Oklo Inc 8-K, filed Jul 11, 2023
Oklo Inc. (OKLO)
About this 8-K
Oklo Inc filed this 8-K on July 11, 2023.
Items reported
- Item 1.01: Entered into a material agreement
- Item 7.01: Regulation FD disclosure
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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(I.R.S. Employer Identification No.) |
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640 Fifth Avenue, |
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Emerging growth company
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| Item 1.01 | Entry into a Material Definitive Agreement. |
On July 11, 2023, AltC Acquisition Corp. (“AltC”) entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”) by and among AltC, AltC Merger Sub, Inc., a Delaware corporation and direct, wholly owned subsidiary of AltC (“Merger Sub”), and Oklo Inc., a Delaware corporation (the “Company”).
Pursuant to the Merger Agreement, the parties thereto intend to enter into a business combination transaction by which Merger Sub will merge with and into the Company, with the Company being the surviving entity in the merger (the “Merger” and, together with the other transactions contemplated by the Merger Agreement, the “Transactions”).
The proposed Merger is expected to be consummated after the required approval by the stockholders of AltC and the Company and the satisfaction of certain other conditions summarized below.
Merger Agreement
Merger Consideration
The aggregate consideration to be paid to the stockholders of the Company (including, holders of Simple Agreements for Future Equity between the Company and the “Investors” party thereto (“Company SAFEs”) and vested and unvested Company Options (as defined below)) on the date of the closing (the “Closing Date”) of the Transactions (the “Closing”) will be equal to (a) $850,000,000 plus, (b) an amount equal to the net proceeds raised by the Company pursuant to the sale (or series of related sales) of its equity securities in a bona fide equity financing transaction (subject to certain limitations, a “Permitted Financing”) following the execution of the Merger Agreement but prior to the Closing, if any (the sum of (a) and (b), the “Efquity Value”), which consideration will be paid entirely in shares of Class A common stock, par value $0.0001 per share, of AltC (the “Class A Common Stock”) in an amount equal to $10.00 per share (the “Closing Merger Consideration”). During the five-year period following the Closing (the “Earnout Period”), AltC will issue to eligible holders of pre-Closing securities of the Company up to 15,000,000 additional shares of Class A Common Stock in the aggregate (the “Earnout Consideration” and, together with the Closing Merger Consideration, the “Merger Consideration”), in tranches equal to 7,5000,000 shares of Class A Common Stock, 5,000,000 shares of Class A Common Stock and 2,500,000 shares of Class A Common Stock, upon the satisfaction of certain price targets set forth in the Merger Agreement, which price targets will be based upon (a) the closing sale price of one share of Class A Common Stock quoted on the New York Stock Exchange or the exchange on which the shares of Class A Common Stock are then traded, for any twenty trading days within any sixty consecutive trading day period within the Earnout Period or (b) if, AltC undergoes a change of control, the price per share received by stockholders of AltC in such change of control transaction.
At the effective time of the Merger (the “Effective Time”):
| • | each share of common stock, par value $0.0001 per share, of the Company (“Company Common Stock”) (including shares of Company Common Stock issued upon the pre-Closing conversion of preferred stock of the Company and Company SAFEs) will be automatically surrendered and shall cease to exist, and be exchanged for the right to receive, in the aggregate, the Merger Consideration; and |
| • | all outstanding options to purchase shares of Company Common Stock (each, a “Company Option”) will be assumed by AltC. Each Company Option will (i) become an option to purchase shares of Class A Common Stock (each, an “Assumed Option”), on the same terms and conditions (including applicable vesting, exercise and expiration provisions) as applied to the Company Option immediately prior to the Effective Time, except that (A) the number of shares of Class A Common Stock subject to such Assumed Option shall equal the product of (x) the number of shares of Company Common Stock that were subject to such option immediately prior to the Effective Time, multiplied by (y) the portion of the Equity Value per share of Company Common Stock outstanding immediately prior to the Merger (including the aggregate number of shares of Company Common Stock issuable upon the exercise of all Company Options as of immediately prior to the Effective Time (including after giving effect to any acceleration of any unvested Company Options in connection with the consummation of the Merger)) divided by $10.00 (the “Exchange Ratio”), rounded down to the nearest whole share, and (B) the per-share exercise price shall equal the quotient of (1) the exercise price per share of Company Common Stock at which such option was exercisable immediately prior to the Effective Time, divided by (2) the Exchange Ratio, rounded up to the nearest whole cent and (ii) solely in the case of Company Options that are vested as of immediately prior to the Effective Time (after taking into consideration any acceleration required by the terms of the Assumed Option in effect as of the date of the Merger Agreement) have a contingent right to receive a pro rata portion of the Earnout Consideration. |
Representations and Warranties
The Merger Agreement contains representations and warranties of the parties thereto with respect to, among other things, (i) entity organization, formation and authority, (ii) authorization to enter into the Merger Agreement, (iii) capital structure, (iv) consents and approvals, (v) financial statements, (vi) undisclosed liabilities, (vii) real property, (viii) litigation and proceedings, (ix) material contracts, (x) Company benefit plans (xi) taxes, (xii) absence of changes, (xiii) environmental matters, (xiv) labor matters, (xv) licenses and permits, (xvi) compliance with laws, (xvii) intellectual property and data security, (xviii) insurance, (xix) permits, (xx) machinery, equipment and other tangible property, (xxi) U.S. nuclear regulatory matters, (xxii) anti-bribery, anti-corruption and anti-money laundering, (xxiii) sanctions, import and export controls, (xxiv) related party transactions, (xxv) AltC’s financial ability to enter into the Merger and the funds available in AltC’s trust account (the “Trust Account”), and (xxvi) AltC’s filings with the U.S. Securities and Exchange Commission (“SEC”). The representations and warranties of the parties contained in the Merger Agreement will terminate and be of no further force and effect as of the Closing.
Covenants
The Merger Agreement contains customary covenants of the parties, including, among others, covenants providing for (i) the operation of the parties’ respective businesses prior to the Closing, (ii) AltC and the Company’s efforts to satisfy conditions to the Closing, (iii) AltC and the Company to cease discussions for alternative transactions, (iv) AltC to prepare and file a registration statement and a proxy statement on Form S-4 (the “Registration Statement”) for the purpose of soliciting proxies from AltC’s stockholders to vote in favor of certain matters (the “SPAC Stockholder Matters”), including the adoption of the Merger Agreement, approval of the Transactions, amendment and restatement of AltC’s certificate of incorporation and certain other matters at a special meeting called therefor (the “Special Meeting”), (v) the Company to solicit via written consent of the stockholders of the Company, the approval of certain matters, including the adoption of the Merger Agreement and approval of the Transactions (the “Company Stockholder Matters”), (vi) the protection of, and access to, confidential information of the parties, (vii) AltC to take all commercially reasonable actions necessary, with the Company’s reasonable cooperation, to seek approval from the stockholders of AltC to extend the deadline for AltC to consummate a business combination to a date after October 12, 2023 (which date shall be no earlier than January 12, 2024) (the “SPAC Deadline”), including filing a preliminary proxy statement to extend the SPAC Deadline with the SEC no later than September 1, 2023 and (viii) the parties’ efforts to obtain necessary approvals from governmental agencies.
Conditions to Closing
The Closing is subject to customary closing conditions for special purpose acquisition companies, including, among others: (i) approval by AltC’s stockholders of the SPAC Stockholder Matters, (ii) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iii) no order, statute, rule or regulation enjoining or prohibiting the consummation of the Transactions being in force, (iv) AltC having at least $5,000,001 of net tangible assets as of the Closing, (v) approval by the Company’s stockholders of the Company Stockholder Matters, (vi) shares of AltC’s Class A Common Stock being listed on the New York Stock Exchange or other stock exchange mutually agreed between AltC and the Company (the “Stock Exchange”), (vii) the Registration Statement becoming effective in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (viii) the adoption and execution of any organizational documents or agreements necessary to give effect to the governance arrangements contemplated by the Merger Agreement and the other transaction documents contemplated therein, (ix) the taking of all actions necessary such that the board of directors of AltC as of immediately following the Closing is constituted of seven (7) directors, consisting of (a) one (1) director designated by AltC Sponsor LLC, a Delaware limited liability company (“Sponsor”), who must qualify as “independent” under applicable SEC and the Stock Exchange rules and who must be reasonably acceptable to the Company, (b) one (1) director mutually designated by Sponsor and the Company and (c) such other individuals as shall be determined by the Company, in its sole and exclusive discretion, provided that the citizenship of the members of the AltC board after the Closing will be such that AltC will be free of foreign ownership, control or domination, (xi) no material adverse effects on AltC or the Company and (xii) customary bringdown conditions. Additionally, the obligations of the Company to consummate the Transactions are also conditioned upon, among other things, the amount of cash available in the Trust Account (after reduction for the aggregate amount of the AltC stockholder redemptions and any excise tax payable by AltC but before the payments required to be made in connection with AltC’s or the Company’s expenses incurred in connection with the Transactions) plus the net proceeds of any incremental financing raised by AltC or the Company in connection with the Transactions, including any amounts raised or funded through any Sponsor Commitment or a Permitted Financing (the “Available Closing SPAC Cash”) being at least equal to $250,000,000 as of the Closing, and each of the covenants of each of Sponsor and the Insiders (as defined below) required under the Sponsor Agreement (as defined below) to be performed as of or prior to the Closing shall have been performed in all material respects, and none of Sponsor or the Insiders shall have threatened (orally or in writing) (A) that the Sponsor Agreement is not valid, binding and in full force and effect, (B) that AltC or the Company is in breach of or default under the Sponsor Agreement or (C) to terminate the Sponsor Agreement.
AltC’s obligation to consummate the Transactions is also conditioned upon the Company not receiving from the U.S. Nuclear Regulatory Commission (the “NRC”) any communication that would reasonably be expected to have a material adverse impact on the ability of the Company to secure a Combined Construction and Operating License for its subject reactor from the NRC.
