NMP 8-K
NMP Acquisition Corp. (NMP)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
Business Combination Agreement
General Description of the Business Combination Agreement
On September 4, 2026, NMP Acquisition Corp., a Cayman Islands exempted company (“NMP”), entered into a Business Combination Agreement (the “Business Combination Agreement”) with GTS Holdings, LLC, a Utah limited liability company (together with its successors, “GTS” or the “Company”), GTS Holdings, Inc., a Nevada corporation (“Pubco”), GTS Merger Sub I, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“NMP Merger Sub”), GTS Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Pubco (“Company Merger Sub” and together with NMP Merger Sub, the “Merger Subs”, and the Merger Subs collectively with Pubco, the “Company Parties”), Streeterville Capital, LLC, a Utah limited liability company and the sole equityholder of the Company (the “Seller”), and Gibson Technical Services, Inc., a Georgia corporation and wholly-owned subsidiary of the Company (“OpCo”).
Pursuant to the Business Combination Agreement and subject to the terms and conditions set forth therein, on the closing (the “Closing”, and the date and time of the Closing, the “Closing Date”) of the transactions contemplated by the Business Combination Agreement (the “Transactions”), (A) NMP Merger Sub will merge with and into NMP, with NMP continuing as the surviving entity and wholly-owned subsidiary of Pubco (the “NMP Merger”), as a result of which all of the NMP securities issued and outstanding as of immediately prior to the effective time of the NMP Merger will be cancelled and extinguished in exchange for the right to receive newly-issued securities of Pubco, as follows: (a) each NMP Class A ordinary share, par value $0.0001 per share (“NMP Class A Ordinary Share”) (including the NMP Class A Ordinary Shares issued upon conversion of each NMP Class B ordinary share, par value $0.0001 per share (“NMP Class B Ordinary Share”)) will be converted into the right to receive one newly-issued share of Pubco Class A common stock, par value $0.0001 per share (“Pubco Class A Common Stock”), and (b) each NMP share right (entitling holders thereof to the right to receive one-fifth (1/5) of one NMP Class A Ordinary Share) (“NMP Share Right”) outstanding as of immediately prior to the Effective Time (as defined below) will be converted into one-fifth (1/5) of one NMP Class A Ordinary Share, and each resulting NMP Class A Ordinary Share will be converted into the right to receive one newly issued share of Pubco Class A Common Stock; and (ii) Company Merger Sub will merge with and into GTS, with GTS continuing as the surviving entity (the “Company Merger” and, together with the NMP Merger, the “Mergers”), and as a result of which each security of the Company outstanding as of immediately prior to the time of effectiveness of the NMP Merger and the Company Merger (the “Effective Time”) shall be cancelled in exchange for the right to receive substantially equivalent securities of Pubco, subject to certain adjustments, as applicable.
Prior to the Effective Time, any Indebtedness (as defined in the Business Combination Agreement) owed by the Company or its direct or indirect subsidiaries, including OpCo (each, a “Target Company” and, collectively, the “Target Companies”) to the Seller in excess of $75,000,000 will be converted into equity interests of the Company.
This debt consists of the following notes (collectively, the “Seller Secured Notes”):
| (i) | the Secured Promissory Note, dated December 9, 2022, issued by Orbital Infrastructure Group, Inc., as borrower, to Seller, as lender, with OpCo as guarantor, in the original aggregate principal amount of $42,113,840.90; |
| (ii) | the Secured Promissory Note, dated as of February 24, 2023, between Orbital Infrastructure Group, Inc., as borrower, to Seller, as lender, with OpCo as guarantor, in the original aggregate principal amount of $14,881,621.34; and |
| (iii) | the Amended and Restated Secured Promissory Note, dated as of March 6, 2023, between Orbital Infrastructure Group, Inc. and OpCo, as borrowers, and Seller, as lender, in the original aggregate principal amount of $20,931,076.84. |
As a result, immediately prior to the Effective Time, the remaining balance of the Seller Secured Notes (up to $75,000,000) will be exchanged pursuant to the terms of the Debt Restructuring (as defined in the Business Combination Agreement) and re-issued to the Seller as a senior secured promissory note to be issued by OpCo in the aggregate principal amount of $75,000,000, pursuant to the Debt Restructuring (the “First Lien Secured Promissory Note”).
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The First Lien Secured Promissory Note and the Line of Credit Agreement, dated October 17, 2023, as amended by the Global Amendment dated March 28, 2024 and Global Amendment #2 dated October 21, 2024, and as may be further amended before the Effective Time to increase the maximum loan amount to up to $7,000,000 (the “Seller Line of Credit”), together with all accrued and unpaid interest thereon, will not exceed $82,000,000 in the aggregate.
As a result of the Company Merger, the issued and outstanding membership interests of the Company (“Company Interests”) as of immediately prior to the Effective Time will be exchanged for (i) newly-issued shares of Pubco Class A Common Stock, entitling holders thereof to one (1) vote per share on all matters on which shares of Pubco Common Stock (as defined below) are entitled to vote in accordance with the terms of the amended and restated articles of incorporation of Pubco to be adopted in connection with the consummation of the Transactions (the “Proposed Articles”); (ii) newly issued shares of Pubco Class B common stock, par value $0.0001 per share (“Pubco Class B Common Stock” and, together with the Pubco Class A Common Stock, “Pubco Common Stock”), which will have economic rights identical to those of the Pubco Class A Common Stock, but the holders thereof will be entitled to twenty (20) votes per share on all matters on which shares of Pubco Common Stock are entitled to vote, subject to the terms of the Proposed Articles, and each of which will be convertible on a one-for-one basis into shares of Pubco Class A Common Stock in accordance with the Proposed Articles; and (iii) newly-issued shares of Series A convertible preferred stock of Pubco, par value $0.0001 per share (“Pubco Preferred Stock”), which shares of Pubco Preferred Stock will not be entitled to vote on any matters on which Pubco Common Stock are entitled to vote in accordance with the Proposed Articles, except as required by the Nevada Revised Statutes. As a result of the Mergers and the other Transactions, NMP and GTS will become wholly-owned subsidiaries of Pubco, all upon the terms and subject to the conditions set forth in the Business Combination Agreement, and Pubco will become a publicly traded company.
Consideration
The aggregate consideration to be delivered to the Seller as of the Effective Time (the “Merger Consideration”) will be a number of newly issued shares of Pubco Common Stock and Pubco Preferred Stock with an aggregate value equal to Four Hundred Million U.S. Dollars ($400,000,000) (the “Enterprise Value”) minus the sum of (i) the outstanding balance payable by OpCo to Seller under the Seller Secured Notes (which shall have been exchanged pursuant to the terms of the Debt Restructuring and re-issued to the Seller pursuant to the terms of the First Lien Secured Promissory Note) and the Seller Line of Credit as of immediately prior to the Effective Time, in an amount up to Eighty-Two Million Dollars ($82,000,000), plus (ii) any additional amounts advanced by Seller to Pubco or OpCo under the Seller Line of Credit following the date of the Business Combination Agreement and prior to the Closing (the amounts under (i) and (ii) collectively, the “Retained Seller Debt Value”) (the difference being the “Equity Consideration Value”), consisting of (i) newly issued shares of Pubco Class A Common Stock equal to the quotient obtained by dividing (x) ninety-five percent (95%) of the amount equal to the Equity Consideration Value minus Seventy-Five Million U.S. Dollars ($75,000,000) (the “Pubco Common Stock Consideration”) by (y) Ten Dollars ($10.00), (ii) newly issued shares of Pubco Class B Common Stock equal to the quotient obtained by dividing (x) five percent (5%) of the amount equal to the Pubco Common Stock Consideration by (y) Ten Dollars ($10.00), and (iii) Seventy-Five Thousand (75,000) newly issued shares of Pubco Preferred Stock, calculated by dividing Seventy-Five Million U.S. Dollars ($75,000,000) by One Thousand Dollars ($1,000).
Representations and Warranties
The Business Combination Agreement contains representations and warranties that are reasonably customary for similar transactions that are made by the parties as of the date of the Business Combination Agreement, or other specified dates, solely for the benefit of certain of the parties to the Business Combination Agreement, and in certain cases are subject to specified exceptions and materiality, Material Adverse Effect (as defined below), knowledge and other qualifications contained in the Business Combination Agreement or in information provided pursuant to certain disclosure schedules to the Business Combination Agreement. “Material Adverse Effect” means, with respect to any specified person or entity, any fact, event, occurrence, change or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, liabilities, results of operations, prospects or condition (financial or otherwise) of such person or entity and its subsidiaries, taken as a whole, or (b) the ability of such person or entity or any of its subsidiaries on a timely basis to consummate the transactions contemplated by the Business Combination Agreement or the ancillary documents to which it is a party or bound or to perform its obligations thereunder, in each case subject to certain customary exceptions.
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No Survival
The representations and warranties of the parties contained in the Business Combination Agreement terminate as of, and do not survive, the Closing, and there are no indemnification rights for another party’s breach. The covenants and agreements of the parties contained in the Business Combination Agreement do not survive the Closing, except those covenants and agreements to be performed after the Closing, which covenants and agreements will survive until fully performed.
Covenants of the Parties
Each party to the Business Combination Agreement has agreed to use its commercially reasonable efforts, and to cooperate fully with one another, to consummate the Transactions. The Business Combination Agreement also contains certain customary covenants by each of the parties that apply during the period between the signing of the Business Combination Agreement and the earlier of the Closing or the termination of the Business Combination Agreement (the “Interim Period”), including (i) the provision of access to the applicable party’s properties, books and personnel; (ii) the operation of the parties’ respective businesses in the ordinary course of business; (iii) the current and timely filing of NMP’s public filings; (iv) no insider trading; (v) notifications to the other parties of certain breaches, consent requirements and other matters; (vi) obtaining third party and regulatory approvals; (vii) tax matters; (viii) further assurances; (ix) public announcements; (x) confidentiality; and other covenants. The Business Combination Agreement also contains certain customary post-Closing covenants, including, without limitation, in regard to (1) tax matters; (2) the maintenance of books and records; and (3) the indemnification of directors and officers. Additionally:
Each of NMP and GTS will not solicit or enter into a competing alternative transaction, in accordance with customary terms and provisions set forth in the Business Combination Agreement.
NMP will not approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition proposal (as defined in the Business Combination Agreement), or otherwise change, withdraw, withhold, qualify or modify its recommendation to its shareholders for approval of the Business Combination Agreement and the Transactions (a “Change in Recommendation”); provided, however, that if at any time prior to (but not after) obtaining the approval of NMP shareholders, the NMP board of directors determines in good faith, in response to an Intervening Event (as defined in the Business Combination Agreement) after consultation with its outside legal counsel, that the failure to make a Change in Recommendation would be a breach of its fiduciary duties under applicable law, then the board may make a Change in Recommendation, provided that NMP delivers, pursuant to procedures set forth in the Business Combination Agreement, written notice advising GTS that the NMP board of directors proposes to take such action and containing the material facts underlying the board’s determination. If requested by GTS, NMP will use its reasonable best efforts to engage in good faith negotiations with GTS to make adjustments in the terms and conditions of the Business Combination Agreement that obviate the need for a Change in Recommendation.
GTS will deliver to NMP financial statements of Pubco and the Target Companies audited by a PCAOB-qualified auditor in accordance with PCAOB auditing standards, accompanied by an unqualified opinion of the auditor thereon (collectively, the “Audited Financials”), on the earliest to occur of (a) September 19, 2026 and (b) the date that is fifteen (15) days from the date of the Business Combination Agreement or such later date as determined by NMP in its sole discretion (the “Audit Delivery Date”). In addition, GTS will deliver to NMP unaudited monthly and quarterly financial information of the Target Companies through the Closing Date and Pubco will deliver to NMP Pubco’s interim financial statements for such periods as required by applicable law or SEC Guidance to be included in the Registration Statement (as defined below).
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Within five (5) business days following the Audit Delivery Date, NMP, GTS, OpCo and Pubco will prepare and file with the U.S. Securities and Exchange Commission (the “SEC”), a registration statement on Form S-4 (as it may be amended from time to time, the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the securities of Pubco to be issued pursuant to the Transactions, and containing a proxy statement/prospectus for the solicitation of proxies from NMP shareholders to approve the Business Combination Agreement, the Transactions and related matters at an extraordinary general meeting in lieu of an annual meeting of NMP’s shareholders, and providing NMP’s public shareholders with an opportunity to request redemption of their public shares in connection with the Transactions (the “Redemption”), as required by NMP’s amended and restated memorandum and articles of association (the “Current Charter”) and final prospectus for NMP’s initial public offering dated June 30, 2025 (the “IPO Prospectus”).
At the request of NMP, GTS shall make the members of its management reasonably available to participate in management presentations, “road shows,” rating agency presentations, meetings with financing sources and similar events in connection with obtaining the approval of NMP shareholders, any “share recycling” efforts by NMP and the obtaining of any debt or equity financing, ratings or governmental or other third-party approvals.
The parties shall take all action necessary so that, effective at the Closing, the post-Closing board of directors of Pubco will consist of five (5) individuals, one (1) of whose members will be designated by NMP, who will be Nadir Ali, and four (4) of whose members will be designated by GTS, one of whom will be Michael McCracken and at least three (3) of whom will be independent directors in accordance with the requirements of The Nasdaq Stock Market LLC (“Nasdaq”). The parties shall also take all action necessary so that, immediately after the Closing, Nadir Ali will serve as the chief executive officer of Pubco, and a person designated by GTS shall serve as the chief financial officer.
Conditions to Closing
The obligations of the parties to consummate the Transactions are subject to various conditions, including the following mutual conditions of the parties, unless waived: (i) the approval of the Business Combination Agreement and the Transactions and related matters by the requisite vote of each of NMP’s shareholders and GTS’s members; (ii) the expiration or termination of any waiting period applicable to the consummation of the Business Combination Agreement under any antitrust laws; (iii) obtaining material regulatory approvals; (iv) no law or order preventing or prohibiting the Transactions; (v) appointment of the Post-Closing Board and executive officers consistent with the requirements of the Business Combination Agreement; (vi) the effectiveness of the Registration Statement; (vii) Pubco shall have filed the Certificate of Designation (as defined below), (viii) Pubco shall have amended and restated its articles of incorporation in a form satisfactory to NMP and GTS; (ix) Pubco Class A Common Stock shall have been approved for listing on Nasdaq upon the Closing; (x) Pubco shall have adopted, on or prior to the Closing, an equity incentive plan in a form satisfactory to NMP and GTS, and which will provide for awards for a number of shares of Pubco Class A Common Stock equal to fifteen (15%) of the aggregate number of shares of Pubco Common Stock issued and outstanding immediately after the Closing (after giving effect to the Redemption); (xi) the At-Risk Capital Investors (as defined below) and the OpCo Management Lock-Up Holders (as defined below) shall have entered into their respective Lock-Up Agreements (as defined below); and (xii) Pubco shall have duly executed and delivered to NMP and the other parties thereto, a joinder to the IPO Underwriting Agreement, in a form satisfactory to NMP, pursuant to which Pubco will become a party and assume all of NMP’s obligations under the IPO Underwriting Agreement.
In addition, unless waived by GTS, the obligations of the Company Parties to consummate the Transactions are subject to the satisfaction of the following closing conditions, in addition to customary certificates and other closing deliveries: (i) the representations of NMP relating to organization and standing, authorization, non-contravention, capitalization (other than the first sentence of such representation in the Business Combination Agreement) and finders and brokers being true and correct in all material respects on and as of the date of the Business Combination Agreement and as of the Closing Date; (ii) the representations and warranties of NMP set forth in the first sentence of the capitalization representation being true and correct in all respects (except for de minimis inaccuracies) on and as of the date of the Business Combination Agreement and as of the Closing Date; (iii) all other representations and warranties of NMP being true and correct (without giving effect to any limitations as to “materiality” or any similar limitation set forth herein) in all respects on and as of the date of the Business Combination Agreement and as of the Closing Date, as though made on and as of the Closing Date, except where the failure of such representations and warranties to be true and correct, individually and in the aggregate has not had a Material Adverse Effect (as defined in the Business Combination Agreement); (iv) NMP having performed in all material respects its obligations and complied in all material respects with the covenants and agreements under the Business Combination Agreement required to be performed or complied with by NMP on or prior to the Closing Date; (v) each Amended Registration Rights Agreement (as defined below) being in full force and effect as of the Closing; and (vi) NMP shall have procured the written consent of the holders of a majority of the outstanding NMP Class B ordinary shares waiving adjustments to the initial conversion ratio applicable to the NMP Class B ordinary shares, in accordance with NMP’s Current Charter.
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Unless waived by NMP, the obligations of NMP to consummate the Transactions are subject to the satisfaction of the following closing conditions, in addition to customary certificates and other closing deliveries: (i) the representations of the Target Companies relating to organization and standing, authorization, non-contravention, capitalization (other than the first sentence of such representation in the Business Combination Agreement) and finders and brokers being true and correct (without giving effect to any limitation as to “materiality” set forth therein) in all material respects on and as of the date of the Business Combination Agreement and as of the Closing Date; (ii) the representations and warranties set forth in the first sentence of the capitalization representation being true and correct in all respects on and as of the date of the Business Combination Agreement and as of the Closing Date; (iii) all other representations and warranties of the Target Companies and the Company Parties being true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth herein) in all respects on and as of the date of the Business Combination Agreement and on and as of the Closing Date, except where the failure of such representations and warranties to be true and correct, individually and in the aggregate has not had a Material Adverse Effect; (iv) the Company Parties having performed in all material respects all of their respective obligations and complied in all material respects with all of their agreements and covenants under the Business Combination Agreement required to be performed or complied with on or prior to the Closing Date; (v) absence of any Material Adverse Effect with respect to the Target Companies since the date of the Business Combination Agreement; (vi) each Lock-Up Agreement and each Amended Registration Rights Agreement being in full force and effect as of the Closing; (vii) NMP and Pubco having received resignations, in each case effective as of the Closing, in form and substance acceptable to NMP, between each of the directors, managers and/or officers (as applicable) of Pubco, GTS and OpCo, as requested by NMP prior to Closing; (viii) NMP and Pubco having received employment agreements, in each case effective as of the Closing, in form and substance reasonable to NMP, between certain employees and Pubco, and each such employment agreement duly executed by the parties thereto; (ix) the Debt Restructuring shall have been completed in accordance with the terms of the Debt Restructuring Documents (as defined in the Business Combination Agreement); and (x) GTS shall have delivered to NMP evidence that consents from certain other parties have been received.
Termination
The Business Combination Agreement may be terminated at any time prior to the Closing by either NMP or GTS if the Closing does not occur by December 31, 2026, or January 31, 2027, if extended pursuant to the terms of the Business Combination Agreement and the Current Charter, or such later date as may be agreed by NMP and GTS.
The Business Combination Agreement may also be terminated under certain other customary and limited circumstances at any time prior the Closing, including, among other reasons: (i) by mutual written consent of NMP and GTS; (ii) by written notice by either NMP or GTS to the other if a governmental authority of competent jurisdiction shall have issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transactions, and such order or other action has become final and non-appealable; (iii) by GTS for NMP’s uncured material breach of the Business Combination Agreement, such that the related closing condition would not be met; (iv) by NMP for GTS’s uncured material breach of the Business Combination Agreement, such that the related closing condition would not be met; (v) by NMP, if there shall have been a Material Adverse Effect on the Target Companies following the date of the Business Combination Agreement which is uncured and continuing; (vi) by either GTS or NMP if NMP holds its shareholder meeting to approve the Business Combination Agreement and the Transactions, and such approval is not obtained; and (vii) by written notice from NMP to GTS if GTS has not delivered the Audited Financials on or before the Audit Delivery Date.
If the Business Combination Agreement is terminated, all further obligations of the parties under the Business Combination Agreement (except for certain obligations related to confidentiality, effect of termination, fees and expenses, trust fund waiver, and customary miscellaneous provisions) will terminate, and no party to the Business Combination Agreement will have any further liability to any other party thereto except for liability for fraud or for willful breach of the Business Combination Agreement prior to such termination.
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Trust Account Waiver
GTS, Pubco and the Merger Subs agreed that they and their affiliates will not have any right, title, interest or claim of any kind in or to any monies in NMP’s trust account held for its public shareholders, and has agreed not to, and waived any right to, make any claim against the trust account (including any distributions therefrom).
Governing Law
The Business Combination Agreement is governed by New York law, provided that matters that are required to be governed by the laws of the Cayman Islands (including, without limitation, in respect of the NMP Merger and the exercise of appraisal and dissenters’ rights and the fiduciary duties that may apply to the directors and officers of the parties) shall be governed by the laws of the Cayman Islands and, the parties are subject to exclusive jurisdiction of federal and state courts located in New York, NY (and any appellate courts thereof).
Related Agreements
Lock-Up Agreements
Simultaneously with the execution of the Business Combination Agreement, the Seller and Next Move Capital LLC (the “Sponsor”)(collectively, the “Lock-Up Holders”) entered into Lock-Up Agreements (the Lock-Up Agreements entered into by the Lock-Up Holders , the “Management Lock-Up Agreements”).
In accordance with the Management Lock-Up Agreements, each Lock-Up Holder agreed not to (i) lend, offer, pledge, hypothecate, encumber, donate, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Pubco Common Stock to be received by such Lock-Up Holder in the Transactions, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such shares of Pubco Common Stock, or (iii) publicly disclose the intention to do any of the foregoing, for a period commencing from the Closing and ending on the date that is 6 months after the Closing (subject to early release on the earlier upon (x) the date on which the volume-weighted average trading price of Pubco Class A Common Stock quoted on Nasdaq (or such other exchange on which the Pubco Class A Common Stock may then be listed) is greater than or equal to $12.00 for any 20 trading days within any 30 consecutive trading day period beginning on the day of Closing and (y) the date after the Closing on which Pubco consummates a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of its stockholders having the right to exchange their Pubco Common Stock, securities, or other property) (such early release events, an “Early Release Event”), subject to certain customary transfer exceptions. Following an Early Release Event, a Lock-Up Holder may, on any trading day, transfer or otherwise dispose of a number of Restricted Securities (as defined in the Management Lock-Up Agreement) not to exceed the greater of (i) two percent (2.0%) of the daily trading volume of Pubco Class A Common Stock for the twenty (2) trading days immediately preceding such sale, or (ii) two percent (2.0%) of the trading volume of Pubco Class A Common Stock for such trading day, in each case as reported on Nasdaq.
Maxim Group LLC (“Maxim”), simultaneously with the execution of the Business Combination Agreement, also entered into a substantially similar lock-up agreement (the “IPO Underwriters Lock-Up Agreement”), except that Maxim (together with their affiliates) may, on any trading day, sell, transfer or otherwise dispose of a number of Restricted Securities (as defined in the IPO Underwriters Lock-Up Agreement) not to exceed four percent (4%) of the trading volume of Pubco Class A Common Stock for such trading day, as reported on Nasdaq.
In addition, in accordance with the Business Combination Agreement, prior to the Closing, (i) the members of management of OpCo (the “OpCo Management Lock-Up Holders”) will each enter into a lock-up agreement in the same form as the Management Lock-Up Agreements (the “OpCo Management Lock-Up Agreements”) and (ii) certain third-party investors, including individuals who are registered persons of Maxim (collectively, the “At-Risk Capital Investors”), will each enter into a lock-up agreement in the same form as the Management Lock-Up Agreements (the “At-Risk Investor Lock-Up Agreements,” and together with the Management Lock-Up Agreements, the IPO Underwriters Lock-Up Agreement and the OpCo Management Lock-Up Agreements, the “Lock-Up Agreements”).
Copies of the form of the Management Lock-Up Agreement and IPO Underwriters Lock-Up Agreement are attached as Exhibits 10.1 and 10.2, respectively, hereto and are incorporated herein by reference.
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Insider Letter Amendment
Simultaneously with the execution of the Business Combination Agreement, NMP, Pubco and GTS, on the one hand, and the Sponsor and NMP’s directors and officers, on the other hand, entered into an amendment, acknowledged and agreed to by Maxim (the “Insider Letter Amendment”) to the letter agreement that was entered into in connection with NMP’s initial public offering (the “Insider Letter”) to (i) add Pubco and GTS as parties to the Insider Letter, (ii) revise the terms of the Insider Letter to reflect the Transactions, including the issuance of Pubco securities in exchange for NMP securities, and have Pubco assume and be assigned the rights and obligations of NMP under the Insider Letter, and (iii) amend the terms of the lock-up set forth in the Insider Letter to conform with the lock-up terms in the Lock-Up Agreements described above, subject to and contingent upon the Closing. A copy of the Insider Letter Amendment is attached as Exhibit 10.3 hereto and is incorporated herein by reference.
Subscription Agreement Amendment
Prior to the Closing, NMP, the Sponsor, Pubco and GTS, on the one hand, and each At-Risk Capital Investor, on the other hand, will each enter into an amendment (each, a “Subscription Agreement Amendment”), to the subscription agreements that were entered into in connection with NMP’s initial public offering (the “Subscription Agreements”) to (i) add Pubco and GTS as parties to the Subscription Agreements, (ii) to revise the terms of Subscription Agreements to reflect the Transactions, including the issuance of Pubco securities in exchange for NMP securities, and have Pubco assume and be assigned the rights and obligations of NMP under the Subscription Agreements, and (iii) amend the terms of the lock-up set forth in the Subscription Agreements to conform with the lock-up terms in the At-Risk Capital Investor Lock-Up Agreements described above, subject to and contingent upon the Closing. A copy of the form of the Subscription Agreement Amendment is attached as Exhibit 10.4 hereto and is incorporated herein by reference.
Amended and Restated Registration Rights Agreement
Prior to the Closing, NMP and Pubco, on the one hand, and each of the Sponsor, the At-Risk Capital Investors, the Seller and Maxim, on the other hand, will each enter into an amended and restated registration rights agreement (each, an “Amended Registration Rights Agreement”) that will amend and restate each registration rights agreement entered into at the time of NMP’s initial public offering with the Sponsor, the At-Risk Capital Investors and Maxim, pursuant to which (i) Pubco will assume the registration obligations of NMP under each such registration rights agreement, with such rights applying to the Pubco Common Stock, Pubco Preferred Stock and Pubco Class A Common Stock issuable upon conversion of the Pubco Preferred Stock and (ii) the Sponsor, the At-Risk Capital Investors, the Seller and Maxim will each be granted equal registration rights thereunder. A copy of the form of Amended Registration Rights Agreement is attached as Exhibit 10.5 hereto and is incorporated herein by reference.
Certificate of Designation
Prior to the Closing, Pubco will file a Certificate of Designation of Preferences and Rights of Series A Convertible Preferred Stock (the “Certificate of Designation”) with the Secretary of State of the State of Nevada, designating shares of preferred stock as Pubco Preferred Stock, each with a stated value of $1,000.00 (the “Stated Value”).
Ranking. Except as consented to by holders of at least a majority of the outstanding Pubco Preferred Stock (the “Required Holders”), the Pubco Preferred Stock will rank senior to all other Pubco capital stock, including the Pubco Common Stock, as to dividends, distributions and payments upon liquidation, dissolution or winding up.
Preferred Return. Each share of Pubco Preferred Stock will accrue a preferred return on the Stated Value at 9% per annum (increasing to 12% per annum following an uncured event of default), payable quarterly, on a date specified by Pubco’s board of directors, which date shall be no later than thirty (30) days following the end of each calendar quarter, in cash or in additional shares of Pubco Preferred Stock.
Conversion. Each share of Pubco Preferred Stock will be convertible at the holder’s option at any time into Pubco Class A Common Stock at an initial conversion price of $12.00 per share (subject to customary anti-dilution adjustments), based on the Stated Value plus accrued and unpaid preferred return, divided by the conversion price then in effect, subject to a 9.99% beneficial ownership limitation.
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Liquidation Preference. Upon a liquidation, dissolution or winding up, holders of Pubco Preferred Stock will receive, before any distribution to holders of Pubco Common Stock, the Stated Value plus accrued and unpaid preferred return. The Pubco Preferred Stock will not otherwise participate in distributions to Pubco Common Stock.
Redemption. Pubco may elect, in its sole discretion, to redeem all or part of the outstanding Pubco Preferred Stock at any time for cash at 100% of the then-applicable liquidation preference.
Voting Rights; Protective Provisions. The Pubco Preferred Stock generally will have no voting rights, except that Pubco may not amend the Certificate of Designation, and, for so long as any Pubco Preferred Stock remains outstanding, may not, among other things, without the Required Holders’ prior written consent: (i) incur indebtedness outside the ordinary course of business; (ii) issue additional Pubco Preferred Stock (other than to the initial holder), or any senior or parity preferred stock; (iii) issue Pubco Class A Common Stock (or convertible securities) below the then-applicable conversion price, subject to customary exceptions (including equity compensation plans and ATM offerings capped at $10,000,000 in the aggregate); (iv) pledge its assets, subject to customary exceptions; (v) dispose of material assets; or (vi) consummate a Fundamental Transaction (as defined in the Certificate of Designation) unless the Pubco Preferred Stock is redeemed in full concurrently.
Events of Default. Upon an uncured covenant breach, a payment or issuance default, or certain bankruptcy-related events, the Stated Value will automatically increase by 5%, and the Required Holders may force Pubco to redeem all outstanding Pubco Preferred Stock in cash at the increased Stated Value plus accrued and unpaid preferred return, in addition to other available remedies.
A copy of the form of Certificate of Designation is attached as Exhibit 4.1 hereto and is incorporated herein by reference.
The Business Combination Agreement and other agreements described above have been included to provide investors with information regarding their respective terms. They are not intended to provide any other factual information about NMP, GTS, or the other parties thereto. In particular, the assertions embodied in the representations and warranties in the Business Combination Agreement were made as of a specified date, are modified or qualified by information in one or more confidential disclosure schedules prepared in connection with the execution and delivery of the Business Combination Agreement, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Business Combination Agreement are not necessarily characterizations of the actual state of facts about NMP, GTS or the other parties thereto at the time they were made or otherwise and should only be read in conjunction with the other information that NMP makes publicly available in reports, statements and other documents filed with the SEC. NMP and GTS investors and securityholders are not third-party beneficiaries under the Business Combination Agreement and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Business Combination Agreement.
The foregoing descriptions of agreements and the transactions and documents contemplated thereby are not complete and are subject to and qualified in their entirety by reference to the Business Combination Agreement, form of Certificate of Designation, form of Lock-Up Agreement, Insider Letter Amendment, form of Subscription Agreement Amendment, and form of Amended Registration Rights Agreement, copies of which are filed with this Current Report on Form 8-K as Exhibits 2.1, 4.1, 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and the terms of which are incorporated by reference herein.
Item 7.01 Regulation FD Disclosure.
On September 8, 2026, NMP issued a press release announcing the entry into the Business Combination Agreement, a copy of which is furnished herewith as Exhibit 99.1.
The information in this Item 7.01, including Exhibit 99.1 attached hereto, will not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor be deemed incorporated by reference in any filing under the Securities Act, or the Exchange Act, except as expressly set forth by specific reference in such filing.
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Additional Information and Where to Find It
Pubco and GTS intend to file the Registration Statement with the SEC, which will include a preliminary proxy statement of NMP and a prospectus (the “Proxy Statement/Prospectus”) in connection with the extraordinary meeting of NMP’s shareholders to approve the Transactions. The definitive proxy statement and other relevant documents will be mailed to shareholders of NMP as of a record date to be established for voting on the Transactions and other matters as described in the Proxy Statement/Prospectus. NMP, GTS and/or Pubco will also file other documents regarding the Transactions with the SEC. This Current Report on Form 8-K does not contain all of the information that should be considered concerning the Transactions and is not intended to form the basis of any investment decision or any other decision in respect of the Transactions. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, SHAREHOLDERS OF NMP AND OTHER INTERESTED PARTIES ARE URGED TO READ, WHEN AVAILABLE, THE PRELIMINARY PROXY STATEMENT/PROSPECTUS, AND AMENDMENTS THERETO, AND THE DEFINITIVE PROXY STATEMENT/PROSPECTUS AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC IN CONNECTION WITH NMP’S SOLICITATION OF PROXIES FOR THE EXTRAORDINARY GENERAL MEETING OF ITS SHAREHOLDERS TO BE HELD TO APPROVE THE TRANSACTIONS AND OTHER MATTERS AS DESCRIBED IN THE PROXY STATEMENT/PROSPECTUS BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT NMP, GTS, PUBCO AND THE TRANSACTIONS. Investors and security holders will also be able to obtain copies of the Registration Statement and the Proxy Statement/Prospectus and all other documents filed or that will be filed with the SEC by NMP and Pubco, without charge, once available, on the SEC’s website at www.sec.gov or by directing a request to: NMP Acquisition Corp., 555 Bryant Street, No. 590, Palo Alto, CA 94301; or upon written request to GTS Holdings, Inc. at 230 Mountain Brook Ct., Canton, GA 30115, respectively.
NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF THE TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS CURRENT REPORT ON FORM 8-K. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
Participants in the Solicitation
NMP, GTS, OpCo, Pubco and their respective directors, executive officers, certain of their equity holders and other members of management and employees may be deemed under SEC rules to be participants in the solicitation of proxies from NMP’s shareholders in connection with the Transactions. A list of the names of such persons, and information regarding their interests in the Transactions and their ownership of NMP’s securities are, or will be, contained in NMP’s filings with the SEC, including the IPO Prospectus. Additional information regarding the interests of the persons who may, under SEC rules, be deemed participants in the solicitation of proxies of NMP’s shareholders in connection with the Transactions, including the names and interests of OpCo’s, GTS’s and Pubco’s respective directors or managers and executive officers, will be set forth in the Registration Statement and Proxy Statement/Prospectus, which is expected to be filed by Pubco and NMP with the SEC. Investors and security holders may obtain free copies of these documents as described above.
No Offer or Solicitation
This Current Report on Form 8-K and the information contained herein is for informational purposes only and is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the potential transactions and shall not constitute an offer to sell or exchange, or a solicitation of an offer to buy or exchange the securities of NMP, GTS or Pubco, or any commodity or instrument or related derivative of NMP or Pubco, nor shall there be any sale of any such securities, commodities, instruments or related derivatives in any state or jurisdiction in which such offer, solicitation, sale or exchange would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities, commodities, instruments or derivatives shall be made except by means of a prospectus meeting the requirements of the Securities Act or an exemption therefrom. Investors should consult with their counsel as to the applicable requirements for a purchaser to avail itself of any exemption under the Securities Act.
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Forward-Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of the U.S. federal securities laws with respect to the Business Combination involving Pubco, GTS, OpCo, and NMP, including expectations, hopes, beliefs, intentions, plans, prospects, financial results or strategies regarding GTS, OpCo, Pubco, NMP and the Business Combination, statements regarding the anticipated benefits and timing of the completion of the Business Combination, the assets that may be held by GTS and Pubco and the value thereof, Pubco’s listing on any securities exchange, the anticipated business of Pubco, plans and use of proceeds, objectives of management for future operations of Pubco, the upside potential and opportunity for investors, Pubco’s plan for value creation and strategic advantages, market size and growth opportunities, regulatory conditions, technological and market trends, future financial condition and performance and expected financial impacts of the Business Combination, the satisfaction of closing conditions to the Business Combination and the level of redemptions of NMP’s public shareholders, and Pubco’s expectations, intentions, strategies, assumptions or beliefs about future events, results of operations or performance or that do not solely relate to historical or current facts. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “potential,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are predictions, projections and other statements about future events or conditions that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties.
Many factors could cause actual future events to differ materially from the forward-looking statements in this communication, including, but not limited to: the risk that the Business Combination may not be completed in a timely manner or at all, which may adversely affect the price of NMP’s securities; the risk that the Business Combination may not be completed by NMP’s business combination deadline; the failure by the parties to satisfy the conditions to the consummation of the Business Combination, including the approval of NMP’s shareholders; failure to realize the anticipated benefits of the Business Combination; the level of redemptions of NMP’s public shareholders which may reduce the public float of, reduce the liquidity of the trading market of, and/or maintain the quotation, listing, or trading of the Class A ordinary shares of NMP or the Pubco Class A Common Stock to be listed in connection with the Business Combination; the insufficiency of the third-party fairness opinion for the board of directors of NMP in determining whether or not to pursue the Business Combination; the failure of Pubco to obtain or maintain the listing of its securities on any securities exchange after the closing of the Business Combination; matters discovered by the parties in the course of their respective due diligence investigations of one another; the ability of NMP or Pubco to issue equity or equity-linked securities in connection with the Transactions or in the future; risks associated with NMP, GTS and Pubco’s ability to consummate the Business Combination timely or at all, including in connection with potential regulatory delays or impediments, costs related to the Business Combination and as a result of becoming a public company; changes in business, market, financial, political and regulatory conditions; risks relating to Pubco’s anticipated operations and business; the availability of capital to carry out GTS’ business plans; GTS’ potential inability to generate significant revenues and achieve profitability; the ability of GTS to retain customers and other material business relationships and attract new business partners in the future; customer concentration; the potential inability of GTS to manage growth effectively; risks related to increased competition in the industries in which Pubco will operate; the ability to recruit, train and retain qualified personnel; risks related to supply or labor shortages or a potential inability to keep pace with product or marketplace innovations; risks related to GTS’ marketing and growth strategies; risks related to the ability of GTS and Pubco to execute their business plans; challenges in implementing Pubco’s business plan; significant competition and regulation; risks associated with the possibility of Pubco being considered to be a “shell company” by any stock exchange on which Pubco Class A Common Stock will be listed or by the SEC, which may impact Pubco’s ability to list Pubco Class A Common Stock and restrict reliance on certain rules or forms in connection with the offering, sale or resale of securities, which could impact materially the time, cost and ability of Pubco to raise capital after the closing of the Business Combination; the outcome of any potential legal proceedings that may be instituted against Pubco, GTS, NMP or others in connection with or following announcement of the Business Combination, and those risk factors discussed in documents that Pubco and/or NMP filed, or that will be filed, with the SEC, including as will be set forth in the Registration Statement to be filed with the SEC in connection with the Business Combination.
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The foregoing list of risk factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the IPO Prospectus, NMP’s Quarterly Reports on Form 10-Q and NMP’s Annual Reports on Form 10-K that will be filed by NMP from time to time, the Registration Statement that will be filed by Pubco and NMP and the Proxy Statement/Prospectus contained therein, and other documents that have been or will be filed by NMP and Pubco from time to time with the SEC. These filings do or will identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. There may be additional risks that neither NMP nor Pubco presently know or that NMP and Pubco currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements.
Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and each of NMP, OpCo, GTS, and Pubco assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. None of NMP, OpCo, GTS, or Pubco gives any assurance that any of NMP, OpCo, GTS or Pubco will achieve their respective expectations. The inclusion of any statement in this Current Report on Form 8-K does not constitute an admission by NMP, OpCo, GTS or Pubco or any other person that the events or circumstances described in such statement are material.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| * | The exhibits and schedules to this Exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. The Registrant agrees to furnish supplementally to the SEC a copy of all omitted exhibits and schedules upon its request. |
| † | Certain personally identifiable information has been omitted from this Exhibit pursuant to Item 601(a)(6) of Regulation S-K. |
| ** | Furnished herewith. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NMP Acquisition Corp. | ||
| By: | /s/ Melanie Figueroa | |
| Name: | Melanie Figueroa | |
| Title: | Chief Executive Officer and Director | |
| Date: September 8, 2026 | ||
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Exhibit 2.1
BUSINESS COMBINATION AGREEMENT
by and among
NMP Acquisition Corp.,
as SPAC,
GTS Holdings, Inc.,
as Pubco,
GTS Merger Sub I,
as SPAC Merger Sub,
GTS Merger Sub II, LLC,
as Company Merger Sub,
GTS Holdings, LLC,
as the Company,
Streeterville Capital, LLC,
as the Seller,
and
Gibson Technical Services, Inc.,
as GTS
Dated as of September 4, 2026
TABLE OF CONTENTS
| Page | |
| ARTICLE I MERGER | 3 |
| 1.1 | The SPAC Merger | 3 |
| 1.2 | The Company Merger | 3 |
| 1.3 | Effective Time | 4 |
| 1.4 | Effect of the Mergers | 4 |
| 1.5 | Governing Documents | 4 |
| 1.6 | Directors, Managers and Officers of Pubco and the Surviving Subsidiaries | 5 |
| 1.7 | Merger Consideration | 5 |
| 1.8 | Effect of SPAC Merger on Issued and Outstanding Securities of SPAC and SPAC Merger Sub | 5 |
| 1.9 | Effect of Company Merger on Issued Securities of the Company and Company Merger Sub | 7 |
| 1.10 | Effect of Mergers on Issued and Outstanding Securities of Pubco | 7 |
| 1.11 | Intended Tax Treatment | 7 |
| 1.12 | Transfer Agent Matters | 8 |
| 1.13 | Taking of Necessary Action; Further Action | 8 |
| 1.14 | SPAC Merger – Dissenter’s Rights | 9 |
| ARTICLE II CLOSING | 10 |
| 2.1 | Closing | 10 |
| ARTICLE III REPRESENTATIONS AND WARRANTIES OF SPAC | 10 |
| 3.1 | Organization and Standing | 10 |
| 3.2 | Authorization; Binding Agreement | 10 |
| 3.3 | Governmental Approvals | 11 |
| 3.4 | Non-Contravention | 11 |
| 3.5 | Capitalization | 12 |
| 3.6 | SEC Filings and SPAC Financials | 13 |
| 3.7 | Absence of Certain Changes | 14 |
| 3.8 | Compliance with Laws | 14 |
| 3.9 | Actions; Orders; Permits | 14 |
| 3.10 | Taxes and Returns | 14 |
| 3.11 | Employees and Employee Benefit Plans | 15 |
| 3.12 | Properties | 15 |
| 3.13 | Material Contracts | 15 |
| 3.14 | Transactions with Affiliates | 16 |
| 3.15 | Investment Company Act | 16 |
| 3.16 | Finders and Brokers | 16 |
| 3.17 | Certain Business Practices | 16 |
| 3.18 | SPAC Trust Account | 17 |
| 3.19 | Exclusivity of Representations | 17 |
| 3.20 | Information Supplied | 18 |
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| ARTICLE IV REPRESENTATIONS AND WARRANTIES OF COMPANY, SELLER, PUBCO AND THE MERGER SUBS | 19 |
| 4.1 | Organization and Standing | 19 |
| 4.2 | Authorization; Binding Agreement | 19 |
| 4.3 | Governmental Approvals | 20 |
| 4.4 | Non-Contravention | 20 |
| 4.5 | Capitalization | 20 |
| 4.6 | Ownership of Pubco Common Stock | 21 |
| 4.7 | Ownership of Company Interests | 21 |
| 4.8 | Pubco and Merger Sub Activities | 21 |
| ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 21 |
| 5.1 | Organization and Standing | 21 |
| 5.2 | Authorization; Binding Agreement | 22 |
| 5.3 | Capitalization | 22 |
| 5.4 | Subsidiaries | 23 |
| 5.5 | Governmental Approvals | 24 |
| 5.6 | Non-Contravention | 24 |
| 5.7 | Financial Statements | 24 |
| 5.8 | Absence of Certain Changes | 26 |
| 5.9 | Compliance with Laws | 26 |
| 5.10 | Company Permits | 26 |
| 5.11 | Litigation | 26 |
| 5.12 | Material Contracts | 27 |
| 5.13 | Intellectual Property | 29 |
| 5.14 | Taxes and Returns | 32 |
| 5.15 | Real and Personal Property | 33 |
| 5.16 | Title to and Sufficiency of Assets | 35 |
| 5.17 | Employee Matters | 35 |
| 5.18 | Benefit Plans | 37 |
| 5.19 | Environmental Matters | 40 |
| 5.20 | Transactions with Related Persons | 41 |
| 5.21 | Insurance | 42 |
| 5.22 | Books and Records | 42 |
| 5.23 | Top Customers and Suppliers | 42 |
| 5.24 | Certain Business Practices | 43 |
| 5.25 | Privacy and Data Security | 44 |
| 5.26 | Investment Company Act | 44 |
| 5.27 | Finders and Brokers | 45 |
| 5.28 | Exclusivity of Representations | 45 |
| 5.29 | Information Supplied | 46 |
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| ARTICLE VI COVENANTS | 46 |
| 6.1 | Access and Information | 46 |
| 6.2 | Conduct of Business of the Company | 47 |
| 6.3 | Conduct of Business of SPAC | 50 |
| 6.4 | Additional Financial Information | 53 |
| 6.5 | SPAC Public Filings | 54 |
| 6.6 | No Solicitation; Change in Recommendation | 54 |
| 6.7 | No Trading | 56 |
| 6.8 | Notification of Certain Matters | 57 |
| 6.9 | Efforts | 57 |
| 6.10 | Tax Matters | 59 |
| 6.11 | Further Assurances | 59 |
| 6.12 | The Registration Statement | 60 |
| 6.13 | Public Announcements | 62 |
| 6.14 | Confidential Information | 63 |
| 6.15 | Documents and Information | 64 |
| 6.16 | Post-Closing Board of Directors and Executive Officers | 64 |
| 6.17 | Indemnification of Directors and Officers; Tail Insurance. | 64 |
| 6.18 | Trust Account Proceeds | 65 |
| 6.19 | Underwriting Agreement | 66 |
| ARTICLE VII CLOSING CONDITIONS | 66 |
| 7.1 | Conditions to Each Party’s Obligations | 66 |
| 7.2 | Conditions to Obligations of the Company Parties | 67 |
| 7.3 | Conditions to Obligations of SPAC | 68 |
| 7.4 | Frustration of Conditions | 70 |
| ARTICLE VIII TERMINATION AND EXPENSES | 70 |
| 8.1 | Termination | 70 |
| 8.2 | Effect of Termination | 72 |
| 8.3 | Fees and Expenses | 72 |
| 8.4 | Survival | 72 |
| ARTICLE IX WAIVERS AND RELEASES | 73 |
| 9.1 | Waiver of Claims Against Trust | 73 |
| ARTICLE X MISCELLANEOUS | 74 |
| 10.1 | Notices | 74 |
| 10.2 | Binding Effect; Assignment | 74 |
| 10.3 | Third Parties | 75 |
| 10.4 | Governing Law; Jurisdiction | 75 |
| 10.5 | WAIVER OF JURY TRIAL | 75 |
| 10.6 | Specific Performance | 76 |
| 10.7 | Severability | 76 |
| 10.8 | Amendment | 76 |
| 10.9 | Waiver | 76 |
| 10.10 | Entire Agreement | 76 |
| 10.11 | Interpretation | 77 |
| 10.12 | Counterparts | 77 |
| 10.13 | Legal Representation | 78 |
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| ARTICLE XI DEFINITIONS | 78 |
| 11.1 | Certain Definitions | 78 |
| 11.2 | Section References | 92 |
INDEX OF EXHIBITS
| Exhibit | Description | |
| Exhibit A-1 | Form of Lock-Up Agreement | |
| Exhibit A-2 | Form of IPO Underwriters Lock-Up Agreement | |
| Exhibit B | Insider Letter Amendment | |
| Exhibit C | Form of Subscription Agreement Amendment | |
| Exhibit D | Form of Amended Registration Rights Agreement | |
| Exhibit E | Form of Certificate of Designation |
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BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement (this “Agreement”) is made and entered into as of September 4, 2026 (the “Effective Date”), by and among (i) NMP Acquisition Corp., a Cayman Islands exempted company incorporated with limited liability (“SPAC”), (ii) GTS Holdings, Inc., a Nevada corporation (“Pubco”), (iii) GTS Merger Sub I, a Cayman Islands exempted company incorporated with limited liability and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”), (iv) GTS Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Pubco (“Company Merger Sub” and together with SPAC Merger Sub, the “Merger Subs”, and the Merger Subs collectively with Pubco, the “Company Parties”), (v) GTS Holdings, LLC, a Utah limited liability company (together with its successors, the “Company”), (vi) Streeterville Capital, LLC, a Utah limited liability company and the sole equityholder of the Company (the “Seller”), and (vii) Gibson Technical Services, Inc., a Georgia corporation and a wholly-owned subsidiary of the Company (“GTS”). SPAC, Pubco, SPAC Merger Sub, Company Merger Sub, the Company, the Seller and GTS are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties”.
