funds as the Company may require, of which up to $3,000,000 of such loans may be convertible into Placement Units in the option of the Sponsor;
WHEREAS, the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration rights with respect to certain securities of the Company, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLEI
DEFINITIONS
1.1 Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“AdverseDisclosure” 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 the Company, after consultation with counsel to the Company, (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) the Company has a bona fide business purpose for not making such information public.
“Agreement” shall have the meaning given in the Preamble.
“Board” shall mean the Board of Directors of the Company.
“BusinessCombination” shall mean any merger, share exchange, asset acquisition, share purchase, reorganization or other similar business combination involving the Company, with one or more businesses or entities.
“Commission” shall mean the United States Securities and Exchange Commission.
“Company” shall have the meaning given in the Preamble.
“DemandRegistration” shall have the meaning given in subsection 2.1.1.
“DemandingHolder” shall have the meaning given in subsection 2.1.1.
“ExchangeAct” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“FormS-1” shall have the meaning given in subsection 2.1.1.
“FormS-3” shall have the meaning given in subsection 2.3.
“InsiderShares” shall have the meaning given in the Recitals hereto.
“InsiderShares Lock-up Period” shall mean, with respect to the Insider Shares and the Private Placement Shares, the period ending on the earlier of (A) 12 months after the completion of the Company’s initial Business Combination and (B) subsequent to the completion of the Business Combination, if (x) the closing price of the Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share splits, share capitalizations, reorganizations, recapitalizations and other similar transactions) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Company’s initial Business Combination or (y) the date on which the Company completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property.
“Holders” shall have the meaning given in the Preamble.
“InsiderLetter” shall mean that certain letter agreement, dated as of October 22, 2025, by and among the Company, the Sponsor and each of the Company’s officers, directors and director nominees.
“MaximumNumber 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 light of the circumstances under which they were made) not misleading.
“OrdinaryShares” shall mean the ordinary shares.
“PermittedTransferees” 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 Insider Shares Lock-up Period, Private Placement Lock-up Period or any other lock-up period, as the case may be, under the Insider Letter, the Private Placement Units Purchase Agreement, this Agreement and any other applicable agreement between such Holder and the Company, and to any transferee thereafter.
“Person” shall mean an individual, a corporation, a partnership, a joint venture, a trust, an unincorporated organization, a limited liability company or partnership, a government and any agency or political subdivision thereof.
“PiggybackRegistration” shall have the meaning given in subsection 2.2.1.
“PrivatePlacement Lock-up Period” shall mean, with respect to the Private Placement Shares and the Private Placement Warrants that are held by the initial purchasers of the Private Placement Units or their Permitted Transferees (along with the Ordinary Shares issuable upon the exercise of the Private Placement Warrants), the period ending 30 days after the completion of the Company’s Business Combination.
“PrivatePlacement Shares” are to the Ordinary Shares included in the Private Placement Units.
“PrivatePlacement Units” shall have the meaning given in the Recitals hereto.
“PrivatePlacement Units Purchase Agreement” shall have the meaning given in the Recitals hereto.
“PrivatePlacement Warrants” are to the warrants included in the Private Placement Units.
“ProRata” 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.
“RegistrableSecurity” shall mean (a) the Insider Shares, (b) the Private Placement Units, the Private Placement Shares and the Private Placement Warrants, and any Ordinary Shares issued or issuable upon the exercise of the Private Placement Warrants issued to the Sponsor in a private placement that will close simultaneously with the closing of the Company’s initial public offering, (c) any outstanding Ordinary Shares or any other equity security (including the Ordinary Shares issued or issuable upon the exercise of any other equity security) of the Company held by a Holder as of the date of this Agreement, (e) any equity securities (including the Ordinary Shares issued or issuable upon the exercise of any such equity security) of the Company issuable upon conversion of any working capital loans in an amount up to $3,000,000 made to the Company by a Holder, and (f) any other equity security of the Company issued or issuable 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 the Company 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.
“RegistrationExpenses” 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 Ordinary Shares are then listed;
(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of outside 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 the Company;
(E) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and
(F) reasonable fees and expenses of one (1) legal counsel selected by the Demanding Holders holding the majority of shares to be included initiating a Demand Registration to be registered for offer and sale in the applicable Registration.
“RegistrationStatement” 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.
“RequestingHolder” shall have the meaning given in subsection 2.1.1.
“SecuritiesAct” shall mean the Securities Act of 1933, as amended from time to time.
“Sponsor” shall have the meaning given in the Recitals hereto.
“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.
“UnderwrittenRegistration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
ARTICLEII
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 date the Company consummates the Business Combination, the Holders of at least a majority in interest of the then-outstanding number of Registrable Securities (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”). The Company shall, within ten (10) days of the Company’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 the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. Upon receipt by the Company of any such written notification from a Requesting Holder(s) to the Company, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and the Company shall use its reasonable best efforts to effect, as soon thereafter as practicable, but not more than forty five (45) days immediately after the Company’s receipt of the Demand Registration, the Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration. Under no circumstances shall the Company be obligated to effect more than an aggregate of two (2) Registrations 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) the Company 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) Demanding Holders holding a majority in interest of the outstanding Registrable Securities initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, but in no event later than five (5) days, of such election; and provided, further, that the Company 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 the Demanding Holders holding a majority in interest of the outstanding Registrable Securities so advise the Company as part of their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.1.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the holders of a majority in interest of shares by Demanding Holders initiating the Demand Registration.
2.1.4 Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand Registration, in good faith, advises the Company, 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 Ordinary Shares or other equity securities that the Company desires to sell and the Ordinary Shares, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other shareholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number ofSecurities”), then the Company 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; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other equity securities that the Company 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 Ordinary Shares or other equity securities of other persons or entities that the Company 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. Demanding Holders holding a majority in interest of the outstanding Registrable Securities initiating a Demand Registration or Requesting Holders (if any), holding a majority in interest of the outstanding Registrable Securities 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 the Company 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, the Company shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration prior to its withdrawal under this subsection 2.1.5.
2.2 Piggyback Registration.
2.2.1 Piggyback Rights. If, at any time on or after the date the Company consummates a Business Combination, the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of shareholders of the Company (or by the Company and by the shareholders of the Company 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 the Company’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company 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 five (5) days after receipt of such written notice (such Registration a “PiggybackRegistration”). The Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use its best 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 the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.2.1 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company.
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 the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of the Ordinary Shares that the Company desires to sell, taken together with (i) the Ordinary Shares, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.2 hereof, and (iii) the Ordinary Shares, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum Number of Securities, then:
(a) If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first, the Ordinary Shares or other equity securities that the Company 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, 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 Ordinary Shares, if any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other shareholders of the Company, 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 the Company shall include in any such Registration (A) first, the Ordinary Shares or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1, pro rata based on the number of Registrable Securities that each Holder has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten 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 Ordinary Shares or other equity securities that the Company 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 Ordinary Shares or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.
2.2.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the Company 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.
2.3 Registrations on Form S-3. Holders of Registrable Securities may at any time, and from time to time, request in writing that the Company, 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 the Company shall not be obligated to effect such request through an Underwritten Offering. Within five (5) days of the Company’s receipt of a written request from a Holder or Holders of Registrable Securities for a Registration on Form S-3, the Company 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 the Company, in writing, within ten (10) days after the receipt by the Holder of the notice from the Company. As soon as practicable thereafter, but not more than twelve (12) days after the Company’s initial receipt of such written request for a Registration on Form S-3, the Company 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 the Company 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 the Company 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 $6,000,000.
2.4 Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to the Company’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 Company initiated Registration and provided that the Company 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 the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or (C) in the good faith judgment of the Board such Registration would be seriously detrimental to the Company 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 the Company shall furnish to such Holders a certificate signed by the Company’s Chairman of the Board (or President of the Company) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company 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, the Company shall have the right to defer such filing for a period of not more than thirty (30) days; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period.