Termination
The Merger Agreement may be terminated at any time, but not later than the Closing, as follows:
| (i) | by mutual written consent of AltC and the Company; |
| (ii) | by either AltC or the Company if the Transactions are not consummated on or before October 12, 2023 (the “Termination Date”), which may be automatically extended if (i) any action for specific performance or other equitable relief filed by the Company with respect to the Merger Agreement, the other transaction agreements specified in the Merger Agreement or otherwise regarding the Transactions is commenced or pending on or prior to the Termination Date, provided that the terminating party’s failure to fulfill any of its obligations under the Merger Agreement is not the primary cause of, or primarily resulted in, the failure of the closing to occur by such date or (ii) AltC stockholder approval is received to extend the deadline for AltC to consummate a business combination to a date after October 12, 2023 in accordance with AltC’s organizational documents so as to permit the consummation of the Transactions; |
| (iii) | by either AltC or the Company if a governmental entity shall have issued an order, decree or ruling or taken any other action, in any case having the effect of permanently enjoining or prohibiting the Merger, which order, decree, judgment, ruling or other action is final and nonappealable; |
| (iv) | by either AltC or the Company if the other party has breached any of its covenants, agreements, representations or warranties which would result in the failure of certain conditions to be satisfied at the Closing and has not cured its breach within 30 days of the notice of an intent to terminate, provided that the terminating party’s failure to fulfill any of its obligations under the Merger Agreement is not the primary cause of, or primarily resulted in, the failure of the Closing to occur; |
| (v) | by either AltC or the Company if, at the Special Meeting, the Transactions and the other SPAC Stockholder Matters shall fail to be approved by holders of AltC’s outstanding shares, provided that AltC’s right to terminate for failure to obtain such approval shall not be available if, at the time of such termination, AltC is in breach of certain of its obligations under the Merger Agreement, including with respect to the preparation, filing and mailing of the Registration Statement and convening the Special Meeting; |
| (vi) | by AltC if the Company shall fail to obtain the written consent of the Company’s stockholders holding the requisite number of shares of capital stock of the Company necessary to approve the Company Stockholder Matters (the “Company Stockholder Approval”), provided that AltC’s right to terminate for failure to obtain such consent shall not be available if such consent is obtained prior to AltC providing notice of its intent to terminate on account of such failure to obtain such consent; or | |
| (vii) | by written notice from AltC to the Company if the holders of capital stock of the Company sufficient to obtain the Company Stockholder Approval fail to deliver Voting and Support Agreements (each, a “Company Voting and Support Agreement”) to AltC within seventy-two (72) hours of the date of the Merger Agreement (a “Company Voting and Support Agreement Failure”); provided, that the right to terminate the Merger Agreement on account of a Company Voting and Support Agreement Failure shall not be available if the Company delivers to SPAC executed Company Voting and Support Agreements by holders of capital stock of the Company sufficient to obtain the Company Stockholder Approval prior to AltC providing notice of its intent to terminate the Merger Agreement on account of a Company Voting and Support Agreement Failure. |
The foregoing description of the Merger Agreement and the Transactions does not purport to be complete and is qualified in its entirety by the terms and conditions of the Merger Agreement and any related agreements. The Merger Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of such agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement. It is not intended to provide any other factual information about AltC, the Company, or any other party to the Merger Agreement or any related agreement. In particular, the representations, warranties, covenants and agreements contained in the Merger Agreement, which were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, are subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts) and are subject to standards of materiality applicable to the contracting parties that may differ from those applicable to investors and security holders. Investors and security holders are not third-party beneficiaries under the Merger 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 Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in AltC’s public disclosures.
The foregoing description of the Merger Agreement is qualified in its entirety by reference to the Merger Agreement filed as an exhibit to this Current Report on Form 8-K.
Related Agreements
Amended and Restated Registration Rights Agreement
In connection with the Closing, that certain Registration Rights Agreement of AltC, dated July 7, 2021, will be amended and restated, and AltC, Sponsor and certain persons and entities receiving Class A Common Stock in connection with the Merger (the “New Holders” and, together with Sponsor, the “Reg Rights Holders”) will enter into an Amended and Restated Registration Rights Agreement, attached as Exhibit D to the Merger Agreement (the “A&R Registration Rights Agreement”). Pursuant to the A&R Registration Rights Agreement, AltC will agree to use commercially reasonable efforts to (i) file with the SEC (at AltC’s sole cost and expense) a registration statement registering the resale of certain securities held by or issuable to the Reg Rights Holders within 30 business days after the Closing (the “Resale Registration Statement”) and (ii) cause the Resale Registration Statement to become effective as soon as reasonably practicable after the filing thereof. In certain circumstances, the Reg Rights Holders may demand in the aggregate up to 5 underwritten offerings and will be entitled to customary piggyback registration rights.
Pursuant to the A&R Registration Rights Agreement, the New Holders have agreed not to transfer their respective shares for a period of 180 days following the Closing Date and (ii) key members of the Company’s management team and key stockholders (collectively, the “Company Insiders”) have agreed not to transfer (a) 40% of such Company Insider’s shares for a period of 12 months after the Closing, unless the closing share price of Class A Common Stock equals or exceeds $12.00 per share for 20 trading days within any 60 consecutive trading day period commencing after the Closing Date, (b) 30% of such Company Insider’s shares for a period of 24 months after the Closing, unless the closing share price of Class A Common Stock equals or exceeds $14.00 per share for 20 trading days within any 60 consecutive trading day period commencing after the Closing Date and (c) 30% of such Company Insider’s shares for a period of 36 months after the Closing, unless the closing share price of Class A Common Stock equals or exceeds $16.00 per share for 20 trading days within any 60 consecutive trading day period commencing after the Closing Date.
Amended and Restated Sponsor Agreement
In connection with the execution of the Merger Agreement, AltC amended and restated each of those certain letter agreements, dated July 7, 2021, from each of the persons undersigned thereto (the “Initial Insiders”) and that certain letter agreement, dated November 10, 2021, from Peter Lattman (together with, the Initial Insiders, the “Insiders”) (the “Amended and Restated Sponsor Agreement”), pursuant to which, among other things, each of the Sponsor and the Insiders agreed (i) to vote any of such Insider’s shares of AltC securities in favor of the Transactions and other SPAC Stockholder Matters, (ii) not to redeem any of such Insider’s shares of Class A Common Stock or AltC’s Class B common stock, par value $0.0001 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “SPAC Common Stock”) in connection with the stockholder redemption, (iii) to pay any amounts in excess of the expense cap of $25,000,000 (such amount, the “Excess Amount”) in either cash or by forfeiting a number of shares of Class A Common Stock, at a price of $10.00 per share (provided that any Excess Amount greater than $15,000,000 shall be paid only in cash), (iv) not to transfer (a) 40% of such Insider’s shares for a period of 12 months after the Closing, unless the closing share price of Class A Common Stock equals or exceeds $12.00 per share for 20 trading days within any 60 consecutive trading day period commencing after the Closing Date, (b) 30% of such Insider’s shares for a period of 24 months after the Closing, unless the closing share price of Class A Common Stock equals or exceeds $14.00 per share for 20 trading days within any 60 consecutive trading day period commencing after the Closing Date, and (c) 30% of such Insider’s shares for a period of 36 months after the Closing, unless the closing share price of Class A Common Stock equals or exceeds $16.00 per share for 20 trading days within any 60 consecutive trading day period commencing after the Closing Date, and (v) to be bound to certain other obligations as described therein. Sponsor has also agreed to use commercially reasonable efforts to enter into an agreement or agreements with one or more third parties to not redeem their shares of Class A Common Stock in connection with the Transactions, which agreements may, if reasonably necessary, include incentives in the form of Founder Shares (which will convert to Class A Common Stock at the Closing), in amounts and on such terms as the Sponsor and the Company shall mutually agree.
Pursuant to the Amended and Restated Sponsor Agreement, all of Sponsor’s shares of SPAC Common Stock (including shares of Class A Common Stock issued upon conversion of the Class B Common Stock) (the “Sponsor Shares”) will unvest as of the Closing and will revest as follows: (1) 50% of the Sponsor Shares shall revest on the date on which the closing price per share of Class A Common Stock on the New York Stock Exchange, or such other securities exchange where Class A Common Stock is primarily listed or quoted, equals or exceeds $10.00 for 20 trading days within any 60 consecutive trading day period; (2) 25% of the Sponsor Shares shall revest on the date on which the closing price per share of SPAC Common Stock on the New York Stock Exchange, or such other securities exchange where SPAC Common Stock is primarily listed or quoted, equals or exceeds $12.00 for 20 trading days within any 60 consecutive trading day period, (3) 12.5% of the Sponsor Shares shall revest on the date on which the closing price per share of SPAC Common Stock on the New York Stock Exchange, or such other securities exchange where SPAC Common Stock is primarily listed or quoted, equals or exceeds $14.00 for 20 trading days within any 60 consecutive trading day period, and (4) 12.5% of the Sponsor Shares shall revest on the date on which the closing price per share of SPAC Common Stock on the New York Stock Exchange, or such other securities exchange where SPAC Common Stock is primarily listed or quoted, equals or exceeds $16.00 for 20 trading days within any 60 consecutive trading day period. If the applicable vesting level as described in the foregoing is not achieved within 5 years of the Closing, such Sponsor Shares will be forfeited in accordance with the terms of the Amended and Restated Sponsor Agreement.
Also pursuant to the to the Amended and Restated Sponsor Agreement, Sponsor (or an affiliated co-investor of Sponsor) has agreed to, subject to the other terms and conditions included therein, immediately prior to Closing, purchase in a private placement up to 5,000,000 shares of SPAC Class A Common Stock at a purchase price of $10.00 per share, equal to an amount up to $50,000,000 (the “Sponsor Commitment”). The amount of the Sponsor Commitment that Sponsor (or an affiliated co-investor of Sponsor) will be required to fund will be equal to (i) $250,000,000 minus (ii) the Available Closing SPAC Cash before accounting for the funding of any Sponsor Commitment (the “Sponsor Commitment Purchase Price”); which amount, under no circumstances shall exceed the maximum amount of the Sponsor Commitment.
Sponsor’s obligation to fund the Sponsor Commitment Purchase Price is conditioned upon (i) the satisfaction (or waiver by AltC) of the conditions set forth in Section 10.01 and Section 10.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing), (ii) the substantially concurrent consummation of the Closing, and (iii) the Available Closing SPAC Cash equaling an amount of at least $125,000,000 (which such amount, for the avoidance of doubt, will include the Sponsor Commitment Purchase Price). Any shares purchased pursuant to the Sponsor Commitment by Sponsor, an Insider or an affiliated co-investor thereof will be subject to the Sponsor Lockup.
The foregoing description of the Amended and Restated Sponsor Agreement is not complete and is qualified in its entirety by reference to the Amended and Restated Sponsor Agreement filed as an exhibit to this Current Report on Form 8-K.
| Item 7.01 | Regulation FD Disclosure. |
On July 11, 2023, AltC and the Company issued a press release (the “Press Release”) announcing the Transactions. The Press Release is attached hereto as Exhibit 99.1 and incorporated by reference herein.
Attached as Exhibit 99.2 and incorporated by reference herein is an investor presentation, dated July 2023, which includes a video presentation of Sam Altman, that will be used by AltC with respect to the Transactions. A transcript of Mr. Altman’s video presentation is attached as Exhibit 99.3 and incorporated by reference herein.
The information in this Item 7.01, including Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3, is furnished and shall 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 liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of AltC under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report will not be deemed an admission as to the materiality of any information of the information in this Item 7.01, including Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3.
| Item 8.01 | Other Events. |
As a result of entering into the Merger Agreement, AltC now has until October 12, 2023 to complete a business combination. If AltC is unable to complete a business combination by such date (or such later date as may be approved by AltC’s stockholders at the Special Meeting or any other meeting called for such purpose at which AltC’s stockholders will be given the opportunity to have their public shares of AltC redeemed for a pro rata portion of the funds in the Trust Account), AltC will then liquidate.
To mitigate the risk of AltC being deemed to have been operating as an unregistered investment company (including under the subjective test of Section 3(a)(1)(A) of the Investment Company Act of 1940, as amended) under the proposed SEC rules regarding special purpose acquisition companies, AltC has instructed the trustee with respect to the Trust Account to hold all funds in the Trust Account in cash (which may include demand deposit accounts) until the earlier of consummation of a business combination or liquidation. As a result, AltC may not receive further interest on the funds held in the Trust Account, which would reduce the dollar amount AltC’s public stockholders would receive upon any redemption or liquidation of AltC.