RECITALS:
A. The Seller owns all of the issued and outstanding equity interests of the Company and the Company owns all of the issued and outstanding equity interests of GTS which is a full-service provider of engineering, design, construction, installation, testing, commissioning, and maintenance services for the broadband, wireless, healthcare, and technology industries (the “Company Business”);
B. Pubco is a newly incorporated Nevada corporation that owns all of the issued and outstanding equity interests of SPAC Merger Sub and Company Merger Sub, each of which is a newly organized entity formed for the sole purpose of effecting the Mergers (as defined below);
C. Upon the terms and subject to the conditions set forth herein, the Parties desire and intend to effect a business combination transaction pursuant to which (i) SPAC Merger Sub will merge with and into SPAC, with SPAC continuing as the surviving entity (the “SPAC Merger”) and as a result of which each issued and outstanding security of SPAC immediately prior to the effective time of the SPAC Merger (other than the SPAC Dissenting Shares and the SPAC Redeeming Shares) shall no longer be outstanding and shall automatically be cancelled and extinguished in exchange for which the security holders of SPAC shall receive substantially equivalent securities of Pubco, and each SPAC Dissenting Share and SPAC Redeeming Share shall be cancelled and cease to exist in accordance with Section 1.8(g) and Section 1.14, as applicable, and (ii) Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity (the “Company Merger”, and together with the SPAC Merger, the “Mergers”), and as a result of which each issued and outstanding security of the Company immediately prior to the effective time of the Company Merger shall no longer be outstanding and shall automatically be cancelled in exchange for which the security holders of the Company shall receive shares of capital stock of Pubco and (iii) as a result of which Mergers, SPAC and the Company will become wholly-owned subsidiaries of Pubco, and Pubco will become a publicly traded company;
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D. The boards of directors of Pubco, SPAC, SPAC Merger Sub and Company Merger Sub have each unanimously (i) determined that the respective Mergers to which they are a party are fair, advisable and in the best interests of their respective companies and stockholders or shareholders (as relevant), (ii) approved this Agreement and the transactions contemplated hereby, including the respective Mergers to which they are a party, upon the terms and subject to the conditions set forth herein, (iii) determined to recommend to their respective stockholders, shareholders or class of stockholders or shareholders (as relevant) the approval and adoption of this Agreement and the transactions contemplated hereby (to which they are or will be party to, respectively), including the consummation of the respective Mergers to which they are a party, and (iv) approved the execution and delivery of this Agreement and the documents contemplated by this Agreement and the transactions to which Pubco, SPAC, SPAC Merger Sub and Company Merger Sub are or will be parties, and the transactions contemplated hereby and thereby (including the Mergers) (in case of the recommendation of the board of directors of SPAC, the “SPAC Board Recommendation”);
E. The manager of the Company and board of directors of GTS have (i) determined that the Company Merger is fair, advisable and in the best interests of GTS, the Company and its members, (ii) approved this Agreement and the transactions contemplated hereby, including the Company Merger, upon the terms and subject to the conditions set forth herein, (iii) determined to recommend to its members the approval and adoption of this Agreement and the transactions contemplated hereby, including the Company Merger, and (iv) approved execution and delivery of this Agreement and the documents contemplated by this Agreement and the transactions to which the Company and GTS are or will be parties, and the transactions contemplated hereby and thereby;
F. Contemporaneously with the execution and delivery of this Agreement, Pubco and SPAC have entered into lock-up agreements: (i) with Lock-Up Parties (other than At-Risk Capital Investors, the IPO Underwriters and GTS Management), the form of which is attached hereto as Exhibit A-1 (each, a “Lock-Up Agreement”); and (ii) with the IPO Underwriters, the form of which is attached hereto as Exhibit A-2 (the “IPO Underwriters Lock-Up Agreement”);
G. Contemporaneously with the execution and delivery of this Agreement, SPAC, the Sponsor, the Company, and Pubco have entered into an amendment to that certain Letter Agreement, dated as of June 30, 2025 in connection with the SPAC’s IPO (the “Insider Letter”), with SPAC’s directors and officers, a copy of which amendment is attached hereto as Exhibit B (the “Insider Letter Amendment”), pursuant to which, among other matters, effective as of the Closing, Pubco shall assume and be assigned the rights and obligations of SPAC under the Insider Letter, subject to and contingent upon the Closing;
H. On or prior to the Closing, SPAC, the Sponsor, the Company and Pubco will have entered into an amendment, in substantially the form attached hereto as Exhibit C (the “Subscription Agreement Amendment”), to each of those certain Subscription Agreements, dated June 30, 2025 (collectively, the “Subscription Agreements”), with At-Risk Capital Investors party thereto, pursuant to which, among other matters, effective as of the Closing, Pubco shall assume and be assigned the rights and obligations of SPAC under each of the Subscription Agreements, subject to and contingent upon the Closing;
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I. Prior to the Closing, the Company will have caused to be completed the Debt Restructuring, pursuant to and in accordance with the terms of the Debt Restructuring Documents;
J. Contemporaneously with the Closing, SPAC and Pubco will enter into an amendment and restatement of the Founder Registration Rights Agreement, in substantially the form attached hereto as Exhibit D (the “Amended Registration Rights Agreement”), with each of the Sponsor, the Seller, At-Risk Capital Investors and the IPO Underwriters, to, among other matters, have Pubco assume the registration obligations of SPAC under the Founder Registration Rights Agreement, have such rights apply to the shares of Pubco Common Stock, Pubco Preferred Stock and any Pubco Class A Common Stock issuable upon conversion of the Pubco Preferred Stock and to provide such stockholder of the Company with registration rights thereunder;
K. The Parties hereby agree and acknowledge that for U.S. federal income tax purposes, the Mergers are intended to qualify as an exchange described in Section 351 of the Code; and
L. Certain capitalized terms used herein are defined in Article XI hereof.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties hereto agree as follows:
ARTICLE
I
MERGER
1.1 The SPAC Merger. At the Effective Time and subject to and upon the terms and conditions of this Agreement, and the laws of the Cayman Islands, pursuant to the Plan of Merger (as defined below) and in accordance with Part 16 of the Companies Act (as revised) of the Cayman Islands (as amended, the “Act”), SPAC Merger Sub shall be merged with and into SPAC. As a result of the SPAC Merger, the separate corporate existence of SPAC Merger Sub shall cease and SPAC shall continue its corporate existence as the surviving company (within the meaning of the Act) of the SPAC Merger pursuant to the provisions of the Act. SPAC as the surviving company after the SPAC Merger is hereinafter sometimes referred to as “SPAC Surviving Subsidiary” (provided, that references to SPAC for periods after the Effective Time shall include SPAC Surviving Subsidiary), and shall succeed to and assume all the rights and obligations of SPAC Merger Sub in accordance with the Act.
1.2 The Company Merger. At the Effective Time and subject to and upon the terms and conditions of this Agreement and in accordance with the applicable provisions of the Delaware Limited Liability Company Act (the “DLLCA”) and the Utah Revised Uniform Limited Liability Company Act (the “Utah LLC Act”), Company Merger Sub and the Company shall consummate the Company Merger, pursuant to which Company Merger Sub shall be merged with and into the Company, following which the separate limited liability company existence of Company Merger Sub shall cease and the Company shall continue as the surviving company in the Company Merger. The Company as the surviving company after the Company Merger is hereinafter sometimes referred to as “Company Surviving Subsidiary” (provided, that references to the Company for periods after the Effective Time shall include Company Surviving Subsidiary), and together with SPAC Surviving Subsidiary and GTS, the “Surviving Subsidiaries”.
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1.3 Effective Time. Subject to the conditions of this Agreement, on the Closing Date, the Parties shall (i) cause the SPAC Merger to be consummated by executing a plan of merger (the “Plan of Merger”), in such form as is required by, and executed in accordance with, the relevant provisions of the Act and mutually agreed by the Parties (with such modifications, amendments or supplements thereto as may be required to comply with the Act), and filing the Plan of Merger and all such other documents, declarations and undertakings (including, without limitation, a director’s declaration by a director of each of SPAC and SPAC Merger Sub made in accordance with Section 233(9) of the Act and a special resolution passed by Pubco, in its capacity as the sole shareholder of SPAC Merger Sub, approving the Plan of Merger in accordance with Section 233(6) of the Act) required to effect the SPAC Merger pursuant to the Act with the Registrar of Companies of the Cayman Islands (the “Cayman Registrar”) as provided in Section 233 of the Act (the “SPAC Merger Documents”), and make such other filings or records and take such other actions as may be required in accordance with the applicable provisions of the Act to make the SPAC Merger effective hereinafter, whereby the Merger shall become effective on the date the Plan of Merger is registered by the Cayman Registrar or on a subsequent date and time as is agreed by the Parties and specified in the SPAC Merger Documents in accordance with the Act and (ii) cause the Company Merger to be consummated by filing a certificate of merger in form and substance reasonably acceptable to the Company and SPAC (the “Company Certificate of Merger”) with the Secretary of State of the State of Delaware and the State of Utah in accordance with the applicable provisions of the DLLCA and the Utah LLC Act, with each of the Mergers to be consummated and effective simultaneously at 10:00 a.m. New York City time on the Closing Date or at such other date and/or time as mandated by the Act or as may be agreed in writing by the Company and SPAC and specified in each of SPAC Merger Documents and the Company Certificate of Merger (the “Effective Time”).
1.4 Effect of the Mergers. At the Effective Time, the effect of the Mergers shall be as provided in this Agreement and the applicable provisions of the Act, DLLCA, the Utah LLC Act and other applicable Law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the assets, property, rights, agreements, immunities, privileges, powers and franchises of SPAC Merger Sub and Company Merger Sub shall vest in SPAC Surviving Subsidiary and Company Surviving Subsidiary, respectively, and all debts, liabilities, obligations and duties of SPAC Merger Sub and Company Merger Sub shall become the debts, liabilities, obligations and duties of SPAC Surviving Subsidiary and Company Surviving Subsidiary, respectively, including in each case the rights and obligations of each such Party under this Agreement and the Ancillary Documents from and after the Effective Time.
1.5 Governing Documents. At the Effective Time, (i) in connection with the SPAC Merger, SPAC Surviving Subsidiary will adopt amended and restated memorandum and articles of association, which will be in a form that is standard for a wholly-owned Cayman Islands subsidiary and reasonably agreed to between SPAC and the Company, shall be filed with the Cayman Registrar as part of the SPAC Merger Documents (the “SPAC Surviving Subsidiary Memorandum”), provided that at the Effective Time, references therein to the name of the SPAC Surviving Subsidiary may be amended to be such name as reasonably determined by Pubco, and (ii) each of the certificate of formation and operating agreement of Company Merger Sub shall become the certificate of formation and operating agreement of Company Surviving Subsidiary, respectively.
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1.6 Directors, Managers and Officers of Pubco and the Surviving Subsidiaries. Except as otherwise agreed in writing by the Company and SPAC prior to the Effective Time, at the Effective Time, (i) the board of directors and executive officers of Pubco shall be as set forth on Schedule 1.6(i); (ii) the board of directors and executive officers of SPAC Surviving Subsidiary shall be as set forth on Schedule 1.6(ii) each to hold office in accordance with the organizational documents of SPAC Surviving Subsidiary until their successors are duly elected or appointed and qualified or their earlier death, resignation, or removal; (iii) the sole manager of Company Surviving Subsidiary shall be Nadir Ali, to hold office in accordance with the organizational documents of the Company Surviving Subsidiary until his successors are duly elected or appointed and qualified or his earlier death, resignation, or removal and (iv) the board of directors and executive officers of GTS shall be as set forth on Schedule 1.6(iv).
1.7 Merger Consideration. The aggregate consideration to be paid to the Seller as of the Effective Time pursuant to the Company Merger (the “Merger Consideration”) shall consist of a number of newly issued securities of Pubco with an aggregate value equal to the Enterprise Value minus the Retained Seller Debt Value as of immediately prior to the Effective Time (the “Equity Consideration Value”), consisting of (i) a number of newly issued shares of Pubco Class A Common Stock equal to the quotient obtained by dividing (x) the Pubco Class A Allocation Amount by (y) $10.00, (ii) a number of newly issued shares of Pubco Class B Common Stock equal to the quotient obtained by dividing (x) the Pubco Class B Allocation Amount by (y) $10.00, and (iii) 75,000 newly issued shares of Pubco Preferred Stock calculated by dividing Seventy-Five Million U.S. Dollars ($75,000,000) by $1,000.
1.8 Effect of SPAC Merger on Issued and Outstanding Securities of SPAC and SPAC Merger Sub. At the Effective Time, by virtue of the SPAC Merger, and without any action on the part of any Party or the holders of securities of SPAC or any Target Company:
(a) SPAC Units. Immediately prior to the Effective Time, (i) to the extent any SPAC Public Units remain outstanding and unseparated immediately prior to the Effective Time, each issued and outstanding SPAC Public Unit shall be automatically detached and the holder thereof shall be deemed to hold one SPAC Class A Ordinary Share and one SPAC Public Right in accordance with the terms of the applicable SPAC Public Unit and (ii) each issued and outstanding SPAC Private Unit shall be automatically detached and the holder thereof shall be deemed to hold one SPAC Class A Ordinary Share and one SPAC Private Right in accordance with the terms of the applicable SPAC Private Unit (the “SPAC Unit Separation”) and, which underlying SPAC Securities shall be converted in accordance with the applicable terms of this Section 1.8 below.
(b) SPAC Rights. Immediately prior to the Effective Time (after giving effect to the SPAC Unit Separation), each issued and outstanding SPAC Right shall be automatically converted into one-fifth of one SPAC Class A Ordinary Share; provided, that in accordance with the Rights Agreement, no fractional SPAC Class A Ordinary Shares will be issued in connection with the foregoing conversion, and any fractional SPAC Class A Ordinary Shares to which a holder would otherwise be entitled will be rounded down to the nearest whole SPAC Class A Ordinary Share (the “Rights Conversion”). Immediately upon the Rights Conversion, the SPAC Rights shall cease to be outstanding and shall automatically be canceled and shall cease to exist.
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(c) SPAC Class B Ordinary Shares. Immediately prior to the Effective Time (after giving effect to the SPAC Unit Separation), all issued and outstanding SPAC Class B Ordinary Shares shall be converted automatically into SPAC Class A Ordinary Shares in accordance with the terms of SPAC’s Organizational Documents, following which, all SPAC Class B Ordinary Shares shall cease to be outstanding and shall automatically be canceled, extinguished and shall cease to exist (the “SPAC Class B Conversion”). The holders of certificates previously evidencing SPAC Class B Ordinary Shares outstanding immediately prior to the Effective Time, if any, shall cease to have any rights with respect to such shares, except as provided herein or by Law.
(d) SPAC Class A Ordinary Shares. At the Effective Time, each issued and outstanding SPAC Class A Ordinary Share (other than those described in Section 1.8(e) below, SPAC Dissenting Shares and SPAC Redeeming Shares, but including those described in Section 1.8(a) and 1.8(c) above) shall be converted automatically into and thereafter represent the right to receive one (1) share of Pubco Class A Common Stock (the “SPAC Exchange Shares”); and all SPAC Class A Ordinary Shares so converted into the right to receive SPAC Exchange Shares shall cease to be outstanding and shall automatically be canceled and shall cease to exist, and each holder of SPAC Class A Ordinary Shares (other than SPAC Dissenting Shares, SPAC Redeeming Shares and the shares described in Section 1.8(e) below) shall thereafter cease to have any rights with respect thereto, except for the right to receive the SPAC Exchange Shares into which such SPAC Class A Ordinary Shares shall have been converted in the SPAC Merger, as set forth in this Section 1.8(d).
(e) Treasury Stock. At the Effective Time, if there is any share capital of SPAC that is owned by SPAC as treasury shares or by any direct or indirect Subsidiary of SPAC, such shares shall be canceled and extinguished without any conversion thereof or payment therefor.
(f) SPAC Merger Sub Shares. At the Effective Time, each share of SPAC Merger Sub issued and outstanding immediately prior to the Effective Time shall be automatically cancelled and extinguished and converted into one ordinary validly issued, fully paid and nonassessable share in the share capital of the SPAC Surviving Subsidiary, par value $0.0001 per share.
(g) SPAC Dissenting Shares. At the Effective Time, each SPAC Dissenting Share issued and outstanding immediately prior to the Effective Time shall automatically be cancelled and cease to exist in accordance with Section 1.14 and shall carry no rights other than the right to receive the applicable payment as set forth in Section 1.14.
(h) SPAC Redeeming Shares. At the Effective Time, each SPAC Redeeming Share issued and outstanding immediately prior to the SPAC Merger (if any) shall no longer be outstanding and shall automatically be cancelled and cease to exist, and each holder of such SPAC Redeeming Shares shall thereafter cease to have any rights with respect to such SPAC Redeeming Shares except the right of the holder thereof to be paid in accordance with SPAC’s Organizational Documents.
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1.9 Effect of Company Merger on Issued Securities of the Company and Company Merger Sub. At the Effective Time, by virtue of the Company Merger and without any action on the part of any Party or the holders of securities of SPAC or any Target Company:
(a) Company Interests. At the Effective Time, each Company Interest issued and outstanding immediately prior to the Effective Time (other than any Excluded Interests described in Section 1.9(b) below) will be cancelled and cease to exist in exchange for the right to receive the Merger Consideration as described in Section 1.7. As of the Effective Time, the Seller, as the sole holder of Company Interests, shall cease to have any other rights with respect to the Company Interests, except as otherwise required under applicable Law.
(b) Treasury Interests. At the Effective Time, if there are any equity securities of the Company that are owned by the Company in treasury or any equity securities of the Company owned by any direct or indirect Subsidiary of the Company immediately prior to the Effective Time, such equity interests (collectively, the “Excluded Interests”) shall be canceled and shall cease to exist without any conversion thereof or payment therefor.
(c) Company Convertible Securities. Any outstanding Company Convertible Security, if not exercised or converted prior to the Effective Time, shall be cancelled, retired and terminated and cease to represent a right to acquire, be exchanged for or convert into Company Interests.
(d) Company Merger Sub Interests. At the Effective Time, each membership interest of Company Merger Sub outstanding immediately prior to the Effective Time shall be converted into an equal number of membership interests of Company Surviving Subsidiary, with the same rights, powers and privileges as the membership interests so converted and shall constitute the only equity interests in Company Surviving Subsidiary.
1.10 Effect of Mergers on Issued and Outstanding Securities of Pubco. At the Effective Time, by virtue of the Mergers and without any action on the part of any Party or the holders of securities of SPAC or any Target Company, all of the shares of Pubco issued and outstanding immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof or payment therefor.
1.11 Intended Tax Treatment. For U.S. federal income tax purposes, the Parties intend that the Mergers shall constitute a single integrated transaction intended to qualify as a tax-free exchange within the meaning of Section 351 of the Code (the “Intended Tax Treatment”), and each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to so qualify. Each Party agrees not to take any action, or permit or cause any of its Affiliates to take any action, which action or failure to act could reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment. The Parties shall file all U.S. Tax Returns consistent with, and take no position inconsistent with (whether in U.S. audits, U.S. Tax Returns or otherwise with respect to U.S. federal income tax matters), the treatment described in this Section 1.11 unless required to do so pursuant to a “determination” that is final within the meaning of Section 1313(a) of the Code.
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1.12 Transfer Agent Matters.
(a) Appointment of Transfer Agent. At least three (3) Business Days prior to the Closing Date, Pubco shall appoint a transfer agent reasonably acceptable to the SPAC and the Company (the “Transfer Agent”) (it being understood and agreed that Continental Stock Transfer & Trust Company, or any of its Affiliates, shall be deemed to be acceptable to the SPAC and the Company) for the purposes of issuing the Merger Consideration to the Seller pursuant to Sections 1.7 and 1.9 and the Pubco Common Stock to the SPAC shareholders pursuant to Section 1.8. Each of the SPAC and the Company shall, and shall cause their respective Representatives to, reasonably cooperate with the Transfer Agent in connection with the covenants and agreements in this Section 1.12, including the provision of any information, or the entry into any agreements or documentation, necessary or advisable, as determined in good faith by Pubco, or otherwise required by the Transfer Agent to fulfill its duties as the Transfer Agent in connection with the Transactions.
(b) Transfer Agent Procedures.
(i) At the Effective Time, Pubco shall, or shall cause the Transfer Agent to, issue the Merger Consideration to the Seller in book-entry form. All Pubco Stock issued in accordance with this Section 1.12(b)(i) shall be deemed to have been issued in full satisfaction of all rights pertaining to the Company Interests, and there shall be no further registration of transfers on the records of the Company Surviving Subsidiary of the Company Interests that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Interests are presented to Pubco or the Company Surviving Subsidiary for any reason, they shall be cancelled and exchanged as provided in this Section 1.12(b)(i).
(ii) At the Effective Time, Pubco shall, or shall cause the Transfer Agent to, issue Pubco Common Stock to the record holders of SPAC Ordinary Shares (other than SPAC Dissenting Shares and SPAC Redeeming Shares) and SPAC Rights entitled to receive a portion of the Pubco Common Stock in book-entry form, and the electronic or book entry positions representing the SPAC Ordinary Shares (other than SPAC Dissenting Shares and SPAC Redeeming Shares) and SPAC Rights shall be canceled. All Pubco Common Stock issued in accordance with this Section 1.12(b)(ii) shall be deemed to have been issued in full satisfaction of all rights pertaining to the SPAC Ordinary Shares (other than SPAC Dissenting Shares and SPAC Redeeming Shares) and SPAC Rights and there shall be no further registration of transfers on the records of the SPAC Surviving Subsidiary of the SPAC Ordinary Shares or SPAC Rights that were outstanding immediately prior to the Effective Time.
1.13 Taking of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest SPAC Surviving Subsidiary or Company Surviving Subsidiary with full right, title and possession to all assets, property, rights, agreements, privileges, powers and franchises of SPAC Merger Sub and Company Merger Sub, respectively, the then current officers and directors of SPAC Surviving Subsidiary and Pubco, and the then officers and board of managers of Company Surviving Subsidiary shall take all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.
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1.14 SPAC Merger – Dissenter’s Rights.
(a) Notwithstanding anything in this Agreement to the contrary, subject to applicable Law and to the extent available under the Act, all SPAC Ordinary Shares that are issued and outstanding immediately prior to the Effective Time and that are held by a shareholder of SPAC who is entitled to demand and who shall have properly exercised in writing dissenters’ rights for such SPAC Ordinary Shares and not withdrawn or lost their rights to dissent from the SPAC Merger, in accordance with Section 238 of the Act and who has otherwise complied with all of the provisions of the Act relevant to the exercise and perfection of dissenters’ rights (collectively, the “SPAC Dissenting Shares,” and each, a “SPAC Dissenting Share,” and the holders of such SPAC Dissenting Shares, the “SPAC Dissenting Shareholders”) shall be automatically cancelled and cease to exist at the Effective Time by virtue of the SPAC Merger, and the SPAC Dissenting Shareholders shall cease to have any rights with respect to such shares, shall not be entitled to the right to receive the applicable Pubco Common Stock under Section 1.8(d). The SPAC Dissenting Shares shall not be converted into the applicable Pubco Common Stock, and the SPAC Dissenting Shareholders shall instead be entitled to receive only the payment by the SPAC Surviving Subsidiary of the fair value of such SPAC Dissenting Shares held by them and such other rights provided pursuant to Section 238 of the Act; provided, however, that if, after the Effective Time, such holder fails to perfect, waives, withdraws or loses such holder’s right to dissent pursuant to Section 238 of the Act, or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 238 of the Act, such SPAC Ordinary Shares shall (i) not be deemed to be SPAC Dissenting Shares, and (ii) be treated as if they had been automatically converted, at the Effective Time, into the right to receive the applicable Pubco Common Stock under Section 1.8(d) in the manner provided in this Agreement without any interest thereon.
(b) During the Interim Period, SPAC shall provide the Company written notice as promptly as practicable following receipt of any written objections to the SPAC Merger, notices of election to dissent, demands received by SPAC for appraisal of SPAC Ordinary Shares under Section 238 of the Act, any waiver or withdrawal of any such objections, notices or demands, and any other demand, notice, or instrument received by SPAC prior to the Effective Time that relates to the exercise of any rights to dissent from the SPAC Merger or appraisal rights. Except with the prior written consent of the Company (which consent shall not be unreasonably conditioned, withheld, or delayed), SPAC shall not make any payment with respect to, or settle, or offer to settle, any such demands during the Interim Period.
(c) In the event that any written notice of objection to the SPAC Merger is given to SPAC by any shareholder of SPAC pursuant to Section 238(2) of the Act before obtaining the approval of the SPAC Shareholder Approval Matters, SPAC shall give written notice of the authorization of the SPAC Merger to each such shareholder of SPAC within twenty (20) calendar days immediately following the date on which the SPAC Shareholder Approval Matters were approved, pursuant to and in accordance with Section 238(4) of the Act and the SPAC and the Company may, but are not obliged to, delay the commencement of the Closing and the filing of the Plan of Merger (and any other documents required under the Act to effect the SPAC Merger) with the Cayman Registrar, until at least twenty (20) calendar days shall have elapsed since the date on which such authorization notice is given by SPAC (being the period allowed for written notice of an election to dissent under Section 238(5) of the Act, as referred to in Section 239(1) of the Act).
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ARTICLE
II
CLOSING
2.1 Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VII, the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place remotely via electronic exchange of documents on a date and at a time to be agreed upon by SPAC and the Company, which date shall be no later than the second (2nd) Business Day after all the Closing conditions to this Agreement have been satisfied or waived, or at such other date, time or place (including remotely) as SPAC and the Company may agree (the date and time at which the Closing is actually held being the “Closing Date”).
ARTICLE
III
REPRESENTATIONS AND WARRANTIES OF SPAC
Except as set forth in (i) the disclosure schedules delivered by SPAC to the Company on the date hereof (the “SPAC Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, or (ii) the SEC Reports that are available on the SEC’s website through EDGAR, SPAC represents and warrants to the Company, as follows:
3.1 Organization and Standing. SPAC is an exempted company duly incorporated with limited liability, validly existing and in good standing under the Laws of the Cayman Islands. SPAC has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. SPAC is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing can be cured without material cost or expense. SPAC has heretofore made available to the Company accurate and complete copies of its Organizational Documents, as currently in effect. SPAC is not in violation of any provision of its Organizational Documents in any material respect.
3.2 Authorization; Binding Agreement. SPAC has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform SPAC’s obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, subject to obtaining the Required SPAC Shareholder Approval. The execution and delivery of this Agreement and each Ancillary Document (including the Plan of Merger) to which it is a party and the consummation of the transactions (including the SPAC Merger) contemplated hereby and thereby have been duly and validly authorized by the board of directors of SPAC. Other than the Required SPAC Shareholder Approval, no other corporate proceedings, other than as set forth elsewhere in the Agreement, on the part of SPAC are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document (including the Plan of Merger) to which it is a party or to consummate the transactions (including the SPAC Merger) contemplated hereby and thereby. This Agreement has been, and each Ancillary Document (including the SPAC Merger) to which SPAC is a party shall be when delivered, duly and validly executed and delivered by SPAC and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of SPAC, enforceable against SPAC in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws of general application affecting the enforcement of creditors’ rights generally or by any applicable statute of limitation or by any valid defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific performance) are subject to the discretion of the court from which such relief may be sought (collectively, the “Enforceability Exceptions”).
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3.3 Governmental Approvals. Except as otherwise described on Schedule 3.3, no Consent of any Governmental Authority, on the part of SPAC is required to be obtained or made in connection with the execution, delivery or performance by SPAC of this Agreement and each Ancillary Document to which it is a party or the consummation by SPAC of the transactions contemplated hereby and thereby, other than (a) pursuant to Antitrust Laws, (b) such filings as contemplated by this Agreement, including such filings with the Cayman Registrar relating to the SPAC Merger, (c) any filings required with NASDAQ or the SEC with respect to the transactions contemplated by this Agreement, (d) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws, and the rules and regulations thereunder and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a Material Adverse Effect on SPAC.
3.4 Non-Contravention. Except as otherwise described on Schedule 3.4, the execution and delivery by SPAC of this Agreement and each Ancillary Document to which it is a party, the consummation by SPAC of the transactions contemplated hereby and thereby, and compliance by SPAC with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision of SPAC’s Organizational Documents, (b) contravene or conflict with or constitute a violation of any provisions of Law or Order binding upon or applicable to SPAC, (c) subject to obtaining the Consents from Governmental Authorities referred to in Section 3.3 hereof, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable to SPAC or any of its properties or assets, or (d) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by SPAC under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of SPAC under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any SPAC Material Contract, except for any deviations from any of the foregoing clauses (c) or (d) that would not reasonably be expected to have a Material Adverse Effect on SPAC.
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3.5 Capitalization.
(a) SPAC’s authorized share capital is $55,500, comprised of: (i) 550,000,000 SPAC Ordinary Shares, consisting of 500,000,000 SPAC Class A Ordinary Shares, par value $0.0001 per share, of which 12,137,500 SPAC Class A Ordinary Shares are issued and outstanding as of the date of this Agreement, and 50,000,000 SPAC Class B Ordinary Shares, par value $0.0001 per share, of which 3,833,333 SPAC Class B Ordinary Shares are issued and outstanding as of the date of this Agreement, and (ii) 5,000,000 SPAC Preference Shares, par value $0.0001 per share, of which no shares are issued and outstanding as of the date of this Agreement. All outstanding SPAC Securities are duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Act, SPAC’s Organizational Documents or any Contract to which SPAC is a party. None of the outstanding SPAC Securities has been issued in violation of any applicable securities Laws.
(b) Except as set forth on Schedule 3.5(b) there are no (i) outstanding options, warrants, puts, calls, convertible securities, preemptive or similar rights, (ii) bonds, debentures, notes or other Indebtedness having general voting rights or that are convertible or exchangeable into securities having such rights or (iii) subscriptions or other rights, agreements, arrangements, Contracts or commitments of any character (other than this Agreement and the Ancillary Documents), (A) relating to the issued or unissued shares of SPAC or (B) obligating SPAC to issue, transfer, deliver or sell or cause to be issued, transferred, delivered, sold or repurchased any options or shares or securities convertible into or exchangeable for such shares, or (C) obligating SPAC to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment for such capital shares. Other than the Redemption or as expressly set forth in this Agreement, there are no outstanding obligations of SPAC to repurchase, redeem or otherwise acquire any shares of SPAC or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Person. Except as set forth on Schedule 3.5(b), there are no shareholders agreements, voting trusts or other agreements or understandings to which SPAC is a party with respect to the voting of any shares of SPAC.
(c) All Indebtedness of SPAC as of the date of this Agreement is disclosed on Schedule 3.5(c). No Indebtedness of SPAC contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by SPAC or (iii) the ability of SPAC to grant any Lien on its properties or assets.
(d) Since the date of formation of SPAC, and except as contemplated by this Agreement, SPAC has not declared or paid any distribution or dividend in respect of its shares and has not repurchased, redeemed or otherwise acquired any of its shares, and SPAC’s board of directors has not authorized any of the foregoing.
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3.6 SEC Filings and SPAC Financials.
(a) SPAC, since the IPO, has filed all forms, reports, schedules, statements, registration statements, prospectuses and other documents required to be filed or furnished by SPAC with the SEC under the Securities Act and/or the Exchange Act, together with any amendments, restatements or supplements thereto, and will file all such forms, reports, schedules, statements and other documents required to be filed subsequent to the date of this Agreement and SPAC has not taken any action prohibited by Section 402 of SOX regarding this Section 3.6(a). Except to the extent available on the SEC’s web site through EDGAR, SPAC has delivered to the Company copies in the form filed with the SEC of all of the following: (i) SPAC’s annual reports on Form 10-K for each fiscal year of SPAC beginning with the first year SPAC was required to file such a form, (ii) SPAC’s quarterly reports on Form 10-Q for each fiscal quarter that SPAC filed such reports to disclose its quarterly financial results in each of the fiscal years of SPAC referred to in clause (i) above, (iii) all other forms, reports, registration statements, prospectuses and other documents (other than preliminary materials) filed by SPAC with the SEC since the beginning of the first fiscal year referred to in clause (i) above (the forms, reports, registration statements, prospectuses and other documents referred to in clauses (i), (ii) and (iii) above, whether or not available through EDGAR, are, collectively, the “SEC Reports”) and (iv) all certifications and statements required by (A) Rules 13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C. §1350 (Section 906 of SOX) with respect to any report referred to in clause (i) above (collectively, the “Public Certifications”). As of their respective dates, the SEC Reports (x) were prepared in all material respects in accordance with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations thereunder and (y) did not, as of their respective effective dates (in the case of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and at the time they were filed with the SEC (in the case of all other SEC Reports) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As of the date of this Agreement, (A) SPAC Public Units, SPAC Class A Ordinary Shares, and SPAC Public Rights are listed on NASDAQ, (B) SPAC has not received any written deficiency notice from NASDAQ relating to the continued listing requirements of such SPAC Securities, (C) there are no Actions pending or, to the Knowledge of SPAC, threatened against SPAC by the Financial Industry Regulatory Authority with respect to any intention by such entity to suspend, prohibit or terminate the quoting of such SPAC Securities on NASDAQ and (D) such SPAC Securities are in compliance with all of the applicable corporate governance rules of NASDAQ.
(b) SPAC maintains disclosure controls and procedures required by Rules 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are reasonably designed to ensure that all material information concerning SPAC and other material information required to be disclosed by SPAC in the reports and other documents that it files or furnishes under the Exchange Act is made known on a timely basis to the individuals responsible for the preparation of SPAC’s SEC filings and other public disclosure documents.
(c) The financial statements and notes of SPAC contained or incorporated by reference in the SEC Reports (the “SPAC Financials”), fairly present in all material respects the financial position and the results of operations, changes in shareholders’ equity, and cash flows of SPAC at the respective dates of and for the periods referred to in the SPAC Financials, all in accordance with (i) GAAP methodologies applied on a consistent basis throughout the periods involved and (ii) Regulation S-X or Regulation S-K, as applicable (except as may be indicated in the notes thereto and for the omission of notes and audit adjustments in the case of unaudited quarterly financial statements to the extent permitted by Regulation S-X or Regulation S-K, as applicable).
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(d) Except to the extent reflected or reserved against in SPAC Financials, SPAC has not incurred any Liabilities or obligations of the type required to be reflected on a balance sheet in accordance with GAAP that are not adequately reflected or reserved on or provided for in SPAC Financials, other than Liabilities of the type required to be reflected on a balance sheet in accordance with GAAP that have been incurred since SPAC’s formation in the ordinary course of business. SPAC has no off-balance sheet arrangements.
(e) There are no outstanding loans or other extensions of credit made by SPAC to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of SPAC.
3.7 Absence of Certain Changes. As of the date of this Agreement, except as set forth on Schedule 3.7, SPAC has, (a) since its formation, conducted no business other than its formation, the public offering of its securities (and the related private offerings), public reporting and its search for an initial Business Combination as described in the IPO Prospectus (including the investigation of the Target Companies and the negotiation and execution of this Agreement) and related activities and (b) since December 31, 2025 through the date of this Agreement, not been subject to a Material Adverse Effect on SPAC.
3.8 Compliance with Laws. SPAC is, and has since its formation been, in compliance with all Laws applicable to it and the conduct of its business except for such noncompliance which would not reasonably be expected to have a Material Adverse Effect on SPAC, and SPAC has not received written notice alleging any violation of applicable Law in any material respect by SPAC.
3.9 Actions; Orders; Permits. There is no pending or, to the Knowledge of SPAC, threatened material Action to which SPAC is subject which would reasonably be expected to have a Material Adverse Effect on SPAC. There is no material Action that SPAC has pending against any other Person. SPAC is not subject to any material Orders of any Governmental Authority, nor are any such Orders pending. SPAC holds all material Permits necessary to lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties, all of which are in full force and effect, except where the failure to hold such Consent or for such Consent to be in full force and effect would not reasonably be expected to have a Material Adverse Effect on SPAC.
3.10 Taxes and Returns.
(a) SPAC has timely filed, or caused to be timely filed, all material Tax Returns required to be filed by it (taking into account all available extensions), which Tax Returns are accurate and complete in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld, other than such Taxes for which adequate reserves in SPAC Financials have been established in accordance with GAAP. Schedule 3.10(a) sets forth each jurisdiction where SPAC files or is required to file a Tax Return and the tax classification of the SPAC or any subsidiaries of the SPAC for U.S. federal income tax purposes (taking into account any IRS Forms 8832). There are no audits, examinations, investigations or other proceedings pending against SPAC in respect of any Tax, and SPAC has not been notified in writing of any proposed Tax claims or assessments against SPAC (other than, in each case, claims or assessments for which adequate reserves in SPAC Financials have been established in accordance with GAAP or are immaterial in amount). There are no Liens with respect to any Taxes upon any of SPAC’s assets, other than Permitted Liens. SPAC has no outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes. There are no outstanding requests by SPAC for any extension of time within which to file any Tax Return or within which to pay any Taxes shown to be due on any Tax Return.
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(b) Since the date of its incorporation, SPAC has not (i) changed any Tax accounting methods, policies or procedures except as required by a change in Law, (ii) made, revoked or amended any material Tax election, (iii) filed any amended Tax Returns or claim for refund or (iv) entered into any closing agreement affecting or otherwise settled or compromised any material Tax Liability or refund.
(c) SPAC has not participated in, or sold, distributed or otherwise promoted, any “reportable transaction,” as defined in U.S. Treasury Regulation section 1.6011-4.
(d) To the Knowledge of SPAC, there are no facts or circumstances that would reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment. The SPAC has not taken any action, or has any current plan, intention or obligations to take any action, that could reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment.
(e) Neither the SPAC nor any subsidiary of the SPAC has been either a “distributing corporation” or “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying or intended to qualify for tax-free treatment, in whole or in part, under Section 355 of the Code in the two years prior to the date of this Agreement.
3.11 Employees and Employee Benefit Plans. SPAC does not (a) have any paid employees or (b) maintain, sponsor, contribute to or otherwise have any Liability under, any Benefit Plans.
3.12 Properties. SPAC does not own, license or otherwise have any right, title or interest in any material Intellectual Property. SPAC does not own or lease any material real property or material Personal Property.
3.13 Material Contracts.
(a) Except as set forth on Schedule 3.13(a), other than this Agreement and the Ancillary Documents, there are no Contracts to which SPAC is a party or by which any of its properties or assets may be bound, subject or affected, which creates or imposes a Liability greater than $250,000 (each, a “SPAC Material Contract”). All SPAC Material Contracts have been made available to the Company other than those that are exhibits to the SEC Reports.
(b) With respect to each SPAC Material Contract: (i) the SPAC Material Contract was entered into at arms’ length and in the ordinary course of business, (ii) the SPAC Material Contract is legal, valid, binding and enforceable in all material respects against SPAC and, to the Knowledge of SPAC, the other parties thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions), (iii) SPAC is not in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default in any material respect by SPAC, or permit termination or acceleration by the other party, under such SPAC Material Contract, and (iv) to the Knowledge of SPAC, no other party to any SPAC Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by SPAC under any SPAC Material Contract.