ARTICLEIII
COMPANYPROCEDURES
3.1 General Procedures. If at any time on or after the date the Company consummates a Business Combination the Company is required to effect the Registration of Registrable Securities, the Company 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 the Company 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 the Company 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 the Company 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 the Company 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 the Company are then listed;
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;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement, 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 Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’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 the Company, prior to the release or disclosure of any such information; and provided further, the Company may not include the name of any Holder or Underwriter or any information regarding any Holder or Underwriter in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent of such Holder or Underwriter and providing each such Holder or Underwriter a reasonable amount of time to review and comment on such applicable document, which comments the Company shall include unless contrary to applicable law;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration which the participating Holders may rely on, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’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 $60,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
3.3 Requirements for Participation in Underwritten Offerings. No Person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by the Company 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 the Company 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 the Company 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 the Company 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 the Company to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company 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 the Company to be necessary for such purpose. In the event the Company 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. The Company 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, the Company, 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 the Company 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. The Company 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 Ordinary Shares held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
ARTICLEIV
INDEMNIFICATIONAND CONTRIBUTION
4.1 Indemnification.
4.1.1 The Company 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 the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
4.1.2 In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (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. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.
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. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.
4.1.5 If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein (except as provided herein), then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
ARTICLEV
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, 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, 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 the Company, to: 10 East 53^rd^ Street, Suite 3001, New York, NY 10022, and, if to any Holder, at such Holder’s address or contact information as set forth in the Company’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 the Company hereunder may not be assigned or delegated by the Company in whole or in part.
5.2.2 Prior to the expiration of the Insider Shares and Private Placement 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.
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 the Company unless and until the Company 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 the Company, 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.
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 NEW YORK AS APPLIED TO AGREEMENTS AMONG NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK, 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 LOCATED IN NEW YORK, 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 the Company 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 the Company, 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 the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. 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. The Company represents and warrants that no person, other than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration filed by the Company for the sale of securities for its own account or for the account of any other person. Further, the Company 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 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.
[SignaturePages Follow]
INWITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| COMPANY: | |
|---|---|
| MILUNA ACQUISITION CORP | |
| By: | /s/ Shang Ju Lin |
| Name: | Shang Ju Lin |
| Title: | Chief Executive Officer |
[SignaturePage to Registration Rights Agreement]
INWITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| SPONSOR: | |
|---|---|
| MilunaC Technology Limited, a British<br> Virgin Islands company limited by shares | |
| By: | /s/ Shang Ju Lin |
| Name: | Shang Ju Lin |
| Title: | Director |
[SignaturePage to Registration Rights Agreement]
Exhibit10.4
PrivateUnit Purchase Agreement
October 22, 2025
Miluna Acquisition Corp
12F, No. 43, Cheng Gong Road, Sec 4,
Neihu, Taipei, Taiwan
Ladies and Gentlemen:
Miluna Acquisition Corp (the “Company”), a blank check company formed for the purpose of acquiring one or more businesses or entities (a “Business Combination”), intends to register its securities under the Securities Act of 1933, as amended (the “Securities Act”), in connection with its initial public offering (“IPO”), pursuant to a registration statement on Form S-1 (the “RegistrationStatement”). The undersigned hereby commits that it will purchase 194,100 units of the Company (“PrivateUnits”) for a purchase price of $1,941,000 (the “Private Unit Purchase Price”), each Private Unit consisting of one ordinary share of the Company, par value $0.0001 per share (the “Ordinary Shares”) and one redeemable warrant (the “Warrants”). Each Warrant entitles the holder thereof to purchase one Ordinary Share at a price of $11.50 per share, subject to certain adjustment. Only whole Warrants are exercisable. No fractional Warrants will be issued upon separation of the units and only whole Warrants will trade.
The undersigned hereby agrees that it will purchase an additional number of units of the Company (“Over-AllotmentUnits”), up to a maximum of 9,000 Over-Allotment Units at a purchase price of $10.00 (the “Over-AllotmentPurchase Price”), or a maximum of 203,100 Private Units for a total purchase price of $2,030,100 (the Over-Allotment Unit Purchase Price, together with the Private Unit Purchase Price, being the “Purchase Price”), in the event D. Boral Capital LLC (“D. Boral”) and ARC Group Securities LLC exercises their over-allotment option, such that the amount held in the trust account (as described in the Registration Statement) does not fall below $10.00 per unit sold by the Company in the IPO.
At least twenty-four (24) hours prior to the effective date of the Registration Statement, the undersigned will cause the Private Unit Purchase Price to be delivered to Lucky Lucko, Inc. d/b/a Efficiency (“Efficiency”), by wire transfer as set forth in the instructions attached as Exhibit A to hold in a non-interest bearing account until the Company consummates the IPO.
The consummation of the purchase and issuance of the Private Units shall occur simultaneously with the consummation of the IPO and the consummation of the purchase and issuance of the Over-Allotment Units shall occur simultaneously with the closing of any exercise of the over-allotment option related to the IPO. Simultaneously with the consummation of the IPO, Efficiency shall deposit the Private Unit Purchase Price, without interest or deduction, into the trust fund (“Trust Fund”) established by the Company for the benefit of the Company’s public shareholders as described in the Registration Statement. If the Company does not complete the IPO within ten (10) days from the date of this letter, the Private Unit Purchase Price (without interest or deduction) will be returned to the undersigned.
Each of the Company, and the undersigned acknowledges and agrees that Efficiency is serving hereunder solely as a convenience to the parties to facilitate the purchase of the Private Units and Efficiency’s sole obligation under this letter agreement is to act with respect to holding and disbursing the Private Unit Purchase Price as described above. Efficiency shall not be liable to the Company, D. Boral or the undersigned or any other person or entity in respect of any act or failure to act hereunder or otherwise in connection with performing its services hereunder unless Efficiency has acted in a manner constituting gross negligence or willful misconduct. The Company and the undersigned shall indemnify Efficiency against any claim made against it (including reasonable attorney’s fees) by reason of it acting or failing to act in connection with this letter agreement except as a result of its gross negligence or willful misconduct. Efficiency may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties.
The Private Units and Over-Allotment Units will be identical to the units to be sold by the Company in the IPO. Additionally, the undersigned agrees:
| ● | to<br>vote the Ordinary Shares included in the Private Units and Over-Allotment Units in favor of any proposed Business Combination; |
|---|---|
| ● | not<br>to propose, or vote in favor of, an amendment to the Company’s Amended and Restated Memorandum and Articles of Association that<br>would affect the substance or timing of the Company’s obligation to redeem 100% of the Company’s Ordinary Shares sold in<br>the IPO if the Company does not complete an initial Business Combination within 18 months from the closing of the IPO (or up to 21 months<br>from the closing of the IPO if the Company extends the period of time to consummate an initial Business Combination in up to three one-month<br>extensions, as described in more detail in the prospectus included in the Registration Statement), unless the Company provides the holders<br>of Ordinary Shares sold in the IPO with the opportunity to redeem their Ordinary Shares upon approval of any such amendment at a per-share<br>price, payable in cash, equal to the aggregate amount of the Trust Fund, including interest earned on Trust Fund and not previously released<br>to the Company to pay the Company’s dissolution expenses, divided by the number of then outstanding Ordinary Shares sold in the<br>IPO; |
| --- | --- |
| ● | not<br>to convert any Ordinary Shares included in the Private Units and Over-Allotment Units into the right to receive cash from the Trust Fund<br>in connection with a shareholder vote to approve either a Business Combination or an amendment to the provisions of the Company’s<br>Amended and Restated Memorandum and Articles of Association, and not to tender the Private Units and Over-Allotment Units in connection<br>with a tender offer conducted prior to the closing of a Business Combination; |
| --- | --- |
| ● | the<br>undersigned hereby irrevocably waives any redemption rights and right to participate in any liquidation distribution with respect to<br>the Private Units and Over-Allotment Units (but will participate in liquidation distributions with respect to any units or Ordinary Shares<br>purchased by the undersigned in the IPO or in the open market) if the Company fails to consummate a Business Combination; |
| --- | --- |
| ● | that<br>the Private Units, Over-Allotment Units and underlying securities will not be transferable until 30 days after the consummation of a<br>Business Combination except (i) among the initial shareholders or to an initial shareholder’s member, partner, officer, director,<br>or affiliate; (ii) by gift to a member of the initial shareholder’s immediate family or to a trust, the beneficiary of which is<br>a member of the initial shareholder’s immediate family or an affiliate of such individual, or to a charitable organization; (iii)<br>by virtue of laws of descent and distribution upon death; (iv) pursuant to a qualified domestic relations order; (v) virtue of the sponsor’s<br>organizational documents upon liquidation or dissolution of the sponsor; or (vi) in the event of the Company’s liquidation prior<br>to the completion of an initial business combination; provided, however, that, in the case of clauses (i) through (v), each transferee<br>agrees in writing to be bound by the transfer restrictions and the other restrictions contained in the letter agreement; and |
| --- | --- |
| ● | the<br>Private Units and Over-Allotment Units will include any additional terms or restrictions as is customary in other similarly structured<br>blank check company offerings or as may be reasonably required by the underwriters in the IPO in order to consummate the IPO, each of<br>which will be set forth in the Registration Statement. |
| --- | --- |
The undersigned acknowledges and agrees that the purchaser of the Private Units and Over-Allotment Units will execute agreements in form and substance typical for transactions of this nature necessary to effectuate the foregoing agreements and obligations prior to the consummation of the IPO as are reasonably acceptable to the undersigned, including but not limited to an insider letter.