Additional Information and Where to Find It
The proposed transaction will be submitted to shareholders of AltC for their consideration. AltC intends to file the Registration Statement with the SEC, which will include preliminary and definitive proxy statements to be distributed to AltC’s shareholders in connection with AltC’s solicitation for proxies for the vote by AltC’s shareholders in connection with the proposed transaction and other matters to be described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to the Company’s shareholders in connection with the completion of the proposed transaction. After the Registration Statement has been filed and declared effective, AltC will mail a definitive proxy statement/prospectus/consent solicitation statement and other relevant documents to its shareholders as of the record date established for voting on the proposed transaction. AltC’s shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus/consent solicitation statement and any amendments thereto and, once available, the definitive proxy statement/prospectus/consent solicitation statement, in connection with AltC’s solicitation of proxies for its special meeting of shareholders to be held to approve, among other things, the proposed transaction, as well as other documents filed with the SEC by AltC in connection with the proposed transaction, as these documents will contain important information about AltC, the Company and the proposed transaction. Shareholders may obtain a copy of the preliminary or definitive proxy statement/prospectus/consent solicitation statement, once available, as well as other documents filed by AltC with the SEC, without charge, at the SEC’s website located at www.sec.gov or by directing a written request to AltC Acquisition Corp., 640 Fifth Avenue, 12th Floor, New York, NY 10019.
Participants in the Solicitation
AltC, the Company 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 AltC’s shareholders in connection with the proposed transaction. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of AltC’s shareholders in connection with the proposed transaction will be set forth in AltC’s proxy statement/prospectus/consent solicitation statement when it is filed with the SEC. You can find more information about AltC’s directors and executive officers in AltC’s final prospectus filed with the SEC on July 7, 2021 and in the Annual Reports filed by AltC with the SEC on Form 10-K. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in the proxy statement/prospectus/consent solicitation statement when it becomes available. Shareholders, potential investors and other interested persons should read the proxy statement/prospectus/consent solicitation statement carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from the sources indicated above.
Forward-Looking Statements
This Current Report includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict” or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. We have based these forward-looking statements on our current expectations and projections about future events. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of financial and operational metrics; estimates and projections regarding future manufacturing capacity and plant performance; estimates and projections of market opportunity and market share; estimates and projections of adjacent energy sector opportunities; the Company’s projected commercialization costs and timeline; the Company’s ability to demonstrate scientific and engineering feasibility of its technologies; the Company’s ability to attract, retain, and expand its future customer base; the Company’s ability to timely and effectively meet construction timelines and scale its production and manufacturing processes; the Company’s ability to develop products and services and bring them to market in a timely manner; the Company’s ability to achieve a competitive levelized cost of electricity; the Company’s ability to compete successfully with fission energy products and solutions offered by other companies, including fusion, as well as with other sources of clean energy; the Company’s expectations concerning relationships with strategic partners, suppliers, governments, regulatory bodies and other third parties; the Company’s ability to maintain, protect, and enhance its intellectual property; future ventures or investments in companies or products, services, or technologies; the Company’s ability to attract and retain qualified employees; development of favorable regulations and government incentives affecting the markets in which the Company operates; the Company’s expectations regarding regulatory framework development; the potential for and timing of receipt of a license to operate nuclear facilities from the U.S. Nuclear Regulatory Commission; the ability to achieve the results illustrated in the unit economics; the potential benefits of the proposed transaction and expectations related to the terms and timing of the proposed transaction; and the success of proposed projects for which the Company’s powerhouses would provide power, which is outside of the Company’s control. These statements are based on various assumptions, whether or not identified in this Current Report, and on the current expectations of the Company’s and AltC’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of the Company and AltC. These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions about us that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such forward-looking statements. Such risks and uncertainties include changes in domestic and foreign business, the risk that the Company is pursuing an emerging market, with no commercial project operating, regulatory uncertainties, the fact that the Company has not entered into any definitive agreements with customers for the sale of power or recycling of nuclear fuel, the potential need for financing to construct plants, market, financial, political and legal conditions; the inability of the parties to successfully or timely consummate the proposed transaction, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the proposed transaction or that the approval of the shareholders of AltC or the Company is not obtained; the risk that shareholders of AltC could elect to have their shares redeemed by AltC, thus leaving the combined company insufficient cash to grow its business; the outcome of any legal proceedings that may be instituted against the Company or AltC following announcement of the proposed transaction; failure to realize the anticipated benefits of the proposed transaction; risks relating to the uncertainty of the projected financial information with respect to the Company; the effects of competition; changes in applicable laws or regulations; the ability of the Company to manage expenses and recruit and retain key employees; the ability of AltC or the combined company to issue equity or equity-linked securities in connection with the proposed transaction or in the future; the outcome of any potential litigation, government and regulatory proceedings, investigations and inquiries; and the impact of the global COVID-19 pandemic on the Company, AltC, the combined company’s projected results of operations, financial performance or other financial metrics, or on any of the foregoing risks; those factors discussed in AltC’s Quarterly Reports filed by AltC with the SEC on Form 10-Q and the Annual Reports filed by AltC with the SEC on Form 10-K, in each case, under the heading “Risk Factors,” and other documents filed, or to be filed, with the SEC by AltC. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither the Company nor AltC presently know or that the Company and AltC currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect the Company’s and AltC’s expectations, plans or forecasts of future events and views as of the date of this Current Report. The Company and AltC anticipate that subsequent events and developments will cause the Company’s and AltC’s assessments to change. However, while the Company and AltC may elect to update these forward- looking statements at some point in the future, the Company and AltC specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing the Company’s and AltC’s assessments as of any date subsequent to the date of this Current Report. Accordingly, undue reliance should not be placed upon the forward-looking statements. An investment in AltC is not an investment in any of our founders' or sponsors' past investments or companies or any funds affiliated with any of the foregoing. The historical results of these investments are not indicative of future performance of AltC, which may differ materially from the performance of the founders or sponsors past investments, companies or affiliated funds.
| Item 9.01. | Financial Statements and Exhibits |
| (d) | Exhibits. |
The Exhibit Index is incorporated by reference herein.
EXHIBIT INDEX
|
Exhibit No. |
Description | |
| 2.1* | Agreement and Plan of Merger and Reorganization, dated as of July 11, 2023, by and among AltC Acquisition Corp., AltC Merger Sub, Inc. and Oklo Inc. | |
| 10.1 | Amended and Restated Sponsor Agreement, dated as of July 11, 2023, by and among AltC Acquisition Corp., AltC Sponsor LLC, Oklo Inc. and the Insiders. | |
| 99.1 | Joint Press Release of AltC Acquisition Corp. and Oklo Inc., dated July 11, 2023. | |
| 99.2 | Investor Presentation of AltC, dated July 11, 2023. | |
| 99.3 | Transcript of July 11, 2023 video presentation. | |
| * | Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. AltC Acquisition Corp. agrees to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon request. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AltC Acquisition Corp. | |||
| Dated: July 11, 2023 | |||
| By: |
/s/ Jay Taragin | ||
| Name: Jay Taragin | |||
| Title: Chief Financial Officer | |||
Exhibit 2.1
Execution Version
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
by and among
ALTC ACQUISITION CORP.,
ALTC MERGER SUB, INC.,
and
OKLO INC.
dated as of
July 11, 2023
TABLE OF CONTENTS
Page
| Article 1 | ||
| Certain Definitions | 2 | |
| Section 1.01. | Definitions | 2 |
| Section 1.02. | Construction | 20 |
| Section 1.03. | Knowledge | 20 |
| Section 1.04. | Equitable Adjustments | 21 |
| Article 2 | ||
| The Merger | 21 | |
| Section 2.01. | The Merger | 21 |
| Section 2.02. | Effective Time | 21 |
| Section 2.03. | Effect of the Merger | 21 |
| Section 2.04. | Governing Documents; Registration Rights Agreement | 22 |
| Section 2.05. | Directors and Officers of the Surviving Entity | 22 |
| Section 2.06. | Further Assurances | 22 |
| Article 3 | ||
| Merger Consideration; Conversion of Securities | 22 | |
| Section 3.01. | Conversion of Company Preferred Stock and Company SAFEs | 22 |
| Section 3.02. | Effect of Merger on Company Stock | 23 |
| Section 3.03. | Treatment of Company Equity Awards | 24 |
| Section 3.04. | Dissenting Shares | 24 |
| Section 3.05. | Earnout | 25 |
| Section 3.06. | Exchange Pool | 25 |
| Section 3.07. | Withholding Rights | 26 |
| Article 4 | ||
| Closing; Closing Statement | 27 | |
| Section 4.01. | Closing | 27 |
| Section 4.02. | SPAC Closing Statement | 27 |
| Section 4.03. | Company Closing Statement | 27 |
| Article 5 | ||
| Representations and Warranties of the Company | 28 | |
| Section 5.01. | Corporate Organization of the Company | 28 |
| Section 5.02. | Subsidiaries | 28 |
| Section 5.03. | Due Authorization | 29 |
| Section 5.04. | No Conflict | 29 |
| Section 5.05. | Governmental Authorities; Consents | 30 |
| Section 5.06. | Current Capitalization | 30 |
| Section 5.07. | Capitalization of Subsidiaries | 31 |
| Section 5.08. | Financial Statements | 32 |
| Section 5.09. | Undisclosed Liabilities | 32 |
| Section 5.10. | Litigation and Proceedings | 33 |
i
| Section 5.11. | Compliance with Laws | 33 |
| Section 5.12. | Contracts; No Defaults | 33 |
| Section 5.13. | Company Benefit Plans | 35 |
| Section 5.14. | Labor Matters | 37 |
| Section 5.15. | Taxes | 39 |
| Section 5.16. | Insurance | 41 |
| Section 5.17. | Permits | 41 |
| Section 5.18. | Machinery, Equipment and Other Tangible Property | 41 |
| Section 5.19. | Real Property | 41 |
| Section 5.20. | Intellectual Property and Data Security | 43 |
| Section 5.21. | U.S. Nuclear Regulatory Matters | 46 |
| Section 5.22. | Anti-Bribery, Anti-Corruption, and Anti-Money Laundering | 47 |
| Section 5.23. | Sanctions, Import, and Export Controls | 47 |
| Section 5.24. | Environmental Matters | 48 |
| Section 5.25. | Absence of Changes | 48 |
| Section 5.26. | Brokers’ Fees | 48 |
| Section 5.27. | Related Party Transactions | 49 |
| Section 5.28. | Registration Statement and Proxy Statement | 49 |
| Article 6 | ||
| Representations and Warranties of SPAC Parties | 49 | |
| Section 6.01. | Corporate Organization | 49 |
| Section 6.02. | Due Authorization | 50 |
| Section 6.03. | No Conflict | 51 |
| Section 6.04. | Compliance With Laws | 51 |
| Section 6.05. | Litigation and Proceedings | 52 |
| Section 6.06. | Governmental Authorities; Consents | 52 |
| Section 6.07. | Financial Ability; Trust Account | 52 |
| Section 6.08. | Brokers’ Fees | 53 |