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3.14 Transactions with Affiliates. Schedule 3.14 sets forth a true, correct and complete list of the Contracts and arrangements that are in existence as of the date of this Agreement under which there are any existing or future Liabilities or obligations between SPAC and any (a) present or former director, officer or employee or Affiliate of SPAC, or any immediate family member of any of the foregoing, or (b) record or beneficial owner of more than ten percent (10%) of SPAC’s outstanding share capital as of the date hereof.
3.15 Investment Company Act. SPAC is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, or required to register as an “investment company”, in each case within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”).
3.16 Finders and Brokers. Except as set forth on Schedule 3.16, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from SPAC, the Target Companies or any of their respective Affiliates in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of SPAC.
3.17 Certain Business Practices.
(a) Neither SPAC, nor, to the Knowledge of SPAC, any of its Representatives acting on its behalf, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices Act of 1977 or any other local or foreign anti-corruption or bribery Law, (iii) made any other unlawful payment or (iv) since the formation of SPAC, directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder SPAC or assist it in connection with any actual or proposed transaction.
(b) The operations of SPAC are and have been conducted at all times in material compliance with money laundering statutes in all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority, and no Action involving SPAC with respect to any of the foregoing is pending or, to the Knowledge of SPAC, threatened.
(c) None of SPAC or any of its directors or officers, or, to the Knowledge of SPAC, any other Representative acting on behalf of SPAC is currently (i) identified on the specially designated nationals or other blocked person list or otherwise currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the U.S. Department of State, or other applicable Governmental Authority; (ii) organized, resident, or located in, or a national of a comprehensively sanctioned country; or (iii) in the aggregate, fifty percent (50%) or greater owned, directly or indirectly, or otherwise controlled, by a person identified in (i) or (ii); and SPAC has not, directly or indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any other country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC or the U.S. Department of State in the last five (5) fiscal years.
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3.18 SPAC Trust Account. As of June 30, 2026, the Trust Account had a balance of approximately $118,866,021.54. Such monies are invested solely in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act, and held in trust by the Trustee pursuant to the Trust Agreement. The Trust Agreement is valid and in full force and effect and enforceable in accordance with its terms (subject to the Enforceability Exceptions) and has not been amended or modified. SPAC has complied in all material respects with the terms of the Trust Agreement and is not in material breach thereof or material default thereunder and there does not exist under the Trust Agreement any event which, with the giving of notice or the lapse of time, would constitute such a material breach or material default by SPAC or, to the Knowledge of SPAC, by the Trustee. There are no separate contracts, agreements, side letters or other agreements or understandings (whether written or unwritten, express or implied) between SPAC and the Trustee that would cause the description of the Trust Agreement in the SEC Reports to be inaccurate in any material respect and/or that would entitle any Person (other than the underwriters of the IPO, Public Shareholders who shall have elected to redeem their SPAC Class A Ordinary Shares pursuant to SPAC’s Organizational Documents (or in connection with an extension of SPAC’s deadline to consummate a Business Combination) or Governmental Authorities for Taxes) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released except as described in the Trust Agreement and the IPO Prospectus. There are no Actions pending or, to the Knowledge of SPAC, threatened with respect to the Trust Account.
3.19 Exclusivity of Representations.
(a) Except for the representations and warranties contained in this Article III, neither the SPAC nor any other Person or entity on behalf of the SPAC has made or makes any representation or warranty, whether express or implied, with respect to the SPAC, its Affiliates or its or their businesses, affairs, assets, Liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information provided or made available to the Company, Pubco, the Merger Subs, any of their Affiliates or any of their Representatives by or on behalf of the SPAC. Neither the SPAC nor any other Person on behalf of the SPAC has made or makes any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to the Company, Pubco, the Merger Subs, any of their Affiliates or any of their Representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of the SPAC or any of its Affiliates, whether or not included in any management presentation.
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(b) The SPAC, on behalf of itself and its Affiliates, acknowledges and agrees that, (i) it has conducted its own independent investigation of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company, Pubco or the Merger Subs, (ii) it has been afforded satisfactory access to the books and records, facilities and personnel of the Company, Pubco or the Merger Subs for purposes of conducting such investigation, and (iii) except for the representations and warranties contained in Article IV and Article V, none of the Company, Pubco, or the Merger Subs, nor any other Person or entity on behalf of the Company, Pubco or the Merger Subs have made or makes, and the SPAC and its Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to the Company, Pubco, the Merger Subs, their respective Affiliates or their respective businesses, affairs, assets, Liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects), whether or not included in any management presentation, or with respect to the accuracy or completeness of any other information provided or made available to the SPAC or any of its Affiliates or any of its or their Representatives.
3.20 Information Supplied. None of the information supplied or to be supplied by SPAC expressly for inclusion or incorporation by reference: (a) in any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the transactions contemplated by this Agreement or any Ancillary Documents; (b) in the Registration Statement; or (c) in the mailings or other distributions to SPAC’s shareholders and/or prospective investors with respect to the consummation of the transactions contemplated by this Agreement or in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading (provided, if such information is revised by any subsequently filed amendment or supplement to the Registration Statement prior to the time the Registration Statement is declared effective by the SEC, this clause (a) shall solely refer to the time of such subsequent revision or supplement). None of the information supplied or to be supplied by SPAC expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing will, when filed or distributed, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, SPAC makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the Target Companies or its Affiliates.
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ARTICLE
IV
REPRESENTATIONS AND WARRANTIES OF
COMPANY, SELLER, PUBCO AND THE MERGER SUBS
Each of the Company, the Seller, Pubco and the Merger Subs, jointly and severally, represents and warrants to SPAC, as follows:
4.1 Organization and Standing. Pubco is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Nevada. The Seller is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Utah. Company Merger Sub is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware. SPAC Merger Sub is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands. Each of Pubco, the Seller and the Merger Subs has all requisite corporate or limited liability company power, as applicable, and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of Pubco, the Seller and the Merger Subs is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed would not individually or in the aggregate reasonably be expected to have a material impact on the ability of Pubco, the Seller or any Merger Sub on a timely basis to consummate the Transactions. Pubco has heretofore made available to SPAC and the Company accurate and complete copies of the Organizational Documents of Pubco and the Merger Subs, and the Seller has made available to SPAC accurate and complete copies of the Organizational Documents of the Seller and the Company, in each case, as currently in effect. None of Pubco, the Seller, the Company or any Merger Sub is in violation of any provision of its Organizational Documents in any material respect.
4.2 Authorization; Binding Agreement. Subject to the adoption of the Amended Pubco Charter, each of Pubco, the Seller and the Merger Subs has all requisite corporate or limited liability power, as applicable, and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. Each of (a) Pubco, in its capacity as sole member of Company Merger Sub and in its capacity as sole shareholder of SPAC Merger Sub, and (b) the Seller, in its capacity as the sole member and manager of the Company, has authorized the execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the Mergers and the other transactions contemplated by this Agreement. The execution and delivery of this Agreement and each Ancillary Document to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the board of directors or managers (as applicable) of Pubco, the Seller, Company Merger Sub and SPAC Merger Sub, and no other corporate or limited liability company proceedings, other than as expressly set forth elsewhere in this Agreement (including the adoption of the Amended Pubco Charter and the approval by the equity holders of Pubco and each Merger Sub), on the part of Pubco, the Seller or Merger Subs are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which Pubco, the Seller or the Merger Subs is a party has been or shall be when delivered, duly and validly executed and delivered by such Party and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to the Enforceability Exceptions.
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4.3 Governmental Approvals. No Consent of or with any Governmental Authority, on the part of Pubco, the Seller or the Merger Subs is required to be obtained or made in connection with the execution, delivery or performance by such Party of this Agreement and each Ancillary Document to which it is a party or the consummation by such Party of the transactions contemplated hereby and thereby, other than (a) pursuant to Antitrust Laws, (b) such filings as contemplated by this Agreement, (c) any filings required with NASDAQ or the SEC with respect to the transactions contemplated by this Agreement, (d) applicable requirements, if any, of the Securities Act, the Exchange Act, and/or any state “blue sky” securities Laws, and the rules and regulations thereunder, and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to have a material impact on the ability of Pubco, the Seller or the Merger Subs on a timely basis to consummate the transactions contemplated by this Agreement.
4.4 Non-Contravention. The execution and delivery by Pubco, the Seller and the Merger Subs of this Agreement and each Ancillary Document to which it is a party, the consummation by such Party of the transactions contemplated hereby and thereby, and compliance by such Party with any of the provisions hereof and thereof, will not (a) subject to the adoption of the Amended Pubco Charter, conflict with or violate any provision of such Party’s Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 4.3 hereof, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable to such Party or any of its properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by such Party under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of such Party under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any material Contract of such Party, except for any deviations from any of the foregoing clauses (a), (b) or (c) that would not, individually or in the aggregate, reasonably be expected to have a material impact on the ability of Pubco, the Seller or the Merger Subs on a timely basis to consummate the transactions contemplated by this Agreement.
4.5 Capitalization. As of the Closing Date, Pubco and the Merger Subs will have the capitalization stated in their respective Organizational Documents. Prior to giving effect to the transactions contemplated by this Agreement, other than the Merger Subs, Pubco does not have any Subsidiaries or own any equity interests in any other Person.
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4.6 Ownership of Pubco Common Stock. (i) All shares of Pubco Common Stock to be issued and delivered in accordance with Article I to the Seller shall be, upon issuance and delivery of such shares, duly authorized, validly issued, fully paid, non-assessable and free and clear of all Liens, and (ii) upon issuance and delivery of such shares to the Seller, the Seller shall have good and valid title to its portion of such shares, in each case of clauses (i) and (ii), other than restrictions arising from applicable securities Laws, the Ancillary Documents, the Amended Pubco Charter, the provisions of this Agreement and any Liens incurred by the Seller, and (iii) the issuance and sale of such shares pursuant hereto will not be subject to or give rise to any preemptive rights or rights of first refusal.
4.7 Ownership of Company Interests. The Seller (a) is, and immediately prior to the Closing will be, the record and beneficial owner and holder of the Company Interests, and (b) has, and immediately prior to the Closing will have, good and valid title to the Company Interests, in each case, free and clear of any Liens or restrictions on transfer. There are neither (x) any options, warrants, purchase rights, rights of first refusal, call, put or other Contracts that could require the Seller to sell, transfer or otherwise dispose of any of the Company Interests, nor (y) any voting trust, proxy or other Contract relating to the voting of the Company Interests. The Company Interests constitute 100% of the issued and outstanding ownership and equity interests and outstanding securities of the Company.
4.8 Pubco and Merger Sub Activities. Since their formation, Pubco and the Merger Subs have not engaged in any business activities other than as contemplated by this Agreement, do not own directly or indirectly any ownership, equity, profits or voting interest in any Person (other than Pubco’s 100% ownership of the Merger Subs) and have no assets or Liabilities except those incurred in connection with this Agreement and the Ancillary Documents to which they are a party and the transactions contemplated by this Agreement, and, other than this Agreement and the Ancillary Documents to which they are a party, Pubco and the Merger Subs are not party to or bound by any Contract.
ARTICLE
V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure schedules delivered by the Company to SPAC on the date hereof (the “Company Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, each of the Company and GTS hereby represents and warrants to SPAC, as follows:
5.1 Organization and Standing. The Company is a limited liability company duly formed, validly existing and in good standing under the Laws of Utah and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each Subsidiary of the Company is a corporation or other entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has all requisite corporate or limited liability company power and authority, as applicable, to own, lease and operate its properties and to carry on its business as now being conducted. Each Target Company is duly qualified or licensed and in good standing in the jurisdiction in which it is incorporated or registered and in each other jurisdiction where it does business or operates to the extent that the character of the property owned, or leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary. Schedule 5.1 lists all jurisdictions in which any Target Company is qualified to conduct business and all names other than its legal name under which any Target Company does business. The Company has provided to SPAC accurate and complete copies of its Organizational Documents and the Organizational Documents of each of its Subsidiaries, each as amended to date and as currently in effect. No Target Company is in violation of any provision of its Organizational Documents.
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5.2 Authorization; Binding Agreement. The Company has all requisite limited liability company power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or is required to be a party, to perform the Company’s obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, subject to obtaining the Required Company Member Approval. The execution and delivery of this Agreement and each Ancillary Document to which the Company is or is required to be a party and the consummation of the transactions contemplated hereby and thereby, (a) have been duly and validly authorized by the Company’s board of managers in accordance with the Company’s operating agreement, any other applicable Law or any Contract to which the Company or any of its equity holders is a party or by which it or its securities are bound and (b) other than the Required Company Member Approval, no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which the Company is or is required to be a party has been or shall be when delivered, duly and validly executed and delivered by the Company and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Company’s board of managers, by resolutions duly adopted at a meeting duly called and held (i) determined that this Agreement and the Mergers and the other transactions contemplated hereby are advisable, fair to, and in the best interests of, the Company and its members, (ii) approved this Agreement and the Mergers and the other transactions contemplated by this Agreement in accordance with the Utah LLC Act, (iii) directed that this Agreement be submitted to the Company’s members for adoption and (iv) resolved to recommend that the Company’s members adopt this Agreement.
5.3 Capitalization.
(a) All of the issued and outstanding Company Interests are set forth on Schedule 5.3(a), along with the beneficial and record owners thereof, all of which Company Interests and other equity interests are owned free and clear of any Liens other than those imposed under the Company’s operating agreement. The issued and outstanding Company Interests constitute all of the outstanding equity interests of the Company. All of the outstanding Company Interests and other equity interests of the Company have been duly authorized, are fully paid and non-assessable and not in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Utah LLC Act, any other applicable Law, the Company’s operating agreement or any Contract to which the Company is a party or by which it or its securities are bound. The Company does not directly or indirectly hold any Company Interests or other equity interests of the Company in its treasury. All of the Company’s securities have been granted, offered, sold and issued in compliance with all applicable securities Laws. The rights, privileges and preferences of the Company Interests are as stated in the Company’s operating agreement and as provided by the Utah LLC Act.
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(b) There are no Company Convertible Securities, or preemptive rights or rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements or restrictions to which the Company or any of its equity holders is a party or bound relating to any equity securities of the Company, whether or not outstanding. There are no issued, reserved for issuance, outstanding or authorized option, restricted unit award, restricted interest award, profits interest, profit participation, equity appreciation, phantom equity, or equity-based award or similar rights with respect to the Company. Except as set forth on Schedule 5.3(b), there are no voting trusts, proxies, shareholder agreements or any other agreements or understandings with respect to the voting of the Company’s equity interests. There are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any equity interests or securities of the Company, nor has the Company granted any registration rights to any Person with respect to the Company’s equity securities. All of the Company’s securities have been granted, offered, sold and issued in compliance with all applicable securities Laws. As a result of the consummation of the transactions contemplated by this Agreement, no equity interests of the Company are issuable and no rights in connection with any interests, warrants, rights, options or other securities of the Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
(c) Since January 1, 2025, the Company has not declared or paid any distribution or dividend in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests of the Company, and the members of the Company have not authorized any of the foregoing.
5.4 Subsidiaries. Schedule 5.4 sets forth the name of each Subsidiary of the Company, and with respect to each Subsidiary (a) its jurisdiction of organization, (b) its authorized shares or other equity interests (if applicable), (c) the number of issued and outstanding shares or other equity interests and the record holders and beneficial owners thereof and (d) its Tax election to be treated as a corporate or a disregarded entity under the Code and any state or applicable non-U.S. Tax laws, if any. All of the outstanding equity securities of each Subsidiary of the Company are duly authorized and validly issued, fully paid and non-assessable (if applicable), and were offered, sold and delivered in compliance with all applicable securities Laws, and owned by one or more of the Target Companies free and clear of all Liens (other than those, if any, imposed by such Subsidiary’s Organizational Documents). There are no Contracts to which the Company or any of its Affiliates is a party or bound with respect to the voting (including voting trusts or proxies) of the equity interests of any Subsidiary of the Company other than the Organizational Documents of any such Subsidiary. Except as listed on Schedule 5.4, there are no outstanding or authorized options, warrants, rights, agreements, subscriptions, convertible securities or commitments to which any Subsidiary of the Company is a party or which are binding upon any Subsidiary of the Company providing for the issuance or redemption of any equity interests of any Subsidiary of the Company. There are no issued, reserved for issuance, outstanding or authorized option, restricted unit award, restricted interest award, profits interest, equity appreciation, phantom equity, profit participation, or equity-based award or similar rights granted by any Subsidiary of the Company. No Target Company has any limitation, whether by Contract, Order or applicable Law, on its ability to make any distributions or dividends to its equity holders or repay any debt owed to another Target Company. Except for the equity interests of the Subsidiaries listed on Schedule 5.4, the Company does not own or have any rights to acquire, directly or indirectly, any equity interests of, or otherwise Control, any Person. None of the Company or its Subsidiaries is a participant in any joint venture, partnership or similar arrangement. There are no outstanding contractual obligations of a Target Company to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.
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5.5 Governmental Approvals. Except as otherwise described on Schedule 5.5, no Consent of or with any Governmental Authority on the part of any Target Company is required to be obtained or made in connection with the execution, delivery or performance by the Company of this Agreement or any Ancillary Documents or the consummation by the Company of the transactions contemplated hereby or thereby other than (a) such filings as are expressly contemplated by this Agreement or (b) pursuant to Antitrust Laws.
5.6 Non-Contravention. Except as otherwise described on Schedule 5.6, the execution and delivery by the Company (or any other Target Company, as applicable) of this Agreement and each Ancillary Document to which any Target Company is or is required to be a party or otherwise bound, and the consummation by any Target Company of the transactions contemplated hereby and thereby and compliance by any Target Company with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision of any Target Company’s Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 5.5 hereof, the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable to any Target Company or any of its material properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by any Target Company under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of any Target Company under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of any Company Material Contract.
5.7 Financial Statements.
(a) Schedule 5.7(a) contains true and correct copies of the unaudited consolidated financial statements of the Target Companies as of and for each of the 12 months ended December 31, 2024 and December 31, 2025, consisting of the unaudited consolidated balance sheet of the Target Companies as of December 31, 2024 and December 31, 2025, and the related audited consolidated income statement, changes in members’ equity and statement of cash flows for the 12 months then ended, and the related notes thereto, audited by a PCAOB qualified auditor in accordance with PCAOB auditing standards (the “Company Unaudited Financials”). The Company Unaudited Financials (A) were prepared from the books and records of the Target Companies as of the times and for the periods referred to therein, (B) were prepared in accordance with GAAP, consistently applied throughout and among the periods involved (except as may be indicated in the notes thereto), (C) fairly present in all material respects the consolidated financial position of the Target Companies as of the respective dates thereof and the consolidated results of the operations of the Target Companies for the periods indicated. (A) were prepared from the books and records of the Target Companies as of the times and for the periods referred to therein, (B) were prepared in accordance with GAAP, consistently applied throughout and among the periods involved (except as may be indicated in the notes thereto), and (C) fairly present in all material respects the consolidated financial position of the Target Companies as of the respective dates thereof and the consolidated results of the operations of the Target Companies for the periods indicated.
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(b) The Target Companies do not have any Indebtedness other than the Indebtedness set forth on Schedule 5.7(b), which schedule sets for the amounts (including principal and any accrued but unpaid interest or other obligations) with respect to such Indebtedness. Except as disclosed on Schedule 5.7(b), no Indebtedness of any Target Company contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by any Target Company, or (iii) the ability of the Target Companies to grant any Lien on their respective properties or assets.
(c) Each Target Company maintains accurate books and records reflecting its assets and Liabilities and maintains proper and adequate internal accounting controls that provide reasonable assurance that (i) such Target Company does not maintain any off-the-book accounts and that such Target Company’s assets are used only in accordance with such Target Company’s management directives, (ii) transactions are executed with management’s authorization, (iii) transactions are recorded as necessary to permit preparation of the financial statements of such Target Company and to maintain accountability for such Target Company’s assets, (iv) access to such Target Company’s assets is permitted only in accordance with management’s authorization, (v) the reporting of such Target Company’s assets is compared with existing assets at regular intervals and verified for actual amounts, and (vi) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection of accounts, notes and other receivables on a current and timely basis. All of the financial books and records of the Target Companies are complete and accurate in all material respects and have been maintained in the ordinary course consistent with past practice and in accordance with applicable Laws. No Target Company has been subject to or involved in any material fraud that involves management or other employees who have a significant role in the internal controls over financial reporting of any Target Company. To the Knowledge of the Company, no Target Company employee has engaged in any material fraud with respect to the business activities or operations of any Target Company. In the past five (5) years, no Target Company or its Representatives has received any written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of any Target Company or its internal accounting controls, including any material written complaint, allegation, assertion or claim that any Target Company has engaged in questionable accounting or auditing practices.
(d) Except as set forth on Schedule 5.7(d), no Target Company is subject to any Liabilities or obligations required to be reflected on a balance sheet prepared in accordance with GAAP, except for those that are either (i) adequately reflected or reserved on or provided for in the consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2025 and contained in the Company Financials or (ii) not material and that were incurred after December 31, 2025 in the ordinary course of business consistent with past practice (other than Liabilities for breach of any Contract or violation of any Law).
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(e) All accounts, notes and other receivables, whether or not accrued, and whether or not billed, of the Target Companies (the “Accounts Receivable”) arose from sales actually made or services actually performed in the ordinary course of business and represent valid obligations to a Target Company arising from its business.
5.8 Absence of Certain Changes. Except as set forth on Schedule 5.8, since December 31, 2025, each Target Company has (a) conducted its business only in the ordinary course of business consistent with past practice, (b) not been subject to a Material Adverse Effect and (c) has not taken any action or committed or agreed to take any action that would be prohibited by Section 6.2(b) (without giving effect to Schedule 6.2) if such action were taken on or after the date hereof without the consent of SPAC.
5.9 Compliance with Laws. Since January 1, 2024, no Target Company is or has been in material conflict or material non-compliance with, or in material default or violation of, nor has any Target Company received, since January 1, 2023, any written or, to the Knowledge of the Company, oral notice of any material conflict or non-compliance with, or material default or violation of, any applicable Laws by which it or any of its properties, assets, employees, business or operations are or were bound or affected.
5.10 Company Permits. Each Target Company (and its employees who are legally required to be licensed by a Governmental Authority in order to perform his or her duties with respect to his or her employment with any Target Company), holds all Permits necessary to lawfully conduct in all material respects its business as presently conducted, and as currently contemplated to be conducted, and to own, lease and operate its assets and properties (collectively, the “Company Permits”). The Company has made available to SPAC true, correct and complete copies of all material Company Permits, all of which material Company Permits are listed on Schedule 5.10. All of the Company Permits are in full force and effect, and no suspension or cancellation of any of the Company Permits is pending or, to the Company’s Knowledge, threatened. No Target Company is in violation in any material respect of the terms of any Company Permit, and no Target Company has received any written or, to the Knowledge of the Company, oral notice of any Actions relating to the revocation or modification, of any Company Permit.
5.11 Litigation. Except as described on Schedule 5.11, there is no (a) Action of any nature currently pending or, to the Company’s Knowledge, threatened, and no such Action has been brought or, to the Company’s Knowledge, threatened in the past five (5) years; or (b) Order now pending or outstanding or that was rendered by a Governmental Authority in the past five (5) years, in either case of (a) or (b) by or against any Target Company, its current or former directors, managers, officers or equity holders (provided, that any litigation involving the directors, officers or equity holders of a Target Company must be related to the Target Company’s business, equity securities or assets), its business, equity securities or assets. The items listed on Schedule 5.11, if finally determined adversely to the Target Companies, will not have, either individually or in the aggregate, a Material Adverse Effect upon any Target Company. In the past five (5) years, none of the current or former officers, senior management, managers or directors of any Target Company have been charged with, indicted for, arrested for, or convicted of any felony or any crime involving fraud.
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5.12 Material Contracts.
(a) Schedule 5.12(a) sets forth a true, correct and complete list of, and the Company has made available to SPAC (including written summaries of oral Contracts) true, correct and complete copies of, each Contract to which any Target Company is a party or by which any Target Company, or any of its properties or assets are bound or affected (each Contract required to be set forth on Schedule 5.12(a), a “Company Material Contract”) that:
(i) contains covenants that limit the ability of any Target Company (A) to compete in any line of business or with any Person or in any geographic area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants, employee and customer non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase or acquire an interest in any other Person;
(ii) involves any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(iii) involves any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Target Company having an outstanding principal amount in excess of $100,000;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $100,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests of any Target Company or another Person;
(vi) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(vii) by its terms, individually or with all related Contracts, resulted, during the twelve (12)-month period prior to the date hereof, in aggregate payments or receipts to or by the Target Companies under such Contract or Contracts of at least $100,000 individually or $250,000 in the aggregate;
(viii) is with any Top Customer or Top Supplier;
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(ix) obligates the Target Companies to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess of $100,000;
(x) is between any Target Company and any directors, officers or employees of a Target Company (other than at-will employment arrangements with employees entered into in the ordinary course of business consistent with past practice), including all non-competition, severance and indemnification agreements, or any Related Person;
(xi) obligates the Target Companies to make any capital commitment or expenditure in excess of $100,000 (including pursuant to any joint venture);
(xii) relates to a material settlement entered into within three (3) years prior to the date of this Agreement or under which any Target Company has outstanding obligations (other than customary confidentiality obligations);
(xiii) provides another Person (other than another Target Company or any manager, director or officer of any Target Company) with a power of attorney;
(xiv) relates to the development, ownership, licensing or use of any Intellectual Property by, to or from any Target Company, other than Off-the-Shelf Software;
(xv) that will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant; or
(xvi) is otherwise material to the Target Companies taken as a whole and not described in clauses (i) through (xv) above.
(b) Except as disclosed on Schedule 5.12(b), with respect to each Company Material Contract: (i) such Company Material Contract is valid and binding and enforceable in all respects against the Target Company party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions), (ii) the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability of any Company Material Contract, (iii) no Target Company is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute a material breach or default by any Target Company, or permit termination or acceleration by the other party thereto, under such Company Material Contract; (iv) to the Knowledge of the Company, no other party to such Company Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a material breach or default by such other party, or permit termination or acceleration by any Target Company, under such Company Material Contract; (v) no Target Company has received written or, to the Knowledge of the Company, oral notice of an intention by any party to any such Company Material Contract that provides for a continuing obligation by any party thereto to terminate such Company Material Contract or amend the terms thereof, other than modifications in the ordinary course of business that do not adversely affect any Target Company; and (vi) no Target Company has waived any material rights under any such Company Material Contract.
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5.13 Intellectual Property.
(a) Schedule 5.13(a)(i) sets forth: (i) all U.S. and foreign registered Patents, Trademarks, Copyrights and Internet Assets and applications owned or licensed by a Target Company or otherwise used or held for use by a Target Company in which a Target Company is the owner, applicant or assignee (“Company Registered IP”), specifying as to each item, as applicable: (A) the nature of the item, including the title, (B) the owner of the item, (C) the jurisdictions in which the item is issued or registered or in which an application for issuance or registration has been filed and (D) the issuance, registration or application numbers and dates and (ii) all material unregistered Intellectual Property owned or licensed or purported to be owned or licensed by a Target Company. Schedule 5.13(a)(ii) sets forth all Intellectual Property licenses, sublicenses and other agreements or permissions (“Company IP Licenses”) (other than “shrink wrap,” “click wrap” and “off the shelf” software agreements and other agreements for Software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $10,000 per year (collectively, “Off-the-Shelf Software”), which are not required to be listed, although such licenses are “Company IP Licenses” as that term is used herein), under which a Target Company is a licensee or otherwise is authorized to use or practice any Intellectual Property, and describes (A) the applicable Intellectual Property licensed, sublicensed or used and (B) any royalties, license fees or other compensation due from a Target Company, if any. Each Target Company owns, free and clear of all Liens (other than Permitted Liens), has valid and enforceable rights in, and has the unrestricted right to use, sell, license, transfer or assign, all Intellectual Property currently used, licensed or held for use by such Target Company, and previously used or licensed by such Target Company, except for the Intellectual Property that is the subject of the Company IP Licenses. No item of Company Registered IP that consists of a pending Patent application fails to identify all pertinent inventors, and for each Patent and Patent application in the Company Registered IP, the Target Companies have obtained valid assignments of inventions from each inventor. Except as set forth on Schedule 5.13(a)(iii), all Company Registered IP is owned exclusively by the applicable Target Company without obligation to pay royalties, licensing fees or other fees, or otherwise account to any third party with respect to such Company Registered IP, and such Target Company has recorded assignments of all Company Registered IP with any applicable Intellectual Property offices or Governmental Authorities.
(b) Each Target Company has a valid and enforceable license to use all Intellectual Property that is the subject of the Company IP Licenses applicable to such Target Company. The Company IP Licenses include all of the licenses, sublicenses and other agreements or permissions necessary to operate the Target Companies as presently conducted. Each Target Company has performed all obligations imposed on it in the Company IP Licenses, has made all payments required to date, and such Target Company is not, nor, to the Knowledge of the Company, is any other party thereto, in material breach or default thereunder, nor has any event occurred that with notice or lapse of time or both would constitute a default thereunder. The continued use by the Target Companies of the Intellectual Property that is the subject of the Company IP Licenses in the same manner that it is currently being used is not restricted by any applicable license of any Target Company. All registrations for Copyrights, Patents, Trademarks and Internet Assets that are owned by or exclusively licensed to any Target Company are valid, in force and in good standing with all required fees and maintenance and/or renewal fees having been paid with no Actions pending, and all applications to register any Copyrights, Patents and Trademarks are pending and in good standing, all without challenge of any kind other than office actions that may be issued by the applicable Intellectual Property office or governmental agency in the ordinary course of filing and prosecuting such applications. No Target Company is party to any Contract that requires a Target Company to assign to any Person all of its rights in any Intellectual Property developed by a Target Company under such Contract.
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(c) Schedule 5.13(c) sets forth all licenses, sublicenses and other agreements or permissions under which a Target Company is the licensor (each, an “Outbound IP License”), and for each such Outbound IP License, describes (i) the applicable Intellectual Property licensed, (ii) the licensee under such Outbound IP License, and (iii) any royalties, license fees or other compensation due to a Target Company, if any. Each Target Company has performed all obligations imposed on it in the Outbound IP Licenses, and such Target Company is not, nor, to the Knowledge of the Company, is any other party thereto, in breach or default thereunder, nor has any event occurred that with notice or lapse of time or both would constitute a default thereunder.
(d) No Action is pending or, to the Company’s Knowledge, threatened against a Target Company that challenges the validity, enforceability, ownership or right to use, sell, license or sublicense, or that otherwise relates to, any Intellectual Property currently owned, licensed, used or held for use by the Target Companies, nor, to the Knowledge of the Company, is there any reasonable basis for any such Action. No Target Company has received any written or, to the Knowledge of the Company, oral notice or claim asserting or suggesting that any infringement, misappropriation, violation, dilution or unauthorized use of the Intellectual Property of any other Person is or may be occurring or has or may have occurred, as a consequence of the business activities of any Target Company, nor to the Knowledge of the Company is there a reasonable basis therefor. There are no Orders to which any Target Company is a party or its otherwise bound that (i) restrict the rights of a Target Company to use, transfer, license or enforce any Intellectual Property owned by a Target Company, (ii) restrict the conduct of the business of a Target Company in order to accommodate a third Person’s Intellectual Property, or (iii) other than the Outbound IP Licenses, grant any third Person any right with respect to any Intellectual Property owned by a Target Company. No Target Company is currently infringing, or has, in the past infringed, misappropriated or violated any Intellectual Property of any other Person in any material respect in connection with the ownership, use or license of any Intellectual Property owned or purported to be owned by a Target Company or, to the Knowledge of the Company, otherwise in connection with the conduct of the respective businesses of the Target Companies. To the Company’s Knowledge, no third party is currently, or in the past five (5) years has been, infringing upon, misappropriating or otherwise violating any Intellectual Property owned, licensed by, licensed to, or otherwise used or held for use by any Target Company (“Company IP”) in any material respect.
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(e) All officers, directors, employees and independent contractors of a Target Company (and each of their respective Affiliates) have assigned to the Target Companies all Intellectual Property arising from the services performed for a Target Company by such Persons and, where applicable, all such assignments of Company Registered IP have been recorded. No current or former officers, employees or independent contractors of a Target Company have claimed any ownership interest in any Intellectual Property owned by a Target Company. To the Knowledge of the Company, there has been no violation of a Target Company’s policies or practices related to protection of Company IP or any confidentiality or nondisclosure Contract relating to the Intellectual Property owned by a Target Company. The Company has made available to SPAC true and complete copies of all written Contracts referenced in subsections under which employees and independent contractors assigned their Intellectual Property to a Target Company. To the Company’s Knowledge, none of the employees of any Target Company is obligated under any Contract, or subject to any Order, that would materially interfere with the use of such employee’s best efforts to promote the interests of the Target Companies, or that would materially conflict with the business of any Target Company as presently conducted or contemplated to be conducted. Each Target Company has taken reasonable security measures in order to protect the secrecy, confidentiality and value of the material Company IP.
(f) To the Knowledge of the Company, no Person has obtained unauthorized access to third party information and data (including personally identifiable information) in the possession of a Target Company, nor has there been any other material compromise of the security, confidentiality or integrity of such information or data, and no written or, to the Knowledge of the Company, oral complaint relating to an improper use or disclosure of, or a breach in the security of, any such information or data has been received by a Target Company. Each Target Company has complied in all material respects with all applicable Laws and Contract requirements relating to privacy, personal data protection, and the collection, processing and use of Personal Information and its own privacy policies and guidelines. The operation of the business of the Target Companies has not and does not violate any right to privacy or publicity of any third person, or constitute unfair competition or trade practices under applicable Law.
(g) The consummation of any of the transactions contemplated by this Agreement will not result in the material breach, material modification, cancellation, termination, suspension of or acceleration of any payments with respect to, or release of source code because of (i) any Contract providing for the license or other use of Intellectual Property owned by a Target Company, or (ii) any Company IP License. Following the Closing, the Company shall be permitted to exercise, directly or indirectly through its Subsidiaries, all of the Target Companies’ rights under such Contracts or Company IP Licenses to the same extent that the Target Companies would have been able to exercise had the transactions contemplated by this Agreement not occurred, without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Target Companies would otherwise be required to pay in the absence of such transactions.
(h) To the extent that any Software constitutes any material unregistered Intellectual Property owned by the Company or a Target Company, or any Software is the subject of any Company IP Licenses, to the Knowledge of the Company, such Software is free of all viruses, worms, Trojan horses and other material known contaminants and does not contain any bugs, errors, or problems of a material nature that would disrupt its operation or have an adverse impact on the operation of other Software.
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5.14 Taxes and Returns.
(a) Each Target Company has timely filed, or caused to be timely filed, all material Tax Returns required to be filed by it (taking into account all available extensions), which Tax Returns are true, accurate, correct and complete in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld, other than such Taxes for which adequate reserves in the Company Financials have been established in accordance with GAAP. Each Target Company has complied in all material respects with all applicable Laws relating to Tax. Schedule 5.14(a) sets forth each jurisdiction where each Target Company files or is required to file a Tax Return and the tax classification of each Target Company for U.S. federal income tax purposes (taking into account any IRS Forms 8832).
(b) There is no Action currently pending or, to the Knowledge of the Company, threatened against a Target Company by a Governmental Authority in a jurisdiction where the Target Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c) Except as set forth on Schedule 5.14(c), no Target Company is being audited by any Tax authority or has been notified in writing that any such audit is contemplated or pending. There are no claims, assessments, audits, examinations, investigations or other Actions pending against a Target Company in respect of any Tax, and no Target Company has been notified in writing of any proposed Tax claims or assessments against it (other than, in each case, claims or assessments for which adequate reserves in the Company Financials have been established).
(d) There are no Liens with respect to any Taxes upon any Target Company’s assets, other than Permitted Liens.
(e) No Target Company has any outstanding waivers or extensions of any applicable statute of limitations to assess any amount of material Taxes. There are no outstanding requests by a Target Company for any extension of time within which to file any Tax Return or within which to pay any Taxes shown to be due on any Tax Return.
(f) No Target Company has made any change in accounting method (except as required by a change in Law) or entered into any closing agreement with any taxing authority affecting or otherwise settled or compromised any material Tax Liability or refund.
(g) No Target Company has participated in, or sold, distributed or otherwise promoted, any “reportable transaction,” as defined in U.S. Treasury Regulation section 1.6011-4.
(h) No Target Company has any Liability or potential Liability for the Taxes of another Person (other than another Target Company) that is not adequately reflected in the Company Financials (i) under any applicable Tax Law, (ii) as a transferee or successor, or (iii) by Contract, indemnity or otherwise (excluding commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes). No Target Company is a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement, arrangement or practice (excluding commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes) with respect to Taxes (including advance pricing agreement, closing agreement or other agreement relating to Taxes with any Governmental Authority) that will be binding on any Target Company with respect to any period following the Closing Date.
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(i) No Target Company has requested, nor is it the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes, nor is any such request outstanding.
(j) To the Knowledge of the Company, there are no facts or circumstances that would reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment. The Company has not taken any action, or has any current plan, intention or obligations to take any action, that could reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment.
(k) Neither the Company nor any subsidiary of the Company has been either a “distributing corporation” or “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying or intended to qualify for tax-free treatment, in whole or in part, under Section 355 of the Code in the two years prior to the date of this Agreement.
(l) Neither the Company nor any subsidiary has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
5.15 Real and Personal Property.
(a) Schedule 5.15(a) sets forth a true and complete list (including street addresses) and description or parcel ID of each parcel of Owned Real Property. With respect to each such parcel of Owned Real Property, (i) the applicable Target Company has good, valid and marketable indefeasible fee simple title to the Owned Real Property, free and clear of all Liens other than Permitted Liens, (ii) to the extent in such Target Company’s possession, the Company has delivered or made available to SPAC true, complete and correct copies of the deeds and other instruments (as recorded) by which the applicable Target Company acquired such Owned Real Property, and copies of all title insurance policies in the possession of the Target Company and relating to the Owned Real Property, (iii) except as set forth on Schedule 5.15(b), no Target Company has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof, and (iv) other than the right granted pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein.
(b) Schedule 5.15(b) sets forth a true and complete list of all Real Property Leases for Leased Real Property, including the date and name of the parties to such Real Property Lease document. True and complete copies of all such Real Property Leases have been made available to SPAC (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto). Each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the applicable Target Company party thereto, enforceable in accordance with its terms against such Target Company and, to the Company’s Knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). There is no breach or default by any Target Company or, to the Company’s Knowledge, any third party under any Real Property Lease, and, to the Company’s Knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a breach or default or would permit termination of, or a material modification or acceleration thereof by any party to such Real Property Leases. No Target Company has subleased, licensed, or otherwise granted any Person the right to use or occupy the Leased Real Property, or any portion thereof, subject to such Real Property Lease.
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(c) The Owned Real Property identified on Schedule 5.15(a) and the Leased Real Property identified in Schedule 5.15(b), comprise all of the material real property used or intended to be used in, or otherwise related to, the Company Business.
(d) Except as qualified on Schedule 5.15(b), the Target Companies have all certificates of occupancy and permits of any Governmental Authority necessary or useful for the current use and operation of each Owned Real Property, and the Target Companies have fully complied with all material conditions of the permits applicable to them. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any such Permit.
(e) With respect to the Owned Real Properties: (i) there are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings or Actions relating to any Owned Real Property, and no Target Company has received any notice of the intention of any Governmental Authority or other Person to take or use all or any part thereof; (ii) there are no pending or, to the Knowledge of the Company, threatened Actions relating to boundary lines, ingress and egress, adverse possession or similar issues; (iii) the existing buildings and improvements located on the Owned Real Properties are located entirely within the boundary lines of such Owned Real Property or on permanent easements on adjoining land benefiting such Owned Real Property and may lawfully be used under applicable zoning and land use laws for the purposes for which they are presently being used; and (iv) the Owned Real Properties are in compliance with the terms and provisions of any restrictive covenants, easements, or agreements affecting such Owned Real Property. No Target Company has received any notice from any insurance company that has issued a policy with respect to any Owned Real Property requiring performance of any structural or other repairs or alterations to such Owned Real Property.
(f) Each item of Personal Property which is currently owned, used or leased by a Target Company with a book value or fair market value of greater than One Hundred Thousand Dollars ($100,000) is set forth on Schedule 5.15(d), along with, to the extent applicable, a list of lease agreements, lease guarantees, security agreements and other agreements related thereto, including all amendments, terminations and modifications thereof or waivers thereto (“Company Personal Property Leases”). Except as set forth on Schedule 5.15(f), all such items of Personal Property are in good operating condition and repair (reasonable wear and tear excepted consistent with the age of such items), and are suitable for their intended use in the business of the Target Companies. The operation of each Target Company’s business as it is now conducted or presently proposed to be conducted is not dependent upon the right to use the Personal Property of Persons other than a Target Company, except for such Personal Property that is owned, leased or licensed by or otherwise contracted to a Target Company. The Company has provided to SPAC a true and complete copy of each of the Company Personal Property Leases, and in the case of any oral Company Personal Property Lease, a written summary of the material terms of such Company Personal Property Lease. The Company Personal Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect. To the Knowledge of the Company, no event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence of any other event) would constitute a default on the part of a Target Company or any other party under any of the Company Personal Property Leases, and no Target Company has received notice of any such condition.
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5.16 Title to and Sufficiency of Assets. Each Target Company has good and marketable title to, or a valid leasehold interest in or right to use, all of its assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests, (c) Liens specifically identified on the most recent balance sheet included in the Company Financials and (d) Liens set forth on Schedule 5.16. The assets (including Intellectual Property rights and contractual rights) of the Target Companies constitute all of the assets, rights and properties that are used in the operation of the businesses of the Target Companies as it is now conducted or that are used or held by the Target Companies for use in the operation of the businesses of the Target Companies, and taken together, are adequate and sufficient for the operation of the businesses of the Target Companies as currently conducted.
5.17 Employee Matters.
(a) Except as set forth on Schedule 5.17(a), no Target Company is a party to any collective bargaining agreement or other Contract covering any group of employees, labor organization or other representative of any of the employees of any Target Company, and the Company has no Knowledge of any activities or proceedings of any labor union or other party to organize or represent such employees. There has not occurred or, to the Knowledge of the Company, been threatened any strike, slow-down, picketing, work-stoppage, or other similar labor activity with respect to any such employees. Schedule 5.17(a) sets forth all unresolved labor controversies (including unresolved employee, consultant or independent contractor claims, grievances and/or disputes, whether raised internally with the Company or through a representative, including any harassment, age or other discrimination, or retaliation claims, wage and hour claims, and any other claims arising under local, state or federal labor and employment laws), if any, that are pending or, to the Knowledge of the Company, threatened between any Target Company and Persons employed by or providing services as independent contractors to a Target Company. No current officer or employee of a Target Company has provided any Target Company written or, to the Knowledge of the Company, oral notice of his or her plan to terminate his or her employment with any Target Company.
(b) Except as set forth on Schedule 5.17(b), each Target Company (i) is and for the last six (6) years has been in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, legally-required trainings and notices, health and safety and wages and hours, and other Laws relating to discrimination, harassment, retaliation, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee terminations, and has not received written or, to the Knowledge of the Company, oral notice that there is any pending Action involving unfair labor practices against a Target Company, (ii) is not liable for any material past due arrears of wages or any material penalty for failure to comply with any of the foregoing, and (iii) is not liable for any material payment to any Governmental Authority with respect to unemployment compensation benefits, social security or other benefits or obligations for employees, independent contractors or consultants (other than routine payments to be made in the ordinary course of business and consistent with past practice). There are no Actions pending or, to the Knowledge of the Company, threatened against a Target Company brought by or on behalf of any applicant for employment, any current or former employee, any Person alleging to be a current or former employee, or any Governmental Authority, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment relationship.