The undersigned hereby represents and warrants that:
| (a) | it<br>has been advised that the Private Units and Over-Allotment Units have not been registered under the Securities Act; |
|---|---|
| (b) | it<br>will be acquiring the Private Units and Over-Allotment Units for its account for investment purposes only and not with a view to the<br>distribution or resale of such units; |
| (c) | it<br>has no present intention of selling or otherwise disposing of the Private Units and Over-Allotment Units in violation of the securities<br>laws of the United States; |
| --- | --- |
| (d) | it<br> is an “accredited investor” as defined by Rule 501 of Regulation D promulgated under the Securities Act; |
| (e) | it<br>has had both the opportunity to ask questions and receive answers from the officers and directors of the Company and all persons acting<br>on its behalf concerning the terms and conditions of the offer made hereunder; |
| (f) | it<br> is familiar with the proposed business, management, financial condition and affairs of the Company; |
| (g) | it<br>has full power, authority and legal capacity to execute and deliver this letter and any documents contemplated herein or needed to consummate<br>the transactions contemplated in this letter; |
| (h) | it<br>has he financial ability to bear the economic risk of its investment in the Private Units and the Over-Allotment Units and is able to<br>bear a total loss of its investment in such units; |
| (i) | it<br> understands that the Private Units and Over-Allotment units are not readily marketable; |
| (j) | it<br> has no need for liquidity with respect to its investment in the Private units and the Over-Allotment Units and no need to dispose<br> of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness; |
| (k) | it<br>is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands<br>and accepts, the terms, conditions and risks of its investment in the Private Units and the Over-Allotment Units; |
| (l) | it<br> is aware that the Company will establish a Trust Fund for the benefit of its public shareholders upon the closing of the IPO and<br> hereby agrees that it shall have no right of set-off or any right title, interest or claim of any kind (“Claim”)<br> to, or to any monies in, the Trust Fund, and hereby irrevocably waives any claim to, or to any monies in, the Trust Fund that it<br> may have now or in the future, except for redemption and liquidation rights, if any, the undersigned may have in respect of any Ordinary<br> Shares held by it other than as a result of this Agreement. In the event the undersigned has any Claim against the Company under<br> this Agreement, the undersigned shall pursue such Claim solely against the Company and its assets held outside the Trust Fund and<br> not against the property or any monies in the Trust Fund, except for redemption and liquidation rights, if any, the undersigned may<br> have in respect of the Ordinary Shares held by it other than as a result of this Agreement; |
| (m) | neither<br> it, nor any person or entity acting on its behalf, will engage in any Short Sales with respect to securities of the Company prior<br> to the closing of the Business Combination. For purposes of this Agreement, “Short Sales” shall include, without limitation,<br> all “Short Sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934,<br> and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage<br> arrangements) forward sale contracts, options, puts, calls swaps an similar arrangements (including on a total return basis); and |
| (n) | this<br> letter constitutes its legal, valid and binding obligation, and is enforceable against it. |
This letter agreement constitutes the entire agreement between the undersigned and the Company with respect to the purchase of the Private Units and Over-Allotment Units, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the same.
| Very<br> truly yours, | |
|---|---|
| MILUNAC TECHNOLOGY LIMITED | |
| By: | /s/ Shang Ju Lin |
| Name: | Shang<br> Ju Lin |
| Title: | Director |
| Accepted<br> and Agreed: | |
| --- | --- |
| MILUNA ACQUISITION CORP | |
| By: | /s/ Shang Ju Lin |
| Name: | Shang<br> Ju Lin |
| Title: | Chief<br> Executive Officer |
Exhibit10.5
INDEMNIFICATIONAGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of the 22^nd^ day of October 2025, between Miluna Acquisition Corp, a company incorporated as an exempted company under the laws of the Cayman Islands (the “Company”), and Shang Ju Lin (“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve corporations as directors or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the Company;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law and the Articles so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as a director or officer from and after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by applicable law and the Articles (as hereinafter defined). In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section l(a) if, by reason of his Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful, provided, however, no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company.
(b) Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by the Articles.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by applicable law and the Articles against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee to the fullest extent permitted by applicable law and the Articles against all Expenses, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect thereof) actually and reasonably incurred by him or on his behalf if, by reason of his Corporate Status, he is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgement in its favor); provided, however, that (i) no indemnification against such Expenses, judgments, penalties, fines and amounts shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company for wilful default, wilful neglect or actual fraud in the performance of his duty to the Company, and (ii)that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful.
3. Contribution.
(a) To the fullest extent permissible under applicable law and the Articles, whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which the Law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
(c) To the fullest extent permissible under applicable law and the Articles, the Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law and the Articles, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
(e) The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party or is threatened to be a party, he shall, to the fullest extent permissible under applicable law and the Articles, be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
5. Advancement of Expenses.
(a) Notwithstanding any other provision of this Agreement, and to the fullest extent not prohibited by applicable law and the Articles, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. Advances shall include any and all reasonable Expenses incurred (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) pursuing an Enforcement Proceeding (as set term is defined in Section 7 below), including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. For the purposes of this paragraph, assume all references to a “Proceeding” in the definition of Expenses refer an Enforcement Proceeding). To the fullest extent permitted by applicable law, the Indemnitee shall not be required to reimburse the Company such amounts advanced until a final determination has been made with respect to Indemnitee’s entitlement to indemnification under any such Enforcement Proceeding pursuant to Section 6(d). This Section 5(a) shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9, but shall apply to any Proceeding referenced in Section 9(b) prior to a final determination that Indemnitee is liable therefor.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, liability, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. The parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Board of Directors a written request, including therein or therewith such documentation and information as is available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board of Directors: (1) by a majority vote of the Disinterested Directors (as defined below), even though less than a quorum, (2) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum, (3) if there are no Disinterested Directors, or if the Disinterested Directors so direct, or in the event of a Change in Control, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee, or (4) if so directed by the Board of Directors, by the shareholders of the Company.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in this Section 6(c). The Board of Directors shall select the Independent Counsel. Indemnitee may, within 10 days after such written notice of selection shall have been given, deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise (as hereinafter defined) in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(g) shall not apply (i) if the determination of entitlement to indemnification is to be made by the shareholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board of Directors or the Disinterested Directors, if appropriate, resolve to submit such determination to the shareholders for their consideration at an annual general meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) an extraordinary general meeting of shareholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(c) of this Agreement
(g) If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure, and which is available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors or shareholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be made by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(i) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(j) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within 30 days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) a contribution payment is not made in a timely manner pursuant to Section 3 of this Agreement, (vi) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement or (vii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made in accordance with this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the Cayman Islands, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Rules of the American Arbitration Association. Except as set forth herein, the Commercial Rules of the American Arbitration Association shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration. Such adjudication or arbitration proceeding is referred to herein as “Enforcement Proceeding.”