| Section 6.09. | SEC Reports; Financial Statements; Sarbanes-Oxley Act; Undisclosed Liabilities | 53 |
| Section 6.10. | Business Activities | 55 |
| Section 6.11. | Tax Matters | 56 |
| Section 6.12. | Employees | 57 |
| Section 6.13. | Capitalization | 57 |
| Section 6.14. | NYSE Stock Market Listing | 59 |
| Section 6.15. | Sponsor Agreement | 59 |
| Section 6.16. | Related Party Transactions | 59 |
| Section 6.17. | Investment Company Act | 59 |
| Section 6.18. | SPAC Stockholders | 59 |
| Section 6.19. | Registration Statement and Proxy Statement | 60 |
| Section 6.20. | Opinion of Financial Advisors | 60 |
| Article 7 | ||
| Covenants of the Company | 60 | |
| Section 7.01. | Conduct of Business | 60 |
| Section 7.02. | Inspection | 64 |
ii
| Section 7.03. | HSR Act and Approvals; NRC Communications | 65 |
| Section 7.04. | No Claim Against the Trust Account | 66 |
| Section 7.05. | Proxy Solicitation; Other Actions | 66 |
| Section 7.06. | Certain Transaction Agreements | 67 |
| Section 7.07. | FIRPTA | 67 |
| Section 7.08. | Termination of Certain Agreements | 67 |
| Article 8 | ||
| Covenants of SPAC | 68 | |
| Section 8.01. | HSR Act and Regulatory Approvals | 68 |
| Section 8.02. | Indemnification and Insurance | 69 |
| Section 8.03. | Conduct of SPAC During the Interim Period | 71 |
| Section 8.04. | Certain Transaction Agreements | 72 |
| Section 8.05. | Inspection | 73 |
| Section 8.06. | SPAC Stock Exchange Listing | 73 |
| Section 8.07. | SPAC Public Filings | 73 |
| Section 8.08. | Section 16 Matters | 74 |
| Section 8.09. | Extension | 74 |
| Section 8.10. | SPAC Board of Directors | 74 |
| Section 8.11. | SPAC Management | 75 |
| Section 8.12. | Equity Plans | 75 |
| Section 8.13. | Qualification as an Emerging Growth Company | 75 |
| Section 8.14. | SPAC Charter and Bylaws | 75 |
| Article 9 | ||
| Joint Covenants | 75 | |
| Section 9.01. | Support of Transaction | 75 |
| Section 9.02. | Registration Statement; Proxy Statement; SPAC Special Meeting | 76 |
| Section 9.03. | Exclusivity | 80 |
| Section 9.04. | Tax Matters | 80 |
| Section 9.05. | Confidentiality; Publicity | 81 |
| Section 9.06. | Post-Closing Cooperation; Further Assurances | 82 |
| Section 9.07. | Stockholder Litigation | 82 |
| Article 10 | ||
| Conditions to Obligations | 82 | |
| Section 10.01. | Conditions to Obligations of All Parties | 82 |
| Section 10.02. | Additional Conditions to Obligations of SPAC Parties | 83 |
| Section 10.03. | Additional Conditions to the Obligations of the Company | 84 |
| Section 10.04. | Frustration of Conditions | 85 |
| Article 11 | ||
| Termination/Effectiveness | 86 | |
| Section 11.01. | Termination | 86 |
| Section 11.02. | Effect of Termination | 87 |
iii
| Article 12 | ||
| Miscellaneous | 88 | |
| Section 12.01. | Waiver | 88 |
| Section 12.02. | Notices | 88 |
| Section 12.03. | Assignment | 89 |
| Section 12.04. | Rights of Third Parties | 89 |
| Section 12.05. | Expenses | 89 |
| Section 12.06. | Governing Law | 90 |
| Section 12.07. | Captions; Counterparts | 90 |
| Section 12.08. | Schedules and Exhibits | 90 |
| Section 12.09. | Entire Agreement | 90 |
| Section 12.10. | Amendments | 91 |
| Section 12.11. | Severability | 91 |
| Section 12.12. | Jurisdiction; WAIVER OF TRIAL BY JURY | 91 |
| Section 12.13. | Enforcement | 92 |
| Section 12.14. | Non-Recourse | 92 |
| Section 12.15. | Nonsurvival of Representations, Warranties and Covenants | 93 |
| Section 12.16. | Acknowledgements | 93 |
EXHIBITS
Exhibit A – Form of SPAC Charter
Exhibit B – Form of SPAC Bylaws
Exhibit C – Sponsor Agreement
Exhibit D – Form of A&R Registration Rights Agreement
Exhibit E – Form of Certificate of Merger
Exhibit F – Form of Incentive Equity Plan
Exhibit G – Form of Employee Stock Purchase Plan
Exhibit H – Form of Written Consent
Exhibit I – Form of Company Voting and Support Agreement
SCHEDULES
Schedule 2.04(c) – Company Equityholders to Execute the Registration Rights Agreement
iv
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 11, 2023, by and among AltC Acquisition Corp., a Delaware corporation (“SPAC”), AltC Merger Sub, Inc., a Delaware corporation and direct, wholly owned subsidiary of SPAC (“Merger Sub”), and Oklo Inc., a Delaware corporation (the “Company”). SPAC, Merger Sub and the Company are collectively referred to herein as the “Parties” and individually as a “Party.” Capitalized terms used and not otherwise defined herein have the meanings set forth in Section 1.01.
RECITALS
WHEREAS, SPAC is a blank check company incorporated in Delaware and formed to acquire one or more operating businesses through a Business Combination;
WHEREAS, on the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) and other applicable Laws, the Parties intend to enter into a business combination transaction by which Merger Sub will merge with and into the Company (the “Merger”), with the Company being the surviving entity of the Merger (the Company, in its capacity as the surviving entity of the Merger, is sometimes referred to as the “Surviving Entity”);
WHEREAS, for U.S. federal (and, as applicable, state and local) income tax purposes, each of the Parties intends that (i) the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder and (ii) this Agreement shall constitute a “plan of reorganization” for the purposes of Section 368 of the Code and Treasury Regulations Section 1.368-2(g);
WHEREAS, the Company Board has unanimously (of those voting) (i) determined that the Merger is fair to, and in the best interests of the Company and the Holders, (ii) approved and adopted this Agreement and declared it advisable and approved the Transactions (including the Merger) and (iii) recommended that the stockholders of the Company approve and adopt this Agreement and approve the Transactions (including the Merger) and directed that this Agreement and the Transactions (including the Merger) be submitted for consideration by the stockholders of the Company (the “Company Board Recommendation”);
WHEREAS, the board of directors of SPAC has unanimously (of those voting) (i) determined that it is in the best interests of SPAC and the stockholders of SPAC, and declared it advisable, to enter into this Agreement providing for the Merger in accordance with the DGCL, (ii) approved this Agreement and the Transactions, including the Merger in accordance with the DGCL, on the terms and subject to the conditions of this Agreement and (iii) adopted a resolution recommending the SPAC Stockholder Matters be approved and adopted by the stockholders of SPAC (the “SPAC Board Recommendation”);
WHEREAS, at or prior to the Effective Time, SPAC shall (i) subject to obtaining the approval of the SPAC Stockholder Matters, amend and restate the certificate of incorporation of SPAC to be substantially in the form of Exhibit A attached hereto (as so amended and restated, the “SPAC Charter”) and (ii) amend and restate the bylaws of SPAC to be substantially in the form of Exhibit B attached hereto (the “SPAC Bylaws”);
WHEREAS, concurrently with the execution and delivery of this Agreement, Sponsor and SPAC have entered into the Sponsor Agreement, a copy of which is attached as Exhibit C hereto;
WHEREAS, following the execution and delivery of this Agreement, certain Holders holding shares of Company Stock sufficient to constitute the Company Stockholder Approval will enter into one or more Voting and Support Agreements to be substantially in the form of Exhibit I attached hereto (each, a “Company Voting and Support Agreement”) with SPAC pursuant to which, inter alia, such Holders will agree to vote their respective shares of Company Stock in favor of this Agreement, the Merger and the Transactions; and
WHEREAS, in connection with the Closing, SPAC, Sponsor, and certain stockholders of the Company shall enter into an Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”) substantially in the form attached hereto as Exhibit D, pursuant to which, among other things certain stockholders of the Company have agreed, subject to certain exceptions, to not transfer the Merger Consideration received by them in connection with the Merger for certain specified periods of time following the Closing Date.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound, the Parties hereby agree as follows:
Article 1
Certain Definitions
Section 1.01. Definitions. For purposes of this Agreement, the following capitalized terms have the following meanings:
“2016 Plan” means the 2016 Stock Incentive Plan of the Company duly adopted by the board of directors of the Company on May 3, 2016.
“Acquisition Transaction” has the meaning specified in Section 9.03(a).
“Action” means any claim, action, suit, assessment, arbitration or legal, judicial or administrative proceeding (whether at law or in equity) or arbitration.
“Additional SEC Reports” has the meaning specified in Section 8.07.
2
“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise. The term “control” means the ownership of a majority of the voting securities of the applicable Person or the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the applicable Person, whether through ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto; provided, that, in no event shall Sponsor be considered an Affiliate of any portfolio company of any investment fund affiliated with M. Klein & Company nor shall any portfolio company of any investment fund affiliated with M. Klein & Company be considered to be an Affiliate of Sponsor; provided, further, that, in no event shall the Company or any of the Company’s Subsidiaries be considered an Affiliate of any portfolio company (other than the Company and its Subsidiaries) of any investment fund affiliated with any direct or indirect equityholder of the Company nor shall any portfolio company (other than the Company and its Subsidiaries) of any investment fund affiliated with any direct or indirect equityholder of the Company be considered to be an Affiliate of the Company or any of the Company’s Subsidiaries.
“Agreement” has the meaning specified in the preamble hereto.
“Atomic Energy Act” means the Atomic Energy Act of 1954, as amended.
“Assumed Option” has the meaning specified in Section 3.03(a).
“Aurora Design” refers to a power plant or “powerhouse” design, which are a series of designs utilizing fast spectrum, liquid-metal cooled, metal fueled reactors of different sizes and capable of producing heat and/or electricity for customers as desired.
“Available Closing SPAC Cash” means an amount equal to (i) all amounts in the Trust Account (after reduction for the aggregate amount of payments required to be made in connection with the SPAC Stockholder Redemption and any Excise Tax payable by SPAC but before payment of any SPAC Transaction Expenses or Company Transaction Expenses), plus (ii) the net proceeds of any incremental financing raised by SPAC or the Company in connection with the transactions contemplated by this Agreement, including for the avoidance of doubt, any amounts raised or funded in connection with a Permitted Equity Financing or the Sponsor Commitment (as defined in the Sponsor Agreement).
“Business Combination” has the meaning ascribed to such term in the Certificate of Incorporation.
“Business Combination Proposal” has the meaning set forth in Section 9.03(b).
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or San Francisco, California are authorized or required by Law to close.
“Certificate of Merger” has the meaning specified in Section 2.02.
3
“Change in Control” means (i) a purchase, sale, exchange, business combination or other transaction (including a merger or consolidation of SPAC with or into any other corporation or other entity) in which the equity securities of SPAC, its successor, or the surviving entity of such business combination or other transaction are not registered under the Exchange Act or listed or quoted for trading on a national securities exchange, (ii) a sale, lease, exchange or other transfer (including a merger) in one transaction or a series of related transactions of assets representing 50% or more of the value of SPAC’s assets (including, after the Closing, the capital stock of the Company and other Subsidiaries of SPAC) to a third party that is not an Affiliate of the Sponsor (or a group of third parties that are not Affiliates of the Sponsor) or (iii) the transfer to or acquisition by (whether by tender offer, merger, consolidation, division or other similar transaction), in one transaction or a series of related transactions, a person or entity or group of affiliated persons or entities (other than an underwriter pursuant to an offering), of SPAC’s voting securities if, after such transfer or acquisition, such person, entity or group of affiliated persons or entities would beneficially own (as defined in Rule 13d-3 promulgated under the Exchange Act) more than 50% of the outstanding voting securities of SPAC (it being understood for the purposes of this clause (iii), a bona fide equity financing shall not be considered a “Change in Control”).
“Closing” has the meaning specified in Section 4.01.
“Closing Date” has the meaning specified in Section 4.01.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” has the meaning specified in the preamble hereto.