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(c) Schedule 5.17(c) hereto sets forth a complete and accurate list as of the date hereof of all employees of the Target Companies with compensation of at least $100,000 per year, showing for each as of such date (i) the employee’s name, job title or description, employer, location, salary level (including any bonus, commission, deferred compensation or other remuneration payable (other than any such arrangements under which payments are at the discretion of the Target Companies)), (ii) any bonus, commission or other remuneration other than salary paid during the fiscal year ending December 31, 2024, and (iii) any wages, salary, bonus, commission or other compensation due and owing to each employee during or for the fiscal year ended December 31, 2024. Except as set forth on Schedule 5.17(c), (A) no employee is a party to a written employment Contract with a Target Company and each is employed “at will”, and (B) the Target Companies have paid in full to all their employees all wages, salaries, commission, bonuses and other compensation due to their employees, including overtime compensation, and no Target Company has any obligation or Liability (whether or not contingent) with respect to severance payments to any such employees under the terms of any written or, to the Company’s Knowledge, oral agreement, or commitment or any applicable Law, custom, trade or practice. Except as set forth on Schedule 5.17(c), each Target Company employee has entered into the Company’s standard form of employee non-disclosure, inventions and restrictive covenants agreement with a Target Company (whether pursuant to a separate agreement or incorporated as part of such employee’s overall employment agreement), a copy of which has been made available to SPAC by the Company.
(d) Schedule 5.17(d) lists, by dollar volume paid by the Target Companies within the last twelve (12 months), the twenty largest independent contractors (including consultants) currently engaged by any Target Company, along with the position, the entity engaging such Person, date of retention and rate of remuneration, most recent increase (or decrease) in remuneration and amount thereof, for each such Person. Except as set forth on Schedule 5.17(d), all of such independent contractors are a party to a written Contract with a Target Company. Except as set forth on Schedule 5.17(d), each such independent contractor has entered into customary covenants regarding confidentiality, non-competition and assignment of inventions and copyrights in such Person’s agreement with a Target Company, a copy of which has been provided to SPAC by the Company. For the purposes of applicable Law, including the Code, all independent contractors who are currently, or within the last six (6) years have been, engaged by a Target Company are bona fide independent contractors and not employees of a Target Company. Each independent contractor is terminable on fewer than thirty (30) days’ notice, without any obligation of any Target Company to pay severance or a termination fee.
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(e) To the Knowledge of the Company, since January 1, 2025, the Company has investigated all workplace harassment (including sexual harassment), discrimination, retaliation, and workplace violence written claims, if any, relating to current and/or former employees of the Company or third parties who interacted with current and/or former employees of the Company. With respect to each such written claim with potential merit, the Company has taken corrective action. Further, to the Knowledge of the Company, since January 1, 2025 no allegations of sexual harassment have been made to the Company against any individual in his or her capacity as director or an executive officer of the Company.
5.18 Benefit Plans.
(a) Set forth on Schedule 5.18(a) is a true and complete list of each Benefit Plan of a Target Company (each, a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(b) Except as set forth on Schedule 5.18(b), each Company Benefit Plan is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. No fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan, the Company has provided to SPAC accurate and complete copies, if applicable, of: (i) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto) or an accurate written summary of any Company Benefit Plan which is unwritten, (ii) all summary plan descriptions and material modifications thereto, (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto, (iv) the most recent annual and periodic accounting of plan assets, (v) the three (3) most recent nondiscrimination testing reports, (vi) the most recent determination letter received from the IRS, if any, (vii) the most recent actuarial valuation, and (viii) all material communications with any Governmental Authority.
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(d) Except as set forth on Schedule 5.18(d), with respect to each Company Benefit Plan: (i) such Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms and all applicable Laws, including the Code and ERISA, (ii) no breach of fiduciary duty that could reasonably be expected to result in Liability to any Target Company has occurred, (iii) no Action is pending, or to the Company’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration), (iv) no prohibited transaction, as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred that could reasonably be likely to result in Liability to any Target Company, excluding transactions effected pursuant to a statutory or administration exemption; (v) no filing has been made with respect to any Company Benefit Plan under any voluntary correction program; (vi) there has been no amendment to, written interpretation or announcement (whether or not written) by any Target Company relating to, any change in participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred with respect to such Company Benefit Plan for the most recent full fiscal year included in the Company Financials; and (vii) all contributions and premiums due through the Closing Date have been made in all material respects as required under all applicable Laws, including the Code and ERISA or have been fully accrued in all material respects on the Company Financials.
(e) During the six (6) year period preceding the Effective Time, no Target Company or any of their ERISA Affiliates has maintained, contributed to, sponsored, had an obligation to contribute to or any Liability, whether absolute or contingent, with respect to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code). No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and neither the Target Company nor any ERISA Affiliate has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the Closing Date. No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise or other tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B, 4980D, 4980H, 6721 and 6722 of the Code.
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(h) Except as set forth on Schedule 5.18(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents (either alone or in combination with another event) will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation, (ii) accelerate the time of payment, funding or vesting, or increase the amount of any compensation due, or in respect of, any individual, or (iii) result in or satisfy a condition to the payment of compensation (whether in cash or property or the vesting of property) that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code to any disqualified individual (as such term is defined in Treasury Regulation 1.280G-1). No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA. If none, Schedule 5.18(h) of the Company Disclosure Schedule shall state “None.”.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Subsidiaries or Pubco, or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 5.18(k). No equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Except as set forth on Schedule 5.18(k), (i) each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder, (ii) no Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code, and (iii) no payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate, reimburse or indemnify any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(l) Each Foreign Pension Plan, in form and operation, materially complies with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities. All contributions required to be made with respect to a Foreign Pension Plan have been timely made, and no Foreign Pension Plan has any Liability which is not properly accrued on the Company Financials. No Target Company has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan. The present value of the accrued benefit Liabilities (whether or not vested) under each Foreign Pension Plan, determined as of the end of the Target Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit Liabilities.
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5.19 Environmental Matters. Except as set forth on Schedule 5.19:
(a) Each Target Company is and has been in compliance in all material respects with all applicable Environmental Laws, including obtaining, maintaining in good standing, and complying in all material respects with all Permits required for its business and operations by Environmental Laws (“Environmental Permits”), no Action is pending or, to the Company’s Knowledge, threatened to revoke, modify, or terminate any such Environmental Permit, and, to the Company’s Knowledge, no facts, circumstances, or conditions currently exist that could adversely affect such continued compliance with Environmental Laws and Environmental Permits or require capital expenditures to achieve or maintain such continued compliance with Environmental Laws and Environmental Permits.
(b) Each Environmental Permit for the development, design, construction, ownership, or operation of any projects in development or operations of the Company Business by the Target Companies has been obtained by the Target Companies for the occupation of their facilities and the operation of their business.
(c) No Target Company is the subject of any outstanding Order or Contract with any Governmental Authority or other Person in respect of any (i) Environmental Laws, (ii) Remedial Action, or (iii) Release or threatened Release of a Hazardous Material. No Target Company has assumed, contractually or by operation of Law, any Liabilities or obligations under any Environmental Laws.
(d) No Action has been made or is pending, or to the Company’s Knowledge, threatened against any Target Company or any assets of a Target Company alleging either or both that a Target Company may be in material violation of any Environmental Law or Environmental Permit or may have any material Liability under any Environmental Law.
(e) No Target Company has manufactured, treated, stored, disposed of, arranged for or permitted the disposal of, generated, handled or Released any Hazardous Material, or owned or operated any property or facility, in a manner that has given or would reasonably be expected to give rise to any material Liability or obligation under applicable Environmental Laws. No fact, circumstance, or condition exists in respect of any Target Company or any property currently or formerly owned, operated, or leased by any Target Company or any property to which a Target Company arranged for the disposal or treatment of Hazardous Materials that could reasonably be expected to result in a Target Company incurring any material Environmental Liabilities.
(f) There is no investigation of the business, operations, or currently owned, operated, or leased property of a Target Company or, to the Company’s Knowledge, previously owned, operated, or leased property of a Target Company pending or, to the Company’s Knowledge, threatened that could lead to the imposition of any Liens under any Environmental Law or material Environmental Liabilities.
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(g) To the Knowledge of the Company, there is not located at any of the properties of a Target Company any (i) underground storage tanks, (ii) asbestos-containing material, or (iii) equipment containing polychlorinated biphenyls.
(h) There are no off-site Hazardous Materials treatment, storage, or disposal facilities or locations used by the Company, its Subsidiaries and any predecessors as to which the Company could reasonably be expected to retain any liabilities, and, to the Knowledge of the Company, none of these facilities or locations has been placed or proposed for placement on the National Priorities List (or CERCLIS or SEMS) under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), or any similar U.S. state or foreign list.
(i) The Company is not required by any Environmental Law or by virtue of the transactions set forth herein and contemplated hereby, or as a condition to the effectiveness of any transactions contemplated hereby, (i) to perform a site assessment for Hazardous Materials, (ii) to remove or remediate Hazardous Materials, (iii) to give notice to or receive approval from any Governmental Authority, or (iv) to record or deliver to any Person any disclosure document or statement pertaining to environmental matters.
(j) No Owned Real Property, or any property in which Company or any of its Subsidiaries holds a security interest, Lien or a fiduciary or management role, has had any Release of, any Hazardous Material in a manner that violates Environmental Law or requires reporting, investigation, remediation, or monitoring under Environmental Law.
(k) The Company has provided to SPAC all environmentally related site assessments, audits, studies, reports, analysis and results of investigations that have been performed in respect of the currently or previously owned, leased, or operated properties of any Target Company.
5.20 Transactions with Related Persons. Except as set forth on Schedule 5.20, no Target Company nor any of its Affiliates, nor any officer, director, manager, employee, trustee or beneficiary of a Target Company or any of its Affiliates, nor any immediate family member of any of the foregoing (whether directly or indirectly through an Affiliate of such Person) (each of the foregoing, a “Related Person”) is presently, or in the past three (3) years, has been, a party to any transaction with a Target Company, including any Contract or other arrangement (a) providing for the furnishing of services by (other than as officers, directors or employees of the Target Company), (b) providing for the rental of real property or Personal Property from or (c) otherwise requiring payments to (other than for services or expenses as directors, officers or employees of the Target Company in the ordinary course of business consistent with past practice) any Related Person or any Person in which any Related Person has an interest as an owner, officer, manager, director, trustee or partner or in which any Related Person has any direct or indirect interest (other than the ownership of securities representing no more than two percent (2%) of the outstanding voting power or economic interest of a publicly traded company). Except as set forth on Schedule 5.20, no Target Company has outstanding any Contract or other arrangement or commitment with any Related Person, and no Related Person owns any real property or Personal Property, or right, tangible or intangible (including Intellectual Property) which is used in the business of any Target Company. The assets of the Target Companies do not include any receivable or other obligation from a Related Person, and the liabilities of the Target Companies do not include any payable or other obligation or commitment to any Related Person.
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5.21 Insurance.
(a) Schedule 5.21(a) lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by a Target Company relating to a Target Company or its business, properties, assets, directors, officers and employees, copies of which have been provided to SPAC. All premiums due and payable under all such insurance policies have been timely paid and the Target Companies are otherwise in material compliance with the terms of such insurance policies. Each such insurance policy (i) is legal, valid, binding, enforceable and in full force and effect and (ii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the Closing. No Target Company has any self-insurance or co-insurance programs. In the past five (5) years, no Target Company has received any notice from, or on behalf of, any insurance carrier relating to or involving any adverse change or any change other than in the ordinary course of business, in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy.
(b) Schedule 5.21(b) identifies each individual insurance claim made by a Target Company in the past five (5) years. Each Target Company has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to be material to the Target Companies. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse of time) give rise to or serve as a basis for the denial of any such insurance claim. No Target Company has made any claim against an insurance policy as to which the insurer is denying coverage.
5.22 Books and Records. All of the financial books and records of the Target Companies are complete and accurate in all material respects and have been maintained in the ordinary course consistent with past practice and in accordance with applicable Laws.
5.23 Top Customers and Suppliers. Schedule 5.23 lists, by dollar volume received or paid, as applicable, for each of (a) the 12 months ended on December 31, 2025 and (b) the period from January 1, 2026 through the most recent balance sheet date, the 10 largest customers of the Target Companies (the “Top Customers”) and the 10 largest suppliers of goods or services to the Target Companies (the “Top Suppliers”), along with the amounts of such dollar volumes. The relationships of each Target Company with such suppliers and customers are good commercial working relationships and (i) no Top Supplier or Top Customer within the last 12 months has cancelled or otherwise terminated, or, to the Company’s Knowledge, intends to cancel or otherwise terminate, any material relationships of such Person with a Target Company, (ii) no Top Supplier or Top Customer has during the last 12 months decreased materially or, to the Company’s Knowledge, threatened to stop, decrease or limit materially, or intends to modify materially its material relationships with a Target Company or intends to stop, decrease or limit materially its products or services to any Target Company or its usage or purchase of the products or services of any Target Company, (iii) to the Company’s Knowledge, no Top Supplier or Top Customer intends to refuse to pay any amount due to any Target Company or seek to exercise any remedy against any Target Company, (iv) no Target Company has within the past two (2) years been engaged in any material dispute with any Top Supplier or Top Customer, and (v) to the Company’s Knowledge, the consummation of the transactions contemplated in this Agreement and the Ancillary Documents will not adversely affect the relationship of any Target Company with any Top Supplier or Top Customer.
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5.24 Certain Business Practices.
(a) No Target Company, nor any of the respective officers, managers or directors or, to the Company’s Knowledge, any other Representatives acting on their behalf, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices Act of 1977 or (iii) made any other unlawful payment. Since January 1, 2024, no Target Company, nor any of the respective officers, managers or directors or, to the Company’s Knowledge, any other Representatives acting on their behalf, has directly or knowingly indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder any Target Company or assist any Target Company in connection with any actual or proposed transaction.
(b) The operations of each Target Company are and have been conducted at all times in compliance with money laundering statutes in all applicable jurisdictions that govern the operations of the Target Company, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority that have jurisdiction over the Target Companies, and no Action involving a Target Company with respect to any of the foregoing is pending or, to the Knowledge of the Company, threatened.
(c) No Target Company or any of their respective directors, managers or officers, or, to the Knowledge of the Company, any other Representative acting on behalf of a Target Company is currently (i) identified on the specially designated nationals or other blocked person list or otherwise currently subject to any U.S. sanctions administered by OFAC, the U.S. Department of State, or other applicable Governmental Authority; (ii) organized, resident, or located in, or a national of a comprehensively sanctioned country; or (iii) in the aggregate, fifty percent (50%) or greater owned, directly or indirectly, or otherwise controlled, by a person identified in (i) or (ii); and no Target Company has, directly or, knowingly, indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any country comprehensively sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC or the U.S. Department of State in the last five (5) fiscal years.
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5.25 Privacy and Data Security.
(a) The Target Companies, and, to Knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of a Target Company in connection with the Processing of Personal Information or that otherwise have been authorized to have access to Personal Information in the possession or control of the Target Companies, comply and at all times in the past three (3) years have complied, in all material respects with all of the following: (i) Privacy Laws; (ii) the Company Privacy and Data Security Policies; and (iii) any Contract requirements or terms of use concerning the Processing of Personal Information to which a Target Company is a party or otherwise bound as of the date hereof (“Privacy Agreements”). To the Knowledge of the Company, the operation of the business of the Target Companies has not and does not violate any right to privacy or publicity of any third person under applicable Law.
(b) The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby do not and will not: (i) conflict with or result in a violation or breach of any Privacy Laws, Company Privacy and Data Security Policies (as currently existing or as existing at any time during which any Personal Information was collected or Processed by or for the Target Companies, or Privacy Agreements); or (ii) require the consent of or notice to any Person concerning such Person’s Personal Information.
(c) The Company has delivered or made available to SPAC true, complete, and correct copies of all Company Privacy and Data Security Policies.
(d) To the Knowledge of the Company, no Person has obtained unauthorized access to Personal Information in the possession of a Target Company, nor has there been any other material compromise of the security, confidentiality or integrity of such information or data, and no written or, to the Knowledge of the Company, oral complaint relating to an improper use or disclosure of, or a breach in the security of, any such information or data has been received by a Target Company (a “Security Incident”). The Target Companies have not notified and, to Knowledge of the Company, there have been no facts or circumstances that would require a Target Company to notify, any Governmental Authority or other Person of any Security Incident.
(e) In the past three (3) years, the Target Companies have not received any notice, request, claim, complaint, correspondence, or other communication in writing from any Governmental Authority or other Person, and there has not been any audit, investigation, enforcement action (including any fines or other sanctions), or other Action, (i) relating to any actual, alleged, or suspected Security Incident or violation of any Privacy Agreements, or any Person’s individual privacy rights involving Personal Information in the possession or control of the Target Companies, or held or Processed by any vendor, processor, or other third party for or on behalf of the Target Companies; (ii) prohibiting or threatening to prohibit the transfer of Personal Information to any place; or (iii) permitting or mandating any Governmental Authority to investigate, requisition information from, or enter the premises of, the Target Companies, and, to the Knowledge of the Company, there are no facts or circumstances that would reasonably be expected to give rise to any of the foregoing.
5.26 Investment Company Act. No Target Company is an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, or required to register as an “investment company”, in each case within the meaning of the Investment Company Act.
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5.27 Finders and Brokers. Except as set forth on Schedule 5.27, no Target Company has incurred or will incur any Liability for any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby.
5.28 Exclusivity of Representations.
(a) Except for the representations and warranties contained in Article IV and this Article V, neither the Company, GTS, Pubco, SPAC Merger Sub, Company Merger Sub, nor any other Person or entity on behalf of the Company, GTS, Pubco, SPAC Merger Sub or Company Merger Sub has made or makes any representation or warranty, whether express or implied, with respect to the Company, Pubco, SPAC Merger Sub, Company Merger Sub, their Affiliates, or any of their respective businesses, affairs, assets, Liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information provided or made available to the SPAC, its Affiliates or any of their Representatives by or on behalf of the Company, GTS, Pubco, SPAC Merger Sub, Company Merger Sub. None of the Company, GTS, Pubco, SPAC Merger Sub, Company Merger Sub, nor any other Person on behalf of the Company, Pubco, SPAC Merger Sub, Company Merger Sub, have made or makes any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to the SPAC, its Affiliates or any of their Representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of any of the Company, Pubco, SPAC Merger Sub, Company Merger Sub, or any of its or their Affiliates, whether or not included in any management presentation.
(b) The Company, GTS, Seller, Pubco, SPAC Merger Sub, Company Merger Sub, and each of its and their Affiliates, acknowledges and agrees that, (i) they have conducted their own independent investigation of the financial condition, results of operations, assets, liabilities, properties and projected operations of SPAC, (ii) they have been afforded satisfactory access to the books and records, facilities and personnel of SPAC for purposes of conducting such investigation, and (iii) except for the representations and warranties contained in Article III, neither the SPAC nor any other Person or entity on behalf of the SPAC has made or makes, and the Company, GTS, Seller, Pubco, SPAC Merger Sub, Company Merger Sub, and their Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to the SPAC, its Affiliates or their respective businesses, affairs, assets, Liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information provided or made available to the Company, GTS, Seller, Pubco, SPAC Merger Sub, Company Merger Sub, or their Affiliates or any of their Representatives by or on behalf of the SPAC.
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5.29 Information Supplied. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation by reference: (a) in any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the transactions contemplated by this Agreement or any Ancillary Documents; (b) in the Registration Statement; or (c) in the mailings or other distributions to SPAC’s shareholders and/or prospective investors with respect to the consummation of the transactions contemplated by this Agreement or in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing will, when filed or distributed, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by or on behalf of SPAC or its Affiliates.
ARTICLE
VI
COVENANTS
6.1 Access and Information.
(a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 8.1 or the Closing (the “Interim Period”), subject to Section 6.15, the Company and GTS shall give, and shall cause its Representatives to give, SPAC and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Target Companies, as SPAC or its Representatives may reasonably request regarding the Target Companies and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any)) and cause each of the Company’s Representatives to reasonably cooperate with SPAC and its Representatives in their investigation; provided, however, that SPAC and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Target Companies.
(b) During the Interim Period, subject to Section 6.15, SPAC shall give, and shall cause its Representatives to give, the Company and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to SPAC or its Subsidiaries, as the Company or its Representatives may reasonably request regarding SPAC, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any)) and cause each of SPAC’s Representatives to reasonably cooperate with the Company and its Representatives in their investigation; provided, however, that the Company and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of SPAC or any of its Subsidiaries.
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6.2 Conduct of Business of the Company.
(a) Unless SPAC shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, or as set forth on Schedule 6.2, the Company shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to the Target Companies and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, their respective business organizations, to keep available the services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as consistent with past practice.
(b) Without limiting the generality of Section 6.2(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents or as set forth on Schedule 6.2, during the Interim Period, without the prior written consent of SPAC (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
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(iii) split, reverse split, combine, subdivide, exchange, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $100,000 individually or $200,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or guarantee or endorse any Indebtedness, Liability or obligation of any Person in excess of $100,000 individually or $200,000 in the aggregate;
(v) increase the wages, salaries or compensation of its employees other than in the ordinary course of business, consistent with past practice, and in any event not in the aggregate by more than five percent (5%), fund or commit to fund any Company Benefit Plan, or make or commit to make any bonus, retention, transaction or other payment (whether in cash, property or securities) to any employee or other service provider, or materially increase other benefits of employees generally, or grant, accelerate the funding, vesting, lapsing of restrictions or payment or in any way amend, modify or supplement the terms of any equity or equity-based or phantom equity award, or forgive any loans or issue any loans to any service provider (other than in connection with a qualified retirement plan), or hire any new employee or engage any new independent contractor (who is a natural person) with target annual cash compensation in excess of $200,000, or enter into, establish, materially amend or terminate any Company Benefit Plan (except for the Post-Closing Equity Plan) with, for or in respect of any current or former consultant, officer, manager director or employee, in each case other than as required by applicable Law, pursuant to the terms of any Company Benefit Plans or in the ordinary course of business consistent with past practice;
(vi) make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Intellectual Property that is subject to Company IP Licenses or other Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any Contract that would be a Company Material Contract, in any case outside of the ordinary course of business consistent with past practice;
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(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) fail to use commercially reasonable efforts to maintain or renew any Permits necessary for the conduct of the Company Business;
(xi) establish any Subsidiary or enter into any new line of business;
(xii) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage as are currently in effect;
(xiii) revalue any of its material assets or make any change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiv) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $250,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xvi) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvii) make capital expenditures in excess of $250,000 (individually for any project (or set of related projects) or $500,000 in the aggregate), except for those expenditures set forth on Schedule 6.2(b)(xvii);
(xviii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xix) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $250,000 individually or $500,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
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(xx) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xxi) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxii) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxiii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiv) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(xxv) authorize or agree to do any of the foregoing actions.
6.3 Conduct of Business of SPAC.
(a) Unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents or as set forth on Schedule 6.3, SPAC shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to SPAC and its Subsidiaries and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, their respective business organizations, to keep available the services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as consistent with past practice. Notwithstanding anything to the contrary in this Section 6.3, nothing in this Agreement shall prohibit or restrict SPAC from: (i) extending, in accordance with SPAC’s Organizational Documents and the IPO Prospectus, the deadline by which it must complete its Business Combination (an “Extension”); (ii) incurring Extension Expenses; (iii) approving any other matters required in connection with the Extension; and (iv) redeeming the Class A Ordinary Shares held by its Public Shareholders as those Public Shareholders request in connection with the Extension pursuant to SPAC’s Organizational Documents; and no consent of any other Party shall be required in connection therewith.
(b) Without limiting the generality of Section 6.3(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents (including any Extension) or as set forth on Schedule 6.3, during the Interim Period, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), SPAC shall not, and shall cause its Subsidiaries to not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents except as required by applicable Law;
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(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, restricted stock units, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities; provided that nothing herein shall prevent SPAC from converting any SPAC Class B Ordinary Shares to SPAC Class A Ordinary Shares;
(iii) split, reverse split, combine, subdivide, exchange, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares or other equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $500,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person (provided, that this Section 6.3(b)(iv) shall not prevent SPAC from borrowing funds necessary to finance its ordinary course administrative costs and expenses and Expenses incurred in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement and the Extension Expenses);
(v) make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vi) amend, waive or otherwise change the Trust Agreement in any manner adverse to SPAC;
(vii) terminate, waive or assign any material right under any SPAC Material Contract;
(viii) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(ix) establish any Subsidiary or enter into any new line of business;
(x) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
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(xi) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting SPAC’s outside auditors;
(xii) waive, release, assign, settle or compromise any claim, action or proceeding (including any Action relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, SPAC or its Subsidiary) not in excess of $100,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in SPAC Financials;
(xiii) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business;
(xiv) make capital expenditures in excess of $100,000 individually for any project (or set of related projects) or $250,000 in the aggregate (excluding for the avoidance of doubt, incurring any Expenses);
(xv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than with respect to the Mergers);
(xvi) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xvii) enter into any agreement, understanding or arrangement with respect to the voting of SPAC Securities;
(xviii) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; or
(xix) authorize or agree to do any of the foregoing actions.
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6.4 Additional Financial Information.
(a) The Company shall deliver true and correct copies of the audited consolidated financial statements of the Target Companies as of and for each of the 12 months ended December 31, 2024 and December 31, 2025, consisting of the audited consolidated balance sheet of the Target Companies as of December 31, 2024 and December 31, 2025, and the related audited consolidated income statement, changes in members’ equity and statement of cash flows for the 12 months then ended, and the related notes thereto, audited by a PCAOB qualified auditor in accordance with PCAOB auditing standards (the “Company Audited Financials,” and together with the Company Unaudited Financials, the “Company Financials”), to SPAC, within fifteen (15) calendar days from the date of this Agreement or such later date as determined by SPAC in its sole discretion (such date. the “Audit Delivery Date”). The Company Audited Financials (i) shall be prepared in accordance with GAAP, (ii) shall fairly present, in all material respects, the financial position, results of operations, members’ deficit and cash flows of the Company, (iii) shall be (A) certified as audited in accordance with GAAP and the standards of the PCAOB by a PCAOB qualified auditor upon the filing of the initial Registration Statement, (B) shall contain an unqualified report of the Company’s auditors, and (C) shall be substantially identical in all material respects to the Company Unaudited Financials from the same period, and (iv) shall comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable).
(b) During the Interim Period, within thirty (30) calendar days following the end of each calendar month, each three-month quarterly period and each fiscal year following the Effective Date, the Company shall deliver to SPAC an unaudited consolidated income statement and an unaudited consolidated balance sheet of the Target Companies for the period from December 31, 2025 through the end of such calendar month, quarterly period or fiscal year and the applicable comparative period in the preceding fiscal year, in each case accompanied by a certificate of the Chief Financial Officer of the Company or such principal accounting officer of the Company to the effect that all such financial statements fairly present the consolidated financial position and results of operations of the Target Companies as of the date or for the periods indicated, in accordance with GAAP, subject to year-end audit adjustments and excluding footnotes (collectively, the “Interim Financial Information”). From the date hereof through the Closing Date, the Company will also promptly deliver to SPAC copies of any audited consolidated financial statements of the Target Companies that the Target Companies’ certified public accountants may issue.
(c) The Company shall deliver the audited consolidated financial statements of Pubco as of a date to be determined in Pubco’s reasonable discretion, consisting of the audited consolidated balance sheet as of such date, audited by a PCAOB qualified auditor in accordance with PCAOB auditing standards (the “Pubco Audited Financials”, and together with the Company Audited Financials, the “Audited Financials”) within fifteen (15) calendar days following the Effective Date. The Pubco Audited Financials (i) shall be prepared in accordance with GAAP, (ii) shall fairly present, in all material respects, the financial position, results of operations, members’ deficit and cash flows of Pubco, (iii) shall be (A) certified as audited in accordance with GAAP and the standards of the PCAOB by a PCAOB qualified auditor upon the filing of the initial Registration Statement, and (B) shall contain an unqualified report of the Company’s auditors, and (iv) shall comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable).
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(d) During the Interim Period, Pubco shall deliver Pubco’s interim financial statements for such periods as required by applicable Law or SEC guidance to be included in the Registration Statement (the “Pubco Unaudited Financial Statements” and together with the Pubco Audited Financial Statements and the Company Audited Financials, the “Required Financial Statements”). The Pubco Unaudited Financial Statements shall be delivered no later than the date on which such interim financial statements would otherwise be required to be filed if Pubco were subject to the periodic reporting requirements of the Exchange Act or such later date as SPAC and Pubco may mutually agree in writing. The representations and warranties set forth in Section 5.7 shall be deemed to apply to the Required Financial Statements, as and when they have been delivered to SPAC, with the same force and effect as if made on the date of this Agreement.
6.5 SPAC Public Filings. During the Interim Period, SPAC will keep current and timely file all of its public filings with the SEC and otherwise comply in all material respects with applicable securities Laws and shall use its commercially reasonable efforts prior to the Closing to maintain the listing of SPAC Public Units, SPAC Class A Ordinary Shares, and SPAC Public Rights on NASDAQ; provided, that the Parties acknowledge and agree that from and after the Closing, the Parties intend to list on NASDAQ only the Pubco Class A Common Stock.
6.6 No Solicitation; Change in Recommendation.
(a) For purposes of this Agreement:
(i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction,
(ii) an “Alternative Transaction” means (A) with respect to the Company and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning the sale or acquisition by a Person (or group of Persons) of (x) all or any material part of the business or assets of the Target Companies (other than in the ordinary course of business consistent with past practice) or (y) any of the shares or other equity interests or profits of the Target Companies, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect to SPAC and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning a Business Combination involving SPAC.
(iii) an “Intervening Event” means, with respect to the Company, a material event, fact, development, circumstance or occurrence (but specifically excluding any Acquisition Proposal or Alternative Transaction) that was not known by, and was not reasonably foreseeable to, the board of directors of SPAC as of the date of this Agreement (or the consequences or magnitude of which were not known by, or reasonably foreseeable to, the relevant board of directors as of the date of this Agreement), and that becomes known to such board of directors after the date of this Agreement and prior to the time the Required SPAC Shareholder Approval is obtained, and does not relate to, and excludes, (A) the transactions contemplated hereby or this Agreement (or any actions taken pursuant to this Agreement) including clearance of the transactions by any Governmental Authority or under any other applicable Laws and any action in connection therewith taken pursuant to or required to be taken pursuant to Section 6.9; (B) any change in the price or trading volume of SPAC Class A Ordinary Shares, and (C) any change described in subsections (i) through (v) of the definition of “Material Adverse Effect”; provided, however, that any such change described in this clause (C) described in subsections (i) through (v) of the definition of “Material Adverse Effect” may be taken into account in determining whether an Intervening Event has occurred to the extent that it disproportionately affects the relevant Party, taken as a whole, relative to other participants in the industries or geographical areas in which such Party operates.
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(b) During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of the transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the prior written consent of the Company and SPAC, directly or indirectly, (i) solicit, assist, initiate or facilitate the making, submission or announcement of, or intentionally encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, or otherwise change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, SPAC Board Recommendation (in the case of SPAC and Merger Sub) (a “Change in Recommendation”), (v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal, (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party, or (vii) agree or resolve to do any of the foregoing.
(c) Each Party shall notify the others as promptly as practicable (and in any event within 48 hours) in writing of the receipt by such Party or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that would reasonably be expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to such Party or its Affiliates in connection with any Acquisition Proposal, specifying in each case, the material terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if oral), as applicable, and the identity of the party making such inquiry, proposal, offer or request for information. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.
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(d) Notwithstanding anything in this Section 6.6 or otherwise in this Agreement to the contrary, if, at any time prior to (but not after) obtaining the Required SPAC Shareholder Approval, the board of directors of SPAC determines in good faith, in response to an Intervening Event, after consultation with its outside legal counsel, that the failure to make a Change in Recommendation would be a breach of its fiduciary duties under applicable Law, SPAC’s board of directors may make a Change in Recommendation; provided that SPAC will not be entitled to make, or agree or resolve to make, a Change in Recommendation unless (i) SPAC delivers to the Company a written notice (a “Change in Recommendation Notice”) advising the Company that its board of directors proposes to take such action and containing the material facts underlying its board of directors’ determination that an Intervening Event has occurred, and (ii) at or after 5:00 p.m., New York City time, on the fifth (5th) Business Day immediately following the day on which the Change in Recommendation Notice is delivered (such period from the time the Change in Recommendation Notice is delivered until 5:00 p.m. New York City time on the fifth (5th) Business Day immediately following the day on which the Change in Recommendation Notice is delivered (it being understood that any material development with respect to an Intervening Event shall require a new notice but with an additional three (3) Business Day period from the date of such notice), the “Change in Recommendation Notice Period”), the board of directors of SPAC reaffirms in good faith (after consultation with its outside legal counsel and taking into account any adjustments in the terms and conditions of this Agreement offered by the Company as described in the following sentence) that the failure to make a Change in Recommendation would be a breach of its fiduciary duties under applicable Law. If requested by the Company, SPAC will use its reasonable best efforts to cause its Representatives to, during the Change in Recommendation Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Change in Recommendation.
(e) Notwithstanding anything to the contrary contained in this Agreement, during a Change in Recommendation Notice Period, the obligations of SPAC and/or SPAC Board to give notice for or to convene a meeting, to make a recommendation, or, except as required by applicable Law, to make filings with the SEC with respect to the proposals contemplated herein shall be tolled to the extent reasonably necessary until such time as SPAC has filed an update to the Registration Statement with the SEC (which SPAC shall file as promptly as practicable after the Change in Recommendation by SPAC Board), and in the event a filing and/or notice for a meeting was made prior to the Change in Recommendation Notice Period, SPAC shall be permitted to adjourn such meeting and to amend such filing as necessary in order to provide sufficient time for the shareholders to consider any revised recommendation. To the fullest extent permitted by applicable Law, SPAC’s obligations to establish a record date for, duly call, give notice of, convene and hold SPAC Extraordinary General Meeting shall not be affected by any Change in Recommendation by SPAC Board.
6.7 No Trading. The Company acknowledges and agrees that it is aware, and that the Company’s Affiliates are aware (and each of their respective Representatives is aware or, upon receipt of any material nonpublic information of SPAC, will be advised) of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC and NASDAQ promulgated thereunder or otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees that, while it is in possession of such material nonpublic information, it shall not purchase or sell any securities of SPAC (other than to engage in the Mergers in accordance with Article I), communicate such information to any third party, take any other action with respect to SPAC in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
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6.8 Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice to the other Parties if such Party or its Affiliates: (a) fails to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its Affiliates hereunder in any material respect; (b) receives any notice or other communication in writing from any third party (including any Governmental Authority) alleging (i) that the Consent of such third party is or may be required in connection with the transactions contemplated by this Agreement or (ii) any non-compliance with any Law by such Party or its Affiliates; (c) receives any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; (d) discovers any fact or circumstance that, or becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would reasonably be expected to cause or result in any of the conditions to the Closing set forth in Article VII not being satisfied or the satisfaction of those conditions being materially delayed; or (e) becomes aware of the commencement or threat, in writing, of any Action against such Party or any of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such Party, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with respect to the consummation of the transactions contemplated by this Agreement. No such notice shall constitute an acknowledgement or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
6.9 Efforts.
(a) Subject to the terms and conditions of this Agreement, each Party shall use its commercially reasonable efforts, and shall cooperate fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including the receipt of all applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental Authorities applicable to the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of Section 6.9(a), to the extent required under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (“Antitrust Laws”), each Party hereto agrees to make any required filing or application under Antitrust Laws, as applicable, at such Party’s sole cost and expense, with respect to the Transactions as promptly as practicable, to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under Antitrust Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the Antitrust Laws. Each Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under any Antitrust Law, use its commercially reasonable efforts to: (i) cooperate in all respects with each other Party or its Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private Person, (ii) keep the other Parties reasonably informed of any communication received by such Party or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private Person, in each case regarding any of the transactions contemplated by this Agreement, (iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences, (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto, and (v) use commercially reasonable efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
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(c) As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) their respective commercially reasonable efforts to prepare and file with Governmental Authorities requests for approval that are required in connection with the transactions contemplated by this Agreement and shall use all commercially reasonable efforts to have such Governmental Authorities approve the transactions contemplated by this Agreement as may be required. Each Party shall give prompt written notice to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection with the transactions contemplated by this Agreement, and shall promptly furnish the other Parties with a copy of such Governmental Authority notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the transactions contemplated hereby, whether prior to the Closing or after the Closing, each of Party shall arrange for Representatives of such Party to be present for such hearing or meeting. If any objections are asserted with respect to the transactions contemplated by this Agreement under any applicable Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby, the Parties shall use their commercially reasonable efforts to resolve any such objections or Actions so as to timely permit consummation of the transactions contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections or Actions which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby. In the event any Action is instituted (or threatened to be instituted) by a Governmental Authority or private Person challenging the transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective commercially reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement or the Ancillary Documents.
(d) Prior to the Closing, each Party shall use its commercially reasonable efforts to obtain any Consents of Governmental Authorities or other third Persons as may be necessary for the consummation by such Party or its Affiliates of the transactions contemplated by this Agreement or required as a result of the execution or performance of, or consummation of the transactions contemplated by, this Agreement by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
(e) At the request of SPAC, the Company shall make the members of its management reasonably available to participate in management presentations, “road shows,” rating agency presentations, meetings with financing sources and similar events in connection with obtaining the approval of SPAC shareholders, any “share recycling” efforts by SPAC and/or the obtaining of any debt or equity financing or the obtaining of ratings or Governmental Authority and other third party approvals.
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6.10 Tax Matters.
(a) Each of the Parties shall use its reasonable best efforts to cause the Mergers to qualify for the Intended Tax Treatment. None of the Parties shall (and each of the Parties shall cause their respective Subsidiaries not to) take any action, or fail to take any action, that could reasonably be expected to cause the Mergers to fail to qualify for the Intended Tax Treatment.
(b) Any and all transfer, documentary, sales, use, stamp, registration and other similar Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with the Mergers will be paid by the responsible Party when due, and the responsible Party will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges.
(c) At or prior to the Closing, the Company shall have delivered to SPAC, in a form reasonably acceptable to SPAC, a properly executed certification that shares of the Company are not “United States real property interests” in accordance with Treasury Regulation Section 1.1445-2(c)(3), together with a notice to the IRS (which shall be filed by SPAC with the IRS at or following the Closing) in accordance with the provisions of Section 1.897-2(h)(2) of the Treasury Regulations.
6.11 Further Assurances. The Parties hereto shall further cooperate with each other and use their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on their part under this Agreement and applicable Laws to consummate the transactions contemplated by this Agreement as soon as reasonably practicable, including preparing and filing as soon as practicable all documentation to effect all necessary notices, reports and other filings.
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6.12 The Registration Statement.
(a) Within five (5) Business Days following the Audit Delivery Date, SPAC, Pubco, GTS and the Company shall prepare, and file with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Pubco Class A Common Stock, the Pubco Class B Common Stock, the Pubco Preferred Stock and the shares of Pubco Class A Common Stock underlying the Pubco Preferred Stock to be issued under this Agreement to the holders of SPAC Ordinary Shares (other than SPAC Dissenting Shares and SPAC Redeeming Shares), SPAC Rights and to the Seller pursuant to the Mergers, which Registration Statement will also contain a proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from SPAC shareholders for the matters to be acted upon at SPAC Extraordinary General Meeting and providing the Public Shareholders an opportunity in accordance with SPAC’s Organizational Documents to have their SPAC Class A Ordinary Shares redeemed (the “Redemption”). The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from SPAC shareholders to vote, at an extraordinary general meeting of SPAC shareholders to be called and held for such purpose (the “SPAC Extraordinary General Meeting”), in favor of resolutions approving (i) by way of SPAC Ordinary Resolution, the adoption and approval of this Agreement, the Ancillary Documents and the transactions contemplated hereby or referred to herein, including the Business Combination (as defined in SPAC’s Organizational Documents) and the Mergers, by the holders of SPAC Ordinary Shares in accordance with SPAC’s Organizational Documents, the Act and the rules and regulations of the SEC and NASDAQ, (ii) by way of SPAC Special Resolution, approval of the Plan of Merger, (iii) by way of SPAC Ordinary Resolution, the adoption and approval of the Amended Pubco Charter (as hereinafter defined), (iv) by way of SPAC Ordinary Resolution, the adoption and approval of a new equity incentive plan for Pubco in a form satisfactory to SPAC and the Company (the “Incentive Plan” or “Post-Closing Equity Plan”), and which will provide for awards for a number of shares of Pubco Class A Common Stock equal to 15% of the aggregate number of shares of Pubco Common Stock issued and outstanding immediately after the Closing (after giving effect to the Redemption), as further set forth in the Incentive Plan, (v) by way of SPAC Ordinary Resolution, the appointment of the members of the Post-Closing Pubco Board in accordance with Section 6.16(a) hereof, (vi) by way of SPAC Ordinary Resolution, the approval of the material differences between SPAC’s Organizational Documents and the Amended Pubco Charter, (vii) by way of SPAC Special Resolution, the amendment of SPAC’s Organizational Documents to extend the date in respect of which SPAC must consummate a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses thereunder, to the extent determined by SPAC that such proposal should be included, (viii) such other matters (or, to the extent applicable, excluding such approval matters) as the Company and SPAC shall hereafter mutually determine to be necessary or appropriate in order to effect the Mergers and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (viii), collectively, the “SPAC Shareholder Approval Matters”), and (ix) the adjournment of SPAC Extraordinary General Meeting to a later date or dates, if necessary or desirable in the reasonable determination of SPAC. If on the date for which SPAC Extraordinary General Meeting is scheduled, SPAC has not received proxies representing a sufficient number of shares to obtain the Required SPAC Shareholder Approval, whether or not a quorum is present, or has received written notice from one or more SPAC Dissenting Shareholder objecting to the SPAC Merger, SPAC may make one or more successive postponements or adjournments of SPAC Extraordinary General Meeting. In connection with the Registration Statement, SPAC, Pubco and the Company will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in SPAC’s Organizational Documents, the Act and the rules and regulations of the SEC and NASDAQ. The Company shall promptly provide SPAC and Pubco with such information concerning the Target Companies and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Registration Statement, or in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
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(b) SPAC, Pubco and the Company shall take any and all reasonable and necessary actions required to satisfy the requirements of SPAC’s Organizational Documents, the Act, the Securities Act, the Exchange Act and other applicable Laws in connection with the Registration Statement, SPAC Extraordinary General Meeting, the Redemption and any dissenters’ rights holders of SPAC Ordinary Shares may have under the Act with respect to the SPAC Merger. Each of SPAC, Pubco and the Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Company, SPAC, Pubco and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Registration Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. SPAC, Pubco and the Company shall amend or supplement the Registration Statement and cause the Registration Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to SPAC shareholders and the Seller, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and SPAC’s Organizational Documents.
(c) Each of Pubco, SPAC and the Company shall promptly respond to any SEC comments on the Registration Statement and shall otherwise use their commercially reasonable efforts to cause the Registration Statement to “clear” comments from the SEC and become effective.
(d) As soon as practicable following the Registration Statement “clearing” comments from the SEC and being declared effective by the SEC (the “SEC Approval Date”), SPAC and Pubco shall distribute the Registration Statement to SPAC’s shareholders and the Seller, and, pursuant thereto, shall call SPAC Extraordinary General Meeting in accordance with SPAC’s Organizational Documents and the Act for a date no later than thirty (30) calendar days following the effectiveness of the Registration Statement or as otherwise agreed upon by SPAC and the Company.