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 13 of this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. To the fullest extent permitted by law and the Articles, the Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefore) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by applicable law and the Articles, whichever is greater.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles, any agreement, a vote of shareholders, a resolution of directors or otherwise, of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Fund Indemnitors), who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law;
(c) except as provided in Section 7(e) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; or
(d) which results from his wilful default, wilful neglect or actual fraud or any other acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law or the Articles.
10. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an officer or director of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue for five (5) years thereafter or, if longer, so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status, whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
11. Security. To the extent requested by Indemnitee and approved by the Board of Directors of the Company, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
(a) “Articles” means the memorandum and articles of the Company, as amended, restated or supplemented from time to time.
(b) “Beneficial Owner” means any Person who either exercises control over voting power or investment power, or owns, directly or indirectly, an ownership interests in the Company, or has the right to receive or share in, directly or indirectly, in the profits of the Company whether by agreement, relationship, or other arrangement.
(c) “Board” has the meaning in the recitals to this Agreement.
(d) “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:
(1) Acquisition of Shares by Third Party. Any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;
(2) Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director designated by a Person who entered into a business combination agreement, cease for any reason to constitute at least a majority of the members of the Board;
(3) Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
(4) Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
(5) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the U.S. Securities Exchange Act of 1934, whether or not the Company is then subject to such reporting requirement.
(e) “Corporate Status” describes the status of a person who is or was a director, officer, employee, agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the Company.
(f) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(g) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, officer, employee, agent or fiduciary.
(j) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(k) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(l) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
(m) “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director of the Company, by reason of any action taken by him or of any inaction on his part while acting as an officer or director of the Company, or by reason of the fact that he is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement.
(n) “Enforcement Proceeding” shall mean adjudication or arbitration proceeding initiated by Indemnitee.
14. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable law and the Articles. In the event any provision hereof conflicts with any applicable law or the Articles, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
15. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
16. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
17. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:
| (a) | To Indemnitee at the address set forth below Indemnitee’s signature hereto. |
|---|---|
| (b) | To the Company at: |
| Miluna Acquisition Corp<br><br> <br>12F, No. 43, Cheng Gong Road, Sec 4, Neihu<br><br> <br>Taipei, Taiwan<br><br> <br>Attn: Shang Ju Lin, Chief Executive Officer and<br> Director<br><br> <br>Email: czhang1@gmail.com | |
| (c) | with a copy (which will not constitute notice) to: |
| Hunter Taubman Fischer & Li LLC<br><br> <br>950 Third Avenue, 19th Floor<br><br> <br>New York, New York 10022<br><br> <br>Attn: Sally Ying, Esq.<br><br> <br>Email: sally.yin@htflawyers.com |
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
20. Interpretation. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. The words “execution”, “signed”, and “signature” herein shall be deemed to include electronic signatures, including any electronic signatures as defined in the Electronic Transactions Act (Revised) (the “Electronic Signature Act”), or the keeping of records in electronic form including any electronic record, as defined in the Electronic Signature Act, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law, including without limitation the Electronic Signature Act; provided, however that sections 8 and 19(3) of the Electronic Signature Act shall not apply to this agreement or the execution or delivery thereof.
21. Governing Law and Consent to Jurisdiction. This Agreement shall be governed and interpreted in accordance with the laws of the Cayman Islands without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have nonexclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the non-exclusive jurisdiction of such courts.
SIGNATUREPAGE TO FOLLOW
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a deed on and as of the day and year first above written.
| COMPANY | |
|---|---|
| MILUNA ACQUISITION CORP | |
| By: | /s/ Shang Ju Lin |
| Name: | Shang Ju Lin |
| Title: | Chief Executive Officer |
| INDEMNITEE | |
| --- | --- |
| By: | /s/ Shang Ju Lin |
| Name: | Shang Ju Lin |
| Address: | |
| c/o Milun Acquisition Corp, 12F, No. 43, | |
| Cheng Gong Road, Sec 4, Neihu, | |
| Taipei, Taiwan | |
| Occupation: Chief Executive Officer and Director |
SignaturePage To Indemnification Agreement
Exhibit10.6
INDEMNIFICATIONAGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of the 22^nd^ day of October 2025, between Miluna Acquisition Corp, a company incorporated as an exempted company under the laws of the Cayman Islands (the “Company”), and Daniel Albert Mace (“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve corporations as directors or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the Company;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law and the Articles so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as a director or officer from and after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by applicable law and the Articles (as hereinafter defined). In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section l(a) if, by reason of his Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful, provided, however, no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company.
(b) Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by the Articles.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by applicable law and the Articles against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee to the fullest extent permitted by applicable law and the Articles against all Expenses, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect thereof) actually and reasonably incurred by him or on his behalf if, by reason of his Corporate Status, he is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgement in its favor); provided, however, that (i) no indemnification against such Expenses, judgments, penalties, fines and amounts shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company for wilful default, wilful neglect or actual fraud in the performance of his duty to the Company, and (ii)that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful.
3. Contribution.
(a) To the fullest extent permissible under applicable law and the Articles, whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which the Law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
(c) To the fullest extent permissible under applicable law and the Articles, the Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law and the Articles, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
(e) The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party or is threatened to be a party, he shall, to the fullest extent permissible under applicable law and the Articles, be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
5. Advancement of Expenses.
(a) Notwithstanding any other provision of this Agreement, and to the fullest extent not prohibited by applicable law and the Articles, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. Advances shall include any and all reasonable Expenses incurred (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) pursuing an Enforcement Proceeding (as set term is defined in Section 7 below), including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. For the purposes of this paragraph, assume all references to a “Proceeding” in the definition of Expenses refer an Enforcement Proceeding). To the fullest extent permitted by applicable law, the Indemnitee shall not be required to reimburse the Company such amounts advanced until a final determination has been made with respect to Indemnitee’s entitlement to indemnification under any such Enforcement Proceeding pursuant to Section 6(d). This Section 5(a) shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9, but shall apply to any Proceeding referenced in Section 9(b) prior to a final determination that Indemnitee is liable therefor.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, liability, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. The parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Board of Directors a written request, including therein or therewith such documentation and information as is available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board of Directors: (1) by a majority vote of the Disinterested Directors (as defined below), even though less than a quorum, (2) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum, (3) if there are no Disinterested Directors, or if the Disinterested Directors so direct, or in the event of a Change in Control, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee, or (4) if so directed by the Board of Directors, by the shareholders of the Company.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in this Section 6(c). The Board of Directors shall select the Independent Counsel. Indemnitee may, within 10 days after such written notice of selection shall have been given, deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise (as hereinafter defined) in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(g) shall not apply (i) if the determination of entitlement to indemnification is to be made by the shareholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board of Directors or the Disinterested Directors, if appropriate, resolve to submit such determination to the shareholders for their consideration at an annual general meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) an extraordinary general meeting of shareholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(c) of this Agreement
(g) If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure, and which is available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors or shareholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be made by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(i) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(j) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within 30 days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) a contribution payment is not made in a timely manner pursuant to Section 3 of this Agreement, (vi) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement or (vii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made in accordance with this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the Cayman Islands, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Rules of the American Arbitration Association. Except as set forth herein, the Commercial Rules of the American Arbitration Association shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration. Such adjudication or arbitration proceeding is referred to herein as “Enforcement Proceeding.”
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 13 of this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. To the fullest extent permitted by law and the Articles, the Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefore) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by applicable law and the Articles, whichever is greater.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles, any agreement, a vote of shareholders, a resolution of directors or otherwise, of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Fund Indemnitors), who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law;
(c) except as provided in Section 7(e) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; or
(d) which results from his wilful default, wilful neglect or actual fraud or any other acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law or the Articles.
10. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an officer or director of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue for five (5) years thereafter or, if longer, so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status, whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
11. Security. To the extent requested by Indemnitee and approved by the Board of Directors of the Company, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
(a) “Articles” means the memorandum and articles of the Company, as amended, restated or supplemented from time to time.
(b) “Beneficial Owner” means any Person who either exercises control over voting power or investment power, or owns, directly or indirectly, an ownership interests in the Company, or has the right to receive or share in, directly or indirectly, in the profits of the Company whether by agreement, relationship, or other arrangement.
(c) “Board” has the meaning in the recitals to this Agreement.
(d) “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:
(1) Acquisition of Shares by Third Party. Any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;
(2) Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director designated by a Person who entered into a business combination agreement, cease for any reason to constitute at least a majority of the members of the Board;
(3) Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
(4) Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
(5) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the U.S. Securities Exchange Act of 1934, whether or not the Company is then subject to such reporting requirement.
(e) “Corporate Status” describes the status of a person who is or was a director, officer, employee, agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the Company.
(f) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(g) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, officer, employee, agent or fiduciary.
(j) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(k) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(l) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
(m) “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director of the Company, by reason of any action taken by him or of any inaction on his part while acting as an officer or director of the Company, or by reason of the fact that he is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement.
(n) “Enforcement Proceeding” shall mean adjudication or arbitration proceeding initiated by Indemnitee.
14. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable law and the Articles. In the event any provision hereof conflicts with any applicable law or the Articles, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
15. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
16. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
17. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:
| (a) | To<br> Indemnitee at the address set forth below Indemnitee’s signature hereto. |
|---|---|
| (b) | To<br> the Company at: |
| Miluna<br> Acquisition Corp<br><br> <br>12F,<br> No. 43, Cheng Gong Road, Sec 4, Neihu<br><br> <br>Taipei,<br> Taiwan<br><br> <br>Attn:<br> Shang Ju Lin, Chief Executive Officer and Director<br><br> <br>Email:<br> czhang1@gmail.com | |
| (c) | with a copy (which will not constitute notice) to: |
| Hunter<br> Taubman Fischer & Li LLC<br><br> <br>950<br> Third Avenue, 19th Floor<br><br> <br>New<br> York, New York 10022<br><br> <br>Attn:<br> Sally Ying, Esq.<br><br> <br>Email:<br> sally.yin@htflawyers.com |
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
20. Interpretation. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. The words “execution”, “signed”, and “signature” herein shall be deemed to include electronic signatures, including any electronic signatures as defined in the Electronic Transactions Act (Revised) (the “Electronic Signature Act”), or the keeping of records in electronic form including any electronic record, as defined in the Electronic Signature Act, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law, including without limitation the Electronic Signature Act; provided, however that sections 8 and 19(3) of the Electronic Signature Act shall not apply to this agreement or the execution or delivery thereof.
21. Governing Law and Consent to Jurisdiction. This Agreement shall be governed and interpreted in accordance with the laws of the Cayman Islands without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have nonexclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the non-exclusive jurisdiction of such courts.
SIGNATUREPAGE TO FOLLOW
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a deed on and as of the day and year first above written.
| COMPANY | |
|---|---|
| MILUNA ACQUISITION CORP | |
| By: | /s/Shang Ju Lin |
| Name: | Shang<br> Ju Lin |
| Title: | Chief<br> Executive Officer |
| INDEMNITEE | |
| /s/Daniel Albert Mace | |
| --- | --- |
| Name: | Daniel<br> Albert Mace |
| Address: | |
| c/o<br> Milun Acquisition Corp, 12F, No. 43, | |
| Cheng<br> Gong Road, Sec 4, Neihu, | |
| Taipei,<br> Taiwan | |
| Occupation: | Chief<br> Financial Officer and Director |
SignaturePage To Indemnification Agreement
Exhibit10.7
INDEMNIFICATIONAGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of the 22^nd^ day of October 2025, between Miluna Acquisition Corp, a company incorporated as an exempted company under the laws of the Cayman Islands (the “Company”), and Luhuan Zhong (“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve corporations as directors or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the Company;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law and the Articles so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as a director or officer from and after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by applicable law and the Articles (as hereinafter defined). In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section l(a) if, by reason of his Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful, provided, however, no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company.
(b) Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by the Articles.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by applicable law and the Articles against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee to the fullest extent permitted by applicable law and the Articles against all Expenses, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect thereof) actually and reasonably incurred by him or on his behalf if, by reason of his Corporate Status, he is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgement in its favor); provided, however, that (i) no indemnification against such Expenses, judgments, penalties, fines and amounts shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company for wilful default, wilful neglect or actual fraud in the performance of his duty to the Company, and (ii)that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful.
3. Contribution.
(a) To the fullest extent permissible under applicable law and the Articles, whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which the Law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
(c) To the fullest extent permissible under applicable law and the Articles, the Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law and the Articles, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
(e) The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party or is threatened to be a party, he shall, to the fullest extent permissible under applicable law and the Articles, be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
5. Advancement of Expenses.
(a) Notwithstanding any other provision of this Agreement, and to the fullest extent not prohibited by applicable law and the Articles, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. Advances shall include any and all reasonable Expenses incurred (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) pursuing an Enforcement Proceeding (as set term is defined in Section 7 below), including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. For the purposes of this paragraph, assume all references to a “Proceeding” in the definition of Expenses refer an Enforcement Proceeding). To the fullest extent permitted by applicable law, the Indemnitee shall not be required to reimburse the Company such amounts advanced until a final determination has been made with respect to Indemnitee’s entitlement to indemnification under any such Enforcement Proceeding pursuant to Section 6(d). This Section 5(a) shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9, but shall apply to any Proceeding referenced in Section 9(b) prior to a final determination that Indemnitee is liable therefor.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, liability, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. The parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Board of Directors a written request, including therein or therewith such documentation and information as is available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board of Directors: (1) by a majority vote of the Disinterested Directors (as defined below), even though less than a quorum, (2) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum, (3) if there are no Disinterested Directors, or if the Disinterested Directors so direct, or in the event of a Change in Control, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee, or (4) if so directed by the Board of Directors, by the shareholders of the Company.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in this Section 6(c). The Board of Directors shall select the Independent Counsel. Indemnitee may, within 10 days after such written notice of selection shall have been given, deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise (as hereinafter defined) in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(g) shall not apply (i) if the determination of entitlement to indemnification is to be made by the shareholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board of Directors or the Disinterested Directors, if appropriate, resolve to submit such determination to the shareholders for their consideration at an annual general meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) an extraordinary general meeting of shareholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(c) of this Agreement
(g) If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure, and which is available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors or shareholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be made by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(i) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(j) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within 30 days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) a contribution payment is not made in a timely manner pursuant to Section 3 of this Agreement, (vi) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement or (vii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made in accordance with this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the Cayman Islands, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Rules of the American Arbitration Association. Except as set forth herein, the Commercial Rules of the American Arbitration Association shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration. Such adjudication or arbitration proceeding is referred to herein as “Enforcement Proceeding.”
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 13 of this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. To the fullest extent permitted by law and the Articles, the Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefore) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by applicable law and the Articles, whichever is greater.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles, any agreement, a vote of shareholders, a resolution of directors or otherwise, of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Fund Indemnitors), who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law;
(c) except as provided in Section 7(e) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; or
(d) which results from his wilful default, wilful neglect or actual fraud or any other acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law or the Articles.
10. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an officer or director of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue for five (5) years thereafter or, if longer, so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status, whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
11. Security. To the extent requested by Indemnitee and approved by the Board of Directors of the Company, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
(a) “Articles” means the memorandum and articles of the Company, as amended, restated or supplemented from time to time.
(b) “Beneficial Owner” means any Person who either exercises control over voting power or investment power, or owns, directly or indirectly, an ownership interests in the Company, or has the right to receive or share in, directly or indirectly, in the profits of the Company whether by agreement, relationship, or other arrangement.
(c) “Board” has the meaning in the recitals to this Agreement.