“Company Benefit Plan” has the meaning specified in Section 5.13.
“Company Board” means the Board of Directors of the Company.
“Company Board Recommendation” has the meaning specified in the Recitals.
“Company Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on November 5, 2018, as amended by the Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on March 24, 2020, as further amended and in effect on the date hereof.
“Company Closing Statement” has the meaning specified in Section 4.03.
“Company Common Stock” means the common stock, par value $0.0001 per share, of the Company.
“Company Cure Period” has the meaning specified in Section 11.01(b).
4
“Company Employee” means an employee of the Company or any of its Subsidiaries.
“Company Intellectual Property” means the Owned Intellectual Property and Licensed Intellectual Property.
“Company Options” means all issued and outstanding options to purchase or otherwise acquire Company Common Stock (whether or not vested) held by any Person and granted under any Company Stock Plan.
“Company Preferred Stock” means the Company Series A-1 Preferred Stock, Company Series A-2 Preferred Stock and Company Series A-3 Preferred Stock.
“Company Representations” means the representations and warranties of the Company expressly and specifically set forth in Article 5 of this Agreement, as qualified by the Schedules. For the avoidance of doubt, the Company Representations are solely made by the Company.
“Company SAFEs” means any Simple Agreement for Future Equity between the Company and the “Investors” party thereto.
“Company Series A-1 Preferred Stock” means the Series A-1 preferred stock, par value $0.0001 per share, of the Company.
“Company Series A-2 Preferred Stock” means the Series A-2 preferred stock, par value $0.0001 per share, of the Company.
“Company Series A-3 Preferred Stock” means the Series A-3 preferred stock, par value $0.0001 per share, of the Company.
“Company Specified Representations” has the meaning specified in Section 10.02(a)(i).
“Company Stock” means the Company Common Stock, Company Series A-1 Preferred Stock, Company Series A-2 Preferred Stock and Company Series A-3 Preferred Stock.
“Company Stock Plans” means the 2016 Plan, as amended from time to time in accordance with its terms.
“Company Stockholder Agreements” means (i) the Company Certificate of Incorporation; (ii) the Voting Agreement dated as of November 8, 2018 by and among the Company and certain Holders; (iii) the Right of First Refusal and Co-Sale Agreement dated as of November 8, 2018 by and among the Company and certain Holders; and (iv) the Investors’ Rights Agreement dated as of November 8, 2018 by and among the Company and certain Holders.
5
“Company Stockholder Approval” means the affirmative vote of (i) the holders of a majority of the outstanding shares of Company Common Stock and Company Preferred Stock (voting together as a single class on an as-converted to common stock basis) and (ii) the holders of at least sixty percent (60%) of the issued and outstanding shares of Company Preferred Stock (voting together as a single class on an as-converted to common stock basis).
“Company Subsidiary Securities” has the meaning specified in Section 5.07.
“Company Total Shares” means the sum of (i) the aggregate number of issued and outstanding shares of Company Stock as of immediately prior to the Effective Time after giving effect to the conversion set forth under Section 3.01, and (ii) the aggregate number of shares of Company Stock issuable upon the exercise of all Company Options as of immediately prior to the Effective Time (including after giving effect to any acceleration of any unvested Company Options in connection with the consummation of the Merger), if any, as of immediately prior to the Effective Time.
“Company Transaction Expenses” means all accrued fees, costs and expenses of the Company and its Subsidiaries incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Transaction Agreements, the performance and compliance with all Transaction Agreements and conditions contained herein to be performed or complied with at or before Closing, and the consummation of the Transactions, including the fees, costs, expenses and disbursements of counsel, accountants, advisors and consultants of the Company and its Subsidiaries, whether paid or unpaid prior to the Closing.
“Company Voting and Support Agreement” has the meaning specified in the Recitals hereto.
“Company Voting and Support Agreement Failure” has the meaning specified in Section 11.01(f).
“Confidentiality Agreement” has the meaning specified in Section 12.09.
“Contracts” means any written legally binding contracts, agreements, subcontracts, leases and purchase orders and all material written amendments, modifications and written supplements thereto.
“D&O Tail” has the meaning specified in Section 8.02(b).
“DGCL” has the meaning specified in the Recitals hereto.
“Dissenting Shares” has the meaning specified in Section 3.04.
“Dissenting Stockholders” has the meaning specified in Section 3.04.
6
“Earnout Period” means the time period commencing on the Closing Date and ending on the earlier of (i) the five-year anniversary of the Closing Date and (ii) a Change in Control.
“Earnout Shares” has the meaning specified in Section 3.05(a).
“Effective Time” has the meaning specified in Section 2.02.
“Eligible Holders” means (i) all Persons who hold one or more shares of Company Stock as of immediately prior to the Effective Time (after giving effect to the conversion described in Section 3.01), and (ii) all Persons who hold one or more vested Company Options as of immediately prior to the Effective Time.
“Enforceability Exceptions” has the meaning specified in Section 5.03.
“Environmental Laws” means any and all applicable Laws relating to pollution or protection of the environment (including natural resources) or human health and safety (with respect to exposure to Hazardous Materials), or the use, storage, emission, disposal or release of Hazardous Materials, each as in effect as of the date hereof.
“Equity Financing Amount” means the amount of the net proceeds raised by the Company prior to Closing via a Permitted Equity Financing.
“Equity Plans” has the meaning specified in Section 8.12.
“Equity Value” means the sum of (a) $850,000,000.00 plus, (b) any Equity Financing Amount.
“ERISA” has the meaning specified in Section 5.13.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Agent” has the meaning specified in Section 3.06(a).
“Exchange Pool” has the meaning specified in Section 3.06(a).
“Exchange Ratio” means the quotient, rounded to the nearest thousandth (0.001), obtained by dividing (i) the Per Share Equity Value by (ii) ten dollars ($10.00).
“Excise Tax” means any Taxes imposed on SPAC pursuant to Section 4501 of the Code (and any related guidance, including Internal Revenue Service Notice 2023-2) with respect to the exercise of any SPAC Stockholders of their redemption rights, and any penalties or interest thereon.
“Excluded Share” has the meaning specified in Section 3.02(c).
7
“Existing SPAC Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of SPAC, filed with the Secretary of State of the State of Delaware on July 12, 2021, as amended and in effect on the date hereof.
“Extended Termination Date” has the meaning specified in Section 11.01(b).
“Extension Promissory Note” means a non-interest bearing promissory note to be issued by SPAC to the Sponsor in exchange for additional Sponsor contributions to the Trust Account and in the aggregate amount of such additional Sponsor contributions.
“Extension Proxy Statement” has the meaning specified in Section 8.09(a).
“Financial Statements” has the meaning specified in Section 5.08.
“GAAP” means United States generally accepted accounting principles, consistently applied.
“Government Closure” has the meaning specified in Section 7.03.
“Government Official” means any officer or employee of a Governmental Authority or any department, agency, or instrumentality thereof, including any political subdivision thereof or any corporation or other Person owned or controlled in whole or in part by any Governmental Authority or any sovereign wealth fund, or of a public international organization, or any Person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization, or any political party, party official, or candidate thereof.
“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court or tribunal.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority.
“Hazardous Material” means material, substance or waste that is listed, regulated, or otherwise defined as “hazardous,” “toxic,” or “radioactive,” or as a “pollutant” or “contaminant” (or words of similar intent or meaning) under applicable Environmental Laws, including but not limited to petroleum, petroleum by-products, asbestos or asbestos-containing material, polychlorinated biphenyls, per- and polyfluoroalkyl substances, flammable or explosive substances, or pesticides.
“Holders” means all Persons who hold one or more shares of Company Stock as of immediately prior to the Effective Time.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“ICE” has the meaning specified in Section 5.15(f).
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“Indebtedness” means, with respect to any Person as of any time, without duplication, (i) all indebtedness for borrowed money of such Person or indebtedness issued by such Person in substitution or exchange for borrowed money, (ii) indebtedness evidenced by any note, bond, debenture or other debt security, in each case, as of such time of such Person, (iii) obligations of such Person for the deferred purchase price of property or other services (other than trade payables or accruals incurred in the ordinary course of business), (iv) all obligations as lessee that are required to be capitalized in accordance with GAAP, (v) 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, to the extent drawn or claimed against, (vi) 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, (vii) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person and (viii) all obligations of the type referred to in clauses (i) - (vii) of this definition of any other Person, the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including any guarantee of such obligations. Notwithstanding anything to the contrary contained herein, “Indebtedness” of any Person shall not include any item that would otherwise constitute “Indebtedness” of such Person that is an obligation between such Person and any wholly owned Subsidiary of such Person or between any two or more wholly owned Subsidiaries of such Person.
“Indemnitee Affiliate” has the meaning specified in Section 8.02(c).
“Information or Document Request” means any request or demand for the production, delivery or disclosure of documents or other evidence, or any request or demand for the production of witnesses for interviews or depositions or other oral or written testimony, by any Regulatory Consent Authority relating to the Transactions or by any third party challenging the Transactions, including any so called “second request” for additional information or documentary material or any civil investigative demand made or issued by any Regulatory Consent Authority or any subpoena, interrogatory or deposition.
“Intellectual Property” means all intellectual property rights (including with respect to technology) created, arising, or protected under applicable Law (or any other similar statutory provision or common law doctrine in the United States or anywhere else in the world), including all: (i) patents and patent applications, (ii) trademarks, service marks, trade names, trade dress, and other indicia of commercial source or origin and general intangibles of a like nature, and all goodwill associated with any of the foregoing (collectively, “Trademarks”), (iii) copyrights and copyrightable works, works of authorship, moral rights, database and design rights, data collections, (iv) internet domain names and social media accounts, (v) trade secrets, confidential or proprietary information, and other non-public or proprietary information, including inventions, invention disclosures, inventor’s notes, designs, plans, specifications, unpatented blueprints, drawings, discoveries and improvements, know-how, manufacturing and production processes and techniques, research and development information, market know-how, customer lists, and proprietary data (collectively, “Trade Secrets”), (vi) such rights in proprietary Software and Technology, and (vii) all issuances, registrations and applications to register (including any reissuances, divisionals, continuations, continuations-in-part, revisions, renewals, extensions, and re-examinations thereof and rights to claim priority to) any of the foregoing (i)–(vi).
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“Intended Tax Treatment” has the meaning specified in Section 9.04(b).
“Interim Financial Statements” has the meaning specified in Section 5.08.
“Interim Period” has the meaning specified in Section 7.01.
“IT Systems” means all computer systems, servers, networks, databases, websites, computer hardware and equipment used to process, store, maintain and operate data, information and functions that are owned, licensed or leased by a Person, including any Software embedded or installed thereon.
“JOBS Act” has the meaning specified in Section 8.13.
“Law” means any applicable statute, law, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority.
“Leased Real Property” means all real property leased by the Company or its Subsidiaries, the Lease of which may not be terminated at will, or by giving notice of 90 days or less, without cost or penalty.
“Leases” has the meaning specified in Section 5.19.
“Licensed Intellectual Property” has the meaning specified in Section 5.20(a).
“Lien” means any mortgage, deed of trust, pledge, hypothecation, encumbrance, easement, license, option, right of first refusal, security interest or other lien of any kind.
“Malware” has the meaning specified in Section 5.20(d).