(e) SPAC and Pubco shall comply with all applicable Laws, any applicable rules and regulations of NASDAQ, SPAC’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Registration Statement, any solicitation of proxies thereunder, the calling and holding of SPAC Extraordinary General Meeting and the Redemption.
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6.13 Public Announcements.
(a) The Parties agree that during the Interim Period no public release, statement, filing, announcement or other public communication concerning this Agreement or the Ancillary Documents or the transactions contemplated hereby or thereby, including the existence or status thereof, shall be issued by any Party or any of its Affiliates without the prior written consent of SPAC and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party shall use commercially reasonably efforts to allow SPAC, Pubco and the Company, reasonable time to comment on, and arrange for any required filing with respect to, such release or announcement in advance of such issuance.
(b) SPAC and the Company shall mutually agree upon and, as promptly as practicable after the execution of this Agreement (but in any event within four (4) Business Days thereafter), issue a press release announcing the execution of this Agreement (the “Signing Press Release”). Promptly after the issuance of the Signing Press Release, SPAC shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by Federal Securities Laws, which the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing (with the Company reviewing, commenting upon and approving such Signing Filing in any event no later than the third (3rd) Business Day after the execution of this Agreement). The Parties shall mutually agree upon and, as promptly as practicable after the Closing (but in any event within four (4) Business Days thereafter), issue a press release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”). Promptly after the issuance of the Closing Press Release, Pubco shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Federal Securities Laws. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing, the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a Party to any Governmental Authority or other third party in connection with the transactions contemplated hereby, each Party shall, upon request by any other Party, furnish the Parties with all information concerning themselves, their respective directors, officers and equity holders, and such other matters as may be reasonably necessary or advisable in connection with the transactions contemplated hereby, or any other report, statement, filing, notice or application made by or on behalf of a Party to any third party and/or any Governmental Authority in connection with the transactions contemplated hereby.
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6.14 Confidential Information.
(a) The Company hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination, it shall, and shall cause its Affiliates and Representatives to: (i) treat and hold in strict confidence any SPAC Confidential Information, and will not use for any purpose (except in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, performing their obligations hereunder or thereunder, enforcing their rights hereunder or thereunder, or in furtherance of their authorized duties on behalf of SPAC or its Subsidiaries), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of SPAC Confidential Information without SPAC’s prior written consent; and (ii) in the event that the Company or any of its Affiliates or Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination, becomes legally compelled to disclose any SPAC Confidential Information, (A) provide SPAC to the extent legally permitted with prompt written notice of such requirement so that SPAC or an Affiliate thereof may seek, at SPAC’s cost, a protective Order or other remedy or waive compliance with this Section 6.14(a), and (B) in the event that such protective Order or other remedy is not obtained, or SPAC waives compliance with this Section 6.14(a), furnish only that portion of such SPAC Confidential Information which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such SPAC Confidential Information. In the event that this Agreement is terminated and the transactions contemplated hereby are not consummated, the Company shall, and shall cause its Affiliates and Representatives to, promptly deliver to SPAC or destroy (at SPAC’s election) any and all copies (in whatever form or medium) of SPAC Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Company and its Affiliates and Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies; and provided, further, that any SPAC Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement.
(b) SPAC hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination, it shall, and shall cause its Representatives to: (i) treat and hold in strict confidence any Company Confidential Information, and will not use for any purpose (except in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, performing its obligations hereunder or thereunder or enforcing its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Company Confidential Information without the Company’s prior written consent; and (ii) in the event that SPAC or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VIII, for a period of 2 years after such termination, becomes legally compelled to disclose any Company Confidential Information, (A) provide the Company to the extent legally permitted with prompt written notice of such requirement so that the Company may seek, at the Company’s sole expense, a protective Order or other remedy or waive compliance with this Section 6.14(b) and (B) in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with this Section 6.14(b), furnish only that portion of such Company Confidential Information which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Company Confidential Information. In the event that this Agreement is terminated and the transactions contemplated hereby are not consummated, SPAC shall, and shall cause its Representatives to, promptly deliver to the Company or destroy (at SPAC’s election) any and all copies (in whatever form or medium) of Company Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that SPAC and its Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies; and provided, further, that any Company Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement. Notwithstanding the foregoing, SPAC and its Representatives shall be permitted to disclose any and all Company Confidential Information to the extent required by the Federal Securities Laws.
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6.15 Documents and Information. After the Closing Date, Pubco shall, and shall cause its Subsidiaries (including the Company) to, until the 7th anniversary of the Closing Date, retain all books, records and other documents pertaining to the business of SPAC and the Company in existence on the Closing Date.
6.16 Post-Closing Board of Directors and Executive Officers.
(a) The Parties shall take all necessary action, including causing the directors of the Pubco to resign, so that effective as of the Closing, Pubco’s board of directors (the “Post-Closing Pubco Board”) will consist of five (5) individuals. Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing Pubco Board (i) one person designated by SPAC prior to the Closing (the “SPAC Director”), who shall be Nadir Ali, and (ii) four (4) persons that are designated by the Company prior to the Closing (the “Company Directors”), one of whom shall be Michael McCracken and at least three (3) of whom shall be required to qualify as an independent director under NASDAQ rules. At or prior to the Closing, Pubco will provide each member of the Post-Closing Pubco Board with a customary director indemnification agreement, in form and substance reasonably acceptable to such SPAC Director.
(b) The Parties shall take all action necessary, including causing the executive officers of Pubco to resign, so that immediately after the Closing, Nadir Ali is serving as the chief executive officer of Pubco and a Person designated by the Company is serving as chief financial officer (or such equivalent role whose duties include those of the principal accounting officer of Pubco immediately after the Closing).
6.17 Indemnification of Directors and Officers; Tail Insurance.
(a) The Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or former directors, managers and officers of each Target Company, SPAC and each Person who served as a director, officer, manager, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of SPAC or the Company (the “D&O Indemnified Persons”) as provided in their respective Organizational Documents or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and SPAC, Pubco, any Merger Sub, GTS or the Company, in each case as in effect on the date of this Agreement, shall survive the Closing and continue in full force and effect in accordance with their respective terms to the extent permitted by applicable Law. For a period of 6 years after the Effective Time, Pubco shall cause the Organizational Documents of Pubco and the Surviving Subsidiaries to contain provisions no less favorable with respect to exculpation and indemnification of and advancement of expenses to D&O Indemnified Persons than are set forth as of the date of this Agreement in the Organizational Documents of SPAC to the extent permitted by applicable Law. The provisions of this Section 6.17 shall survive the Closing and are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Persons and their respective heirs and representatives.
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(b) For the benefit of each of SPAC’s directors and officers, Pubco shall, prior to the Effective Time, obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period from and after the Effective Time for events occurring prior to the Effective Time (the “SPAC D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than SPAC’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage.
(c) For the benefit of each of the Company’s managers and officers, the Company shall, prior to the Effective Time, obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period from and after the Effective Time for events occurring prior to the Effective Time (the “Company D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than the Company’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage.
(d) Pubco and the Surviving Subsidiaries shall maintain SPAC D&O Tail Insurance and the Company D&O Tail Insurance, in full force and effect, and continue to honor the obligations thereunder, and Pubco and the Surviving Subsidiaries shall timely pay or cause to be paid all premiums with respect to SPAC D&O Tail Insurance and the Company D&O Tail Insurance.
6.18 Trust Account Proceeds.
(a) The Parties agree that after the Closing, the funds in the Trust Account, after taking into account payments for the Redemption (the “Available Trust Proceeds”), shall be applied in the following order of priority: (i) first, to pay (A) SPAC’s accrued and unpaid Expenses, (B) SPAC’s deferred Expenses (including cash amounts payable to the IPO Underwriters and any legal fees), (C) any loans owed by SPAC to the Sponsor for any Expenses (including deferred Expenses) or other administrative costs and expenses incurred by or on behalf of SPAC or Extension Expenses, and (D) any other unpaid Expenses of the Company as of the Closing (such Expenses described in clauses (A) through (D), collectively, the “Closing Expenses”); and (ii) second, after payment of the Closing Expenses, the remaining Available Trust Proceeds after payment of the Closing Expenses (such amount actually retained, the “Working Capital Reserve”) shall be retained by Pubco for general working capital purposes of Pubco and the Surviving Subsidiaries.
(b) SPAC shall deliver a written notice to the Company and the Seller no later than two (2) Business Days prior to the anticipated Closing Date setting forth SPAC’s good faith estimate of the Available Trust Proceeds (after giving effect to the Redemption), the estimated Closing Expenses and the estimated Working Capital Reserve (the “Trust Proceeds Estimate”). The Company shall have the right to review and provide comments on the Trust Proceeds Estimate, and SPAC and the Company shall cooperate in good faith to resolve any disagreements with respect thereto prior to the Closing.
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6.19 Underwriting Agreement. On or prior to the Closing, Pubco shall assume all obligations of the SPAC under the IPO Underwriting Agreement.
ARTICLE
VII
CLOSING CONDITIONS
7.1 Conditions to Each Party’s Obligations. The obligations of each Party to consummate the Mergers and the other transactions described herein shall be subject to the satisfaction or written waiver (where permissible) by the Company and SPAC of the following conditions:
(a) Required SPAC Shareholder Approval. The SPAC Shareholder Approval Matters that are submitted to the vote of the shareholders of SPAC at SPAC Extraordinary General Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote of the shareholders of SPAC at SPAC Extraordinary General Meeting in accordance with SPAC’s Organizational Documents, the Act, applicable Law and the Proxy Statement (the “Required SPAC Shareholder Approval”).
(b) Antitrust Laws. Any waiting period (and any extension thereof) applicable to the consummation of this Agreement under any Antitrust Laws shall have expired or been terminated.
(c) Requisite Regulatory Approvals. All Consents required to be obtained from or made with any Governmental Authority in order to consummate the transactions contemplated by this Agreement shall have been obtained or made.
(d) No Adverse Law or Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) or Order that is then in effect and which has the effect of making the transactions or agreements contemplated by this Agreement illegal or which otherwise prevents or prohibits consummation of the transactions contemplated by this Agreement.
(e) Appointment to the Board. The members of the Post-Closing Pubco Board shall have been elected or appointed as of the Closing consistent with the requirements of Section 6.16(a).
(f) Appointment of Executive Officers. The executive officers of Pubco as of the Closing shall be consistent with the requirements of Section 6.16(b).
(g) Registration Statement. The Registration Statement shall have been declared effective by the SEC and shall remain effective as of the Closing, and no stop order or similar order shall be in effect with respect to the Registration Statement.
(h) Certificate of Designation. Pubco shall have filed the Certificate of Designation with the Nevada Secretary of State.
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(i) Pubco Charter Amendment. Prior to the Closing, Pubco shall have amended and restated its articles of incorporation in a form satisfactory to SPAC and the Company (the “Amended Pubco Charter”).
(j) NASDAQ Listing. The shares of Pubco Class A Common Stock shall have been approved for listing on Nasdaq upon the Closing.
(k) Incentive Plan. Pubco shall have adopted, on or prior to Closing, the Incentive Plan.
(l) Lock-Up Agreements. At-Risk Capital Investors and GTS Management shall have each entered into a Lock-Up Agreement.
(m) Joinder to IPO Underwriting Agreement. Pubco shall have duly executed and delivered to SPAC and the other parties thereto a joinder to the IPO Underwriting Agreement, in form and substance satisfactory to SPAC, pursuant to which Pubco will become party to and assume all of SPAC’s obligations under, the IPO Underwriting Agreement.
7.2 Conditions to Obligations of the Company Parties. In addition to the conditions specified in Section 7.1, the obligations of the Company Parties to consummate the Mergers and the other transactions contemplated by this Agreement are subject to the satisfaction or written waiver (by the Company) of the following conditions:
(a) Representations and Warranties. (i) The SPAC Fundamental Representations shall be true and correct in all material respects on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in the first sentence of Section 3.5(a) shall be true and correct in all respects (except for de minimis inaccuracies) on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date), (iii) the other representations and warranties of SPAC in Article III (other than SPAC Fundamental Representations and the representations and warranties set forth in the first sentence of Section 3.5(a) shall be true and correct (without giving effect to any limitations as to “materiality” or any similar limitation set forth herein) in all respects on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date)), except where the failure of such representations and warranties to be true and correct, individually and in the aggregate has not had a Material Adverse Effect.
(b) Agreements and Covenants. SPAC shall have performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under this Agreement to be performed or complied with by SPAC on or prior to the Closing Date.
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(c) Certain Ancillary Documents. The Amended Registration Rights Agreement shall be in full force and effect as of the Closing.
(d) Closing Deliveries.
(i) Officer Certificate. SPAC shall have delivered to the Company a certificate, dated the Closing Date, signed by an executive officer of SPAC in such capacity, certifying as to the satisfaction of the conditions specified in Sections 7.2(a) and 7.2(b).
(ii) Secretary Certificate. SPAC shall have delivered to the Company a certificate from its secretary or other executive officer certifying as to, and attaching, (A) copies of SPAC’s Organizational Documents as in effect as of the Closing Date prior to the Effective Time, (B) the resolutions of the board of directors of SPAC authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the transactions contemplated hereby and thereby, (C) evidence that the Required SPAC Shareholder Approval has been obtained and (D) the incumbency of officers of SPAC authorized to execute this Agreement or any Ancillary Document to which SPAC is or is required to be a party or otherwise bound.
(iii) Good Standing. SPAC shall have delivered to the Company a good standing certificate (or similar documents applicable for such jurisdictions) for SPAC certified as of a date no earlier than thirty (30) calendar days prior to the Closing Date from the proper Governmental Authority of SPAC’s jurisdiction of organization and from each other jurisdiction in which SPAC is qualified to do business as a foreign entity as of the Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdictions.
(e) Waiver of Adjustments to the Initial Conversion Ratio. SPAC shall have procured the written consent of the holders of a majority of the outstanding SPAC Class B Ordinary Shares waiving adjustments to the Initial Conversion Ratio (as defined in SPAC’s Organizational Documents), in accordance with Article 17.5 of SPAC’s Organizational Documents.
7.3 Conditions to Obligations of SPAC. In addition to the conditions specified in Section 7.1, the obligations of SPAC to consummate the Mergers and the other transactions contemplated by this Agreement are subject to the satisfaction or written waiver (by SPAC) of the following conditions:
(a) Representations and Warranties. (i) the Target Company Fundamental Representations shall be true and correct (without giving effect to any limitation as to “materiality” set forth therein) in all material respects on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in the first sentence of Section 5.3(a) shall be true and correct in all respects on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date, and (iii) the representations and warranties of the Target Companies, as applicable, set forth in Article V (other than the Target Company Fundamental Representations and the representations and warranties set forth in the first sentence of Section 5.3(a) and the representations and warranties of the Company Parties (other than the representations and warranties of the Company)) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth herein) in all respects on and as of the date of this Agreement and on and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, individually and in the aggregate has not had a Material Adverse Effect.
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(b) Agreements and Covenants. The Company Parties shall have performed in all material respects all of their respective obligations and complied in all material respects with all of their respective agreements and covenants under this Agreement to be performed or complied with by them on or prior to the Closing Date, including but not limited to, the Debt Restructuring.
(c) No Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Target Companies since the date of this Agreement.
(d) Certain Ancillary Documents. Each Lock-Up Agreement and the Amended Registration Rights Agreement shall be in full force and effect as of the Closing.
(e) Closing Deliveries.
(i) Officer Certificate. SPAC shall have received a certificate from the Company, dated as the Closing Date, signed by an executive officer of the Company in such capacity, certifying as to the satisfaction of the conditions specified in Sections 7.3(a), 7.3(b) and 7.3(c).
(ii) Secretary Certificate. The Company shall have delivered to SPAC a certificate from its secretary or other executive officer certifying as to, and attaching, (A) copies of each Target Company’s Organizational Documents as in effect as of the Closing Date prior to the Effective Time, (B) the requisite resolutions of each of the Company, Pubco, Company Merger Sub and SPAC Merger Sub authorizing and approving the execution, delivery and performance of this Agreement and each Ancillary Document to which the Company Parties are or are required to be a party or bound, and the consummation of the Mergers and the other transactions contemplated hereby and thereby, and the adoption of the Surviving Company Subsidiary Organizational Documents, and recommending the approval and adoption of the same by the holders of Company Interests at a duly called meeting of members, (C) evidence that the Required Company Member Approval has been obtained, (D) a copy of a special resolution passed in writing by Pubco, in its capacity as the sole shareholder of SPAC Merger Sub, approving the Plan of Merger in accordance with the Act, and (E) the incumbency of officers authorized to execute this Agreement or any Ancillary Document to which a Target Company is or is required to be a party or otherwise bound.
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(iii) Good Standing. The Company shall have delivered to SPAC good standing certificates (or similar documents applicable for such jurisdictions) for each Target Company and Pubco certified as of a date no earlier than thirty (30) calendar days prior to the Closing Date from the proper Governmental Authority of the Target Company’s or Pubco’s jurisdiction of organization and from each other jurisdiction in which the Target Company or Pubco is qualified to do business as a foreign corporation or other entity as of the Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdictions.
(iv) Resignations. Subject to the requirements of Section 6.16, SPAC shall have received written resignations, effective as of the Closing, of each of the directors, managers and/or officers (as applicable) of Pubco, the Company and GTS, as requested by SPAC prior to the Closing.
(v) Employment Agreements. SPAC and Pubco shall have received employment agreements, in each case effective as of the Closing, in form and substance acceptable to SPAC, between each person listed on Schedule 7.3(e)(v) and Pubco, and each such employment agreement duly executed by the parties thereto.
(vi) Consents. The Company shall have delivered to SPAC evidence that the consents listed on Schedule 7.3(e)(vi) have been received.
(f) Debt Restructuring. The Debt Restructuring shall have been completed pursuant to and in accordance with the terms of the Debt Restructuring Documents.
7.4 Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article VII to be satisfied if such failure was caused by the failure of such Party or its Affiliates (or with respect to the Company, any Target Company or the Seller) failure to comply with or perform any of its covenants or obligations set forth in this Agreement.
ARTICLE
VIII
TERMINATION AND EXPENSES
8.1 Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing as follows:
(a) by mutual written consent of SPAC and the Company;
(b) by written notice by SPAC or the Company if any of the conditions to the Closing set forth in Article VII have not been satisfied or waived by the Outside Date; provided, however, the right to terminate this Agreement under this Section 8.1(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
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(c) by written notice by either SPAC or the Company to the other if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply with any provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental Authority;
(d) by written notice by the Company to SPAC, (i) if there has been a material breach by SPAC of any of its representations, warranties, covenants or agreements contained in this Agreement or if any representation or warranty of SPAC shall have become materially untrue or materially inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.2(a) or Section 7.2(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the material breach or material inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) calendar days after written notice of such material breach or material inaccuracy is provided to SPAC or (B) the Outside Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if at such time the Company is in material uncured breach of this Agreement;
(e) by written notice by SPAC to the Company, if (i) there has been a material breach by the Company of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.3(a) or Section 7.3(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) calendar days after written notice of such breach or inaccuracy is provided to the Company or (B) the Outside Date; provided, that SPAC shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if at such time SPAC is in material uncured breach of this Agreement;
(f) by written notice by SPAC to the Company, if there shall have been a Material Adverse Effect on the Target Companies following the date of this Agreement which is uncured and continuing;
(g) by written notice by either SPAC or the Company to the other, if the SPAC Extraordinary General Meeting is held (including any adjournment or postponement thereof) and has concluded, SPAC’s shareholders have duly voted, and the Required SPAC Shareholder Approval was not obtained; or
(h) by written notice by SPAC to the Company, if the Company has not delivered the Company Audited Financials to SPAC on or before the Audit Delivery Date.
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8.2 Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 8.1 and pursuant to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination, including the provision of Section 8.1 under which such termination is made. In the event of the valid termination of this Agreement pursuant to Section 8.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Sections 6.14, 6.15, 8.3, 9.1, Article X and this Section 8.2 shall survive the termination of this Agreement, and (ii) nothing herein shall relieve any Party from Liability for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above, subject to Section 9.1).
8.3 Fees and Expenses. Subject to Section 9.1, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such expenses, subject to Section 6.19; provided that if the Closing occurs, all unpaid Expenses incurred by SPAC will be paid by Pubco from the Trust Account or other cash sources available to Pubco or its Subsidiaries at the Closing, including (i) all fees, costs and expenses (including filing fees) paid or payable by any Party or any of its Affiliates as a result of or in connection with or arising under any applicable Antitrust Laws, including fees and expenses relating to any pre-merger notification required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended shall be shared equally between the Parties, (ii) all fees, costs and expenses (including filing fees and printer costs) paid or payable by any Party or any of its Affiliates as a result of or in connection with or arising from filing the Registration Statement with the SEC shall be shared equally between the Parties, and (iii) all fees, costs and expenses (including filing fees) paid or payable by any Party or any of its Affiliates as a result of or in connection with or arising from submitting to NASDAQ a listing application for the shares of Pubco Class A Common Stock (including any filing fees arising therefrom) shall be shared equally between the Parties.
8.4 Survival. The representations and warranties of the Parties contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Parties or their respective Representatives pursuant to this Agreement shall not survive the Closing, and from and after the Closing, the Parties and their respective Representatives shall not have any further obligations, nor shall any claim be asserted or action be brought against the Parties or their respective Representatives with respect thereto. The covenants and agreements made by the Parties and their respective Representatives in this Agreement or in any certificate or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such covenants or agreements, shall not survive the Closing, except for those covenants and agreements contained herein and therein that by their terms apply or are to be performed in whole or in part after the Closing (which such covenants shall survive the Closing and continue until fully performed in accordance with their terms).
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ARTICLE
IX
WAIVERS AND RELEASES
9.1 Waiver of Claims Against Trust. Reference is made to the IPO Prospectus. The Company, Pubco and the Merger Subs each hereby represents and warrants that it has read the IPO Prospectus and understands that SPAC has established the Trust Account containing the proceeds of the IPO and the overallotment shares acquired by SPAC’s underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of SPAC’s public shareholders (including overallotment shares acquired by SPAC’s underwriters) (the “Public Shareholders”) and that, except as otherwise described in the IPO Prospectus, SPAC may disburse monies from the Trust Account only: (a) to the Public Shareholders in the event they elect to redeem their SPAC Class A Ordinary Shares in connection with the consummation of SPAC’s initial business combination (as such term is defined in SPAC’s Organizational Documents) (the “Business Combination”) or in connection with an extension of its deadline to consummate a Business Combination, (b) to the Public Shareholders if SPAC fails to consummate a Business Combination within eighteen (18) months after the closing of the IPO, subject to extension by an amendment to SPAC’s Organizational Documents, (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any income taxes or (d) to SPAC after or concurrently with the consummation of a Business Combination. For and in consideration of SPAC entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the Company, Pubco and the Merger Subs hereby agrees on behalf of itself and its Affiliates that, notwithstanding anything to the contrary in this Agreement, none of the Company, Pubco or the Merger Subs nor any of their respective Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any proposed or actual business relationship between SPAC or any of its Representatives, on the one hand, and the Company, Pubco or the Merger Subs or any of their respective Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to herein as, the “Released Claims”). Each of the Company, Pubco and the Merger Subs, on behalf of itself and its Affiliates, hereby irrevocably waives any Released Claims that any such Party or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, contracts or agreements with SPAC or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of this Agreement or any other agreement with SPAC or its Affiliates). Each of the Company, Pubco and the Merger Subs agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by SPAC and its Affiliates to induce SPAC to enter in this Agreement, and each of the Company, Pubco and the Merger Subs further intends and understands such waiver to be valid, binding and enforceable against such Party and each of its respective Affiliates under applicable Law. To the extent that the Company, Pubco and the Merger Subs or any of their respective Affiliates commences any Action based upon, in connection with, relating to or arising out of any matter relating to SPAC or its Representatives, which proceeding seeks, in whole or in part, monetary relief against SPAC or its Representatives, each of the Company, Pubco and the Merger Subs hereby acknowledges and agrees that its and its Affiliates’ sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit such Party or any of its Affiliates (or any Person claiming on any of their behalves or in lieu of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. In the event that the Company, Pubco, the Merger Subs or any of their respective Affiliates commences Action based upon, in connection with, relating to or arising out of any matter relating to SPAC or its Representatives which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions therefrom) or the Public Shareholders, whether in the form of money damages or injunctive relief, SPAC and its Representatives, as applicable, shall be entitled to recover from the Company, Pubco and the Merger Subs and their respective Affiliates, as applicable, the associated legal fees and costs in connection with any such Action, in the event SPAC or its Representatives, as applicable, prevails in such Action. This Section 9.1 shall survive termination of this Agreement for any reason and continue indefinitely.
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ARTICLE
X
MISCELLANEOUS
10.1 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by electronic means (including email), with affirmative confirmation of receipt, (iii) one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
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If to SPAC at or prior to the Closing, to:
NMP Acquisition Corp. 555 Bryant Street, No. 590 Palo Alto, CA 94301 Attn: Melanie Figueroa, CEO Email: |
with a copy (which will not constitute notice) to:
Mitchell Silberberg & Knupp LLP 437 Madison Ave., 25th Floor New York, NY 10022 Attn: Blake Baron, Esq. Email: |
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If to the Seller or Pubco at or prior to the Closing, to:
Streeterville Capital, LLC 300 E Randolph Street, Suite 40.150 Chicago, IL 60601 Attn: John Fife; Chris Stalcup Email: |
with a copy (which will not constitute notice) to:
Winston Taylor LLP 800 Capitol St., Suite 2400 Houston, TX 77002 Attn: Michael J. Blankenship Email: |
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If to the Company, the Company Surviving Subsidiary or Pubco after the Closing, to:
GTS Holdings, Inc. 230 Mountain Brook Ct Canton, GA 30115 Attn: Nadir Ali Email: |
with a copy (which will not constitute notice) to:
Winston Taylor LLP 800 Capitol St., Suite 2400 Houston, TX 77002 Attn: Michael J. Blankenship Email: |
10.2 Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of SPAC, Pubco and the Company, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning Party of its obligations hereunder.
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10.3 Third Parties. Except for the rights of (i) the D&O Indemnified Persons set forth in Section 6.17, which the Parties acknowledge and agree are express third party beneficiaries of this Agreement and (ii) the IPO Underwriters, which the Parties acknowledge and agree are express third party beneficiaries of this Agreement for purposes of Article III, nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party hereto or thereto or a successor or permitted assign of such a Party.
10.4 Governing Law; Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of New York without regard to the conflict of laws principles thereof, provided that matters that as a matter of the laws of the Cayman Islands are required to be governed by the laws of the Cayman Islands (including, without limitation, in respect of the SPAC Merger and the exercise of appraisal and dissenters’ rights under the Act and the fiduciary duties that may apply to the directors and officers of the Parties) shall be governed by and construed in accordance with, the laws of the Cayman Islands, without regard to laws that may be applicable under conflicts of laws principles that would cause the application of the laws of any jurisdiction other than the Cayman Islands to such matters. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any state or federal court located in New York, New York (or in any appellate court thereof) (the “Specified Courts”). Each Party hereto hereby (a) submits to the exclusive jurisdiction of any Specified Courts for the purpose of any Action arising out of or relating to this Agreement brought by any Party hereto and (b) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Courts. Each Party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each Party irrevocably consents to the service of the summons and complaint and any other process in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such Party at the applicable address set forth in Section 10.1. Nothing in this Section 10.4 shall affect the right of any Party to serve legal process in any other manner permitted by Law.
10.5 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.5.
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10.6 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and the non-breaching Parties may have no adequate remedy at law, and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
10.7 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
10.8 Amendment. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by SPAC, the Company and Pubco.
10.9 Waiver. SPAC on behalf of itself and its Affiliates and the Company on behalf of itself and its Affiliates, may in its sole discretion (i) extend the time for the performance of any obligation or other act of any other non-Affiliated Party hereto, (ii) waive any inaccuracy in the representations and warranties by such other non-Affiliated Party contained herein or in any document delivered pursuant hereto and (iii) waive compliance by such other non-Affiliated Party with any covenant or condition contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
10.10 Entire Agreement. This Agreement and the documents or instruments referred to herein, including any exhibits and schedules attached hereto, which exhibits and schedules are incorporated herein by reference, together with the Ancillary Documents, embody the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the Parties with respect to the subject matter contained herein.
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10.11 Interpretation. The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement, unless the context otherwise requires: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise defined in this Agreement or any Ancillary Document has the meaning assigned to such term in accordance with GAAP; (d) ”including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement; (f) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (g) the term “or” means “and/or”; (h) any reference to the term “ordinary course” or “ordinary course of business” shall be deemed in each case to be followed by the words “consistent with past practice”; (i) any agreement, instrument, insurance policy, Law or Order defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument, insurance policy, Law or Order as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes, regulations, rules or orders) by succession of comparable successor statutes, regulations, rules or orders and references to all attachments thereto and instruments incorporated therein; (j) except as otherwise indicated, all references in this Agreement to the words “Section,” “Article”, “Schedule” and “Exhibit” are intended to refer to Sections, Articles, Schedules and Exhibits to this Agreement; and (k) the term “Dollars” or “$” means United States dollars. Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing body and any reference in this Agreement to a Person’s officers shall include any Person filling a substantially similar position for such Person. Any reference in this Agreement or any Ancillary Document to a Person’s shareholders or stockholders shall include any applicable owners of the equity interests of such Person, in whatever form, including with respect to SPAC its shareholders or stockholders under the Act, DLLCA, as then applicable, or its Organizational Documents. The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. To the extent that any Contract, document, certificate or instrument is represented and warranted to by the Company to be given, delivered, provided or made available by the Company, in order for such Contract, document, certificate or instrument to have been deemed to have been given, delivered, provided and made available to SPAC or its Representatives, such Contract, document, certificate or instrument shall have been posted to the electronic data site maintained on behalf of the Company for the benefit of SPAC and its Representatives and SPAC and its Representatives have been given access to the electronic folders containing such information.
10.12 Counterparts. This Agreement and each Ancillary Document may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
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10.13 Legal Representation. The Parties agree that, notwithstanding the fact that Mitchell Silberberg & Knupp LLP (“MSK”) may have, prior to Closing, jointly represented SPAC and/or the Sponsor in connection with this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, and has also represented SPAC and/or its Affiliates in connection with matters other than the transaction that is the subject of this Agreement, MSK will be permitted in the future, after Closing, to represent one or more of the Sponsor or its respective Affiliates in connection with matters in which such Persons are adverse to Pubco, SPAC or any of their respective Affiliates, including any disputes arising out of, or related to, this Agreement. The Company, who is or has the right to be represented by independent counsel in connection with the transactions contemplated by this Agreement, hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with MSK’s future representation of one or more of the Sponsor or its Affiliates in which the interests of such Person are adverse to the interests of Pubco, SPAC, the Company or any of their respective Affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by MSK of SPAC or any of its Affiliates. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, the Sponsor shall be deemed a client of MSK with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Pubco or the Surviving Subsidiaries; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates (including, after the Effective Time, Pubco, the Surviving Subsidiaries, and their respective Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
ARTICLE
XI
DEFINITIONS
11.1 Certain Definitions. For purposes of this Agreement, the following capitalized terms have the following meanings:
“Accounting Principles” means in accordance with GAAP as in effect at the date of the financial statement to which it refers or if there is no such financial statement, then as of the Closing Date, using and applying the same accounting principles, practices, procedures, policies and methods (with consistent classifications, judgments, elections, inclusions, exclusions and valuation and estimation methodologies) used and applied by the Target Companies in the preparation of the Company Audited Financials.
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“Action” means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint, stipulation, assessment or arbitration, or any request (including any request for information), inquiry, hearing, proceeding or investigation, by or before any Governmental Authority.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person. For the avoidance of doubt, Sponsor shall be deemed to be an Affiliate of SPAC prior to the Closing.
“Ancillary Documents” means each agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates and instruments to be executed or delivered by any of the Parties hereto in connection with or pursuant to this Agreement.
“At-Risk Capital Investors” means the holders of SPAC Private Units and SPAC Class B Ordinary Shares.
“Available Trust Proceeds” has the meaning given to it in Section 6.18(a).
“Benefit Plans” of any Person means any and all deferred compensation, executive compensation, incentive compensation, phantom equity, option, stock appreciation right, restricted stock, restricted stock unit, equity purchase or other equity-based compensation plan, employment or consulting, severance, change in control, retention or termination pay, employee or consultant loan program, vacation, sick, or other bonus, deferred compensation plan or practice, hospitalization or other medical, life, death, disability or other insurance, fringe benefit, Section 125 cafeteria plan, welfare, supplemental unemployment benefits, profit sharing, pension, or retirement plan, program, agreement, commitment or arrangement, Foreign Pension Plan, and each other employee benefit plan, program, agreement or arrangement, including each “employee benefit plan” as such term is defined under Section 3(3) of ERISA (including any similar plan subject to laws of a jurisdiction outside of the United States), maintained or contributed to or required to be contributed to by a Person for the benefit of any employee or former employee of such Person, or with respect to which such Person has any Liability, whether direct or indirect, actual or contingent, whether formal or informal, and whether legally binding or not.
“Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York and the Cayman Islands are authorized to close for business, excluding as a result of “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 banking institutions in New York, New York and the Cayman Islands are generally open for use by customers on such day.
“Certificate of Designation” means the Certificate of Designation establishing and setting forth the preferences, rights, qualifications, limitations and restrictions of the Series A Preferred Stock of Pubco, in the form attached hereto as Exhibit E.
“Closing Expenses” has the meaning given to it in Section 6.18(a)(i).
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“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as amended. Reference to a specific section of the Code shall include such section and any valid treasury regulation promulgated thereunder.
“Company Confidential Information” means all confidential or proprietary documents and information concerning the Target Companies or any of their respective Representatives, furnished in connection with this Agreement or the transactions contemplated hereby; provided, however, that Company Confidential Information shall not include any information which, (i) at the time of disclosure by SPAC or its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure by a Target Company or its Representatives to SPAC or its Representatives was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such Company Confidential Information.
“Company Convertible Securities” means, collectively, any options, warrants or rights to subscribe for or purchase any equity securities of the Company or securities convertible into or exchangeable for, or that otherwise confer on the holder any right to acquire any equity securities of the Company (but excluding any Company Interests).
“Company Interests” means the issued and outstanding membership interests of the Company.
“Company Privacy and Data Security Policies” means all of the Target Companies’ past or present, internal or public-facing policies, notices, and statements concerning the privacy, security, or Processing of Personal Information, including written information security policies.
“Consent” means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority or any other Person.
“Contracts” means all contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses (and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments or obligations of any kind, written or oral (including any amendments and other modifications thereto).
“Control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled”, “Controlling” and “under common Control with” have correlative meanings. Without limiting the foregoing a Person (the “Controlled Person”) shall be deemed Controlled by (a) any other Person (i) owning beneficially, as meant in Rule 13d-3 under the Exchange Act, securities entitling such Person to cast ten percent (10%) or more of the votes for election of directors or equivalent governing authority of the Controlled Person or (ii) entitled to be allocated or receive ten percent (10%) or more of the profits, losses, or distributions of the Controlled Person; (b) an officer, director, general partner, partner (other than a limited partner), manager, or member (other than a member having no management authority that is not a Person described in clause (a) above) of the Controlled Person; or (c) a spouse, parent, lineal descendant, sibling, aunt, uncle, niece, nephew, mother-in-law, father-in-law, sister-in-law, or brother-in-law of an Affiliate of the Controlled Person or a trust for the benefit of an Affiliate of the Controlled Person or of which an Affiliate of the Controlled Person is a trustee.
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“Copyrights” means any works of authorship, including but not limited to mask works, textual works, visual, pictorial, or graphical works, or compilations of data or other information and all copyrights therein, including all renewals and extensions, copyright registrations and applications for registration and renewal, and non-registered copyrights.
“Debt Restructuring” means the consummation, prior to the Effective Time, of one or more transactions pursuant to which that portion of the Indebtedness then outstanding and owing by the Target Companies to the Seller under the Seller Secured Notes shall be consolidated into a single instrument and all amounts in excess of $75,000,000 shall be converted into equity interests of the Company, such that, immediately prior to the Effective Time, the aggregate principal amount of Indebtedness outstanding under the Seller Secured Notes (which shall have been exchanged pursuant to the terms of the Debt Restructuring and reissued to Seller pursuant to the terms of the First Lien Secured Promissory Note) and the Seller Line of Credit (together with all accrued and unpaid interest thereon), in the aggregate, does not exceed $82,000,000.
“Debt Restructuring Documents” means all transaction documents evidencing the Debt Restructuring (including but not limited to, any and all amendments, waivers, modifications or terminations thereto), each in form and substance reasonably satisfactory to SPAC and the Company.
“Enterprise Value” means Four Hundred Million U.S. Dollars ($400,000,000).
“Environmental Law” means any Law in any way relating to (a) the protection of human health and safety, (b) the protection, preservation or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC. Section 9601 et. seq., the Resource Conservation and Recovery Act, 42 USC. Section 6901 et. seq., the Toxic Substances Control Act, 15 USC. Section 2601 et. seq., the Federal Water Pollution Control Act, 33 USC. Section 1151 et seq., the Clean Air Act, 42 USC. Section 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC. Section 111 et. seq., Occupational Safety and Health Act, 29 USC. Section 651 et. seq. (to the extent it relates to exposure to Hazardous Materials), the Asbestos Hazard Emergency Response Act, 15 USC. Section 2601 et. seq., the Safe Drinking Water Act, 42 USC. Section 300f et. seq., the Oil Pollution Act of 1990 and analogous state acts.
“Environmental Liabilities” means, in respect of any Person, all Liabilities, obligations, responsibilities, Remedial Actions, Losses, damages, costs, and expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand by any other Person or in response to any violation of Environmental Law, whether known or unknown, accrued or contingent, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, to the extent based upon, related to, or arising under or pursuant to any Environmental Law, Environmental Permit, Order, or Contract with any Governmental Authority or other Person, that relates to any environmental, health or safety condition, violation of Environmental Law, or a Release or threatened Release of Hazardous Materials.
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“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means each person (as defined in Section 3(9) of ERISA) which together with any Target Company or any of its Subsidiaries would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Expenses” shall mean all fees, costs and expenses, including all out-of-pocket expenses (including all such fees, costs and expenses with respect to counsel, accountants, investment bankers, financial advisors, financing sources, experts and consultants to a Party hereto or any of its Affiliates, exchange listings, SEC filings, compliance with the Hart Scott Rodino Antitrust Improvements Act of 1976 and obtaining the D&O Tail Insurance), incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution or performance of this Agreement or any Ancillary Document related hereto and all other matters related to the consummation of the transactions contemplated hereby and thereby. With respect to SPAC, Expenses shall include any and all expenses incurred in connection with the consummation of a Business Combination, any administrative costs and expenses incurred by or on behalf of SPAC and any costs and expenses necessary for an Extension (including any of the foregoing incurred by Sponsor or its Affiliates or SPAC’s directors or officers, in each case on behalf of the SPAC and that the SPAC is liable for) (such expenses, “Extension Expenses”).
“First Lien Secured Promissory Note” means the Senior Secured Promissory Note issued by GTS to Seller prior to the Effective Time, in the aggregate principal amount of $75,000,000, pursuant to the terms of the Debt Restructuring.
“Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation fund) or other similar program (other than social security or social insurance) established or maintained outside of the United States by any Target Company or any one or more of its Affiliates primarily for the benefit of employees of a Target Company or one or more of its Affiliates residing outside the United States, which plan, fund or other program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which is not subject to ERISA or the Code.
“Founder Registration Rights Agreement” means the Registration Rights Agreement, dated as of June 30, 2025, by and among SPAC, Sponsor and the other “Holders” named therein.
“Fraud Claim” means any claim based in whole or in part upon fraud.
“GAAP” means generally accepted accounting principles as in effect in the United States of America.
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“Governmental Authority” means any federal, state, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality, department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body.
“GTS Management” means Michael McCracken, Robert Moore, Jon Martin, James Chapman, Fred Christian, Jason Crawford, Edward Hickman, Jr., Michael Jordan, Donald Landy, Michael Stokes, Jeffery Morley, Keith Hayes, Wendy Kropenick and Vicky Sansoni.
“Hazardous Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous substance”, “pollutant”, “contaminant”, “hazardous waste”, “regulated substance”, “hazardous chemical”, or “toxic chemical” (or by any similar term) under any Environmental Law, or any other material regulated, or that could result in the imposition of Liability or responsibility, under any Environmental Law, including petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation.
“Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business), (c) any other indebtedness of such Person that is evidenced by a note, bond, debenture, credit agreement or similar instrument, (d) all obligations of such Person under leases that should be classified as capital leases in accordance with GAAP, (e) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (f) all obligations of such Person in respect of acceptances issued or created, (g) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (h) all obligations secured by a Lien on any property of such Person, (i) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person and (j) all obligation described in clauses (a) through (i) above of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
“Internet Assets” means any and all domain name registrations, web sites and web addresses and related rights, items and documentation related thereto, and applications for registration therefor.
“IPO” means the initial public offering of SPAC Public Units (and any successor equity thereto) pursuant to the IPO Prospectus.
“IPO Prospectus” means the final prospectus of SPAC, dated as of June 30, 2025, and filed with the SEC on July 2, 2025 (File No. 333-286985).
“IPO Underwriters” means Maxim Group LLC.
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“IPO Underwriting Agreement” means that certain Underwriting Agreement, dated as of June 30, 2025, by and between SPAC and Maxim Group LLC, as representative of the underwriters.
“IRS” means the U.S. Internal Revenue Service (or any successor Governmental Authority).
“Knowledge” means, with respect to (i) the Company, the actual knowledge of the executive officers, managers or directors of GTS or such other Target Company (as applicable), after reasonable inquiry, or (ii) any other Party, (A) if an entity, the actual knowledge of its directors and executive officers, after reasonable inquiry, or (B) if a natural person, the actual knowledge of such Party after reasonable inquiry.
“Law” means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by any of the Target Companies.
“Liabilities” means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise, whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards), including Tax liabilities.
“Lien” means any mortgage, pledge, security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Lock-Up Parties” means Seller, Sponsor, GTS Management, At-Risk Capital Investors, and the IPO Underwriters.
“Loss” means any and all losses, obligations, penalties, amounts paid in settlement, damages (including consequential damages), costs and expenses (including reasonable expenses of investigation, court costs and attorneys’ fees and expenses), diminution in value, Taxes, Liens and interest, in each case arising out of or related to any Action, Order or other Liability.
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“Material Adverse Effect” means, with respect to any specified Person, any fact, event, occurrence, change or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, Liabilities, results of operations, prospects or condition (financial or otherwise) of such Person and its Subsidiaries, taken as a whole, or (b) the ability of such Person or any of its Subsidiaries on a timely basis to consummate the transactions contemplated by this Agreement or the Ancillary Documents to which it is a party or bound or to perform its obligations hereunder or thereunder; provided, however, that for purposes of clause (a) above, any changes or effects directly or indirectly attributable to, resulting from, relating to or arising out of the following (by themselves or when aggregated with any other, changes or effects) shall not be deemed to be, constitute, or be taken into account when determining whether there has or may, would or could have occurred a Material Adverse Effect: (i) general changes in the financial or securities markets or general economic or political conditions in the country or region in which such Person or any of its Subsidiaries do business; (ii) changes, conditions or effects that generally affect the industries in which such Person or any of its Subsidiaries principally operate; (iii) changes in GAAP or other applicable accounting principles or mandatory changes in the regulatory accounting requirements applicable to any industry in which such Person and its Subsidiaries principally operate; (iv) conditions caused by acts of God, terrorism, war (whether or not declared), earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires, weather conditions, natural or man-made disasters (which are not caused by the respective Party or any of its Affiliates or Representatives), emergencies (which are not caused by the respective Party or any of its Affiliates or Representatives), calamities, epidemics, pandemics, disease outbreaks, other acts of God or other force majeure events in the United States or other political conditions or natural disasters; (v) any failure in and of itself by such Person and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period (provided that the underlying cause of any such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent not excluded by another exception herein) and (vi), with respect to SPAC, the consummation and effects of the Redemption (or any redemption in connection with the Extension); provided further, however, that any event, occurrence, fact, condition, or change referred to in clauses (i)-(iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition, or change has a disproportionate effect on such Person or any of its Subsidiaries compared to other participants in the industries in which such Person or any of its Subsidiaries primarily conducts its businesses.