(d) “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:
(1) Acquisition of Shares by Third Party. Any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;
(2) Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director designated by a Person who entered into a business combination agreement, cease for any reason to constitute at least a majority of the members of the Board;
(3) Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
(4) Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
(5) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the U.S. Securities Exchange Act of 1934, whether or not the Company is then subject to such reporting requirement.
(e) “Corporate Status” describes the status of a person who is or was a director, officer, employee, agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the Company.
(f) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(g) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, officer, employee, agent or fiduciary.
(j) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(k) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(l) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
(m) “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director of the Company, by reason of any action taken by him or of any inaction on his part while acting as an officer or director of the Company, or by reason of the fact that he is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement.
(n) “Enforcement Proceeding” shall mean adjudication or arbitration proceeding initiated by Indemnitee.
14. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable law and the Articles. In the event any provision hereof conflicts with any applicable law or the Articles, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
15. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
16. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
17. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:
| (a) | To<br> Indemnitee at the address set forth below Indemnitee’s signature hereto. |
|---|---|
| (b) | To<br> the Company at: |
| Miluna<br> Acquisition Corp<br><br> <br>12F,<br> No. 43, Cheng Gong Road, Sec 4, Neihu<br><br> <br>Taipei,<br> Taiwan<br><br> <br>Attn:<br> Shang Ju Lin, Chief Executive Officer and Director<br><br> <br>Email:<br> czhang1@gmail.com | |
| (c) | with a copy (which will not constitute notice) to: |
| Hunter<br> Taubman Fischer & Li LLC<br><br> <br>950<br> Third Avenue, 19th Floor<br><br> <br>New<br> York, New York 10022<br><br> <br>Attn:<br> Sally Ying, Esq.<br><br> <br>Email:<br> sally.yin@htflawyers.com |
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
20. Interpretation. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. The words “execution”, “signed”, and “signature” herein shall be deemed to include electronic signatures, including any electronic signatures as defined in the Electronic Transactions Act (Revised) (the “Electronic Signature Act”), or the keeping of records in electronic form including any electronic record, as defined in the Electronic Signature Act, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law, including without limitation the Electronic Signature Act; provided, however that sections 8 and 19(3) of the Electronic Signature Act shall not apply to this agreement or the execution or delivery thereof.
21. Governing Law and Consent to Jurisdiction. This Agreement shall be governed and interpreted in accordance with the laws of the Cayman Islands without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have nonexclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the non-exclusive jurisdiction of such courts.
SIGNATUREPAGE TO FOLLOW
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a deed on and as of the day and year first above written.
| COMPANY | |
|---|---|
| MILUNA ACQUISITION CORP | |
| By: | /s/Shang Ju Lin |
| Name: | Shang<br> Ju Lin |
| Title: | Chief<br> Executive Officer |
| INDEMNITEE | |
| /s/Luhuan Zhong | |
| Name: | Luhuan<br> Zhong |
| Address: | |
| c/o<br> Milun Acquisition Corp, 12F, No. 43, | |
| Cheng<br> Gong Road, Sec 4, Neihu, | |
| Taipei,<br> Taiwan | |
| Occupation: | Director |
SignaturePage To Indemnification Agreement
Exhibit10.8
INDEMNIFICATIONAGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of the 22^nd^ day of October 2025, between Miluna Acquisition Corp, a company incorporated as an exempted company under the laws of the Cayman Islands (the “Company”), and Ya Ting Lee (“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve corporations as directors or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the Company;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law and the Articles so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as a director or officer from and after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by applicable law and the Articles (as hereinafter defined). In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section l(a) if, by reason of his Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful, provided, however, no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company.
(b) Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by the Articles.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by applicable law and the Articles against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee to the fullest extent permitted by applicable law and the Articles against all Expenses, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect thereof) actually and reasonably incurred by him or on his behalf if, by reason of his Corporate Status, he is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgement in its favor); provided, however, that (i) no indemnification against such Expenses, judgments, penalties, fines and amounts shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company for wilful default, wilful neglect or actual fraud in the performance of his duty to the Company, and (ii)that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful.
3. Contribution.
(a) To the fullest extent permissible under applicable law and the Articles, whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which the Law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
(c) To the fullest extent permissible under applicable law and the Articles, the Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law and the Articles, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
(e) The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party or is threatened to be a party, he shall, to the fullest extent permissible under applicable law and the Articles, be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
5. Advancement of Expenses.
(a) Notwithstanding any other provision of this Agreement, and to the fullest extent not prohibited by applicable law and the Articles, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. Advances shall include any and all reasonable Expenses incurred (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) pursuing an Enforcement Proceeding (as set term is defined in Section 7 below), including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. For the purposes of this paragraph, assume all references to a “Proceeding” in the definition of Expenses refer an Enforcement Proceeding). To the fullest extent permitted by applicable law, the Indemnitee shall not be required to reimburse the Company such amounts advanced until a final determination has been made with respect to Indemnitee’s entitlement to indemnification under any such Enforcement Proceeding pursuant to Section 6(d). This Section 5(a) shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9, but shall apply to any Proceeding referenced in Section 9(b) prior to a final determination that Indemnitee is liable therefor.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, liability, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. The parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Board of Directors a written request, including therein or therewith such documentation and information as is available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board of Directors: (1) by a majority vote of the Disinterested Directors (as defined below), even though less than a quorum, (2) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum, (3) if there are no Disinterested Directors, or if the Disinterested Directors so direct, or in the event of a Change in Control, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee, or (4) if so directed by the Board of Directors, by the shareholders of the Company.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in this Section 6(c). The Board of Directors shall select the Independent Counsel. Indemnitee may, within 10 days after such written notice of selection shall have been given, deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise (as hereinafter defined) in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(g) shall not apply (i) if the determination of entitlement to indemnification is to be made by the shareholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board of Directors or the Disinterested Directors, if appropriate, resolve to submit such determination to the shareholders for their consideration at an annual general meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) an extraordinary general meeting of shareholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(c) of this Agreement
(g) If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure, and which is available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors or shareholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be made by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(i) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(j) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within 30 days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) a contribution payment is not made in a timely manner pursuant to Section 3 of this Agreement, (vi) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement or (vii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made in accordance with this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the Cayman Islands, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Rules of the American Arbitration Association. Except as set forth herein, the Commercial Rules of the American Arbitration Association shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration. Such adjudication or arbitration proceeding is referred to herein as “Enforcement Proceeding.”
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 13 of this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. To the fullest extent permitted by law and the Articles, the Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefore) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by applicable law and the Articles, whichever is greater.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles, any agreement, a vote of shareholders, a resolution of directors or otherwise, of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Fund Indemnitors), who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law;
(c) except as provided in Section 7(e) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; or
(d) which results from his wilful default, wilful neglect or actual fraud or any other acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law or the Articles.
10. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an officer or director of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue for five (5) years thereafter or, if longer, so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status, whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
11. Security. To the extent requested by Indemnitee and approved by the Board of Directors of the Company, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
(a) “Articles” means the memorandum and articles of the Company, as amended, restated or supplemented from time to time.
(b) “Beneficial Owner” means any Person who either exercises control over voting power or investment power, or owns, directly or indirectly, an ownership interests in the Company, or has the right to receive or share in, directly or indirectly, in the profits of the Company whether by agreement, relationship, or other arrangement.
(c) “Board” has the meaning in the recitals to this Agreement.
(d) “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:
(1) Acquisition of Shares by Third Party. Any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;
(2) Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director designated by a Person who entered into a business combination agreement, cease for any reason to constitute at least a majority of the members of the Board;
(3) Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
(4) Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
(5) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the U.S. Securities Exchange Act of 1934, whether or not the Company is then subject to such reporting requirement.
(e) “Corporate Status” describes the status of a person who is or was a director, officer, employee, agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the Company.
(f) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(g) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, officer, employee, agent or fiduciary.
(j) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(k) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(l) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
(m) “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director of the Company, by reason of any action taken by him or of any inaction on his part while acting as an officer or director of the Company, or by reason of the fact that he is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement.