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“Material Adverse Effect” means, with respect to the Company, a material adverse effect on the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole; provided, however, that in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Material Adverse Effect” on the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole: (a) any change in applicable Laws or GAAP or any interpretation thereof, (b) any change in interest rates or economic, political, business, financial, commodity, currency or market conditions generally, (c) the announcement or the execution of this Agreement, the pendency or consummation of the Merger or the performance of this Agreement, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, licensors, distributors, partners, providers and employees (provided that the exceptions in this clause (c) shall not be deemed to apply to references to “Material Adverse Effect” in the representations and warranties set forth in Section 5.04 and, to the extent related thereto, the condition in Section 10.02(a)), (d) any change generally affecting any of the industries or markets in which the Company or its Subsidiaries operate or the economy as a whole, (e) the compliance with the terms of this Agreement or the taking of any action required or contemplated by this Agreement or with the prior written consent of SPAC (provided that the exceptions in this clause (e) shall not be deemed to apply to references to “Material Adverse Effect” in the representations and warranties set forth in Section 5.04 and, to the extent related thereto, the condition in Section 10.02(a)), (f) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster, act of God or other force majeure event, or acts of terrorism, cyberterrorism, any acts or threats of war (whether or not declared), civil unrest, civil disobedience, sabotage, cybercrime, national or international calamity, military action, outbreak of hostilities, declaration of a national emergency or any other similar event, or any change, escalation or worsening thereof after the date hereof, (g) any national or international political or social conditions in countries in which, or in the proximate geographic region of which, the Company operates, including the engagement by the United States or such other countries in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack upon the United States or such other country, or any territories, possessions, or diplomatic or consular offices of the United States or such other countries or upon any United States or such other country military installation, equipment or personnel, (h) any failure of the Company and its Subsidiaries, taken as a whole, to meet any projections, predictions, forecasts or budgets; provided, that clause (h) shall not prevent or otherwise affect a determination that any change or effect underlying such failure to meet projections, predictions or forecasts has resulted in, or contributed to, or would reasonably be expected to result in or contribute to, a Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Material Adverse Effect), (i) any epidemic, pandemic or disease outbreak or any Law, directive, pronouncement or guideline issued by a Governmental Authority, the Centers for Disease Control and Prevention, the World Health Organization or industry group providing for business closures, changes to business operations, “sheltering-in-place” or other restrictions that relate to, or arise out of, an epidemic, pandemic or disease outbreak or any change in such Law, directive, pronouncement or guideline or interpretation thereof following the date of this Agreement or the Company’s or any of its Subsidiaries’ compliance therewith, (j) any stockholder class action litigation, derivative or similar litigation arising out of or in connection with or relating to this Agreement and the Transactions, including allegations of a breach of fiduciary duty or any demand, action, claim or proceeding for appraisal of any Company Stock pursuant to the DGCL in connection with this Agreement and the Transactions, (k) the identity of, or any facts or circumstances relating to, SPAC, Merger Sub or their respective affiliates, or the availability of equity, debt or other financing to SPAC or Merger Sub, or (l) any matter set forth in the Schedules to this Agreement; provided that, in the case of clauses (a), (b), (d), (f) and (g) such changes may be taken into account to the extent (but only to the extent) that such changes have had a disproportionate impact on the Company and its Subsidiaries, taken as a whole, as compared to other competitors or comparable entities operating in the industries or markets and geographic areas in which the Company and its Subsidiaries operate.
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“Material Contracts” has the meaning specified in Section 5.12.
“Merger” has the meaning specified in the Recitals hereto.
“Merger Consideration” means the number of shares of SPAC Class A Common Stock issuable to holders of Company Stock in the Merger pursuant to Article 3.
“Merger Sub” has the meaning specified in the preamble hereto.
“Most Recent Balance Sheet” has the meaning specified in Section 5.08(a).
“NRC” means the United States Nuclear Regulatory Commission or any successor agency that regulates civilian nuclear energy activities in the United States.
“Nuclear Laws” means the Atomic Energy Act of 1954, as amended, and the relevant NRC implementing regulations.
“NYSE” means the New York Stock Exchange.
“Owned Intellectual Property” means all Intellectual Property that is owned or purported to be owned by the Company or its Subsidiaries.
“Owned Real Property” means all real property owned by the Company or its Subsidiaries.
“Party” and “Parties” have the meanings specified in the preamble hereto.
“PCAOB” means the Public Company Accounting Oversight Board.
“Per Share Equity Value” means the quotient, rounded to the nearest cent ($0.01), obtained by dividing (i) the sum of (A) the Equity Value plus (B) the aggregate exercise price of all Company Options outstanding as of immediately prior to the Effective Time by (ii) the Company Total Shares.
“Per Share Merger Consideration” means, with respect to any share of Company Stock that is issued and outstanding immediately prior to the Effective Time after giving effect to the surrender and exchange of such Company Stock set forth under Section 3.01, (i) a number of shares of SPAC Class A Common Stock equal to the Exchange Ratio and (ii) the contingent right to receive the Earnout Shares in accordance with Section 3.05(a).
“Permits” has the meaning specified in Section 5.17.
“Permitted Equity Financing” means, in each case, subject to the Permitted Financing Limitations, the sale (or series of related sales) by the Company of its equity securities in a bona fide financing transaction (which, for clarity, includes issuances of additional Company SAFEs prior to Closing).
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“Permitted Financing Limitations” means the following with respect to a Permitted Equity Financing: (i) the Company shall not consummate any Permitted Equity Financing without the prior written consent of SPAC (such consent not to be unreasonably withheld, conditioned or delayed); (ii) the aggregate number of securities issued or issuable by the Company in connection with all Permitted Equity Financings may not result in a change in control of the Company; (iii) no Permitted Equity Financing, alone or together with other Permitted Equity Financings, may alter the terms of this Agreement or the Transaction Agreements or delay or impair the Transactions; and (iv) any securities issued in connection with any Permitted Equity Financing shall be converted into shares of Company Common Stock prior to Closing, if applicable.
“Permitted Liens” means (i) statutory or common law Liens of mechanics, materialmen, warehousemen, landlords, carriers, repairmen, construction contractors and other similar Liens that arise in the ordinary course of business, that relate to amounts not yet delinquent or that are being contested in good faith through appropriate Actions, in each case only to the extent appropriate reserves have been established in accordance with GAAP, (ii) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (iii) Liens for Taxes not yet delinquent or which are being contested in good faith through appropriate Actions for which appropriate reserves have been established in accordance with GAAP, (iv) Liens, encumbrances and restrictions on real property (including easements, covenants, rights of way and similar restrictions of record) that (A) are matters of record, (B) would be disclosed by a current, accurate survey or physical inspection of such real property, or (C) do not materially interfere with the present uses of such real property, (v) Liens that (A) were not incurred in connection with indebtedness for borrowed money and (B) are not material to the Company and its Subsidiaries, taken as a whole, (vi) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business, (vii) Liens securing any Indebtedness of the Company and its Subsidiaries, (viii) any Lien that is disclosed on the Most Recent Balance Sheet or notes thereto (or securing liabilities reflected on such balance sheet), (ix) deemed to be created by this Agreement, any Transaction Agreement or any other document executed in connection herewith, (x) any Lien that will be released prior to the Closing, (xi) any other Liens that would not reasonably be expected to, individually or in the aggregate, materially impair the continued use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as presently conducted and (xii) Liens described on Schedule 1.01(a) to the disclosure schedules of the Company.
“Person” means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.
“Personal Information” means, in addition to any definition for any similar term (e.g., “personal data” or “personally identifiable information”) provided by applicable Law, or by the Company or any of its Subsidiaries in any of their respective privacy policies, notices or contracts, all information that identifies, or could be used to identify, an individual person.
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“Personnel IP Agreements” has the meaning specified in Section 5.20(c).
“Policies” has the meaning specified in Section 5.16.
“Privacy Laws” means any and all applicable Laws and self-regulatory guidelines (including of any applicable foreign jurisdiction) relating to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (technical, administrative and physical), disposal, destruction, disclosure or transfer (including cross-border) (collectively, “Processing”) of Personal Information, including, but not limited to, to the extent applicable, the California Consumer Privacy Act as amended by the California Privacy Rights Act (CCPA), Payment Card Industry Data Security Standard (PCI-DSS), EU General Data Protection Regulation (GDPR), Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, Telephone Consumer Protection Act (TCPA), and any and all applicable Laws relating to (i) breach notification in connection with Personal Information, (ii) the use of biometric identifiers, or (iii) the use of Personal Information for marketing purposes.
“Pro Rata Share” means, for each Eligible Holder, a percentage determined by dividing (i) the total number of shares of Company Stock issued and outstanding immediately prior to the Effective Time (after giving effect to the conversion described in Section 3.01) and shares of Company Common Stock subject to vested and unexercised Company Options outstanding immediately prior to the Effective Time, in each case, held by such Eligible Holder by (ii) the total number of shares of Company Stock issued and outstanding immediately prior to the Effective Time (after giving effect to the conversion described in Section 3.01) and shares of Company Common Stock subject to vested and unexercised Company Options outstanding immediately prior to the Effective Time.
“Processing” has the meaning specified in the definition of “Privacy Laws.”
“Proxy Clearance Date” has the meaning specified in Section 9.02(a).
“Proxy Statement” has the meaning specified in Section 9.02(a).
“Registered Intellectual Property” has the meaning specified in Section 5.20(a).
“Registration Rights Agreement” has the meaning specified in the Recitals hereto.
“Registration Statement” means the Registration Statement on Form S-4, or other appropriate form determined by the Parties, including any pre-effective or post-effective amendments or supplements thereto, to be filed with the SEC by SPAC under the Securities Act with respect to SPAC Common Stock to be issued in connection with the transactions contemplated by this Agreement.
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“Regulatory Consent Authorities” means the Antitrust Division of the United States Department of Justice or the United States Federal Trade Commission, as applicable.
“Regulatory Engagement Timeline” means a high-level set of objectives for the Company’s planned preapplication engagement with the NRC until the Company resubmits its combined construction and operating license application under 10 CFR Part 52.
“Representative” means, as to any Person, any of the officers, directors, managers, employees, counsel, accountants, financial advisors, and consultants of such Person.
“Restricted Cash” means any cash and cash equivalents that are not freely useable because they are subject to restrictions, limitations or Taxes on use or distribution by Law, Contract or otherwise (including any security deposits, escrows, and holdbacks).
“Schedules” means (i) the disclosure schedules of the Company and its Subsidiaries or (ii) the disclosure schedules of the SPAC Parties, as applicable.
“SEC” means the United States Securities and Exchange Commission.
“SEC Reports” has the meaning specified in Section 6.09(a).
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Laws” means the securities Laws of any state, federal or foreign entity and the rules and regulations promulgated thereunder.
“Software” means any and all (a) computer programs, including any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form, (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (c) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons and (d) all documentation including user manuals and other training documentation relating to any of the foregoing.
“SPAC” has the meaning specified in the preamble hereto.
“SPAC Board Recommendation” has the meaning specified in the Recitals hereto.
“SPAC Bylaws” has the meaning specified in the Recitals hereto.
“SPAC Charter” has the meaning specified in the Recitals hereto.
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“SPAC Class A Common Stock” means the Class A common stock, par value $0.0001 per share, of SPAC.
“SPAC Class B Common Stock” means the Class B common stock, par value $0.0001 per share, of SPAC.
“SPAC Closing Statement” has the meaning specified in Section 4.02.
“SPAC Common Stock” means the SPAC Class A Common Stock and the SPAC Class B Common Stock.
“SPAC Cure Period” has the meaning specified in Section 11.01(c).
“SPAC Expenses Cap” has the meaning specified in Section 12.05.