“NASDAQ” means The Nasdaq Stock Market LLC.
“Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational Documents” means, with respect to any Person that is an entity, its certificate of incorporation or formation, bylaws, operating agreement, memorandum and articles of association or similar organizational documents, in each case, as amended and or restated from time to time.
“Outside Date” means December 31, 2026, unless an extension to the Completion Window (as defined in SPAC’s amended and restated articles of association) has been approved by SPAC shareholders in accordance with SPAC’s Organizational Documents, in which case, the term “Outside Date” shall mean January 31, 2027 or such later date as may be agreed by SPAC and the Company.
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“Owned Real Property” means all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by any of the Target Companies.
“Patents” means any patents, patent applications and the inventions, designs and improvements described and claimed therein, patentable inventions, and other patent rights (including any divisionals, provisionals, continuations, continuations-in-part, substitutions, reexamined patents or reissues thereof, whether or not patents are issued on any such applications and whether or not any such applications are amended, modified, divided, continued, abandoned, withdrawn, or refiled).
“Permits” means all federal, state, local or foreign or other third-party permits, grants, easements, filings, accreditations, consents, approvals, authorizations, exemptions, licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations, ratings, registrations, qualifications or orders of any Governmental Authority or any other Person.
“Permitted Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not delinquent or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto, (b) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due and payable and as would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property subject thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection with social security, (d) Liens on goods in transit incurred pursuant to documentary letters of credit or operational expenses, in each case arising in the ordinary course of business, (e) Liens arising under this Agreement or any Ancillary Document or (f) Liens arising pursuant to the Seller Note or Debt Restructuring Documents, as applicable.
“Person” means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, exempted company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Personal Information” means any information that either directly or indirectly identifies or, alone or in combination with any other information, could reasonably be used to identify, locate, or contact a natural Person, or that relates or links to, or is reasonably linkable to an identified or identifiable individual, including name, street address, telephone number, email address, identification number issued by a Governmental Authority, credit card number, bank information, customer or account number, online identifier, device identifier, IP address, browsing history, search history, or other website, application, or online activity or usage data, location data, biometric data, medical or health information, or any other information that is considered “personally identifiable information,” “personal information,” or “personal data” under applicable Law, and all data associated with any of the foregoing that are or could reasonably be used to develop a profile or record of the activities of a natural Person across multiple websites or online services, to predict or infer the preferences, interests, or other characteristics of a natural Person, or to target advertisements or other content or products or services to a natural Person.
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“Personal Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible personal property.
“Privacy Laws” means all applicable Laws, Orders, and binding guidance issued by any Governmental Authority concerning the privacy, security, or Processing of Personal Information (including Laws of jurisdictions where Personal Information was collected), including, as applicable, data breach notification Laws, consumer protection Laws, Laws concerning requirements for website and mobile application privacy policies and practices, Social Security number protection Laws, data security Laws, and Laws concerning email, text message, or telephone communications. Without limiting the foregoing, Privacy Laws include: the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act, the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transaction Act, the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented by the Health Information Technology for Economic and Clinical Health Act of the American Recovery and Reinvestment Act of 2009, the Gramm-Leach-Bliley Act, the Family Educational Rights and Privacy Act, the GDPR, and all other similar international, federal, state, provincial, and local Laws.
“Processing” means any operation performed on Personal Information or that relevant Privacy Laws include in the definition of processing, processes, or process, including the collection, creation, receipt, access, use, handling, recording, compilation, analysis, organizing, monitoring, maintenance, retention, storage, holding, transmission, transfer, protection, disclosure, amendment, distribution, erasure, destruction, or disposal of Personal Information.
“Pubco Class A Allocation Amount” means ninety-five percent (95%) of the Pubco Common Stock Consideration.
“Pubco Class A Common Stock” means the shares of Pubco Class A Common Stock, par value $0.0001 per share.
“Pubco Class B Allocation Amount” means five percent (5%) of the Pubco Common Stock Consideration.
“Pubco Class B Common Stock” means the shares of Pubco Class B Common Stock, par value $0.0001 per share, which shares will (i) have economic rights (including dividend and liquidation rights) identical to those of Pubco Class A Common Stock, but the holders thereof will be entitled to twenty (20) votes per share on all matters on which Pubco Common Stock are entitled to vote, and (ii) be convertible into shares of Pubco Class A Common Stock on a one-to-one basis, in each case, as provided for and subject to the terms set forth in the Amended Pubco Charter
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“Pubco Common Stock” means the shares of Pubco Class A Common Stock and Pubco Class B Common Stock.
“Pubco Common Stock Consideration” means the Equity Consideration Value minus Seventy-Five Million U.S. Dollars ($75,000,000).
“Pubco Preferred Stock” means the shares of Pubco’s Preferred Stock, par value $0.0001 per share, designated as Series A Preferred Stock.
“Pubco Stock” means the shares of Pubco Common Stock and Pubco Preferred Stock, collectively.
“Real Property Leases” means all leases, sub-leases, licenses, concessions or other agreements (written or oral), pursuant to which the Target Companies hold any Leased Real Property, including the right to all security deposits and other amounts and instruments deposited by or on behalf of the Target Companies thereunder.
“Redemption Price” means an amount equal to the price at which each SPAC Public Share is redeemed, as determined in accordance with SPAC’s Organizational Documents.
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor or outdoor environment, or into or out of any property.
“Remedial Action” means all actions to (i) clean up, remove, treat, or in any other way address any Hazardous Material, (ii) prevent the Release of any Hazardous Material so it does not endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) correct a condition of noncompliance with Environmental Laws.
“Representatives” means, as to any Person, such Person’s Affiliates and the respective managers, directors, officers, employees, independent contractors, consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person or its Affiliates.
“Required Company Member Approval” means the approval and adoption of this Agreement and the transactions contemplated hereby, including the Company Merger, by the Seller, as the sole member of the Company, by written consent in accordance with the Company’s Organizational Documents and the Utah LLC Act.
“Retained Seller Debt Value” means the sum of: (i) the outstanding balance payable by GTS to Seller as of immediately prior to the Effective Time under the Seller Secured Notes (which shall have been exchanged pursuant to the terms of the Debt Restructuring and reissued to Seller pursuant to the terms of the First Lien Secured Promissory Note) and the Seller Line of Credit, in an amount up to $82,000,000; plus (ii) any additional amounts advanced by Seller to Pubco or GTS under the Seller Line of Credit following the Effective Date and prior to the Closing to satisfy Expenses or for such other purposes, in each case, subject to SPAC’s prior written approval (not to be unreasonably withheld, conditioned or delayed).
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“Rights Agreement” means that certain Rights Agreement, dated as of June 30, 2025, as it may be amended, by and between SPAC and the Continental Stock Transfer & Trust Company, in its capacity as rights agent.
“SEC” means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Securities Act” means the Securities Act of 1933, as amended.
“Seller Secured Notes” means, collectively, (i) the Secured Promissory Note, dated December 9, 2022, between Orbital Infrastructure Group, Inc., as borrower, Seller, as lender, and GTS, as guarantor, in the original aggregate principal amount of $42,113,840.90, (ii) the Secured Promissory Note, dated as of February 24, 2023, between Orbital Infrastructure Group, Inc., as borrower, Seller, as lender, and GTS, as guarantor, in the original aggregate principal amount of $14,881,621.34, and (iii) the Amended and Restated Secured Promissory Note, dated as of March 6, 2023, between Orbital Infrastructure Group, Inc. and GTS as borrowers, and Seller, as lender, in the original principal amount of $20,931,076.84, including, in each case, any amendment, restatement, amendment and restatement or modification to each of the foregoing (including to the extent any such amendment, restatement, amendment and restatement or modification results in the consolidation of the Indebtedness under each of the notes identified in clauses (i), (ii) and (iii) of this definition).
“Seller Line of Credit” means the Line of Credit Agreement, dated October 17, 2023, as amended by that certain Global Amendment dated as of March 28, 2024 and thereafter by that certain Global Amendment #2 dated as of October 21, 2024, and any amendment, supplement or other modification thereto entered into on or prior to the Effective Date that increases the maximum loan amount thereunder to an aggregate amount of up to $7,000,000.
“Software” means any computer software programs, including all source code, object code, and documentation related thereto and all software modules, libraries, repositories, tools and databases.
“SOX” means the U.S. Sarbanes-Oxley Act of 2002, as amended.
“SPAC Class A Ordinary Shares” means the Class A ordinary shares, par value $0.0001 per share, of SPAC.
“SPAC Class B Ordinary Shares” means the Class B ordinary shares, par value $0.0001 per share, of SPAC.
“SPAC Confidential Information” means all confidential or proprietary documents and information concerning SPAC or any of its Representatives; provided, however, that SPAC Confidential Information shall not include any information which, (i) at the time of disclosure by a Target Company or any of its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure by SPAC or its Representatives to a Target Company or any of its Representatives, was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such SPAC Confidential Information. For the avoidance of doubt, from and after the Closing, SPAC Confidential Information will include the confidential or proprietary information of the Target Companies.
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“SPAC Dissenting Share” has the meaning given to it in Section 1.14.
“SPAC Dissenting Shareholder” has the meaning given to it in Section 1.14.
“SPAC Fundamental Representations” means the representations and warranties specified in Section 3.1 (Organization and Standing), Section 3.2 (Authorization; Binding Agreement); Section 3.4 (Non-Contravention); Section 3.5(a) (other than the first sentence of Section 3.5(a)) (Capitalization); Section 3.5(b) (Capitalization); and Section 3.16 (Finders and Brokers).
“SPAC Ordinary Resolution” means a resolution (a) passed by a simple majority of such SPAC shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the SPAC and where a poll is taken regard shall be had in computing a majority to the number of votes to which each SPAC Shareholder is entitled; or (b) approved in writing by all of the SPAC shareholders entitled to vote on such matter at a general meeting of the SPAC (or such lower threshold as may be allowed under the Act from time to time).
“SPAC Ordinary Shares” means SPAC Class A Ordinary Shares and SPAC Class B Ordinary Shares, collectively.
“SPAC Preference Shares” means preference shares, par value $0.0001 per share, of SPAC.
“SPAC Private Rights” means one right that was included as part of each SPAC Private Unit entitling the holder thereof to receive one-fifth (1/5th) of a SPAC Class A Ordinary Share upon the consummation by SPAC of its initial business combination.
“SPAC Private Units” means the units issued to the Sponsor and the IPO Underwriters in a private placement that closed simultaneously with the IPO, consisting of one SPAC Class A Ordinary Share and one SPAC Private Right.
“SPAC Public Share” means one Class A Ordinary Share that was included as part of each SPAC Public Unit.
“SPAC Public Rights” means one right that was included as part of each SPAC Public Unit entitling the holder thereof to receive one-fifth (1/5th) of a SPAC Class A Ordinary Share upon the consummation by SPAC of its initial business combination.
“SPAC Public Units” means the units issued in the IPO (including overallotment units acquired by the IPO underwriters) consisting of one SPAC Class A Ordinary Share and one SPAC Public Right.
“SPAC Redeeming Shares” means the SPAC Class A Ordinary Shares constituting SPAC Public Shares in respect of which the eligible holder thereof has validly exercised their right to have such SPAC Class A Ordinary Shares redeemed in accordance with SPAC’s Organizational Documents in connection with the Business Combination.
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“SPAC Rights” means SPAC Private Rights and SPAC Public Rights, collectively.
“SPAC Securities” means SPAC Public Units, SPAC Ordinary Shares, SPAC Preference Shares and SPAC Rights, collectively.
“SPAC Special Resolution” means a special resolution of SPAC passed in accordance with the Act, being a resolution: (a) passed by a majority of not less than two-thirds, other than with respect to amending either of Articles 30.1 or 48.2 of SPAC’s Organizational Documents (except where such amendment is proposed in respect of the consummation of a Business Combination (as defined in SPAC’s Organizational Documents)) where such majority shall be at least ninety percent (90%), of such SPAC shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the SPAC of which notice specifying the intention to propose the resolution as a special resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each SPAC Shareholder is entitled; or (b) approved in writing by all of the SPAC shareholders entitled to vote at a general meeting of the SPAC (or such lower threshold as may be allowed under the Act from time to time).
“Sponsor” means Next Move Capital LLC, a Nevada limited liability company.
“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority of partnership, association or other business entity gains or losses or will be or control the managing director, managing member, general partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person will also include any variable interest entity which is consolidated with such Person under applicable accounting rules.
“Target Company” means each of the Company and its direct and indirect Subsidiaries, including but not limited to, GTS.
“Target Company Fundamental Representations” means the representations and warranties specified in Section 5.1 (Organization and Standing), Section 5.2 (Authorization; Binding Agreement); Section 5.3(a) (other than the first sentence of Section 5.3(a)) (Capitalization); Section 5.3(b) (Capitalization); Section 5.6 (Non-Contravention); and Section 5.27 (Finders and Brokers).
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“Tax Return” means any return, declaration, report, claim for refund, information return or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
“Taxes” means (a) all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, tax collected at source, equalization levy, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property, windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for any period or otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as a result of any tax sharing, tax group, tax indemnity or tax allocation agreement with, or any other express or implied agreement to indemnify, any other Person.
“Trade Secrets” means any trade secrets, confidential business information, concepts, ideas, designs, research or development information, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods, know-how, data, mask works, discoveries, inventions, modifications, extensions, improvements, and other proprietary rights (whether or not patentable or subject to copyright, trademark, or trade secret protection).
“Trademarks” means any trademarks, service marks, trade dress, trade names, brand names, internet domain names, designs, logos, or corporate names (including, in each case, the goodwill associated therewith), whether registered or unregistered, and all registrations and applications for registration and renewal thereof.
“Trust Account” means the trust account established by SPAC with the proceeds from the IPO pursuant to the Trust Agreement in accordance with the IPO Prospectus.
“Trust Agreement” means that certain Investment Management Trust Agreement, made effective as of June 30, 2025, by and between SPAC and the Trustee, as well as any other agreements entered into related to or governing the Trust Account.
“Trustee” means Continental Stock Transfer & Trust Company, in its capacity as trustee under the Trust Agreement.
“Working Capital Reserve” has the meaning given to it in Section 6.18(a)(ii).
11.2 Section References. The following capitalized terms, as used in this Agreement, have the respective meanings given to them in the Section as set forth below adjacent to such terms:
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IN WITNESS WHEREOF, each Party hereto has caused this Business Combination Agreement to be signed and delivered as of the date first written above.
| SPAC: | |||
| NMP ACQUISITION CORP. | |||
| By: | /s/ Melanie Figueroa | ||
| Name: | Melanie Figueroa | ||
| Title: | Chief Executive Officer | ||
| Pubco: | |||
| GTS HOLDINGS, INC. | |||
| By: | /s/ John Fife | ||
| Name: | John Fife | ||
| Title: | President | ||
| SPAC Merger Sub: | |||
| GTS MERGER SUB I | |||
| By: | /s/ John Fife | ||
| Name: | John Fife | ||
| Title: | Director | ||
| Company Merger Sub: | |||
| GTS MERGER SUB II, LLC | |||
| By: | /s/ John Fife | ||
| Name: | John Fife | ||
| Title: | President | ||
| The Company: | |||
| GTS HOLDINGS, LLC | |||
| By: | /s/ John Fife | ||
| Name: | John Fife | ||
| Title: | Manager | ||
| Seller: | |||
| STREETERVILLE CAPITAL, LLC | |||
| By: | /s/ John Fife | ||
| Name: | John Fife | ||
| Title: | President | ||
| GTS: | |||
| GIBSON TECHNICAL SERVICES, INC. | |||
| By: | /s/ Michael McCracken | ||
| Name: | Michael McCracken | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Business Combination Agreement]
EXHIBIT A-1
Form of Lock-Up Agreement
(see attached)
EXHIBIT A-2
Form of IPO Underwriters Lock-Up Agreement
(see attached)
EXHIBIT B
Form of Insider Letter Amendment
(see attached)
EXHIBIT C
Form of Subscription Agreement Amendment
(see attached)
EXHIBIT D
Form of Amended Registration Rights Agreement
(see attached)
EXHIBIT E
Form of Certificate of Designation
(see attached)
Exhibit 4.1
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS OF
SERIES A CONVERTIBLE PREFERRED STOCK
of
GTS Holdings, Inc.,
a Nevada corporation
The Chief Executive Officer of GTS Holdings, Inc. (“Corporation”), a corporation organized and existing under the laws of the State of Nevada, does hereby certify that, pursuant to the authority contained in the Corporation’s Articles of Incorporation (“Articles”) and pursuant to NRS 78.195 and 78.1955 of the Nevada Revised Statutes (“NRS”), and in accordance with the provisions of the resolution creating a series of the class of the Corporation’s authorized preferred stock designated as the Series A Preferred Stock as follows:
FIRST: The Articles authorize the issuance by the Corporation of (i) [●] shares of Class A common stock, par value of $0.0001 per share (the “Class A Common Stock”), (ii) [●] shares of Class B common stock, par value of $0.0001 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”) and (iii) [●] shares of preferred stock, par value of $0.0001 per share (“Preferred Stock”), and further, authorize the Board of Directors (“Board”) of the Corporation, by resolution or resolutions, at any time and from time to time, to divide and establish any or all of the unissued shares of Preferred Stock not then allocated to any series into one or more series and to designate the rights, preferences and limitations of each series.
SECOND: By unanimous written consent of the Board dated [●], the Board designated [●] shares of the Preferred Stock as Series A Preferred Stock pursuant to a resolution providing that a series of preferred stock of the Corporation be and hereby is created and that the designation and number of shares thereof and the voting and other powers, preferences and relative, participating, optional or other rights of the shares of such Series A Preferred Stock, and the qualifications, limitations and restrictions thereof, are as follows:
SERIES A PREFERRED STOCK
Section 1. Definitions. Capitalized terms used but not otherwise defined herein shall have meanings set forth in Section 13 below.
Section 2. Powers and Rights of Series A Preferred Stock. There is hereby designated a series of Preferred Stock of the Corporation as Series A Preferred Stock, par value $0.0001 per share (the “Series A Stock”). The number of shares, powers, terms, conditions, designations, preferences and privileges, relative, participating, optional and other special rights, and qualifications, limitations and restrictions of the Series A Stock shall be as set forth in this Certificate of Designation of Preferences and Rights of Series A Preferred Stock (this “Certificate of Designation”). For purposes hereof, a holder of a share or shares of Series A Stock, with respect to their rights as related to the Series A Stock, shall be referred to as a “Series A Holder.”
Section 3. Number and Stated Value. The number of authorized shares of the Series A Stock is [●] shares. Each share of Series A Stock shall have a stated value of $1,000.00 (the “Stated Value”).
Section 4. Ranking. Except to the extent that the holders of at least a majority of the outstanding Series A Stock (the “Required Holders”) expressly consent to the creation of Parity Stock (as defined below), all shares of capital stock of the Corporation shall be junior in rank to all Series A Stock with respect to the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Corporation. The rights of all such shares of capital stock of the Corporation shall be qualified by the rights, powers, preferences and privileges of the Series A Stock. Without limiting any other provision of this Certificate of Designation, without the prior express written consent of the Required Holders, voting separately as a single class, the Corporation shall not hereafter authorize or issue any additional or other shares of capital stock that is (i) of senior rank to the Series A Stock in respect of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Corporation (collectively, the “Senior Preferred Stock”), or (ii) of pari passu rank to the Series A Stock in respect of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Corporation (collectively, the “Parity Stock”). In the event of the merger or consolidation of the Corporation with or into another corporation wherein the Corporation is the surviving entity, the shares of Series A Stock shall maintain their relative rights, powers, designations, privileges and preferences provided for herein and no such merger or consolidation shall provide for a result inconsistent therewith, subject to the other terms and conditions herein.
Section 5. Preferred Return.
| (a) | Each share of Series A Stock shall accrue a rate of return on the Stated Value at the rate of nine percent (9%) per annum, to be determined pro rata for any fractional year periods (the “Preferred Return”). The Preferred Return shall accrue on each share of Series A Stock from its Issuance Date and shall be payable or otherwise settled as set forth herein. Following the declaration of an Event of Default by the Required Holders pursuant to Section 12(a) (as defined below), the Preferred Return shall increase to twelve percent (12%) per annum, effective as of the date of such declaration; provided, that if and when such declared Event of Default ceases to be continuing, the Preferred Return shall automatically revert to nine percent (9%) per annum, effective as of the date such declared Event of Default ceases to be continuing. |
| (b) | The Preferred Return shall be payable on a quarterly basis, on a date specified by the Board (the “Preferred Return Payment Date”), which date shall be no later than thirty (30) days following the end of each calendar quarter, either in cash, subject to applicable law and out of funds legally available for that purpose, or via the issuance to the applicable Series A Holder of an additional number of shares of Series A Stock equal to (i) the Preferred Return then accrued and unpaid, divided by (ii) the Stated Value. Notwithstanding the immediately-preceding sentence, the Preferred Return shall be paid via the issuance of additional shares of Series A Stock unless, prior to the applicable Preferred Return Payment Date, the Board elects to pay such Preferred Return in cash. For the avoidance of doubt, if the Corporation has not paid the Preferred Return in cash, and has not issued the shares of Series A Stock in payment thereof, on or before the applicable Preferred Return Payment Date, the shares of Series A Stock issuable in payment of such Preferred Return shall be deemed automatically issued and outstanding as of such Preferred Return Payment Date, in the number determined pursuant to the second sentence of this Section 5(b), without any further action by the Board or the Corporation; provided, that such automatic issuance shall be limited to the number of shares of Series A Stock then designated and available for issuance under this Certificate of Designation. The Corporation shall thereafter promptly reflect any such issuance on its books and records and, upon the written request of the applicable Series A Holder, deliver evidence of such issuance (whether by book-entry statement, certificate, or otherwise) to such Series A Holder. |
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| (c) | In the event that the Corporation elects to pay any Preferred Return via the issuance of shares of Series A Stock, no fractional shares of Series A Stock shall be issued, and the Corporation shall pay in cash the Preferred Return that would otherwise be payable via the issuance of a fractional share of Series A Stock. |
Section 6. Conversion.
| (a) | Optional Conversion. Subject to and in compliance with the provisions of this Section 6, each share of Series A Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, into fully paid and nonassessable shares of Class A Common Stock. The number of shares of Class A Common Stock to which a Series A Holder shall be entitled upon conversion of any share of Series A Stock shall be equal to (i) the sum of (A) the Stated Value of such share of Series A Stock, plus (B) all accrued and unpaid Preferred Return with respect to such share of Series A Stock, divided by (ii) the Conversion Price then in effect. |
| (b) | Conversion Price. The initial conversion price per share of Class A Common Stock shall be $12.00 (the “Conversion Price”), subject to adjustment as provided in Section 6(c). |
| (c) | Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: |
| (i) | Stock Dividends, Subdivisions and Combinations. If at any time the Corporation shall (i) declare a dividend or make a distribution on the outstanding shares of Common Stock payable in shares of Class A Common Stock, (ii) subdivide or split the outstanding shares of Class A Common Stock into a larger number of shares, or (iii) combine or reverse split the outstanding shares of Class A Common Stock into a smaller number of shares, then the Conversion Price in effect immediately prior to such event shall be adjusted so that the Series A Holder thereafter shall be entitled to receive, upon conversion, the number of shares of Class A Common Stock that such Series A Holder would have owned or been entitled to receive had such shares of Series A Stock been converted immediately prior to the happening of such event. Any adjustment made pursuant to this Section 6(c)(i) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution, or immediately after the effective date of such subdivision, split, combination or reverse split, as the case may be. |
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| (ii) | Reorganization, Merger or Consolidation. If at any time there shall be a reorganization, recapitalization, merger or consolidation involving the Corporation (other than a Fundamental Transaction) in which shares of Class A Common Stock are converted into or exchanged for securities, cash or other property, then, as a part of such reorganization, recapitalization, merger or consolidation, lawful provision shall be made so that the Series A Holder shall thereafter be entitled to receive upon conversion of the Series A Stock the kind and amount of securities, cash or other property that would have been receivable had such shares of Series A Stock been converted into Class A Common Stock immediately prior to such reorganization, recapitalization, merger or consolidation. |
| (d) | Mechanics of Conversion. |
| (i) | Conversion Notice. To convert shares of Series A Stock into shares of Class A Common Stock, a Series A Holder shall deliver to the Corporation a written notice (a “Conversion Notice”) specifying the number of shares of Series A Stock to be converted and the date on which such conversion is to be effected (a “Conversion Date”). If no Conversion Date is specified in a Conversion Notice, the Conversion Date shall be the date that such Conversion Notice is deemed delivered to the Corporation. No ink-original Conversion Notice shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Conversion Notice be required. The calculations set forth in any Conversion Notice shall control in the absence of manifest or mathematical error. |
| (ii) | Delivery of Class A Common Stock. On or before the second (2nd) Trading Day following the Conversion Date, the Corporation shall (i) if the Corporation’s transfer agent is participating in the Depository Trust Company’s (“DTC”) Fast Automated Securities Transfer Program and either (A) there is an effective registration statement registering the issuance of the shares of Class A Common Stock to, or resale of, the shares of Class A Common Stock by the Series A Holder or (B) the shares of Class A Common Stock are eligible to be issued or resold without a restrictive legend pursuant to Rule 144 or any other available exemption from registration under the Securities Act, including Section 3(a)(9) thereof, in each case subject to the delivery of any customary documentation reasonably requested by the Corporation’s transfer agent, credit the number of shares of Class A Common Stock to which the Series A Holder is entitled to the Series A Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (ii) if the Corporation’s transfer agent is not participating in the DTC Fast Automated Securities Transfer Program or the conditions in the foregoing clause (i) are not satisfied, issue and deliver to the address as specified in the Conversion Notice, a certificate, registered in the name of the Series A Holder or its designee, for the number of shares of Class A Common Stock to which the Series A Holder is entitled; provided, that the foregoing shall apply solely to the method of delivery of shares of Class A Common Stock and shall not limit any right of a Series A Holder to convert shares of Series A Stock or to exchange any shares or securities pursuant to Section 3(a)(9) of the Securities Act or any other available exemption from registration. |
| (e) | Fractional Shares. No fractional shares of Class A Common Stock shall be issued upon conversion of shares of Series A Stock. In lieu of any fractional share of Class A Common Stock to which a Series A Holder would otherwise be entitled, the Corporation shall pay to such Series A Holder in cash the amount of the unconverted Stated Value and Preferred Return balance that would otherwise be converted into such fractional share. |
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| (f) | Reservation of Class A Common Stock. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of effecting the conversion of the shares of Series A Stock, such number of shares of Class A Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Series A Stock. If at any time the number of authorized but unissued shares of Class A Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of Series A Stock, the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Class A Common Stock to such number of shares as shall be sufficient for such purpose. |
| (g) | Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained herein, the Corporation shall not effect any conversion of the Series A Stock, and a Series A Holder shall not have the right to convert any portion of the Series A Stock, to the extent that, after giving effect to such conversion, such Series A Holder (together with such Series A Holder’s Affiliates, and any other Persons acting as a group together with such Series A Holder or any of such Series A Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Series A Holder and its Affiliates and Attribution Parties shall include all shares of Common Stock then beneficially owned by such Series A Holder and its Affiliates and Attribution Parties, including the number of shares of Common Stock issuable upon conversion of the Series A Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted shares of Series A Stock beneficially owned by such Series A Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other shares of Series A Stock or any warrants) beneficially owned by such Series A Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 6(g), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(g) applies, the determination of whether the Series A Stock is convertible (in relation to other securities owned by such Series A Holder together with any Affiliates and Attribution Parties) and of how many shares of Series A Stock are convertible shall be in the sole discretion of such Series A Holder, and the submission of a Conversion Notice shall be deemed to be such Series A Holder’s determination of whether the shares of Series A Stock may be converted (in relation to other securities owned by such Series A Holder together with any Affiliates and Attribution Parties) and how many shares of the Series A Stock are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Series A Holder shall be deemed to represent to the Corporation each time it delivers a Conversion Notice that such Conversion Notice has not violated the restrictions set forth in this Section 6(g), and the Corporation shall not honor any conversion to the extent that the Corporation has actual knowledge that, after giving effect to such conversion, such Series A Holder together with its Affiliates and Attribution Parties would beneficially own shares of Common Stock in excess of the Beneficial Ownership Limitation. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 6(g), in determining the number of outstanding shares of Common Stock, a Series A Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Corporation, or (iii) a more recent written notice by the Corporation or the Corporation’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written request of a Series A Holder, the Corporation shall within two (2) Trading Days confirm orally and in writing to such Series A Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Series A Stock, by such Series A Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of the Series A Stock held by the applicable Series A Holder. A Series A Holder, upon notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 6(g) applicable to its Series A Stock; provided, however, that the Beneficial Ownership Limitation shall in no event exceed 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of the Series A Stock held by the applicable Series A Holder, and any such increase in the Beneficial Ownership Limitation will not be effective until the sixty-first (61st) day after such notice is delivered to the Corporation and shall only apply to such Series A Holder and no other Series A Holder. The provisions of this Section 6(g) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(g) to correct this Section 6(g) (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 6(g) shall apply to a successor holder of Series A Stock. |
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Section 7. Liquidation, Dissolution or Winding Up. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, each share of Series A Stock shall be entitled to be paid out of the assets of the Corporation available for distribution to its shareholders before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount per share of Series A Stock equal to the Stated Value at such time plus any accrued and unpaid Preferred Return (as applicable, the “Series A Preferred Liquidation Amount”). If upon any such liquidation, dissolution or winding up of the Corporation, the assets of the Corporation available for distribution to its shareholders shall be insufficient to pay the Series A Preferred Liquidation Amount, the Series A Holders with respect to their shares of Series A Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. Following the payment of the Series A Preferred Liquidation Amount, if there are any remaining assets of the Corporation available for distribution to its shareholders, the Series A Stock shall not participate in such distributions.
Section 8. Corporation Optional Redemption.
| (a) | Subject to the terms and conditions herein, at any time after the applicable Issuance Date, the Corporation may elect, in the sole discretion of the Board, to redeem all or any portion of the Series A Stock then issued and outstanding from all of the Series A Holders (a “Corporation Optional Redemption”) by paying to the applicable Series A Holders an amount in cash equal to the Series A Preferred Liquidation Amount then applicable to such shares of Series A Stock being redeemed in the Corporation Optional Redemption multiplied by 100% (the “Redemption Price”). For the avoidance of doubt, any redemptions made in connection with a Fundamental Transaction will be paid at the Redemption Price; provided, however, that, for so long as a Controlling Stockholder exists, the Corporation shall not have the power or authority to effect a Corporation Optional Redemption unless such redemption has been approved by the affirmative vote of a majority of the Disinterested Directors. |
| (b) | The Corporation shall provide written notice of any Corporation Optional Redemption to the Series A Holders within ten (10) Trading Days following the determination of the Board to consummate the applicable Corporation Optional Redemption, and thereafter such Corporation Optional Redemption shall be completed on the third (3rd) Trading Day following the delivery of such notice, and at such time the Corporation shall deliver to the Series A Holders the Redemption Price in valid funds. Each Series A Holder agrees to execute and deliver to the Corporation such instruments and documents, and to take such actions, as reasonably required to consummate the Corporation Optional Redemption. |
Section 9. Dividends and Distributions. The Series A Stock shall not participate in any dividends, distributions or payments to the holders of the Common Stock.
Section 10. Vote; Amendment.
| (a) | Other than as set forth in Section 10(b), the Series A Stock shall not have any voting rights and shall not vote on any matter submitted to the holders of the Common Stock, or any class thereof, for a vote, irrespective of the provisions of Sections 78.207(3) and 78.390(2) of the NRS (and any separate class or series vote in this regard pursuant to such sections of the NRS is hereby specifically denied). |
| (b) | The Corporation may not, and shall not, amend or repeal this Certificate of Designation without the prior written consent of Series A Holders holding a majority of the Series A Stock then issued and outstanding, in which vote each share of Series A Stock then issued and outstanding shall have one vote, voting separately as a single class, in person or by proxy, either in writing without a meeting or at an annual or a special meeting of such Series A Holders, and any such act or transaction entered into without such vote or consent shall be null and void ab initio, and of no force or effect. |
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Section 11. Covenants. Until such time as no shares of Series A Stock remain outstanding, or unless otherwise consented to in writing by the Required Holders, the Corporation and any subsidiary (to the extent applicable) will at all times comply with the following covenants:
| (a) | After the initial issuance of Series A Stock, the Corporation will not issue any new shares of Series A Stock to anyone other than the initial holder of Series A Stock without the prior written consent of the Required Holders. |
| (b) | The Corporation will not increase or decrease the authorized shares of any class or series of Common Stock or Preferred Stock without the prior written consent of the Required Holders. |
| (c) | The Corporation will not make any Restricted Issuance without the prior written consent of the Required Holders. |
| (d) | The Corporation shall not enter into or extend any agreement or otherwise agree to any covenant, condition, or obligation that locks up, restricts in any way or otherwise prohibits the Corporation (i) from entering into a variable rate transaction with any Series A Holder or any Affiliate of any Series A Holder, or (ii) from issuing Common Stock, Preferred Stock, warrants, convertible notes, other debt securities, or any other of the Corporation’s securities to any Series A Holder or any Affiliate of any Series A Holder. |
| (e) | The Corporation will not enter into any variable rate transaction without the prior written consent of the Required Holders; provided, however, that the foregoing prohibition on variable rate transactions shall not apply to issuances in connection with equity compensation plans, at-the-market (ATM) offerings, bona fide mergers, acquisitions, or other issuances expressly permitted under Section 11(j). |
| (f) | The Corporation will not pledge or grant a security interest in any of its assets; provided, however, that the foregoing shall not apply to security interests granted in connection with purchase money indebtedness, capital leases and equipment financings incurred in the ordinary course of business as permitted under clauses (B) and (F) of the definition of “Restricted Issuance.” |
| (g) | The Corporation will not, and will not enter into any agreement or commitment to, dispose of any assets or operations that are material to the Corporation’s operations without the prior written consent of the Required Holders. |
| (h) | The Corporation will not, and will not enter into any agreement or commitment to, create, authorize, or issue any new class or series of Preferred Stock of any ranking, including any Senior Preferred Stock, Parity Stock or preferred stock junior to the Series A Stock, in each case without the prior written consent of the Required Holders. |
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| (i) | The Corporation will not consummate a Fundamental Transaction or enter into an agreement to consummate a Fundamental Transaction, in each case, without the prior written consent of the Required Holders, which consent may be granted or withheld in the Required Holders’ sole and absolute discretion; provided, that no such consent of the Required Holders shall be required for any Fundamental Transaction in connection with which all outstanding shares of Series A Stock are redeemed in full in cash for the Redemption Price substantially concurrently with the consummation thereof. In addition to the foregoing consent right of the Required Holders, for so long as a Controlling Stockholder exists, the Corporation shall not have the power or authority to effect a Fundamental Transaction unless such transaction has been approved by the affirmative vote of a majority of the Disinterested Directors. |
| (j) | The Corporation will not issue or sell any shares of Class A Common Stock (or securities convertible into or exchangeable for Class A Common Stock) at a price per share less than the Conversion Price then in effect without the prior written consent of the Required Holders; provided, however, that this restriction shall not apply to (i) issuances pursuant to equity incentive plans, employee stock purchase plans or other equity compensation arrangements approved by the Board, (ii) at-the-market (ATM) offerings conducted through a registered sales program, provided, however, that the aggregate gross proceeds received by the Corporation from all such ATM offerings shall not exceed $10,000,000 in the aggregate while any shares of Series A Stock remain outstanding without the prior written consent of the Required Holders, (iii) issuances as consideration in connection with bona fide mergers, acquisitions, asset purchases, joint ventures, strategic commercial transactions or similar business combination transactions approved by the Board where the primary purpose is not capital raising, (iv) stock splits, stock dividends, recapitalizations or similar proportional adjustments, or (v) issuances upon exercise, conversion or settlement of outstanding securities existing as of the Issuance Date, so long as such securities have not been amended or modified after the Issuance Date. |
Section 12. Covenant Default.
| (a) | Event of Default. The Required Holders may elect to declare an “Event of Default” if any of the following conditions or events shall occur and be continuing: |
| (i) | The Corporation fails to fully comply with any covenant, obligation or agreement of the Corporation in this Certificate of Designation (other than payment or issuance defaults which are addressed in subparagraph (ii) below) or a breach of any covenant owed to any Series A Holder in any other agreement between the Corporation and such Series A Holder, and such failure is not cured within five (5) Trading Days of the occurrence of such event; |
| (ii) | The Corporation fails to pay any amount due and payable to the Series A Holders pursuant to and as required by this Certificate of Designation, or fails to issue any additional shares of Series A Stock to the Series A Holders pursuant to and as required by this Certificate of Designation, and such failure, if known to the Series A Holders and reasonably possible of cure, is not cured within five (5) Trading Days of the occurrence of such event; provided, that a failure to make the cash payment required by Section 5(c) shall not constitute an event giving rise to an Event of Default under this subparagraph (ii) to the extent, and for so long as, the Corporation is not permitted to make such payment under applicable law, it being understood that such amount shall accrue and remain payable, and may thereafter give rise to an Event of Default under this subparagraph (ii) if not paid within five (5) Trading Days after the Corporation is permitted under applicable law to make such payment; |
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| (iii) | The Corporation shall (1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator; (2) make a general assignment for the benefit of the Corporation’s creditors; or (3) commence a voluntary case under the U.S. Bankruptcy Code as now and hereafter in effect, or any successor statute. |
| (b) | Consequences of Events of Default. Upon the declaration of an Event of Default by the Required Holders pursuant to Section 12(a), the Stated Value will automatically increase by five percent (5%), effective as of the date of such declaration. If an Event of Default has been declared (i) the Required Holders may, by notice to the Corporation, force the Corporation to redeem all of the issued and outstanding shares of Series A Stock then held by the Series A Holders for a price equal to (A) the Stated Value of all such shares of Series A Stock; plus (B) any accrued and unpaid Preferred Return with respect to all such shares of Series A Stock, provided that such Preferred Return shall be paid in cash in an amount equal to the number of shares of Series A Stock otherwise issuable for the Preferred Return multiplied by the Stated Value; plus (C) any and all other amounts due and payable to the Series A Holders pursuant to this Certificate of Designation; (ii) the Series A Holders shall have the right to pursue any other remedies that the Required Holders may have under applicable law and/or in equity; and (iii) the Series A Holders shall have the right to seek and receive injunctive relief from a court or an arbitrator prohibiting the Corporation from issuing any of its Common Stock or Preferred Stock to any party unless all the shares of Series A Stock owned by the Series A Holders are redeemed in full simultaneously with such issuance. |
| (c) | Expenses. Subject to Section 14(c) below, in the event that any Series A Holder incurs expenses in the enforcement of its rights hereunder, including but not limited to reasonable attorneys’ fees, then the Corporation shall immediately reimburse such Series A Holder the reasonable costs thereof. |
Section 13. Definitions. In addition to the terms defined elsewhere in this Certificate of Designation, the following terms, as used herein, have the following meanings:
| (a) | “Affiliate” means, with respect to a specified Person, any other Person that directly or indirectly Controls, is Controlled by or is under common Control with, the specified Person. |
| (b) | “Control” means (i) the possession, directly or indirectly, of the power to vote ten percent (10%) or more of the securities or other equity interests of a Person having ordinary voting power, (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, by contract or otherwise, or (iii) being a director, officer, executor, trustee or fiduciary (or their equivalents) of a Person or a Person that controls such Person. |
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| (c) | “Controlling Stockholder” means any person or group beneficially owning more than 50% of the voting power. |
| (d) | “Conversion Price” has the meaning set forth in Section 6(b). |
| (e) | “Disinterested Directors” means, with respect to any transaction or matter, a director who: |
| (i) | does not have a material direct or indirect financial interest in such transaction or matter (other than as a stockholder on a pro rata basis); |
| (ii) | is not an Affiliate of, and has no material relationship with, any Person that has a material interest in such transaction or matter (including any Controlling Stockholder); and |
| (iii) | is determined in good faith by the Board (excluding interested directors) to be independent and disinterested with respect to such transaction or matter; |
provided, that a director who is affiliated with or designated by a Controlling Stockholder shall nonetheless be deemed a Disinterested Director with respect to any transaction or matter in which such Controlling Stockholder and its Affiliates do not have an interest.
| (f) | “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. |
| (g) | “Fundamental Transaction” means that (i) (A) the Corporation or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, consolidate or merge with or into (whether or not the Corporation or any of its subsidiaries is the surviving corporation) any other Person, (B) the Corporation or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its respective properties or assets to any other Person, (C) the Corporation or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, allow any other Person to make a purchase, tender or exchange offer that is accepted by the holders of more than fifty percent (50%) of the outstanding shares of voting stock of the Corporation (not including any shares of voting stock of the Corporation held by the Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), (D) the Corporation or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other Person whereby such other Person acquires more than fifty percent (50%) of the outstanding shares of voting stock of the Corporation (not including any shares of voting stock of the Corporation held by the other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), (E) the Corporation or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, reorganize, recapitalize or reclassify either class of the Common Stock, other than an increase in the number of authorized shares of either class of the Corporation’s Common Stock, (F) the Corporation transfers any material asset to any subsidiary, affiliate, or other Person under common ownership or control with the Corporation (other than in the ordinary course of business), or (G) the Corporation pays or makes any monetary or non-monetary dividend or distribution to its stockholders (other than in the ordinary course of business) without the consent of the Required Holders or other than as contemplated by this Certificate of Designation; or (ii) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than fifty percent (50%) of the aggregate ordinary voting power represented by issued and outstanding voting stock of the Corporation. |
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| (h) | “Issuance Date” means the date that the applicable shares of Series A Stock are issued to a Series A Holder. |
| (i) | “Liabilities” means liabilities, obligations or responsibilities of any nature whatsoever, whether direct or indirect, matured or un-matured, fixed or unfixed, known or unknown, asserted or unasserted, choate or inchoate, liquidated or unliquidated, secured or unsecured, absolute, contingent or otherwise, including any direct or indirect indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost or expense. |
| (j) | “Nasdaq” means the Nasdaq Stock Market. |
| (k) | “Person” means a natural person, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof. |
| (l) | “Restricted Issuance” means the issuance, incurrence or guaranty of any debt or additional Liabilities other than (A) trade payables and accrued liabilities incurred in the ordinary course of business, (B) purchase money indebtedness, capital leases and equipment financings incurred in the ordinary course of business, (C) refinancings, renewals or extensions of existing indebtedness that do not increase the principal amount thereof (other than customary fees, expenses and accrued interest), (D) letters of credit, performance bonds and surety bonds issued in the ordinary course of business, (E) intercompany indebtedness, and (F) any such issuances or incurrences to a Series A Holder as contemplated in this Certificate of Designation or otherwise to a Series A Holder or any of its Affiliates. |
| (m) | “SEC” means the United States Securities and Exchange Commission. |
| (n) | “Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. |
| (o) | “Trading Day” means any day on which Nasdaq is open for trading. |
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Section 14. Miscellaneous.
| (a) | Legend. Any certificates representing the Series A Stock shall bear a restrictive legend in substantially the following form (and a stop transfer order may be placed against transfer of such stock certificates): |
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR REGISTERED NOR QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR UNLESS, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, SUCH QUALIFICATION AND REGISTRATION IS NOT REQUIRED. ANY TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS FURTHER SUBJECT TO OTHER RESTRICTIONS, TERMS AND CONDITIONS WHICH ARE SET FORTH HEREIN.
| (b) | Uncertificated Shares; Lost or Mutilated Series A Stock Certificate. The Series A Stock shall be issued to each Series A Holder in uncertificated (book entry) form by the stock transfer agent of the Corporation unless a Series A Holder requests such Series A Stock be issued to such Series A Holder in certificated form. If any certificate for the Series A Stock held by the Series A Holder thereof shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the share of Series A Stock so mutilated, lost, stolen or destroyed but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof, and indemnity, if requested, all reasonably satisfactory to the Corporation. |
| (c) | Interpretation. If the Corporation or any Series A Holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. |
| (d) | Waiver. Any waiver by the Corporation or the Series A Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation. The failure of the Corporation or the Series A Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation. Any waiver must be in writing. |
| (e) | Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. |
| (f) | Status of Redeemed Preferred Stock. If any shares of Series A Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series A Convertible Preferred Stock. |
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IN WITNESS WHEREOF, the undersigned has signed this Certificate of Designation this __ day of _____, 20__.
| GTS Holdings, Inc. | ||
| By (sign): | ||
| Name (print): | ||
| Title (print): | ||
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Exhibit 10.1
FORM OF LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of [●], by and among (i) GTS Holdings, Inc., a Nevada corporation, (“Pubco”), (ii) NMP Acquisition Corp., a Cayman Islands exempted company incorporated with limited liability (together with its successors, the “SPAC”), and (iii) the undersigned (“Holder”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement (as defined below).