(n) “Enforcement Proceeding” shall mean adjudication or arbitration proceeding initiated by Indemnitee.
14. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable law and the Articles. In the event any provision hereof conflicts with any applicable law or the Articles, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
15. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
16. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
17. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:
| (a) | To<br> Indemnitee at the address set forth below Indemnitee’s signature hereto. |
|---|---|
| (b) | To<br> the Company at: |
| Miluna<br> Acquisition Corp<br><br> <br>12F,<br> No. 43, Cheng Gong Road, Sec 4, Neihu<br><br> <br>Taipei,<br> Taiwan<br><br> <br>Attn:<br> Shang Ju Lin, Chief Executive Officer and Director<br><br> <br>Email:<br> czhang1@gmail.com | |
| (c) | with a copy (which will not constitute notice) to: |
| Hunter<br> Taubman Fischer & Li LLC<br><br> <br>950<br> Third Avenue, 19th Floor<br><br> <br>New<br> York, New York 10022<br><br> <br>Attn:<br> Sally Ying, Esq.<br><br> <br>Email:<br> sally.yin@htflawyers.com |
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
20. Interpretation. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. The words “execution”, “signed”, and “signature” herein shall be deemed to include electronic signatures, including any electronic signatures as defined in the Electronic Transactions Act (Revised) (the “Electronic Signature Act”), or the keeping of records in electronic form including any electronic record, as defined in the Electronic Signature Act, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law, including without limitation the Electronic Signature Act; provided, however that sections 8 and 19(3) of the Electronic Signature Act shall not apply to this agreement or the execution or delivery thereof.
21. Governing Law and Consent to Jurisdiction. This Agreement shall be governed and interpreted in accordance with the laws of the Cayman Islands without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have nonexclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the non-exclusive jurisdiction of such courts.
SIGNATUREPAGE TO FOLLOW
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a deed on and as of the day and year first above written.
| COMPANY | |
|---|---|
| MILUNA ACQUISITION CORP | |
| By: | /s/Shang Ju Lin |
| Name: | Shang<br> Ju Lin |
| Title: | Chief<br> Executive Officer |
| INDEMNITEE | |
| /s/Ya Ting Lee | |
| Name: | Ya Ting Lee |
| Address: | |
| c/o<br> Milun Acquisition Corp, 12F, No. 43, | |
| Cheng<br> Gong Road, Sec 4, Neihu, | |
| Taipei,<br> Taiwan | |
| Occupation: | Director |
SignaturePage To Indemnification Agreement
Exhibit10.9
INDEMNIFICATIONAGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of the 22^nd^ day of October 2025, between Miluna Acquisition Corp, a company incorporated as an exempted company under the laws of the Cayman Islands (the “Company”), and Mei Chi Tsai (“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve corporations as directors or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the Company;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law and the Articles so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as a director or officer from and after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by applicable law and the Articles (as hereinafter defined). In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section l(a) if, by reason of his Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful, provided, however, no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company.
(b) Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for wilful neglect, wilful default or actual fraud in the performance of his duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by the Articles.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by applicable law and the Articles against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee to the fullest extent permitted by applicable law and the Articles against all Expenses, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect thereof) actually and reasonably incurred by him or on his behalf if, by reason of his Corporate Status, he is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgement in its favor); provided, however, that (i) no indemnification against such Expenses, judgments, penalties, fines and amounts shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company for wilful default, wilful neglect or actual fraud in the performance of his duty to the Company, and (ii)that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful.
3. Contribution.
(a) To the fullest extent permissible under applicable law and the Articles, whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which the Law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
(c) To the fullest extent permissible under applicable law and the Articles, the Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law and the Articles, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
(e) The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party or is threatened to be a party, he shall, to the fullest extent permissible under applicable law and the Articles, be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
5. Advancement of Expenses.
(a) Notwithstanding any other provision of this Agreement, and to the fullest extent not prohibited by applicable law and the Articles, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. Advances shall include any and all reasonable Expenses incurred (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) pursuing an Enforcement Proceeding (as set term is defined in Section 7 below), including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. For the purposes of this paragraph, assume all references to a “Proceeding” in the definition of Expenses refer an Enforcement Proceeding). To the fullest extent permitted by applicable law, the Indemnitee shall not be required to reimburse the Company such amounts advanced until a final determination has been made with respect to Indemnitee’s entitlement to indemnification under any such Enforcement Proceeding pursuant to Section 6(d). This Section 5(a) shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9, but shall apply to any Proceeding referenced in Section 9(b) prior to a final determination that Indemnitee is liable therefor.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, liability, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. The parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Board of Directors a written request, including therein or therewith such documentation and information as is available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board of Directors: (1) by a majority vote of the Disinterested Directors (as defined below), even though less than a quorum, (2) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum, (3) if there are no Disinterested Directors, or if the Disinterested Directors so direct, or in the event of a Change in Control, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee, or (4) if so directed by the Board of Directors, by the shareholders of the Company.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in this Section 6(c). The Board of Directors shall select the Independent Counsel. Indemnitee may, within 10 days after such written notice of selection shall have been given, deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise (as hereinafter defined) in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(g) shall not apply (i) if the determination of entitlement to indemnification is to be made by the shareholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board of Directors or the Disinterested Directors, if appropriate, resolve to submit such determination to the shareholders for their consideration at an annual general meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) an extraordinary general meeting of shareholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(c) of this Agreement
(g) If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure, and which is available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors or shareholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be made by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(i) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(j) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within 30 days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) a contribution payment is not made in a timely manner pursuant to Section 3 of this Agreement, (vi) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement or (vii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made in accordance with this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the Cayman Islands, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Rules of the American Arbitration Association. Except as set forth herein, the Commercial Rules of the American Arbitration Association shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration. Such adjudication or arbitration proceeding is referred to herein as “Enforcement Proceeding.”
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 13 of this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. To the fullest extent permitted by law and the Articles, the Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefore) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by applicable law and the Articles, whichever is greater.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles, any agreement, a vote of shareholders, a resolution of directors or otherwise, of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Fund Indemnitors), who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law;
(c) except as provided in Section 7(e) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; or
(d) which results from his wilful default, wilful neglect or actual fraud or any other acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law or the Articles.
10. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an officer or director of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue for five (5) years thereafter or, if longer, so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status, whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
11. Security. To the extent requested by Indemnitee and approved by the Board of Directors of the Company, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
(a) “Articles” means the memorandum and articles of the Company, as amended, restated or supplemented from time to time.
(b) “Beneficial Owner” means any Person who either exercises control over voting power or investment power, or owns, directly or indirectly, an ownership interests in the Company, or has the right to receive or share in, directly or indirectly, in the profits of the Company whether by agreement, relationship, or other arrangement.
(c) “Board” has the meaning in the recitals to this Agreement.
(d) “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:
(1) Acquisition of Shares by Third Party. Any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;
(2) Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director designated by a Person who entered into a business combination agreement, cease for any reason to constitute at least a majority of the members of the Board;
(3) Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
(4) Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
(5) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the U.S. Securities Exchange Act of 1934, whether or not the Company is then subject to such reporting requirement.
(e) “Corporate Status” describes the status of a person who is or was a director, officer, employee, agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the Company.
(f) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(g) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, officer, employee, agent or fiduciary.
(j) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(k) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(l) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
(m) “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director of the Company, by reason of any action taken by him or of any inaction on his part while acting as an officer or director of the Company, or by reason of the fact that he is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement.
(n) “Enforcement Proceeding” shall mean adjudication or arbitration proceeding initiated by Indemnitee.
14. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable law and the Articles. In the event any provision hereof conflicts with any applicable law or the Articles, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
15. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
16. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
17. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:
| (a) | To<br> Indemnitee at the address set forth below Indemnitee’s signature hereto. |
|---|---|
| (b) | To<br> the Company at: |
| Miluna<br> Acquisition Corp<br><br> <br>12F,<br> No. 43, Cheng Gong Road, Sec 4, Neihu<br><br> <br>Taipei,<br> Taiwan<br><br> <br>Attn:<br> Shang Ju Lin, Chief Executive Officer and Director<br><br> <br>Email:<br> czhang1@gmail.com | |
| (c) | with a copy (which will not constitute notice) to: |
| Hunter<br> Taubman Fischer & Li LLC<br><br> <br>950<br> Third Avenue, 19th Floor<br><br> <br>New<br> York, New York 10022<br><br> <br>Attn:<br> Sally Ying, Esq.<br><br> <br>Email:<br> sally.yin@htflawyers.com |
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
20. Interpretation. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. The words “execution”, “signed”, and “signature” herein shall be deemed to include electronic signatures, including any electronic signatures as defined in the Electronic Transactions Act (Revised) (the “Electronic Signature Act”), or the keeping of records in electronic form including any electronic record, as defined in the Electronic Signature Act, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law, including without limitation the Electronic Signature Act; provided, however that sections 8 and 19(3) of the Electronic Signature Act shall not apply to this agreement or the execution or delivery thereof.
21. Governing Law and Consent to Jurisdiction. This Agreement shall be governed and interpreted in accordance with the laws of the Cayman Islands without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have nonexclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the non-exclusive jurisdiction of such courts.
SIGNATUREPAGE TO FOLLOW
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a deed on and as of the day and year first above written.
| COMPANY | |
|---|---|
| MILUNA ACQUISITION CORP | |
| By: | /s/Shang Ju Lin |
| Name: | Shang<br> Ju Lin |
| Title: | Chief<br> Executive Officer |
| INDEMNITEE | |
| /s/Mei Chi Tsai | |
| Name: | Mei Chi Tsai |
| Address: | |
| c/o<br> Milun Acquisition Corp, 12F, No. 43, | |
| Cheng<br> Gong Road, Sec 4, Neihu, | |
| Taipei,<br> Taiwan | |
| Occupation: | Director |
SignaturePage To Indemnification Agreement
Exhibit 99.1
Miluna Acquisition Corp Announces Pricing of$60,000,000 Initial Public Offering
Taipei, Taiwan. - October 22, 2025 - Miluna Acquisition Corp (Nasdaq: MMTXU) (the “Company”), a Cayman Islands exempted company, announced today that it priced its initial public offering of 6,000,000 units at $10.00 per unit. The units are expected to be listed on the Nasdaq Global Market (“Nasdaq”) and trade under the ticker symbol “MMTXU” beginning on October 23, 2025. Each unit consists of one (1) ordinary share and one (1) redeemable warrant. Once the securities comprising the units begin separate trading, the ordinary shares and warrants are expected to be listed on Nasdaq under the symbols “MMTX” and “MMTXW”, respectively.
D. Boral Capital LLC and ARC Group Securities LLC are acting as joint book-running managers in the offering. The underwriters have been granted a 45-day option to purchase up to an additional 900,000 units offered by the Company to cover over-allotments, if any. The offering is expected to close on October 24, 2025, subject to customary closing conditions. ARC Group Limited acted as financial advisor to the Company.
A registration statement relating to these securities was declared effective by the Securities and Exchange Commission on September 30, 2025. The offering is being made only by means of a prospectus. Copies of the prospectus may be obtained, when available, from D. Boral Capital LLC, 590 Madison Ave., 39th Floor, New York, New York 10022, by telephone at (212) 970-5150 or by email at info@dboralcapital.com or from ARC Group Securities LLC, 398 S Mill Ave, Suite 201B, Tempe, AZ 85281, by email at operations@arc-securities.com. Copies of the registration statement can be accessed through the SEC’s website at www.sec.gov.
This press release shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Miluna Acquisition Corp
Miluna Acquisition Corp is a blank check company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination with one or more businesses or entities. The Company may pursue a business combination with a target in any industry or geographic region that it believes can benefit from the expertise and capabilities of its management team, except that the Company will not pursue a prospective target company based in or having the majority of its operations in the People’s Republic of China.
Forward-Looking Statements
This press release contains statements that constitute “forward-looking statements,” including with respect to the initial public offering and the anticipated use of the net proceeds. No assurance can be given that the offering discussed above will be completed on the terms described, or at all, or that the net proceeds of the offering will be used as indicated. Forward-looking statements are subject to numerous conditions, many of which are beyond the control of the Company, including those set forth in the Risk Factors section of the Company’s registration statement and preliminary prospectus for the Company’s offering filed with the SEC. Copies are available on the SEC’s website, www.sec.gov. The Company expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the Company’s expectations with respect thereto or any change in events, conditions or circumstances on which any statement is based, except as required by law.
Contact:
Czhang Lin
Chief Executive Officer
czhang1@gmail.com
Exhibit 99.2
Miluna Acquisition Corp Announces Closing of$60,000,000 Initial Public Offering
Taipei, Taiwan. - October 24, 2025 - Miluna Acquisition Corp (Nasdaq: MMTXU) (the “Company”), a Cayman Islands exempted company, announced today the closing of its initial public offering of 6,000,000 units at $10.00 per unit. The units are listed on the Nasdaq Global Market (“Nasdaq”) and began trading under the ticker symbol “MMTXU” on October 23, 2025. Each unit consists of one (1) ordinary share and one (1) redeemable warrant. Once the securities comprising the units begin separate trading, the ordinary shares and warrants are expected to be listed on Nasdaq under the symbols “MMTX” and “MMTXW”, respectively.
Concurrently with the closing of the initial public offering, the Company closed on a private placement of 194,100 units at a price of $10.00 per unit, resulting in gross proceeds of $1,941,000. Each private placement unit consists of one (1) ordinary share and one (1) redeemable warrant.
D. Boral Capital LLC and ARC Group Securities LLC are acting as joint book-running managers in the offering. The underwriters have been granted a 45-day option to purchase up to an additional 900,000 units offered by the Company to cover over-allotments, if any. ARC Group Limited acted as financial advisor to the Company. The Company was represented by Hunter Taubman Fischer & Li LLC as its legal counsel, and D. Boral Capital LLC and ARC Group Securities LLC were represented by Baker & Hostetler LLP as their legal counsel.
Of the net proceeds received from the consummation of the initial public offering and simultaneous private placement, $60,000,000 ($10.00 per unit sold in the public offering) was placed in trust. An audited balance sheet of the Company as of October 24, 2025, reflecting receipt of the proceeds upon consummation of the initial public offering and the private placement will be included as an exhibit to a Current Report on Form 8-K to be filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”).
A final prospectus relating to and describing the final terms of the offering has been filed with the SEC. The offering is being made only by means of a prospectus. Copies of the prospectus may be obtained, when available, from D. Boral Capital LLC, 590 Madison Ave., 39th Floor, New York, New York 10022, by telephone at (212) 970-5150 or by email at info@dboralcapital.com or from ARC Group Securities LLC, 398 S Mill Ave, Suite 201B, Tempe, AZ 85281, by email at operations@arc-securities.com. Copies of the final prospectus can also be accessed through the SEC’s website at www.sec.gov.
This press release shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Miluna Acquisition Corp
Miluna Acquisition Corp is a blank check company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination with one or more businesses or entities. The Company may pursue a business combination with a target in any industry or geographic region that it believes can benefit from the expertise and capabilities of its management team, except that the Company will not pursue a prospective target company based in or having the majority of its operations in the People’s Republic of China.
Forward-Looking Statements
This press release contains statements that constitute “forward-looking statements,” including with respect to the initial public offering and the anticipated use of the net proceeds. No assurance can be given that the offering discussed above will be completed on the terms described, or at all, or that the net proceeds of the offering will be used as indicated. Forward-looking statements are subject to numerous conditions, many of which are beyond the control of the Company, including those set forth in the Risk Factors section of the Company’s registration statement and preliminary prospectus for the Company’s offering filed with the SEC. Copies are available on the SEC’s website, www.sec.gov. The Company expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the Company’s expectations with respect thereto or any change in events, conditions or circumstances on which any statement is based, except as required by law.
Contact:
Czhang Lin
Chief Executive Officer
czhang1@gmail.com