“SPAC Extension” has the meaning specified in Section 8.09(a).
“SPAC Material Adverse Effect” means, with respect to SPAC, a material adverse effect on: (i) the ability of any SPAC Party to enter into this Agreement or any Transaction Agreement and perform its respective obligations thereunder or consummate the Transactions or (ii) the business, condition (financial or otherwise), assets, liabilities or operations of SPAC, provided, however, that none of the following shall be deemed to constitute, alone or in combination, or be taken into account in the determination of whether, there has been or will be a SPAC Material Adverse Effect under this clause (ii): (a) any change in applicable Laws or GAAP or any interpretation thereof, (b) any change in interest rates or economic, political, business, financial, commodity, currently or market conditions generally, (c) any actions taken or not taken by SPAC, or such other changes or events, in each case, which (I) the Company has consented in writing or (II) are required by this Agreement and (d) the announcement or the execution of this Agreement, the pendency or consummation of the Merger or the performance of this Agreement (provided that the exceptions in this clause (d) shall not be deemed to apply to references to “SPAC Material Adverse Effect” in the representations and warranties set forth in Section 6.03 and, to the extent related thereto, the condition in Section 10.03(a)); provided that, in the case of clauses (a) and (b) such changes may be taken into account to the extent (but only to the extent) that such changes have had a disproportionate impact on SPAC, as compared to other competitors or comparable entities operating in the industries or markets in which SPAC operates.
“SPAC Organizational Documents” means the Existing SPAC Certificate of Incorporation and SPAC’s bylaws, as amended and in effect on the date hereof.
“SPAC Parties” means SPAC and Merger Sub.
“SPAC Party Representations” means the representations and warranties of SPAC and Merger Sub expressly and specifically set forth in Article 6 of this Agreement, as qualified by the Schedules.
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“SPAC Preferred Stock” means the preferred stock, par value $0.0001 per share, of SPAC.
“SPAC Specified Representations” has the meaning specified in Section 10.03(a)(i).
“SPAC Stockholder Matters” has the meaning specified in Section 9.02(a).
“SPAC Stockholder Redemption” has the meaning specified in Section 9.02(a).
“SPAC Stockholders” means the holders of shares of SPAC Common Stock.
“SPAC Transaction Expenses” means all fees, costs and expenses of SPAC incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Transaction Agreements, the performance and compliance with all Transaction Agreements and conditions contained herein to be performed or complied with at or before Closing, and the consummation of the Transactions, including, subject to Section 12.05, any (i) fees, costs and expenses related to the D&O Tail, (ii) deferred underwriting fees, (iii) fees, costs, expenses and disbursements of counsel, accountants, advisors and consultants of SPAC, whether paid or unpaid prior to the Closing, and (iv) the repayment amount of the Extension Promissory Note. For the avoidance of doubt, (a) the Stockholder Action Expenses, (b) up to $1,500,000 of Sponsor’s working capital loan to SPAC (provided such loan will not be repaid in the form of cash), and (c) any Excise Tax payable by SPAC shall expressly be excluded and shall not be deemed SPAC Transaction Expenses.
“Special Meeting” has the meaning specified in Section 9.02(e).
“Sponsor” means AltC Sponsor LLC, a Delaware limited liability company.
“Sponsor Agreement” means that certain Amended and Restated Letter Agreement, dated as of the date hereof, by and among Sponsor, SPAC and the other parties thereto, as amended, restated, modified or supplemented from time to time.
“Stock Exchange” means the NYSE or such other stock exchange as the Company and SPAC may mutually agree prior to the Closing.
“Stockholder Action” has the meaning specified in Section 9.07.
“Stockholder Action Expenses” has the meaning specified in Section 9.07.
“Subsidiary” means, with respect to a Person, any corporation or other organization (including a limited liability company, exempted company, partnership or such other entity), whether incorporated or unincorporated, of which such Person directly or indirectly owns or controls a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization or any organization of which such Person or any of its Subsidiaries is, directly or indirectly, a general partner or managing member.
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“Surviving Entity” has the meaning specified in the Recitals hereto.
“Surviving Provisions” has the meaning specified in Section 11.02.
“Tax” or “Taxes” means (i) any and all federal, state, provincial, territorial, local, non-U.S. and other net income tax, alternative or add-on minimum tax, franchise tax, gross income, adjusted gross income or gross receipts tax, employment related tax (including employee withholding or employer payroll tax) ad valorem, transfer, franchise, license, excise, severance, stamp, occupation, premium, personal property, real property, capital stock, profits, disability, registration, value added, estimated, customs duties, and sales or use tax, or other tax or like assessment in the nature of a tax (whether payable directly or by withholding), in each case that is imposed by a Governmental Authority. (ii) any interest, penalties, addition to tax or additional amounts relating to any items in clause (i) or this clause (ii), and (iii) any liability for any items described in clauses (i) and (ii) of this definition payable by reason of Contract, assumption, transferee or successor liability, operation of applicable Law, or Treasury Regulations Section 1.1502-6(a) (or any similar provision of Law or any predecessor or successor thereof) or otherwise.
“Tax Return” means any return, report, statement, refund, claim, declaration, information return, statement, estimate or other document filed or required to be filed with a Governmental Authority in respect of Taxes, including any schedule or attachment thereto and including any amendments thereof.
“Technology” means, collectively, all Software, information, formulae, algorithms, procedures, methods, techniques, research and development, technical data, programs, subroutines, tools, materials, processes, apparatus, creations, and other similar materials, and all recordings, graphs, reports, analyses, and other writings, and other tangible embodiments of the foregoing, in any form whether or not specifically listed herein, and all related technology, that are used in, incorporated in, embodied in, displayed by or related to, or are used in connection with the foregoing.
“Terminating Company Breach” has the meaning specified in Section 11.01(b).
“Terminating SPAC Breach” has the meaning specified in Section 11.01(c).
“Termination Date” has the meaning specified in Section 11.01(b).
“Transaction Agreements” shall mean this Agreement, the Sponsor Agreement, the Registration Rights Agreement, the Company Voting and Support Agreements, the SPAC Charter, the SPAC Bylaws and all of the agreements, documents, instruments and certificates entered into in connection herewith or therewith and any and all exhibits and schedules thereto.
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“Transactions” means the transactions contemplated by this Agreement and the Transaction Agreements, including the Merger.
“Treasury Regulations” means the regulations promulgated under the Code.
“Triggering Event I” means the earliest of the following to occur during the Earnout Period: (a) the date on which the closing stock price of SPAC Class A Common Stock is greater than or equal to $12.00 per share for twenty (20) trading days within any sixty (60) consecutive trading day period or (b) a Change in Control of SPAC pursuant to which stockholders of SPAC Class A Common Stock have the right to receive consideration implying a value per share greater than or equal to $12.00.
“Triggering Event II” means the earliest of the following to occur during the Earnout Period: (a) the date on which the closing stock price of SPAC Class A Common Stock is greater than or equal to $14.00 per share for twenty (20) trading days within any sixty (60) consecutive trading day period or (b) a Change in Control of SPAC pursuant to which stockholders of SPAC Class A Common Stock have the right to receive consideration implying a value per share greater than or equal to $14.00.
“Triggering Event III” means the earliest of the following to occur during the Earnout Period: (a) the date on which the closing stock price of SPAC Class A Common Stock is greater than or equal to $16.00 per share for twenty (20) trading days within any sixty (60) consecutive trading day period or (b) a Change in Control of SPAC pursuant to which stockholders of SPAC Class A Common Stock have the right to receive consideration implying a value per share greater than or equal to $16.00.
“Triggering Events” means Triggering Event I, Triggering Event II and Triggering Event III, collectively.
“Trust Account” has the meaning specified in Section 6.07.
“Trust Agreement” has the meaning specified in Section 6.07.
“Unaudited Financial Statements” has the meaning specified in Section 5.08.
“Trustee” has the meaning specified in Section 6.07.
“WARN Act” has the meaning specified in Section 5.14(b).
“Written Consent” has the meaning specified in Section 9.02(f).
“Written Consent Failure” has the meaning specified in Section 9.02(f).
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Section 1.02. Construction.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (iv) the terms “Article”, “Section”, “Schedule”, “Exhibit” and “Annex” refer to the specified Article, Section, Schedule, Exhibit or Annex of or to this Agreement unless otherwise specified, (v) the word “including” shall mean “including without limitation,” (vi) the word “or” shall be disjunctive but not exclusive, and (vii) the phrase “to the extent” means the degree to which a thing extends (rather than if).
(b) When used herein, “ordinary course of business” means an action taken, or omitted to be taken, in the ordinary and usual course of the Company’s and its Subsidiaries’ business, consistent with past practice.
(c) Unless the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto.
(d) Unless the context of this Agreement otherwise requires, references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
(e) The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction shall be applied against any Party.
(f) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.
(g) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.
(h) The phrases “provided to,” “furnished to,” “made available” and phrases of similar import when used herein, unless the context otherwise requires, means that a copy of the information or material referred to has been provided no later than 9:00 a.m. (New York Time) on the day immediately prior to the date of this Agreement to the Party to which such information or material is to be provided or furnished (i) in the virtual “data room” set up by the Company in connection with this Agreement or (ii) by delivery to such Party or its legal counsel via electronic mail or hard copy form.
Section 1.03. Knowledge. As used herein, the phrase “to the knowledge” shall mean the actual knowledge of, in the case of the Company, Jacob DeWitte and Caroline Cochran and, in the case of the SPAC Parties, Michael Klein and Lee Jay Taragin.
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Section 1.04. Equitable Adjustments. If, between the date of this Agreement and the Closing, the outstanding Company Stock or shares of SPAC Common Stock shall have been changed into a different number of shares or a different class, by reason of any stock or share dividend, subdivision, reclassification, reorganization, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, or if there shall have been any breach by SPAC with respect to its covenant not to issue shares of SPAC Common Stock or rights to acquire SPAC Common Stock, then any number, value (including dollar value) or amount contained herein which is based upon the number of shares of Company Stock or shares of SPAC Common Stock, as applicable, will be appropriately adjusted to provide to the holders of Company Stock or SPAC Stockholders, as applicable, the same economic effect as contemplated by this Agreement prior to such event; provided, however, that this Section 1.04 shall not be construed to permit SPAC, the Company or Merger Sub to take any action with respect to their respective securities that is prohibited by the terms and conditions of this Agreement. For the avoidance of doubt, there shall be no adjustment made pursuant to this Section 1.04 as a result of any SPAC Stockholders exercising their redemption rights in connection with the SPAC Extension.
Article 2
The Merger
Section 2.01. The Merger. At the Effective Time, on the terms and subject to the conditions set forth herein and in accordance with the applicable provisions of the DGCL, Merger Sub and the Company shall consummate the Merger, pursuant to which Merger Sub shall be merged with and into the Company, following which the separate corporate existence of Merger Sub shall cease and the Company shall continue as the Surviving Entity after the Merger and as a direct, wholly owned subsidiary of SPAC (provided that references to the Company for periods after the Effective Time shall include the Surviving Entity).
Section 2.02. Effective Time. On the terms and subject to the conditions set forth herein, on the Closing Date, the Company and Merger Sub shall cause the Merger to be consummated by executing a certificate of merger in substantially the form of Exhibit E attached hereto (the “Certificate of Merger”), and filing such Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the applicable provision of the DGCL (the time of such filing, or such later time as may be agreed in writing by the Company and SPAC and specified in such filing, being the “Effective Time”).