WHEREAS, contemporaneously herewith, the SPAC, Pubco, GTS Holdings, LLC, a Utah limited liability company (the “Company”), GTS Merger Sub I, a Cayman Islands exempted company incorporated with limited liability and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”), GTS Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Pubco (“Company Merger Sub”), Streeterville Capital, LLC, a Utah limited liability company and the sole equityholder of the Company (the “Seller”), and Gibson Technical Services, Inc., a Georgia corporation and a wholly-owned subsidiary of the Company (“GTS”) entered into that certain Business Combination Agreement (as amended from time to time, the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, subject to the terms and conditions thereof, among other matters, upon the consummation of the transactions contemplated by the Business Combination Agreement (the “Closing”): (i) SPAC Merger Sub will merge with and into SPAC, with SPAC continuing as the surviving entity (the “SPAC Merger”) and as a result of which each issued and outstanding security of SPAC immediately prior to the effective time of the SPAC Merger shall no longer be outstanding and shall automatically be cancelled in exchange for which the security holders of SPAC shall receive substantially equivalent securities of Pubco, (ii) Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity (the “Company Merger”, and together with the SPAC Merger, the “Mergers”), and as a result of which each issued and outstanding security of the Company immediately prior to the effective time of the Company Merger shall no longer be outstanding and shall automatically be cancelled in exchange for which the security holders of the Company shall receive shares of common stock of Pubco, and (iii) as a result of which Mergers, SPAC and the Company will become wholly-owned subsidiaries of Pubco and Pubco will become a publicly traded company;
WHEREAS, as of immediately after the Closing, each of the Seller, Next Move Capital LLC (the “Sponsor”), GTS Management, the At-Risk Capital Investors, and the IPO Underwriters will be the holder of record and beneficial owner (as such term is defined in Rule 13d-3 promulgated under the Exchange Act), with the sole power to dispose of (or sole power to cause the disposition of) and the sole power to vote (or sole power to direct the voting of) Restricted Securities;
WHEREAS, pursuant to the Business Combination Agreement, and in view of the valuable consideration to be received by Holder thereunder, the parties desire to enter into this Agreement, pursuant to which the Restricted Securities (as defined below) shall become subject to limitations on disposition as set forth herein;
WHEREAS, Pubco and the SPAC are entering into, or intend to enter into, separate lock-up agreements with each of the Seller, the Sponsor, GTS Management, Maxim Group LLC and each At-Risk Capital Investor (in the case of the At-Risk Capital Investors, collectively, the “At-Risk Lock-Up Agreements”), and each At-Risk Capital Investor acknowledges and agrees that the amendment, modification and waiver provisions of Section 2(h) of this Agreement are intended to operate consistently, and be given effect, across all of the At-Risk Lock-Up Agreements; and
WHEREAS, for purposes of this Agreement, “Restricted Securities” means, with respect to a Holder: (a) in the case of the Seller, the shares of Pubco Class A Common Stock, Pubco Class B Common Stock and Pubco Preferred Stock issued to it as Merger Consideration in the Company Merger; (b) in the case of the Sponsor or any other holder of SPAC Ordinary Shares, the shares of Pubco Class A Common Stock (the SPAC Exchange Shares) issued to it in respect of its SPAC Class A Ordinary Shares in the SPAC Merger (after giving effect to the SPAC Unit Separation, the Rights Conversion and the SPAC Class B Conversion, and excluding any SPAC Dissenting Shares and any shares redeemed in the Redemption); (c) any shares of Pubco Common Stock issued to a Holder in respect of SPAC Rights pursuant to the Mergers; and (d) in the case of GTS Management, the shares of Pubco Common Stock, and any other Pubco equity or equity-based awards, issued or granted during the Lock-Up Period to such persons as incentive equity under the Incentive Plan; in each case, together with any securities paid as dividends or distributions with respect to such securities or into which such securities are exchanged or converted.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Lock-Up Provisions.
(a) Holder hereby agrees that, during the period commencing from the date of the Closing and ending on the earlier of (i) six months after the Closing, or (ii) subsequent to the Closing, the date on which Pubco completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of Pubco’s stockholders having the right to exchange their shares for cash, securities or other property (the “Lock-Up Period”), Holder shall not: (A) lend, offer, pledge, hypothecate, encumber, donate, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Restricted Securities, (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Restricted Securities, or (C) publicly disclose the intention to do any of the foregoing, whether any such transaction described in clauses (A), (B) or (C) above is to be settled by delivery of Restricted Securities or other securities, in cash or otherwise (any of the foregoing described in clauses (A), (B) or (C)) (a “Prohibited Transfer”). The foregoing sentence shall not apply to the transfer or other disposition of any or all of the Restricted Securities owned by Holder (I) by gift, (II) by will or other testamentary document or intestate succession upon the death of Holder, (III) to any Permitted Transferee (defined below), (IV) pursuant to a court order or settlement agreement or other domestic order related to the distribution of assets in connection with the dissolution of marriage or civil union, or (V) to Pubco pursuant to any contractual arrangement in effect on the date of this Agreement that provides for the repurchase of shares of Pubco Common Stock in connection with the termination of the undersigned’s employment with or services to Pubco; provided, however, that in any of cases (I), (II), (III) or (IV) above, it shall be a condition to such transfer that the transferee executes and delivers to Pubco an agreement stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to Holder, and there shall be no further transfer of such Restricted Securities except in accordance with this Agreement. As used in this Agreement, the term “Permitted Transferee” shall mean: (1) the members of Holder’s immediate family (for purposes of this Agreement, “immediate family” shall mean with respect to any natural person, any of the following: such person’s spouse, the siblings of such person and his or her spouse, and the direct descendants and ascendants (including adopted and step children and parents) of such person and his or her spouses and siblings), (2) any trust for the direct or indirect benefit of Holder or the immediate family of Holder, (3) if Holder is a trust, the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust, (4) if Holder is an entity, as a distribution to limited partners, stockholders, members or owners of similar equity interests in Holder upon the liquidation and dissolution of Holder, or (5) any affiliate of Holder. Holder further agrees to execute such agreements as may be reasonably requested by Pubco that are consistent with the foregoing or that are necessary to give further effect thereto. Notwithstanding anything to the contrary in this Section 1, if, subsequent to the Closing, (I) the closing price of Pubco Class A Common Stock equals or exceeds $12.00 per share (as adjusted for share splits, share capitalizations, rights issuances, subdivisions, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing after the Closing and (II) the Registration Statement has been declared effective by the SEC (the occurrence of both conditions (I) and (II), the “Early Release Event”), then, following the Early Release Event and prior to the expiration of the Lock-Up Period, Holder (together with its affiliates) may, on any trading day, sell, transfer or otherwise dispose of a number of Restricted Securities not to exceed the greater of (x) two percent (2%) of the average daily trading volume of Pubco Class A Common Stock for the twenty (20) trading days immediately preceding such sale (excluding, for purposes of this calculation, any shares of Pubco Class A Common Stock sold by Holder and its affiliates) or (y) two percent (2%) of the trading volume of Pubco Class A Common Stock for such trading day, in each case as reported by the principal trading market on which such shares are listed or, if such data is unavailable, as reported by a nationally recognized financial data service (such as, but not limited to, Bloomberg L.P.). All sales by Holder and its affiliates shall be aggregated for purposes of compliance with this limitation.
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(b) Notwithstanding anything to the contrary in Section 1(a) of this Agreement, with respect to any Restricted Securities that are held by the At-Risk Capital Investors, private transfers of the Restricted Securities are permitted to any other person (each such transferee and each such subsequent transferee of such transferee, a “Permitted At-Risk Transferee”); provided, however, that, prior to the transfer of any Restricted Security by an At-Risk Capital Investor (or by any Permitted At-Risk Transferee to whom such Restricted Securities have been transferred), the Permitted At-Risk Transferee to whom the Restricted Securities are to be transferred must enter into a written agreement agreeing to be bound by the terms of this Agreement, including, without limitation, the transfer restrictions contained herein and Section 2(h).
(c) If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and Pubco shall refuse to recognize any such purported transferee of the Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 1, Pubco may impose stop-transfer instructions with respect to the Restricted Securities of Holder (and Permitted Transferees and assigns thereof) until the end of the Lock-Up Period.
(d) During the Lock-Up Period, each certificate evidencing any Restricted Securities shall be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF [●], BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”), NMP ACQUISITION CORP., A CAYMAN ISLANDS EXEMPTED COMPANY, AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(e) For the avoidance of any doubt, Holder shall retain all of its rights as a stockholder of Pubco during the Lock-Up Period, including the right to vote any Restricted Securities, subject to the terms of the Business Combination Agreement.
(f) The restrictions contained herein shall not prohibit the establishment, modification or termination of a written trading plan designed to comply with Rule 10b5-1 under the Exchange Act, provided that (i) no transfer of any Restricted Securities may occur pursuant to such plan before the expiration of the Lock-Up Period, and any such transfer following the Early Release Event and prior to the expiration of the Lock-Up Period shall remain subject to the volume limitations set forth in Section 1(a), (ii) the establishment, modification or termination of such plan does not require and is not accompanied by any voluntary public announcement, and (iii) any required public filing or disclosure expressly states that no transactions may occur pursuant to the plan until after the expiration of the Lock-Up Period, except as permitted following the Early Release Event.
2. Miscellaneous.
(a) Termination of Business Combination Agreement. This Agreement shall be binding upon Holder upon Holder’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the Closing. Notwithstanding anything to the contrary contained herein, in the event that the Business Combination Agreement is terminated in accordance with its terms prior to the Closing, this Agreement and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
(b) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal to Holder and may not be transferred or delegated by Holder at any time and any such purported transfer shall be null and void. Pubco may freely assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder.
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(c) Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a party hereto or thereto or a successor or permitted assign of such a party.
(d) Governing Law; Jurisdiction. This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of New York without regard to the conflict of laws principles thereof. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any state or federal court located in New York, New York (or in any appellate court thereof) (the “Specified Courts”). Each party hereto hereby (a) submits to the exclusive jurisdiction of any Specified Courts for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Courts. Each party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to the service of the summons and complaint and any other process in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such party at the applicable address set forth in Section 2(g) (and in the case of Holder, the address set forth on such Holder’s signature page). Nothing in this Section 2(d) shall affect the right of any party to serve legal process in any other manner permitted by applicable law.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 2(e).
(f) Interpretation. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
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(g) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by electronic means (including email), with affirmative confirmation of receipt, (iii) one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
If to SPAC, at or prior to the Closing,
to:
NMP Acquisition Corp.
555 Bryant Street, No. 590
Palo Alto, CA 94301
Attn: Melanie Figueroa, Chief Executive Officer
Email: [email protected]
With a copy (which shall not constitute
notice) to:
Mitchell Silberberg & Knupp LLP
437 Madison Avenue, 25th Floor
New York, NY 10022
Attn: Blake Baron, Esq.
Email: [email protected]
If to Pubco after the Closing, to:
GTS Holdings, Inc.
230 Mountain Brook Ct.
Canton, GA 30115
Attn: Nadir Ali
Email:
With a copy (which will not constitute notice) to:
Winston Taylor LLP
800 Capitol Street, Suite 2400
Houston, TX 77002
Attn: Michael J. Blankenship
Email: [email protected]
If to Holder, to: the address set forth below Holder’s name on the signature page to this Agreement.
(h) Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of Pubco, Sponsor, (prior to the Closing) the SPAC, and Holder, and Sponsor shall be an express third-party beneficiary of this Agreement for purposes of this Section 2(h); provided, that (i) any amendment, modification or waiver of the provisions of Section 1 of this Agreement applicable to a Permitted At-Risk Transferee may be adopted with the written consent of Pubco, Sponsor, (prior to the Closing) the SPAC and the holders of a majority of the Restricted Securities held by the At-Risk Capital Investors that, as of such date, have not been transferred pursuant to Section 1(b) (the “Non-Transferred At-Risk Restricted Securities”), without the consent of, or notice to, any Permitted At-Risk Transferee, so long as such amendment, modification or waiver applies equally to the Holders of such majority of the Non-Transferred At-Risk Restricted Securities, and (ii) this proviso does not affect the requirement that each At-Risk Capital Investor consent to any amendment, modification or waiver applicable to its own Restricted Securities. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
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(i) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a court of competent jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(j) Specific Performance. Holder acknowledges that its obligations under this Agreement are unique, recognizes and affirms that in the event of a breach of this Agreement by Holder, money damages will be inadequate and Pubco or the SPAC will have no adequate remedy at law, and agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by Holder in accordance with their specific terms or were otherwise breached. Accordingly, Pubco and the SPAC shall be entitled to an injunction or restraining order to prevent breaches of this Agreement by Holder and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.
(k) Entire Agreement. This Agreement, together with the Business Combination Agreement to the extent referred to herein, constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of Pubco or the SPAC or any of the rights, remedies or obligations of Holder under any other agreement between Holder and Pubco or between Holder and the SPAC or any certificate or instrument executed by Holder in favor of Pubco or the SPAC, and nothing in any other agreement, certificate or instrument shall limit any of the rights, remedies or obligations of Pubco or the SPAC or any of the rights, remedies or obligations of Holder under this Agreement.
(l) Further Assurances. From time to time, at another party’s reasonable request and without further consideration (but at the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Counterparts. This Agreement may be executed and delivered (including by electronic signature or by email in portable document form) in two or more counterparts and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
| Pubco: | ||
| GTS HOLDINGS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| SPAC: | ||
| NMP ACQUISITION CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
{Additional Signature on the Following Page}
IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
| Holder: |
| Name of Holder: _____________________________ |
| Capacity as Lock-Up Party (Seller, Sponsor, GTS Management or At-Risk Capital Investor): _____________________________ |
| By: | ||
| Name: | ||
| Title: |
| Address for Notice: | ||
| Address: | ||
| Telephone No.: | ||
| Email: | ||
Exhibit 10.2
FORM OF IPO UNDERWRITERS LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of September [●], 2026 by and among (i) GTS Holdings, Inc., a Nevada corporation, (“Pubco”), (ii) NMP Acquisition Corp., a Cayman Islands exempted company incorporated with limited liability (together with its successors, the “SPAC”), and (iii) the undersigned (“Holder”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement (as defined below).
WHEREAS, contemporaneously herewith, the SPAC, Pubco, GTS Holdings, LLC, a Utah limited liability company (the “Company”), GTS Merger Sub I, a Cayman Islands exempted company incorporated with limited liability and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”), GTS Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Pubco (“Company Merger Sub”), Streeterville Capital, LLC, a Utah limited liability company and the sole equityholder of the Company (the “Seller”), and Gibson Technical Services, Inc., a Georgia corporation and a wholly-owned subsidiary of the Company (“GTS”) entered into that certain Business Combination Agreement (as amended from time to time, the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, subject to the terms and conditions thereof, among other matters, upon the consummation of the transactions contemplated by the Business Combination Agreement (the “Closing”): (i) SPAC Merger Sub will merge with and into SPAC, with SPAC continuing as the surviving entity (the “SPAC Merger”) and as a result of which each issued and outstanding security of SPAC immediately prior to the effective time of the SPAC Merger shall no longer be outstanding and shall automatically be cancelled in exchange for which the security holders of SPAC shall receive substantially equivalent securities of Pubco, (ii) Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity (the “Company Merger”, and together with the SPAC Merger, the “Mergers”), and as a result of which each issued and outstanding security of the Company immediately prior to the effective time of the Company Merger shall no longer be outstanding and shall automatically be cancelled in exchange for which the security holders of the Company shall receive shares of common stock of Pubco, and (iii) as a result of which Mergers, SPAC and the Company will become wholly-owned subsidiaries of Pubco and Pubco will become a publicly traded company;
WHEREAS, as of immediately after the Closing, each of the Seller, Next Move Capital LLC (the “Sponsor”), GTS Management, the At-Risk Capital Investors, and the IPO Underwriters will be the holder of record and beneficial owner (as such term is defined in Rule 13d-3 promulgated under the Exchange Act), with the sole power to dispose of (or sole power to cause the disposition of) and the sole power to vote (or sole power to direct the voting of) Restricted Securities;
WHEREAS, pursuant to the Business Combination Agreement, and in view of the valuable consideration to be received by Holder thereunder, the parties desire to enter into this Agreement, pursuant to which the Restricted Securities (as defined below) shall become subject to limitations on disposition as set forth herein; and
WHEREAS, for purposes of this Agreement, “Restricted Securities” means, with respect to a Holder: (a) in the case of any Holder of SPAC Ordinary Shares, the shares of Pubco Class A Common Stock (the SPAC Exchange Shares) issued to it in respect of its SPAC Class A Ordinary Shares in the SPAC Merger (after giving effect to the SPAC Unit Separation, the Rights Conversion and the SPAC Class B Conversion, and excluding any SPAC Dissenting Shares and any shares redeemed in the Redemption); and (b) any shares of Pubco Common Stock issued to a Holder in respect of SPAC Rights pursuant to the Mergers; in each case, together with any securities paid as dividends or distributions with respect to such securities or into which such securities are exchanged or converted.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Lock-Up Provisions.
(a) Holder hereby agrees that, during the period commencing from the date of the Closing and ending on the earlier of (i) six months after the Closing, or (ii) subsequent to the Closing, the date on which Pubco completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of Pubco’s stockholders having the right to exchange their shares for cash, securities or other property (the “Lock-Up Period”), Holder shall not: (A) lend, offer, pledge, hypothecate, encumber, donate, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Restricted Securities, (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Restricted Securities, or (C) publicly disclose the intention to do any of the foregoing, whether any such transaction described in clauses (A), (B) or (C) above is to be settled by delivery of Restricted Securities or other securities, in cash or otherwise (any of the foregoing described in clauses (A), (B) or (C)) (a “Prohibited Transfer”). The foregoing sentence shall not apply to the transfer or other disposition of any or all of the Restricted Securities owned by Holder (I) by gift, (II) by will or other testamentary document or intestate succession upon the death of Holder, (III) to any Permitted Transferee (defined below), (IV) pursuant to a court order or settlement agreement or other domestic order related to the distribution of assets in connection with the dissolution of marriage or civil union, or (V) to Pubco pursuant to any contractual arrangement in effect on the date of this Agreement that provides for the repurchase of shares of Pubco Common Stock in connection with the termination of the undersigned’s employment with or services to Pubco; provided, however, that in any of cases (I), (II), (III) or (IV) above, it shall be a condition to such transfer that the transferee executes and delivers to Pubco an agreement stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to Holder, and there shall be no further transfer of such Restricted Securities except in accordance with this Agreement. As used in this Agreement, the term “Permitted Transferee” shall mean: (1) the members of Holder’s immediate family (for purposes of this Agreement, “immediate family” shall mean with respect to any natural person, any of the following: such person’s spouse, the siblings of such person and his or her spouse, and the direct descendants and ascendants (including adopted and step children and parents) of such person and his or her spouses and siblings), (2) any trust for the direct or indirect benefit of Holder or the immediate family of Holder, (3) if Holder is a trust, the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust, (4) if Holder is an entity, as a distribution to limited partners, stockholders, members or owners of similar equity interests in Holder upon the liquidation and dissolution of Holder, or (5) any affiliate of Holder. Holder further agrees to execute such agreements as may be reasonably requested by Pubco that are consistent with the foregoing or that are necessary to give further effect thereto. Notwithstanding anything to the contrary in this Section 1, following the date hereof and prior to the expiration of the Lock-Up Period, Holder (together with its affiliates) may, on any trading day, sell, transfer or otherwise dispose of a number of Restricted Securities not to exceed four percent (4%) of the trading volume of Pubco Class A Common Stock for such trading day, as reported by the principal trading market on which such shares are listed or, if such data is unavailable, as reported by a nationally recognized financial data service (such as, but not limited to, Bloomberg L.P.). All sales by Holder and its affiliates shall be aggregated for purposes of compliance with this limitation. Holder shall deliver to Pubco brokerage account statements, trade confirmations or other reasonable evidence of compliance with this limitation on a monthly basis and upon reasonable request by Pubco.
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(b) Intentionally omitted.
(c) If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and Pubco shall refuse to recognize any such purported transferee of the Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 1, Pubco may impose stop-transfer instructions with respect to the Restricted Securities of Holder (and Permitted Transferees and assigns thereof) until the end of the Lock-Up Period.
(d) Section left intentionally blank.
(e) For the avoidance of any doubt, Holder shall retain all of its rights as a stockholder of Pubco during the Lock-Up Period, including the right to vote any Restricted Securities, subject to the terms of the Business Combination Agreement.
(f) The restrictions contained herein shall not prohibit the establishment, modification or termination of a written trading plan designed to comply with Rule 10b5-1 under the Exchange Act, provided that (i) no transfer of any Restricted Securities may occur pursuant to such plan before the expiration of the Lock-Up Period, and any such transfer prior to the expiration of the Lock-Up Period shall remain subject to the volume limitations set forth in Section 1(a) (the “Leakage”), (ii) the establishment, modification or termination of such plan does not require and is not accompanied by any voluntary public announcement, and (iii) any required public filing or disclosure expressly states that no transactions may occur pursuant to the plan until after the expiration of the Lock-Up Period, except for the Leakage.
2. Miscellaneous.
(a) Termination of Business Combination Agreement. This Agreement shall be binding upon Holder upon Holder’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the Closing. Notwithstanding anything to the contrary contained herein, in the event that the Business Combination Agreement is terminated in accordance with its terms prior to the Closing, this Agreement and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
(b) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal to Holder and may not be transferred or delegated by Holder at any time and any such purported transfer shall be null and void. Pubco may freely assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder.
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(c) Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a party hereto or thereto or a successor or permitted assign of such a party.
(d) Governing Law; Jurisdiction. This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of New York without regard to the conflict of laws principles thereof. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any state or federal court located in New York, New York (or in any appellate court thereof) (the “Specified Courts”). Each party hereto hereby (a) submits to the exclusive jurisdiction of any Specified Courts for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Courts. Each party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to the service of the summons and complaint and any other process in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such party at the applicable address set forth in Section 2(g) (and in the case of Holder, the address set forth on such Holder’s signature page). Nothing in this Section 2(d) shall affect the right of any party to serve legal process in any other manner permitted by applicable law.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 2(e).
(f) Interpretation. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
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(g) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by electronic means (including email), with affirmative confirmation of receipt, (iii) one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
If to SPAC, at or prior to the Closing, to:
NMP Acquisition Corp.
555 Bryant Street, No. 590
Palo Alto, CA 94301
Attn: Melanie Figueroa, Chief Executive Officer
Email: [email protected]
With a copy (which shall not constitute notice) to:
Mitchell Silberberg & Knupp LLP
437 Madison Avenue, 25th Floor
New York, NY 10022
Attn: Blake Baron, Esq.
Email: [email protected]
If to Pubco after the Closing, to:
GTS Holdings, Inc.
230 Mountain Brook Ct.
Canton, GA 30115
Attn: Nadir Ali
Email:
With a copy (which will not constitute notice) to:
Winston Taylor LLP
800 Capitol Street, Suite 2400
Houston, TX 77002
Attn: Michael J. Blankenship
Email: [email protected]
If to Holder, to: the address set forth below Holder’s name on the signature page to this Agreement.
(h) Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of Pubco, Sponsor, (prior to the Closing) the SPAC and Holder, and Sponsor shall be an express third-party beneficiary of this Agreement for purposes of this Section 2(h). No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
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(i) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a court of competent jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(j) Specific Performance. Holder acknowledges that its obligations under this Agreement are unique, recognizes and affirms that in the event of a breach of this Agreement by Holder, money damages will be inadequate and Pubco or the SPAC will have no adequate remedy at law, and agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by Holder in accordance with their specific terms or were otherwise breached. Accordingly, Pubco and the SPAC shall be entitled to an injunction or restraining order to prevent breaches of this Agreement by Holder and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.
(k) Entire Agreement. This Agreement, together with the Business Combination Agreement to the extent referred to herein, constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of Pubco or the SPAC or any of the rights, remedies or obligations of Holder under any other agreement between Holder and Pubco or between Holder and the SPAC or any certificate or instrument executed by Holder in favor of Pubco or the SPAC, and nothing in any other agreement, certificate or instrument shall limit any of the rights, remedies or obligations of Pubco or the SPAC or any of the rights, remedies or obligations of Holder under this Agreement.
(l) Further Assurances. From time to time, at another party’s reasonable request and without further consideration (but at the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Counterparts. This Agreement may be executed and delivered (including by electronic signature or by email in portable document form) in two or more counterparts and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
| Pubco: | ||
| GTS HOLDINGS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| SPAC: | ||
| NMP ACQUISITION CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
{Additional Signature on the Following Page}
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IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
Holder:
Name of Holder: _____________________________
Capacity as Lock-Up Party: IPO Underwriter
| By: | ||
| Name: | ||
| Title: |
Address for Notice:
Address: __________________________________
Facsimile No.: _____________________________
Telephone No.: _____________________________
Email: ____________________________________
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Exhibit 10.3
AMENDMENT TO LETTER AGREEMENT
THIS AMENDMENT TO LETTER AGREEMENT (this “Amendment”) is made and entered into as of September 4, 2026, and shall be effective as of the Closing (defined below), by and among (i) NMP Acquisition Corp., a Cayman Islands exempted company incorporated with limited liability (“SPAC”), (ii) Next Move Capital LLC, a Nevada limited liability company (the “Sponsor”), (iii) GTS Holdings, Inc., a Nevada corporation (“Pubco”), (iv) GTS Holdings, LLC, a Utah limited liability company (the “Company”), and (v) the undersigned individuals, each of whom is a member of the SPAC’s board of directors and/or management team and who, along with the Sponsor and other transferees of the applicable SPAC securities, is referred to as an “Insider” pursuant to the terms of the Letter Agreement (as defined below). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Original Letter Agreement (as defined below) (and if such term is not defined in the Original Letter Agreement, then in the Business Combination Agreement (as defined below)).
RECITALS
WHEREAS, SPAC, the Sponsor and the undersigned Insiders are parties to that certain Letter Agreement, dated as of June 30, 2025 (the “Original Letter Agreement” and, as amended by this Amendment, the “Letter Agreement”), pursuant to which the Sponsor and the undersigned Insiders agreed, among other matters, to (i) waive their redemption rights with respect to any Ordinary Shares that they may have in connection with the consummation of the proposed Business Combination, (ii) waive their rights to liquidating distributions from the Trust Account with respect to their Founder Shares (although they will be entitled to liquidating distributions from the Trust Account with respect to any Offering Shares), (iii) vote any Ordinary Shares owned by it, him or her in favor of any proposed Business Combination for which the SPAC seeks approval, and (iv) agree to certain transfer restrictions with respect to the Founder Shares, Private Units (and the Insider Shares and Rights underlying such Private Units);
WHEREAS, on the date hereof, the SPAC, Pubco, the Company, Streeterville Capital, LLC, a Utah limited liability company and the sole equityholder of the Company, Gibson Technical Services, Inc., a Georgia corporation and a wholly-owned subsidiary of the Company, GTS Merger Sub I, a Cayman Islands exempted company incorporated with limited liability and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”), and GTS Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Pubco (“Company Merger Sub”), entered into that certain Business Combination Agreement (the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, upon the consummation of the transactions contemplated by the Business Combination Agreement (the “Closing”): (a) SPAC Merger Sub will merge with and into SPAC, with SPAC continuing as the surviving entity (the “SPAC Merger”) and, as a result of the SPAC Merger, each issued and outstanding security of SPAC immediately prior to the effective time of the SPAC Merger shall no longer be outstanding and shall automatically be cancelled, in exchange for the issuance to the holder thereof of a substantially equivalent Pubco security; (b) Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity (the “Company Merger” and together with the SPAC Merger, the “Mergers”), and, as a result of the Company Merger, each issued and outstanding security of the Company immediately prior to the effective time of the Company Merger shall no longer be outstanding and shall automatically be cancelled, in exchange for the issuance to the holder thereof of shares of common stock of Pubco; and (c) as a result of the Mergers, SPAC and the Company will become wholly-owned subsidiaries of Pubco and Pubco will become a publicly traded company, all in accordance with the terms and subject to the conditions of the Business Combination Agreement;
WHEREAS, the parties hereto, constituting all of the parties to the Original Letter Agreement, desire to amend the Original Letter Agreement (i) to add Pubco and the Company as parties to the Letter Agreement and (ii) to revise the terms thereof in order to reflect the transactions contemplated by the Business Combination Agreement, including without limitation the issuance of shares of Pubco Class A Common Stock in exchange for the SPAC’s Ordinary Shares, Founder Shares and Rights, respectively;
WHEREAS, concurrently with the execution of this Amendment, the Sponsor and each Insider are entering into a lock-up agreement in the form attached as Exhibit A hereto (the “Lock-Up Agreement”) to revise the transfer restrictions set forth in the Original Letter Agreement; and
WHEREAS, the Representative is executing this Amendment solely to acknowledge and agree to the amendments to the Letter Agreement effected hereby, solely in its capacity as the Representative.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Addition of Pubco and the Company as Parties to the Letter Agreement. The parties hereby agree to add Pubco and the Company as parties to the Letter Agreement. The parties further agree that, from and after the Closing, (i) all of the rights and obligations of SPAC under the Letter Agreement shall be, and hereby are, assigned and delegated to Pubco as if it were the original “Company” party thereto, and (ii) all references to SPAC under the Letter Agreement relating to periods from and after the Closing shall instead be a reference to Pubco. By executing this Amendment, Pubco hereby agrees to be bound by and subject to all of the terms and conditions of the Letter Agreement, as amended by this Amendment, from and after the Closing as if it were the original “Company” party thereto.
2. Amendments to the Letter Agreement. The parties hereto hereby agree to the following amendments to the Letter Agreement:
(a) The defined terms in this Amendment, including without limitation in the preamble and recitals hereto, and the definitions incorporated by reference from the Business Combination Agreement, are hereby added to the Letter Agreement as if they were set forth therein.
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(b) The parties hereby agree that the terms “Offering Shares,” “Class A Ordinary Shares,” “Class B Ordinary Shares,” “Ordinary Shares,” “Founder Shares,” “Insider Shares” and “Private Units”, as used in the Letter Agreement shall include, without limitation, any and all SPAC Class A Ordinary Shares and shares of Pubco Class A Common Stock issued or issuable in respect of any such securities in connection with the transactions contemplated by the Business Combination Agreement, whether directly or through one or more intermediate conversions or exchanges.
(c) Effective upon the Closing, Section 5 of the Original Letter Agreement is hereby deleted in its entirety and replaced with the following:
“5. The transfer restrictions applicable to the shares of Pubco Class A Common Stock held by the Sponsor and each Insider (including any such shares issued or issuable in respect of the Founder Shares and the Insider Shares) shall be governed by, and subject to the restrictions set forth in, the Lock-Up Agreement.”
3. Effectiveness. Notwithstanding anything to the contrary contained herein, this Amendment shall become effective upon the Closing. In the event that the Business Combination Agreement is terminated in accordance with its terms prior to the Closing, this Amendment and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
4. Miscellaneous. Except as expressly provided in this Amendment, all of the terms and provisions in the Original Letter Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Original Letter Agreement, or any other right, remedy, power or privilege of any party thereto, except as expressly set forth herein. Any reference to the Letter Agreement in the Original Letter Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Letter Agreement, as amended by this Amendment (or as the Letter Agreement may be further amended or modified in accordance with the terms thereof and hereof). The terms of this Amendment shall be governed by, enforced and construed and interpreted in a manner consistent with the provisions of the Original Letter Agreement, including without limitation Section 15 thereof.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, each party hereto has signed or has caused to be signed by its officer thereunto duly authorized this Amendment as of the date first above written.
| NEXT MOVE CAPITAL LLC | |||
| Next Move Partners LLC, as Managing Member | |||
| By: | /s/ Melanie Figueroa | ||
| Name: | Melanie Figueroa | ||
| Title: | Co-Managing Member | ||
| /s/ Nadir Ali | |||
| Name: | Nadir Ali | ||
| Title: | Co-Managing Member | ||
| NMP ACQUISITION CORP. | |||
| By: | /s/ Melanie Figueroa | ||
| Name: | Melanie Figueroa | ||
| Title: | Chief Executive Officer and™ Director | ||
| /s/ Nadir Ali | |||
| Name: | Nadir Ali | ||
| Title: | Chief Financial Officer and Director | ||
| /s/ Adam Benson | |||
| Name: | Adam Benson | ||
| Title: | Director | ||
| /s/ Vanila M. Singh | |||
| Name: | Dr. Vanila M. Singh | ||
| Title: | Director | ||
| /s/ Shanti Priya | |||
| Name: | Shanti Priya | ||
| Title: | Director | ||
[Signature Page to Amendment to Letter Agreement]
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| Accepted and Agreed: | |||
| GTS HOLDINGS, INC. | |||
| By: | /s/ John Fife | ||
| Name: | John Fife | ||
| Title: | President | ||
| GTS HOLDINGS, LLC | |||
| By: | /s/ John Fife | ||
| Name: | John Fife | ||
| Title: | Manager | ||
[Signature Page to Amendment to Letter Agreement]
5
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
[Signature Page to Amendment to Letter Agreement]
6
Exhibit 10.4
FORM OF AMENDMENT TO SUBSCRIPTION AGREEMENT
THIS AMENDMENT TO SUBSCRIPTION AGREEMENT (this “Amendment”) is made and entered into as of [●], and shall be effective as of the Closing (defined below), by and among (i) NMP Acquisition Corp., a Cayman Islands exempted company incorporated with limited liability (“SPAC”), (ii) Next Move Capital LLC, a Nevada limited liability company (the “Sponsor”), (iii) GTS Holdings, Inc., a Nevada corporation (“Pubco”), and (iv) the undersigned individuals, each of whom is a purchaser of certain SPAC securities, is referred to as a “Purchaser” pursuant to the terms of the Subscription Agreement (as defined below). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Original Subscription Agreement (as defined below) (and if such term is not defined in the Original Subscription Agreement, then in the Business Combination Agreement (as defined below)).
RECITALS
WHEREAS, SPAC, the Sponsor and the undersigned Purchaser are parties to that certain Subscription Agreement, dated as of June 30, 2025 (the “Original Subscription Agreement” and, as amended by this Amendment, the “Subscription Agreement”), pursuant to which the Sponsor and the undersigned Purchaser agreed, among other matters, to (i) subscribe and purchase the Subscribed Securities of the SPAC, as set forth therein, (ii) waive their rights to liquidating distributions from the Trust Account with respect to their Public Shares (although they will be entitled to liquidating distributions from the Trust Account in the case of a liquidation or failure to consummate a Business Combination within the 18-month period), (iii) vote any Ordinary Shares and Founder Shares, as applicable, owned by it, him or her in favor of any proposed Business Combination for which the SPAC seeks approval, and (iv) agree to certain transfer restrictions with respect to the Founder Shares, Private Placement Units (and the Ordinary Shares and Rights underlying such Private Placement Units);
WHEREAS, on the date hereof, the SPAC, Pubco, GTS Holdings, LLC, a Utah limited liability company (the “Company”), Streeterville Capital, LLC, a Utah limited liability company and the sole equityholder of the Company, Gibson Technical Services, Inc., a Georgia corporation and a wholly-owned subsidiary of the Company, GTS Merger Sub I, a Cayman Islands exempted company incorporated with limited liability and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”), and GTS Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Pubco (“Company Merger Sub”), entered into that certain Business Combination Agreement (the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, upon the consummation of the transactions contemplated by the Business Combination Agreement (the “Closing”): (a) SPAC Merger Sub will merge with and into SPAC, with SPAC continuing as the surviving entity (the “SPAC Merger”) and, as a result of the SPAC Merger, each issued and outstanding security of SPAC immediately prior to the effective time of the SPAC Merger shall no longer be outstanding and shall automatically be cancelled, in exchange for the issuance to the holder thereof of a substantially equivalent Pubco security; (b) Company Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity (the “Company Merger” and together with the SPAC Merger, the “Mergers”), and, as a result of the Company Merger, each issued and outstanding security of the Company immediately prior to the effective time of the Company Merger shall no longer be outstanding and shall automatically be cancelled, in exchange for the issuance to the holder thereof of shares of common stock of Pubco; and (c) as a result of the Mergers, SPAC and the Company will become wholly-owned subsidiaries of Pubco and Pubco will become a publicly traded company, all in accordance with the terms and subject to the conditions of the Business Combination Agreement;
WHEREAS, the parties to the Original Subscription Agreement, together with Pubco, desire to amend the Original Subscription Agreement (i) to add Pubco as a party to the Subscription Agreement and (ii) to revise the terms thereof in order to reflect the transactions contemplated by the Business Combination Agreement, including without limitation the issuance of shares of Pubco Class A Common Stock in exchange for the SPAC’s Ordinary Shares, Founder Shares and Rights, respectively; and
WHEREAS, concurrently with the execution of this Amendment, the Sponsor and the Purchaser are entering into a lock-up agreement in the form attached as Exhibit A hereto (the “Lock-Up Agreement”) to revise the transfer restrictions set forth in the Original Subscription Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Addition of Pubco as a Party to the Subscription Agreement. The parties hereby agree to add Pubco as a party to the Subscription Agreement. The parties further agree that, from and after the Closing, (i) all of the rights and obligations of SPAC under the Subscription Agreement shall be, and hereby are, assigned and delegated to Pubco as if it were the original “Company” party thereto, and (ii) all references to SPAC under the Subscription Agreement relating to periods from and after the Closing shall instead be a reference to Pubco. By executing this Amendment, Pubco hereby agrees to be bound by and subject to all of the terms and conditions of the Subscription Agreement, as amended by this Amendment, from and after the Closing as if it were the original “Company” party thereto.
2. Amendments to the Subscription Agreement. The parties hereby agree to the following amendments to the Subscription Agreement:
(a) The defined terms in this Amendment, including without limitation in the preamble and recitals hereto, and the definitions incorporated by reference from the Business Combination Agreement, are hereby added to the Subscription Agreement as if they were set forth therein.
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(b) The parties hereby agree that the terms “Offering Shares,” “Class A Ordinary Shares,” “Class B Ordinary Shares,” “Ordinary Shares,” “Founder Shares,” and “Private Placement Units”, as used in the Subscription Agreement shall include, without limitation, any and all SPAC Class A Ordinary Shares and shares of Pubco Class A Common Stock issued or issuable in respect of any such securities in connection with the transactions contemplated by the Business Combination Agreement, whether directly or through one or more intermediate conversions or exchanges.
(c) Effective upon the Closing, Section 5(a) of the Original Subscription Agreement is hereby deleted in its entirety and replaced with the following:
“(a) Transfer Restrictions. The transfer restrictions applicable to the shares of Pubco Class A Common Stock held by the Purchaser (including any such shares issued or issuable in respect of the Founder Shares and Private Placement Units) shall be governed by, and subject to the restrictions set forth in, the Lock-Up Agreement.”
3. Effectiveness. Notwithstanding anything to the contrary contained herein, this Amendment shall become effective upon the Closing. In the event that the Business Combination Agreement is terminated in accordance with its terms prior to the Closing, this Amendment and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
4. Miscellaneous. Except as expressly provided in this Amendment, all of the terms and provisions in the Original Subscription Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Original Subscription Agreement, or any other right, remedy, power or privilege of any party thereto, except as expressly set forth herein. Any reference to the Subscription Agreement in the Original Subscription Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Subscription Agreement, as amended by this Amendment (or as the Subscription Agreement may be further amended or modified in accordance with the terms thereof and hereof). The terms of this Amendment shall be governed by, enforced, construed and interpreted in a manner consistent with the provisions of the Original Subscription Agreement, including without limitation Section 6(i) thereof.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, each party hereto has signed or has caused to be signed by its officer thereunto duly authorized this Amendment as of the date first above written.
| NEXT MOVE CAPITAL LLC | ||
| Next Move Partners LLC, as Managing Member | ||
| By: | ||
| Name: | ||
| Title: | ||
| NMP ACQUISITION CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amendment to Subscription Agreement]
4
| PURCHASER: | ||
| By: | ||
| Name: | ||
[Signature Page to Amendment to Subscription Agreement]
5
| Accepted and Agreed: | ||
| GTS HOLDINGS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amendment to Subscription Agreement]
6
Exhibit A
Form of Lock-Up Agreement
7
Exhibit 10.5
FORM OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [●], is made and entered into by and among NMP Acquisition Corp., a Cayman Islands exempted company (the “Company”), GTS Holdings, Inc., a Nevada corporation (“Pubco”) and the undersigned party listed under Holder on the signature page hereto (each such party, together with any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement, the “Holder”). Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, Next Move Capital LLC, a Nevada limited liability company (the “Sponsor”), purchased an aggregate of 3,183,333 of the Company’s Class B ordinary shares, par value $0.0001 per share (the “Class B Ordinary Shares” and, including the shares of Pubco Class A Common Stock issued or issuable upon the conversion of any such ordinary shares or that are issued in exchange for such ordinary shares in the SPAC Merger, the “Founder Shares”);
WHEREAS, the Company is party to that certain Registration Rights Agreement, dated June 30, 2025 (the “Original Registration Rights Agreement”);
WHEREAS, on June 30, 2025, the Company entered into that certain Unit Subscription Agreement with the Sponsor, pursuant to which the Sponsor purchased an aggregate of 177,500 units (the “Sponsor Private Placement Units”) at a purchase price of $10.00 per Sponsor Private Placement Unit. Each Sponsor Private Placement Unit is comprised of one Class A ordinary share (“Ordinary Shares”) (the “Sponsor Private Placement Shares”) and one right to receive one-fifth of one Ordinary Share (the “Sponsor Private Placement Rights”);
WHEREAS, on June 30, 2025, the Company entered into certain Subscription Agreements (each a “Subscription Agreement”) with (i) certain third-party investors (the “Third-Party Investors”) and (ii) certain individuals who are registered persons of Maxim Group LLC (the “Maxim individuals,” and together with the Third-Party Investors, the “At-Risk Capital Investors”), pursuant to which (i) the Maxim individuals purchased an aggregate of 33,500 units (the “Maxim Private Placement Units”), (ii) the Third-Party Investors purchased an aggregate of 31,500 units (the “Third-Party Investors Private Placement Units,” together with Maxim Private Placement Units, the “At-Risk Investors Private Placement Units,” and together with the Sponsor Private Placement Units, the “Private Placement Units”) at a purchase price of $10.00 per At-Risk Investor Private Placement Unit, (iii) the Maxim individuals purchased 335,000 Founder Shares, and (iv) the Third-Party Investors purchased 315,000 Founder Shares. Each At-Risk Investor Private Placement Unit is comprised of one Ordinary Share (the “At-Risk Investors Private Placement Shares,” and together with the Sponsor Private Placement Shares, the “Private Placement Shares”) and one right to receive one-fifth of one Ordinary Share (the “At-Risk Investors Private Placement Rights,” and together with the Sponsor Private Placement Rights, the “Private Placement Rights”);
WHEREAS, on June 30, 2025, the Company and Maxim Group LLC (the “Representative”) entered into that certain Underwriting Agreement, pursuant to which the Representative received an aggregate of 460,000 Ordinary Shares (the “Representative Shares”), in a transaction occurring simultaneously with the closing of the Company’s initial public offering (and the closing of the over-allotment option, if applicable);
WHEREAS, on September 4, 2026, the Company, Pubco, GTS Holdings, LLC, a Utah limited liability company (the “Target Company”), Streeterville Capital, LLC, a Utah limited liability company and the sole equityholder of the Target Company (“Streeterville”), Gibson Technical Services, Inc., a Georgia corporation and a wholly-owned subsidiary of the Target Company, GTS Merger Sub I, a Cayman Islands exempted company incorporated with limited liability and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”), and GTS Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Pubco (“Company Merger Sub”), entered into that certain Business Combination Agreement (the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, upon the consummation of the transactions contemplated by the Business Combination Agreement (the “Closing”): (a) SPAC Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity (the “SPAC Merger”) and, as a result of the SPAC Merger, each issued and outstanding security of the Company immediately prior to the effective time of the SPAC Merger shall no longer be outstanding and shall automatically be cancelled, in exchange for the issuance to the holder thereof of a substantially equivalent Pubco security; (b) Company Merger Sub will merge with and into the Target Company, with the Target Company continuing as the surviving entity (the “Company Merger” and together with the SPAC Merger, the “Mergers,” and along with the other transactions contemplated by the Business Combination Agreement, the “Business Combination”), and, as a result of the Company Merger, each issued and outstanding security of the Target Company immediately prior to the effective time of the Company Merger shall no longer be outstanding and shall automatically be cancelled, in exchange for the issuance to the holder thereof of shares of common stock of Pubco; and (c) as a result of the Mergers, the Company and the Target Company will become wholly-owned subsidiaries of Pubco and Pubco will become a publicly traded company, all in accordance with the terms and subject to the conditions of the Business Combination Agreement;
WHEREAS, the Sponsor and certain Holders will enter into Lock-Up Agreements with the Company and Pubco (each, a “Lock-Up Agreement”);
WHEREAS, pursuant to Section 5.5 of the Original Registration Rights Agreement, the provisions, covenants and conditions set forth therein may be amended or modified upon the written consent of the Company and of the holders of at least a majority in interest of the Registrable Securities (as defined in the Original Registration Rights Agreement) at the time in question, and the Sponsor is holder of at least a majority-in-interest of the Registrable Securities (as defined in the Original Registration Rights Agreement) as of the date hereof;
WHEREAS, the Company and the undersigned Holder desire to amend and restate the Original Registration Rights Agreement and to enter into this Agreement, pursuant to which Pubco shall grant the Holder certain registration rights with respect to certain securities of Pubco he, she or it holds, as set forth in this Agreement; and
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WHEREAS, the Holder acknowledges and agrees that the Company is entering into registration rights agreements substantially similar to this Agreement (the “Other Agreements”) with [the Sponsor/the Maxim individuals/Third-Party Investors/Maxim], each of which holds Registrable Securities, including any of their transferees (collectively with the Holder, the “Registration Rights Holders”).
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
| 1.1 | Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below: |
“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of any director of Pubco, the Chief Executive Officer or the Chief Financial Officer of Pubco, after consultation with counsel to Pubco, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) Pubco has a bona fide business purpose for not making such information public.
“Agreement” shall have the meaning given in the Preamble.
“Board” shall mean the Board of Directors of Pubco.
“Business Combination” shall have the meaning given in the Recitals hereto.
“Business Combination Agreement” shall have the meaning given in the Recitals hereto.
“Closing” shall have the meaning given in the Recitals hereto.
“Commission” shall mean the U.S. Securities and Exchange Commission.
“Company” shall have the meaning given in the Preamble.
“Company Merger” shall have the meaning given in the Recitals hereto.
“Company Merger Sub” shall have the meaning given in the Recitals hereto.
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“Demand Registration” shall have the meaning given in subsection 2.1.2.
“Demanding Holder” shall have the meaning given in subsection 2.1.2.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Form S-1” shall have the meaning given in subsection 2.1.2.
“Form S-3” shall have the meaning given in subsection 2.3.
“Founder Shares” shall have the meaning given in the Recitals hereto.
“Holder” shall have the meaning given in the Preamble.
“IPO” shall mean the initial public offering of the Company.
“Lock-Up Agreement” shall have the meaning given in the Recitals hereto.
“Lock-Up Period” shall mean the period specified in the Lock-Up Agreements.
“Maximum Number of Securities” shall have the meaning given in subsection 2.1.5.
“Mergers” shall have the meaning given in the Recitals hereto.
“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.
“Ordinary Shares” shall have the meaning given in the Recitals hereto.
“Original Registration Rights Agreement” shall have the meaning given in the Recitals hereto.
“Other Agreements” shall have the meaning given in the Recitals hereto.
“Permitted Transferees” shall mean a person or entity to whom a holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration of the Lock-Up Period, pursuant to the Lock-Up Agreement and any other applicable agreement between such holder and the Company, and to any transferee thereafter.
“Piggyback Registration” shall have the meaning given in subsection 2.2.1.
“Private Placement Rights” shall have the meaning given in the Recitals hereto.
“Private Placement Shares” shall have the meaning given in the Recitals hereto.
“Private Placement Units” shall have the meaning given in the Recitals hereto.
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“Pro Rata” shall have the meaning given in subsection 2.1.5.
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Pubco” shall have the meaning given in the Preamble.
“Pubco Class A Common Stock” shall mean the Pubco Class A Common Stock, par value $0.0001 per share.
“Pubco Class B Common Stock” shall mean the Pubco Class B Common Stock, par value $0.0001 per share.
“Pubco Common Stock” shall mean the Pubco Class A Common Stock and the Pubco Class B Common Stock.
“Pubco Conversion Shares” shall mean the Pubco Class A Common Stock issuable upon conversion of the Pubco Series A Preferred Stock.
“Pubco Series A Preferred Stock” shall mean the Pubco Series A Preferred Stock, par value $0.0001 per share.
“Registrable Security” shall mean (a) any shares of Pubco Class A Common Stock held by a Holder as of the Closing Date (including the shares of Pubco Class A Common Stock issued or issuable upon the conversion of the shares of Pubco Class B Common Stock, the Pubco Conversion Shares, or the exercise or conversion of any other equity security of Pubco issued to a Holder pursuant to the terms of the Business Combination Agreement), (b) any shares of Pubco Common Stock acquired by a Holder following the Closing to the extent that such shares are (i) “restricted securities” (as defined in Rule 144), (ii) held by an “affiliate” (as defined in Rule 144) of Pubco, or (iii) otherwise cannot be sold pursuant to Rule 144 or any successor rule promulgated under the Securities Act with no volume or other restrictions or limitation as to the manner or timing of sale, and (c) any other equity security of Pubco issued or issuable with respect to the securities referred to in the foregoing clauses (a) and (b) by way of a share dividend 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 upon the earliest to occur of: (A) a Registration Statement with respect to the sale of such securities shall be declared effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement by the applicable Holder; (B) (x) such securities shall have been otherwise transferred (other than to a Permitted Transferee), (y) new certificates for such securities not bearing (or book entry positions not subject to) a legend restricting further transfer shall have been delivered by Pubco to the Holder and (z) 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, transferred, disposed of or exchanged 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 as to the manner or timing of sale); or (E) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.
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“Registration” shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
| (A) | all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which the shares of Pubco Common Stock are then listed; |
| (B) | fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities); |
| (C) | printing, messenger, telephone and delivery expenses; |
| (D) | reasonable fees and disbursements of counsel for Pubco; |
| (E) | reasonable fees and disbursements of all independent registered public accountants of Pubco incurred specifically in connection with such Registration; and |
| (F) | reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders initiating a Demand Registration to be registered for offer and sale in the applicable Registration. |
“Registration Rights Holders” shall have the meaning given in the Recitals hereto.
“Registration Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement and the Other Agreements, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Requesting Holder” shall have the meaning given in subsection 2.1.2.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Registration” shall have the meaning given in subsection 2.1.1.
“SPAC Merger” shall have the meaning given in the Recitals hereto.
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“SPAC Merger Sub” shall have the meaning given in the Recitals hereto.
“Sponsor” shall have the meaning given in the Recitals hereto.
“Streeterville” 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 (as defined below) and not as part of such dealer’s market-making activities.
“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of Pubco are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
ARTICLE II
REGISTRATIONS
| 2.1 | Demand Registration. |
| 2.1.1 | Shelf Registration. Pubco agrees that, within thirty (30) days after the completion of the Business Combination (which filing deadline shall not be extended without the prior written consent of Pubco, Streeterville and the Representative), Pubco will file with the Commission (at Pubco’s sole cost and expense) a Registration Statement registering the resale or other disposition of the Registrable Securities (a “Shelf Registration”). Pubco shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission (x) as soon as reasonably practicable after the initial filing of the Registration Statement and (y) in any event no later than the date that is ninety (90) days after the initial filing date of such Registration Statement (the “Effectiveness Deadline”); provided, however, that if the Commission notifies Pubco that it will not review or has no further comments on such Registration Statement, the Effectiveness Deadline shall be the fifth (5th) business day after the date on which Pubco is so notified. Subject to the limitations contained in this Agreement, Pubco shall effect any Shelf Registration on such appropriate registration form of the Commission (i) as shall be selected by Pubco and (ii) as shall permit the resale or other disposition of the Registrable Securities by the holders of Registrable Securities. If at any time a Registration Statement filed with the Commission pursuant to this subsection 2.1.1 is effective and the Holder provides written notice to Pubco that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Pubco will use its commercially reasonable efforts to amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place in accordance with the terms of this Agreement. |
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| 2.1.2 | Request for Registration. Subject to the provisions of subsection 2.1.5 and Section 2.4 hereof, at any time and from time to time on or after the completion of 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 under the Securities Act 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”). Pubco shall, within ten (10) days of Pubco’s receipt of the Demand Registration, notify, in writing, all other holders of Registrable Securities of such demand, and any holder of Registrable Securities who thereafter wishes to include all or a portion of such holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such holder that includes all or a portion of such holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify Pubco, in writing, within five (5) days after the receipt by such holder of Registrable Securities of the notice from Pubco. Upon receipt by Pubco of any such written notification from a Requesting Holder(s) to Pubco, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and Pubco shall effect, as soon thereafter as practicable, the Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration. Under no circumstances shall Pubco be obligated to effect more than an aggregate of three (3) Registrations pursuant to a Demand Registration under this subsection 2.1.2 under this Agreement and the Other Agreements 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 been declared 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 and the Other Agreements. |
| 2.1.3 | Effective Registration. Notwithstanding the provisions of subsection 2.1.2 above or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission and (ii) Pubco has complied with all of its obligations under this Agreement with respect thereto; provided, further, that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or any other governmental agency, the Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify Pubco in writing, but in no event later than five (5) days, of such election; and provided, further, that Pubco shall not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently terminated. |
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| 2.1.4 | Underwritten Offering. Subject to the provisions of subsection 2.1.5 and Section 2.4 hereof, if a majority-in-interest of the Demanding Holders so advise Pubco as part of their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such holder’s participation in such Underwritten Offering and the inclusion of such holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. If the Holder proposes to distribute the Holder’s Registrable Securities through an Underwritten Offering under this subsection 2.1.4, it shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the majority-in-interest of the Demanding Holders initiating the Demand Registration. |
| 2.1.5 | Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand Registration, in good faith, advises Pubco, the Demanding Holders and the Requesting Holders (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other shares of Pubco Common Stock or other equity securities that Pubco desires to sell, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other shareholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then Pubco shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (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 the 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 or pursuant to similar provisions of any applicable Other Agreement, 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 shares of Pubco Common Stock or other equity securities that Pubco desires to sell and that 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 shares of Pubco Common Stock or other equity securities of other persons or entities that Pubco is obligated to register in a Registration pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities. |
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| 2.1.6 | Demand Registration Withdrawal. A majority-in-interest of the Demanding Holders initiating a Demand Registration or a majority-in-interest of the Requesting Holders (if any), pursuant to a Registration under subsection 2.1.2 shall have the right to withdraw from a Registration pursuant to such Demand Registration for any or no reason whatsoever upon written notification to Pubco and the Underwriter or Underwriters (if any) of their intention to withdraw from such Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to the Registration of their Registrable Securities pursuant to such Demand Registration. Notwithstanding anything to the contrary in this Agreement, Pubco shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration as provided in Section 3.3 prior to its withdrawal under this subsection 2.1.6. |
| 2.2 | Piggyback Registration. |
| 2.2.1 | Piggyback Rights. If, at any time on or after the completion of the Business Combination, Pubco proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of shareholders of Pubco (or by Pubco and by the shareholders of Pubco including, without limitation, pursuant to Section 2.1 hereof), other than a Registration Statement (i) filed in connection with any employee share option or other benefit plan, (ii) for an exchange offer or offering of securities solely to Pubco’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of Pubco or (iv) for a dividend reinvestment plan, then Pubco shall give written notice of such proposed filing to all 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 “Piggyback Registration”). Pubco 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 Holder pursuant to this subsection 2.2.1 to be included in a Piggyback Registration on the same terms and conditions as any similar securities of Pubco included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. If the Holder proposes to distribute the Holder’s Registrable Securities through an Underwritten Offering under this subsection 2.2.1, it shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by Pubco. |
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| 2.2.2 | Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration, in good faith, advises Pubco and the holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of the shares of Pubco Common Stock that Pubco desires to sell, taken together with (i) the shares of Pubco Common Stock, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holder hereunder (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.2 hereof, and (iii) the shares of Pubco Common Stock, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of Pubco, exceeds the Maximum Number of Securities, then: |
| (a) | If the Registration is undertaken for Pubco’s account, Pubco shall include in any such Registration (A) first, the shares of Pubco Common Stock or other equity securities that Pubco desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of the holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1 hereof or pursuant to similar provisions of any applicable Other Agreement, 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 shares of Pubco Common Stock, if any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other shareholders of Pubco, which can be sold without exceeding the Maximum Number of Securities; |
| (b) | If the Registration is pursuant to a request by persons or entities other than the holders of Registrable Securities, then Pubco shall include in any such Registration (A) first, the shares of Pubco Common Stock or other equity securities, if any, of such requesting persons or entities, other than the holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of the holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1 or pursuant to similar provisions of any applicable Other Agreement, Pro Rata based on the number of Registrable Securities that each such holder has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the holders of Registrable Securities 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 shares of Pubco Common Stock or other equity securities that Pubco desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the shares of Pubco Common Stock or other equity securities for the account of other persons or entities that Pubco is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities. |
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| 2.2.3 | Piggyback Registration Withdrawal. Any holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to Pubco and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration. Pubco (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, Pubco shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration as provided in Section 3.2 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. The holders of Registrable Securities may at any time, and from time to time, request in writing that Pubco, pursuant to Rule 415 under the Securities Act (or any successor rule promulgated thereafter by the Commission), register the resale of any or all of their Registrable Securities on Form S-3 or any similar short form registration statement that may be available at such time (“Form S-3”); provided, however, that Pubco shall not be obligated to effect such request through an Underwritten Offering. Within five (5) days of Pubco’s receipt of a written request from any holder or holders of Registrable Securities for a Registration on Form S-3, Pubco 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 Pubco, in writing, within ten (10) days after the receipt by such holder of Registrable Securities of the notice from Pubco. As soon as practicable thereafter, but not more than twelve (12) days after Pubco’s initial receipt of such written request for a Registration on Form S-3, Pubco 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 Pubco 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 Pubco entitled to inclusion in such Registration, propose to sell the Registrable Securities and such other equity securities (if any) at any aggregate price to the public of less than $5,000,000. |
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| 2.4 | Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to Pubco’s good faith estimate of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of, a Pubco initiated Registration and provided that Pubco has delivered written notice to the holders of Registrable Securities prior to receipt of a Demand Registration pursuant to subsection 2.1.2 and it continues to actively employ, in good faith, all reasonable efforts to cause the applicable Registration Statement to be declared effective; (B) the holders of Registrable Securities have requested an Underwritten Registration and Pubco and such holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or (C) in the good faith judgment of the Board such Registration would be seriously detrimental to Pubco and the Board concludes as a result that it is essential to defer the filing of such Registration Statement at such time, then in each case Pubco shall furnish to such holder a certificate signed by any director or officer of Pubco or the Chairman of the Board stating that in the good faith judgment of the Board it would be seriously detrimental to Pubco for such Registration Statement to be filed in the near future and that it is therefore essential to defer the filing of such Registration Statement. In such event, Pubco shall have the right to defer such filing for a period of not more than thirty (30) consecutive days; provided, however, that any days during which Pubco defers the filing of a Registration Statement pursuant to this Section 2.4 shall be aggregated with any days during which Pubco suspends the use of any Registration Statement or Prospectus pursuant to Section 3.4, and in no event shall the aggregate number of days of deferral under this Section 2.4 and suspension under Section 3.4 exceed sixty (60) days during any twelve (12)-month period. |
ARTICLE III
COMPANY PROCEDURES
| 3.1 | General Procedures. If at any time on or after the completion of the Business Combination Pubco is required to effect the Registration of Registrable Securities, Pubco 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 Pubco shall, as expeditiously as possible: |
| 3.1.1 | prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to be declared 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 of Registrable Securities or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by Pubco or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus (and, with respect to any Registration Statement on Form S-1 or any similar long-form registration statement, subject to subsection 3.1.3 below); |
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| 3.1.3 | For so long as any Registrable Securities covered by a Registration Statement on Form S-1 (or any similar long-form registration statement that does not permit automatic forward incorporation by reference of subsequently filed Exchange Act reports) remain unsold, Pubco shall maintain such Registration Statement and the related Prospectus so that they remain current, available for use, and not misleading. Without limiting the generality of the foregoing, Pubco shall file any prospectus supplement, “sticker,” post-effective amendment, Exchange Act report incorporated by reference, or other filing necessary to keep such Registration Statement and Prospectus current and not misleading as promptly as practicable, and in any event within five (5) business days, after the filing, event, development, or other circumstance giving rise to the need for such update (including, without limitation, the filing of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q, or Current Report on Form 8-K, or the occurrence of any material development affecting the accuracy of the Registration Statement or Prospectus). This subsection 3.1.3 shall apply notwithstanding any limited ability to rely on forward incorporation by reference or Form S-3 mechanics during any period in which Pubco is not eligible to use Form S-3 or is otherwise required to keep a Form S-1 resale registration statement current through affirmative updates. The obligations of Pubco under this subsection 3.1.3 are subject to Section 3.4; |
| 3.1.4 | 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; |
| 3.1.5 | 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 Pubco and do any and all other acts and things that may be necessary or advisable to enable the holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that Pubco shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject; |
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| 3.1.6 | cause all such Registrable Securities included in any Registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by Pubco are then listed or designated or, if no such similar securities are then listed or designated, in a manner satisfactory to the holders of a majority-in-interest of the Registrable Securities included in such registration; |
| 3.1.7 | provide a transfer agent as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement; |
| 3.1.8 | 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; |
| 3.1.9 | at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel; |
| 3.1.10 | notify the holders of Registrable Securities 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; |
| 3.1.11 | permit a representative of the holders of Registrable Securities (such representative to be selected by a majority of the participating holders of Registrable Securities), the Underwriters, if any, and any attorney or accountant retained by such holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause Pubco’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to Pubco, prior to the release or disclosure of any such information; |
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| 3.1.12 | obtain a “cold comfort” letter from Pubco’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; |
| 3.1.13 | on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing Pubco for the purposes of such Registration, addressed to the holders of Registrable Securities, 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 of Registrable Securities, 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 of Registrable Securities; |
| 3.1.14 | 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; |
| 3.1.15 | make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of Pubco’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission); |
| 3.1.16 | if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $100,000,000, use its reasonable efforts to make available senior executives of Pubco to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and |
| 3.1.17 | otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the holders of Registrable Securities, in connection with such Registration. |
| 3.2 | Registration Expenses. The Registration Expenses in respect of all Registrations shall be borne by Pubco. It is acknowledged by the Holder that the Holder shall bear all incremental selling expenses relating to the sale of such Holder’s 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 Holder. |
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| 3.3 | Requirements for Participation in Underwritten Offerings. No person or entity may participate in any Underwritten Offering for equity securities of Pubco pursuant to a Registration initiated by Pubco hereunder unless such person or entity (i) agrees to sell such person’s or entity’s securities on the basis provided in any underwriting arrangements approved by Pubco and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements. |
| 3.4 | Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from Pubco that a Registration Statement or Prospectus contains a Misstatement, the Holder shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that Pubco hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice, and, with respect to any Registration Statement on Form S-1 or any similar long-form registration statement, in any event within five (5) business days after the time of such notice in accordance with subsection 3.1.3), or until it is advised in writing by Pubco that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would require Pubco to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to Pubco for reasons beyond Pubco’s control, Pubco may, upon giving prompt written notice of such action to the holders of Registrable Securities, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by Pubco to be necessary for such purpose, but in no event (i) more than thirty (30) consecutive days or (ii) more than sixty (60) days in the aggregate during any twelve (12)-month period (counting together any days of deferral under Section 2.4 and any days of suspension under this Section 3.4). In the event Pubco exercises its rights under the preceding sentence, the Holder agrees to suspend, immediately upon its receipt of the notice referred to above, its use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. Pubco shall immediately notify the holders of Registrable Securities of the expiration of any period during which it exercised its rights under this Section 3.4. For the avoidance of doubt, any suspension period under this Section 3.4 shall toll the five (5) business day period set forth in subsection 3.1.3 for the duration of such suspension. |
| 3.5 | Reporting Obligations. As long as the Holder shall own Registrable Securities, Pubco, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by Pubco after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holder with true and complete copies of all such filings. Pubco further covenants that it shall take such further action as the Holder may reasonably request, all to the extent required from time to time to enable the Holder to sell shares of Pubco Class A Common Stock held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of the Holder, Pubco shall deliver to the Holder a written certification of a duly authorized officer as to whether it has complied with such requirements. |
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| 3.6 | Limitation on Registration Rights. Notwithstanding anything herein to the contrary, (i) neither the Representative nor its designees or the Maxim individuals (nor any Permitted Transferees of any such person or entity) may exercise their rights under Sections 2.1 and 2.2 hereunder after five (5) and seven (7) years, respectively, from the commencement of sales in the IPO, and (ii) the Representative and the Maxim individuals may not exercise their demand rights under Section 2.1 more than one time. |
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
| 4.1 | Indemnification. |
| 4.1.1 | Pubco agrees to indemnify, to the extent permitted by law, the Holder, its officers and directors and each person who controls the Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to Pubco by the Holder expressly for use therein. Pubco shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act) and each other holder of Registrable Securities 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 the Holder is participating, such Holder shall furnish to Pubco in writing such information and affidavits as Pubco reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify Pubco, its directors and officers and agents and each person who controls Pubco (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by the Holder expressly for use therein. The Holder shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) and each other holder of Registrable Securities to the same extent as provided in the foregoing with respect to indemnification of Pubco. The obligation by the holders of Registrable Securities to indemnify Pubco 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. |
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| 4.1.3 | Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. |
| 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. If the Holder participates in an offering, Pubco and the Holder also agree to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event Pubco’s or the 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, 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 the Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by the Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation. |
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ARTICLE V
MISCELLANEOUS
| 5.1 | Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail, telecopy, telegram or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail, telecopy, telegram or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to Pubco, to: [●], and, if to the Holder, at the Holder’s address or contact information as set forth in Pubco’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 be declared 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 Pubco hereunder may not be assigned or delegated by Pubco in whole or in part. |
| 5.2.2 | Prior to the expiration of the applicable Lock-Up Period, the Holder may not 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 the 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 Holder, 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 Pubco unless and until Pubco shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to Pubco, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void. |
| 5.3 | Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced. |
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| 5.4 | Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT (I) 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 AND (II) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY IN THE STATE OF NEW YORK. |
| 5.5 | Amendments and Modifications. 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, in each case with the written consent of Pubco and of the holders of at least a majority in interest of the Registrable Securities at the time in question; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects the Holder, solely in its capacity as a holder of the shares of Pubco, in a manner that is materially different from the other holders of Registrable Securities (in such capacity) shall require the consent of the Holder. For purposes of this Section 5.5, the determination of whether the holders of at least a majority in interest of the Registrable Securities have consented shall be made by aggregating the Registrable Securities held by all Registration Rights Holders across this Agreement and the Other Agreements, and each Registration Rights Holder acknowledges and agrees that any amendment, modification or waiver so adopted shall be binding upon it and this Agreement without any further action, signature or consent on its part, except as otherwise provided in the prior sentence; and Pubco’s determination of the Registrable Securities held by each Registration Rights Holder as of any date, for purposes of such calculation, shall be conclusive absent manifest error. No course of dealing between the Holder or Pubco and any other party hereto or any failure or delay on the part of the Holder or Pubco in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of the Holder, the other holders of Registrable Securities or Pubco. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party. |
| 5.6 | Other Registration Rights. Pubco represents and warrants that no person, other than the holders of Registrable Securities, has any right to require Pubco to register any securities of Pubco for sale or to include such securities of Pubco in any Registration filed by Pubco for the sale of securities for its own account or for the account of any other person. Further, Pubco represents and warrants that this Agreement supersedes the Original Registration Rights Agreement and any other registration rights agreement or agreement with similar terms and conditions entered into prior to the date hereof (in each case, other than the Other Agreements), and in the event of a conflict between any such prior agreement and this Agreement, the terms of this Agreement shall prevail. For the avoidance of doubt, this Agreement and the Other Agreements are intended to operate together as a single, integrated registration rights arrangement, and the provisions of this Agreement (including subsections 2.1.5 and 2.2.2) shall be applied on a consistent and pro rata basis with the corresponding provisions of the Other Agreements; no provision of this Agreement shall be construed to subordinate, or to give the Holder priority over, any Registration Rights Holder under any Other Agreement solely by reason of this Section 5.6. |
| 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 Holder is permitted to sell Holder’s Registrable Securities under Rule 144 (or any similar provision) under the Securities Act without limitation on the amount of securities sold or the manner of sale. The provisions of Section 3.5 and Article IV shall survive any termination. |
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| COMPANY: | ||
| NMP ACQUISITION CORP., | ||
| a Cayman Islands exempted company | ||
| By: | ||
| Name: | ||
| Title: | ||
| PUBCO: | ||
| GTS HOLDINGS, INC. | ||
| a Nevada corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
| HOLDER: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
Exhibit 99.1
NMP Acquisition Corp. and Gibson Technical Services, Inc. Announce Execution of Definitive Business Combination Agreement
GTS Delivered Approximately $140 Million of Revenue in 2025, Representing 36% Year-Over-Year Growth, with an EBITDA Margin of ~12.5%*
Combined Company offers an Established Telecommunications Infrastructure Platform Well Positioned to Participate in Long-Term Fiber, Broadband, Wireless and Connectivity Infrastructure Supporting AI-Driven Data Center Expansion
PALO ALTO, Calif. and ATLANTA, Ga, Sept. 08, 2026 (GLOBE NEWSWIRE) -- NMP Acquisition Corp. (Nasdaq: NMP) (“NMP”), a special purpose acquisition company, Gibson Technical Services, Inc. (“GTS”), an established provider of engineering, design, construction, installation, testing, commissioning and maintenance services for telecommunications and other critical infrastructure, and Streeterville Capital, LLC, the beneficial owner, through its ownership of GTS Holdings, LLC, of 100% of the outstanding capital stock of GTS (the “Seller”), today announced that they have entered into a definitive business combination agreement (the “Business Combination Agreement”) that would result in GTS becoming a publicly traded company through a newly formed holding company (the “Business Combination”).
Upon closing, the combined company is expected to operate under GTS Holdings, Inc. (“Pubco”) and its Class A common stock (“Class A Common Stock”) is expected to be listed on the Nasdaq Capital Market under a new ticker symbol. The Business Combination values GTS at an implied enterprise value of $400 million (the “Enterprise Value”) and remains subject to, among other things, effectiveness of a registration statement on Form S-4 to be filed with the U.S. Securities and Exchange Commission (“SEC”), approval by NMP’s shareholders, and other customary closing conditions.
Key Business & Transaction Highlights
GTS has built an established telecommunications infrastructure services platform with meaningful scale, long-standing customer relationships and a 38-year operating history. The Business Combination is expected to provide GTS with greater strategic flexibility to build on this foundation and pursue its next phase of growth as a public company. Highlights include:
| ● | 38-year operating history serving the telecommunications infrastructure sector |
| ● | Approximately $140 million of revenue in 2025, representing approximately 36% year-over-year growth, with EBITDA margins of 12.5%* |
| ● | Experienced management team with deep industry expertise and a long track record of execution |
| ● | Positive EBITDA* and an established operating platform with meaningful scale |
| ● | Existing liquidity and internally generated cash flows are expected to be sufficient to support GTS’ current operations and the closing of the business combination is not subject to a minimum cash or other third-party financing condition. |
| ● | Long-standing relationships with Tier-1 telecommunications carriers and a high level of repeat business |
| ● | Positioned at the intersection of two long-term infrastructure investment cycles: federally supported broadband deployment (including BEAD and RDOF) and the fiber, interconnection, structured cabling and network commissioning demand generated by AI-driven data center development |
| ● | Growing demand for fiber and network infrastructure driven by increasing data consumption, data center development and investment in digital infrastructure |
| ● | Fragmented telecommunications infrastructure services market that management believes provides opportunities for disciplined, strategic acquisitions |
| ● | The Seller will roll 100% of its equity interests in GTS Holdings, LLC into the combined company, demonstrating continued alignment with GTS’s long-term strategy |
| ● | Public company platform expected to provide GTS with enhanced access to capital and strategic flexibility to pursue organic growth and potential acquisitions |
“GTS has built a strong and growing business by doing what matters most in our industry—delivering consistently for our customers,” said Mike McCracken, Chief Executive Officer of GTS. “Our long-standing relationships with leading telecommunications and broadband providers, high level of repeat business and comprehensive capabilities across the communications infrastructure lifecycle provide a strong foundation for continued growth. With approximately $140 million in revenue in 2025, representing approximately 36% year-over-year growth, we believe GTS has reached an important point in its evolution. As investment in fiber, broadband, wireless connectivity and the infrastructure supporting an increasingly data-driven economy continues to expand, we believe GTS is well positioned to capitalize on these long-term industry trends. Becoming a public company will provide us with additional resources and flexibility to invest in our people and capabilities, pursue new opportunities with existing and prospective customers, and build upon the platform we have established.”
“We founded NMP to identify high-quality operating businesses with strong management teams, established operations and compelling opportunities for continued growth, and to provide them with a public market platform to execute on their vision,” said Melanie Figueroa, Chief Executive Officer of NMP Acquisition Corp. “GTS is exactly that kind of business, an established infrastructure services company with meaningful revenue scale, long-standing customer relationships and multiple avenues for organic growth and disciplined, strategic acquisitions. Our conviction in GTS reflects the strength of its existing platform, the durability of its customer relationships and the opportunities we see to create long-term shareholder value. We believe this transaction presents a compelling opportunity for NMP shareholders to participate in GTS’s continued growth while providing GTS with the strategic flexibility to accelerate its growth strategy.”
* Non-GAAP Financial Measures; Financial Information
This press release references EBITDA margin, which is a non-GAAP financial measure. GTS defines EBITDA as net income (loss) before interest expense, income taxes, depreciation and amortization, and defines EBITDA margin as EBITDA divided by revenue.
The 2025 revenue and EBITDA margin presented in this press release are based on GTS’s unaudited financial results for the year ended December 31, 2025 and remain subject to completion of GTS’s audit and any adjustments that may result therefrom. Accordingly, GTS’s audited financial results may differ from the unaudited financial information presented herein.
EBITDA margin has not been reconciled to its most comparable GAAP financial measure. This press release relates to a proposed business combination and is a communication subject to Rule 425 under the Securities Act of 1933, as amended. Accordingly, this non-GAAP financial measure included herein is exempt from the requirements of Item 10(e) of Regulation S-K and Rule 100 of Regulation G, which would otherwise require such reconciliation.
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Growth Strategy
Following the closing of the Business Combination, GTS intends to pursue multiple avenues for growth, including expanding its fiber deployment and wireless densification capabilities, increasing its participation in data center and other connectivity infrastructure projects and leveraging its engineering, geospatial and network design capabilities to support fiber route planning and connectivity architecture for data center campuses, and deploying its construction, structured cabling, distributed antenna system and testing and commissioning services on the connectivity infrastructure that AI-driven data center development requires. GTS also intends to enter new geographic markets and selectively pursue strategic acquisitions within the fragmented telecommunications infrastructure services market. Although GTS expects its existing liquidity and internally generated cash flows to be sufficient to support its current operating plan, access to the public markets is expected to provide GTS with additional capital markets flexibility to accelerate its growth initiatives and pursue these strategic opportunities as they arise.
Transaction Overview
Under the terms of the Business Combination Agreement, NMP and GTS will combine in an all-stock transaction. The Business Combination values GTS at an implied enterprise value of $400 million. The aggregate consideration to be issued to the Seller will equal the Enterprise Value, minus the value of certain debt owed to the Seller that will remain outstanding following the closing (which amount will not exceed $82 million in the aggregate), consisting of (i) 75,000 shares of Pubco Preferred Stock having an aggregate stated value of $75 million and convertible into Class A Common Stock at a conversion price of $12.00 per share, and (ii) newly issued shares of Class A Common Stock and Pubco Class B common stock (“Class B Common Stock” and together with Class A Common Stock, “Common Stock”), with an aggregate value equal to the remaining balance (collectively, the “Merger Consideration”).
In connection with the Business Combination, NMP's existing shareholders will receive shares of Class A Common Stock in exchange for their NMP Class A ordinary shares, NMP Class B ordinary shares and existing rights to acquire NMP Class A ordinary shares. The Class A Common Stock will entitle holders to one vote per share, while the Class B Common Stock, which will be issued to the Seller as part of the Merger Consideration, will entitle the Seller to 20 votes per share. The Seller will roll 100% of its equity into the combined company.
The Business Combination is expected to provide GTS with access to the cash remaining in NMP’s trust account following the satisfaction of shareholder redemptions and payment of transaction expenses and other amounts payable at closing. NMP’s trust account held approximately $119.8 million as of September 4, 2026.
In connection with the closing, the Seller, NMP’s sponsor, GTS’s management and certain other equity holders of the combined company will be subject to customary lock-up restrictions on the transfer of their Pubco securities for six months following the Closing, subject to early release if the trading price of Class A Common Stock equals or exceeds $12.00 per share for 20 out of any 30 trading days following the closing and subject to certain volume-based trading limitations during the release period. The closing of the business combination is not subject to a minimum-cash or other third-party financing condition.
The transaction is not yet complete and remains subject to the filing and SEC review of a joint proxy statement/prospectus on Form S-4, approval by NMP’s shareholders at an extraordinary general meeting and other customary closing conditions. There can be no assurance that the Business Combination will be completed on the terms described herein, or at all.
U.S. legal counsel to NMP is Mitchell Silberberg & Knupp LLP and Cayman legal counsel is Ogier (Cayman) LLP. U.S. legal counsel to GTS is Winston Taylor LLP and Cayman legal counsel is Appleby (Cayman) Ltd. Auditors for both GTS and NMP are CBIZ CPAs P.C. Technical accounting services were provided by Centri Business Consulting, LLC and Houlihan Capital, LLC provided a fairness opinion to NMP.
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Management and Board of Directors
Following the closing, the combined company’s leadership team is expected to include:
| ● | Nadir Ali — Chief Executive Officer, GTS Holdings, Inc. |
| ● | Mike McCracken — Chief Executive Officer, Gibson Technical Services, Inc. |
| ● | Robert Moore — Chief Financial Officer, Gibson Technical Services, Inc. |
| ● | Jon Martin — President, Gibson Technical Services, Inc. |
The board of directors of the combined company is expected to include Nadir Ali and Mike McCracken, together with three independent directors. The Chief Financial Officer of the combined company will be named prior to closing.
About GTS
Gibson Technical Services, Inc. is an established provider of telecommunications infrastructure services supporting the deployment, expansion, modernization and maintenance of critical communications networks. Through its operating subsidiaries, GTS provides a comprehensive suite of engineering, design, construction, installation and maintenance services to telecommunications carriers, broadband providers and other communications infrastructure customers. With decades of industry experience, GTS has developed long-standing customer relationships and a strong base of repeat business by delivering technical expertise, quality and reliable execution across complex infrastructure projects. As demand for connectivity and network capacity continues to grow, GTS is positioned to support its customers’ ongoing investments in fiber, broadband, wireless and other communications infrastructure including the network connectivity supporting data center expansion.
About NMP Acquisition Corp.
NMP Acquisition Corp. is a special purpose acquisition company sponsored by Next Move Capital, LLC. NMP was formed to identify and partner with an established operating business with an experienced management team, demonstrated operating performance and opportunities for continued growth, with the objective of creating long-term value for shareholders.
Additional Information About the Business Combination and Where to Find It
This press release relates to the Business Combination involving by and among NMP, GTS, Pubco, a Nevada corporation, GTS Merger Sub I, a Cayman Islands exempted company incorporated with limited liability and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”), GTS Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Pubco (“Company Merger Sub” and together with SPAC Merger Sub, the “Merger Subs” and, together with Pubco, the “Company Parties”), GTS Holdings, LLC, a Utah limited liability company and the holder of 100% of the outstanding capital stock of GTS (“Holdings”), and the Seller. Each of the Company Parties was newly formed for the purpose of effecting the Business Combination.
In connection with the proposed Business Combination, NMP and Pubco intend to file a registration statement on Form S-4 (the “Registration Statement”) with the SEC, which will include a preliminary proxy statement/prospectus of NMP and a preliminary prospectus of Pubco relating to the shares of common stock and preferred stock of Pubco to be issued in connection with the Business Combination. This press release is not a substitute for the Registration Statement, the definitive proxy statement/final prospectus or any other document that NMP or Pubco has filed or will file with the SEC or send to shareholders in connection with the Business Combination. This press release does not contain all the information that should be considered concerning the Business Combination and other matters and is not intended to form the basis for any investment decision or any other decision in respect of such matters.
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NMP’S SHAREHOLDERS AND OTHER INTERESTED PERSONS ARE ADVISED TO READ, WHEN AVAILABLE, THE PRELIMINARY PROXY STATEMENT/PROSPECTUS AND ANY AMENDMENTS THERETO, THE DEFINITIVE PROXY STATEMENT/PROSPECTUS AND ANY OTHER DOCUMENTS FILED BY NMP OR PUBCO WITH THE SEC IN CONNECTION WITH THE BUSINESS COMBINATION OR INCORPORATED BY REFERENCE THEREIN IN THEIR ENTIRETY, BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT NMP, PUBCO, GTS, THE COMPANY PARTIES AND THE PROPOSED BUSINESS COMBINATION.
After the Registration Statement is declared effective, the definitive proxy statement/prospectus will be mailed to NMP’s shareholders as of a record date to be established for voting on the proposed Business Combination. Shareholders will also be able to obtain copies of these documents, without charge, once available, through the SEC’s website at www.sec.gov or by directing a request to: NMP Acquisition Corp., 555 Bryant Street, No. 590, Palo Alto, CA 94301; or upon written request to GTS Holdings, Inc. at 230 Mountain Brook Ct., Canton, GA 30115, respectively.
NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF THE TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PRESS RELEASE. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
Participants in the Solicitation
NMP, Pubco, GTS, Holdings and certain of their respective directors, executive officers and other members of management and employees may, under SEC rules, be deemed to be participants in the solicitation of proxies from NMP’s shareholders in connection with the proposed Business Combination. Information regarding the persons who may be deemed participants and their interests in the proposed Business Combination will be set forth in the Registration Statement and other relevant materials to be filed with the SEC when they become available.
No Offer or Solicitation
This press release is for informational purposes only and is not intended to and does not constitute, or form part of, an offer, invitation or the solicitation of an offer or invitation to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of any securities, or the solicitation of any vote or approval in any jurisdiction, pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. The Business Combination will be implemented solely pursuant to the Business Combination Agreement, which contains the full terms and conditions of the Business Combination. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended, or an exemption therefrom.
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Forward-Looking Statements
This press release contains “forward-looking statements” within the meaning of the federal securities laws, including statements regarding the anticipated timing and benefits of the proposed Business Combination, the expected SEC review and shareholder approval process, GTS’s and the combined company’s anticipated audit results and future financial and operational performance, growth strategy, industry trends, plans and use of proceeds, the availability of and expected benefit from federal and state broadband infrastructure programs, and Pubco’s expected listing on a national securities exchange. These forward-looking statements are based on current expectations and beliefs and are subject to a number of risks, uncertainties and assumptions that could cause actual results to differ materially from those expressed or implied, including: the risk that the Business Combination may not be completed in the anticipated timeframe or at all, including if NMP fails to complete the Business Combination prior to its business combination deadline; the outcome of the SEC’s review of the Registration Statement; the ability to obtain NMP shareholder approval; the level of redemptions by NMP’s public shareholders, which may reduce the public float, liquidity and trading market for Class A Common Stock; the failure to realize the anticipated benefits of the Business Combination; the sufficiency of the fairness opinion obtained by NMP’s board of directors; the ability of Pubco to obtain or maintain listing of its securities on Nasdaq or any other securities exchange, including the risk that Pubco may be considered a “shell company” for these purposes; matters identified in the parties’ due diligence of one another; the availability of capital to support GTS’s business plans; GTS’s ability to generate sufficient revenue and achieve or maintain profitability; the ability of GTS to retain existing customers and attract new business partners; customer concentration; risks associated with managing growth, including through acquisitions; increased competition in the telecommunications infrastructure services industry; changes in business, market, financial, political and regulatory conditions; the ability to recruit, train and retain qualified personnel; supply or labor shortages; the outcome of any legal proceedings that may be instituted in connection with the Business Combination; and other risks and uncertainties described in NMP’s and Pubco’s filings with the SEC, including the Registration Statement to be filed in connection with the Business Combination, when available. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this press release. NMP, Pubco, GTS and Holdings undertake no obligation to update these statements except as required by law.
Investor Relations
NMP Acquisition Corp.
Attn: Investor Relations
[email protected]
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