Section 2.03. Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of Merger Sub and the Company shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of the Surviving Entity, which shall include the assumption by the Surviving Entity of any and all agreements, covenants, duties and obligations of Merger Sub and the Company set forth in this Agreement to be performed after the Effective Time.
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Section 2.04. Governing Documents; Registration Rights Agreement.
(a) Subject to Section 8.02, at the Effective Time, the certificate of incorporation of the Surviving Entity shall be amended and restated to be in the form attached to the Certificate of Merger.
(b) At the Effective Time, the bylaws of the Surviving Entity shall be amended to read the same as the bylaws of Merger Sub as in effect immediately prior to the Effective Time.
(c) At the Closing, SPAC, Sponsor and those equityholders of the Company listed on Schedule 2.04(c) to this Agreement shall deliver to the Company a copy of the Registration Rights Agreement duly executed by SPAC, Sponsor and the equityholders of the Company party thereto.
Section 2.05. Directors and Officers of the Surviving Entity.
(a) Prior to the Effective Time, each of SPAC and Merger Sub shall cause the individuals identified in writing by the Company prior to the Closing to be designated or appointed as the directors and officers of Merger Sub, as applicable, effective as of immediately prior to the Effective Time. Immediately after the Effective Time, the board of directors and officers of the Surviving Entity shall be the board of directors and officers of Merger Sub immediately prior to the Effective Time.
(b) The Parties shall use reasonable best efforts to cause the individuals nominated for election in the Registration Statement to comprise the board of directors of the SPAC immediately following the Effective Time, each to hold office in accordance with the DGCL, the SPAC Charter and the SPAC Bylaws and until their respective successors are duly elected or appointed and qualified.
Section 2.06. Further Assurances. 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 the Surviving Entity following the Merger with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, the applicable directors and officers of the Company and Merger Sub (or their designees) are fully authorized in the name of their respective corporations/companies or otherwise to take, and will take, all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.
Article 3
Merger Consideration; Conversion of Securities
Section 3.01. Conversion of Company Preferred Stock and Company SAFEs. The Company shall take all actions necessary or appropriate so that, immediately prior to the Closing, (i) all of the Company Preferred Stock shall be converted into Company Common Stock in accordance with the terms of the Company Certificate of Incorporation and (ii) all of the Company SAFEs shall be converted into Company Common Stock in accordance with the terms of the Company SAFEs. All of the Company Preferred Stock and Company SAFEs converted into Company Common Stock shall no longer be outstanding, shall be deemed cancelled and terminated, as applicable, and each holder of Company Preferred Stock and Company SAFEs shall thereafter cease to have any rights with respect to such Company Preferred Stock and Company SAFEs.
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Section 3.02. Effect of Merger on Company Stock. On the terms and subject to the conditions set forth herein, at the Effective Time, by virtue of the Merger and without any further action on the part of any Party, any Holder or SPAC Stockholder, the following shall occur:
(a) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares and Dissenting Shares, and after giving effect to the conversion described in Section 3.01) will be automatically surrendered and shall cease to exist, and be exchanged for the right to receive the Per Share Merger Consideration, in each case in accordance with the terms of this Agreement. From and after the Effective Time, such Person that, immediately prior to the Effective Time, was registered as a holder of the Company Common Stock (other than Excluded Shares and Dissenting Shares, and after giving effect to the conversion described in Section 3.01) in the share transfer books of the Company shall thereafter cease to be a stockholder of the Company and only have the right to receive the Per Share Merger Consideration in accordance with the terms of this Agreement. At the Effective Time, the share transfer books of the Company shall be closed, and no transfer of Company Common Stock shall be made thereafter.
(b) Each issued and outstanding share of common stock of Merger Sub shall be converted into and become one validly issued, fully paid and nonassessable common share, par value US $0.0001 per share, of the Surviving Entity, which shall constitute the only outstanding shares of the Surviving Entity. From and after the Effective Time, all certificates and book-entry notations representing the common stock of Merger Sub shall be deemed for all purposes to represent the number of common shares of the Surviving Entity into which they were converted in accordance with the immediately preceding sentence.
(c) Each share of Company Stock held in the Company’s treasury or owned by SPAC, Merger Sub or the Company immediately prior to the Effective Time (each, an “Excluded Share”) shall automatically be cancelled and surrendered (as applicable) and no consideration shall be paid or payable with respect thereto.
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Section 3.03. Treatment of Company Equity Awards.
(a) Company Options. At the Effective Time, by virtue of the Merger and without any further action on the part of any Party, the Company Stock Plans shall be assumed by the SPAC. At the Effective Time, each Company Option shall, by virtue of the Merger and without any further action on the part of any Party or the holder thereof, (i) whether such Company Option is vested or unvested, be assumed by SPAC and become, as of the Effective Time, an option (an “Assumed Option”) to purchase, on the same terms and conditions (including applicable vesting, exercise and expiration provisions) as applied to each such Company Option immediately prior to the Effective Time, shares of SPAC Class A Common Stock, except that (A) the number of shares of SPAC Class A Common Stock subject to such Assumed Option shall equal the product of (x) the number of shares of Company Common Stock that were subject to such Company Option immediately prior to the Effective Time, multiplied by (y) the Exchange Ratio, rounded down to the nearest whole share, and (B) the per-share exercise price shall equal the quotient of (1) the exercise price per share of Company Common Stock at which such Company Option was exercisable immediately prior to the Effective Time, divided by (2) the Exchange Ratio, rounded up to the nearest whole cent and (ii) solely in the case of Company Options that are vested as of immediately prior to the Effective Time (after taking into consideration any acceleration required by the terms of the Assumed Option in effect as of the date of this Agreement), have the contingent right to receive the Earnout Shares in accordance with Section 3.05; provided that each Company Option (A) which is an “incentive stock option” (as defined in Section 422 of the Code) shall be adjusted in accordance with the requirements of Section 424 of the Code and (B) shall be adjusted in a manner that complies with Section 409A of the Code.
Section 3.04. Dissenting Shares. Notwithstanding anything to the contrary contained in this Agreement, and to the extent available under the DGCL, shares of Company Stock that are issued and outstanding immediately prior to the Effective Time and that are held by stockholders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have demanded properly in writing appraisal or dissenters’ rights for such Company Stock in accordance with Section 262 of the DGCL (collectively, the “Dissenting Shares”; holders of Dissenting Shares being referred to as “Dissenting Stockholders”), and otherwise complied with all of the provisions of the DGCL relevant to the exercise and perfection of appraisal rights, shall not be converted into, and such Dissenting Stockholders shall have no right to receive, the applicable Per Share Merger Consideration as provided in Section 3.02(a) unless and until such Dissenting Stockholder fails to perfect or withdraws or otherwise loses his, her or its right to appraisal and payment under the DGCL. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to dissent under Section 262 of the DGCL, and such holder’s Dissenting Shares shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the applicable Per Share Merger Consideration, without any interest thereon, upon surrender, if applicable, in the manner provided in Section 3.02(a), without interest or any other payments. The Company shall serve prompt notice to SPAC of any notices of objection, notices of dissent or demands for fair value under Section 262 of the DGCL of any of the Company Stock, attempted withdrawals of such notices or demands and any other instruments served pursuant to the DGCL and received by the Company, and SPAC shall have the right to participate in all negotiations and proceedings with respect to such notices and demands. The Company shall not, without the prior written consent of SPAC (which consent shall not be unreasonably withheld, conditioned or delayed), or as otherwise required under the DGCL, make any payment with respect to, or settle or offer to settle, any such notices or demands, or agree to do or commit to do any of the foregoing. Company Stockholder Approval.
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Section 3.05. Earnout.
(a) Following the Closing, and as additional consideration for the Transactions, within five (5) Business Days after the occurrence of a Triggering Event, SPAC shall issue or cause to be issued to each Eligible Holder (in accordance with its respective Pro Rata Share), the following shares of SPAC Class A Common Stock (which shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to SPAC Class A Common Stock occurring on or after the Closing (other than the conversion of SPAC Common Stock held by Sponsor into SPAC Class A Common Stock at the Closing), the “Earnout Shares”), upon the terms and subject to the conditions set forth in this Agreement and the Transaction Agreements:
(i) Upon the occurrence of Triggering Event I, a one-time issuance of 7,500,000 Earnout Shares;
(ii) Upon the occurrence of Triggering Event II, a one-time issuance of 5,000,000 Earnout Shares; and
(iii) Upon the occurrence of Triggering Event III, a one-time issuance of 2,500,000 Earnout Shares.
(b) For the avoidance of doubt, the Eligible Holders shall be entitled to receive Earnout Shares upon the occurrence of each Triggering Event; provided, however, that each Triggering Event shall only occur once, if at all, and in no event shall the Eligible Holders be entitled to receive more than an aggregate of 15,000,000 Earnout Shares.
(c) The SPAC Class A Common Stock price targets set forth in the definitions of Triggering Event I, Triggering Event II and Triggering Event III shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to SPAC Class A Common Stock occurring on or after the Closing (other than the conversion of SPAC Class B Common Stock held by Sponsor into SPAC Class A Common Stock at the Closing).
(d) Unless otherwise required by a Tax authority in connection with a good faith resolution of a Tax audit or other examination, the Parties acknowledge and agree (i) that any Earnout Shares paid to the Eligible Holders shall be treated as additional consideration for the Company Stock for all income Tax purposes (other than to the extent treated as interest under Section 483 of the Code or any similar provision of the Code), and (ii) to prepare and file all Tax Returns consistent with such Tax treatment.
Section 3.06. Exchange Pool.
(a) Immediately prior to or at the Effective Time, SPAC shall deposit, or cause to be deposited, with Continental Stock Transfer & Trust Company (the “Exchange Agent”) evidence in book-entry form of shares of SPAC Class A Common Stock representing the number of shares of SPAC Class A Common Stock sufficient to deliver the Merger Consideration (the “Exchange Pool”).
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(b) Notwithstanding anything to the contrary contained herein, no fraction of a share of SPAC Class A Common Stock will be issued by virtue of this Agreement or the Transactions, and each Holder who would otherwise be entitled to a fraction of a share of SPAC Class A Common Stock (after aggregating all shares of SPAC Class A Common Stock to which such Holder otherwise would be entitled) shall instead have the number of shares of SPAC Class A Common Stock issued to such Holder rounded up or down to the nearest whole share of SPAC Class A Common Stock (with 0.5 of a share or greater rounded up), as applicable.
(c) Promptly following the earlier of (i) the date on which the entire Exchange Pool has been disbursed and (ii) the date which is six (6) months after the Effective Time, SPAC shall instruct the Exchange Agent to deliver to SPAC any remaining portion of the Exchange Pool and other documents in its possession relating to the Transactions, and the Exchange Agent’s duties shall terminate. Thereafter, each Holder may look only to SPAC (subject to applicable abandoned property, escheat or other similar Laws), as general creditors thereof, for satisfaction of such Holder’s claim for Merger Consideration that such Holder may have the right to receive pursuant to Section 3.02 without any interest thereon.
(d) None of the Company, SPAC, the Surviving Entity or the Exchange Agent shall be liable to any Person for any portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Merger Consideration that remains undistributed to the Holders as of immediately prior to the date on which the Merger Consideration would otherwise escheat to or become the property of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the SPAC, free and clear of all claims or interest of any Person previously entitled thereto.
Section 3.07. Withholding Rights. Notwithstanding anything in this Agreement to the contrary, SPAC, Merger Sub, the Company, the Surviving Entity and their respective Affiliates shall be entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement any amount required to be deducted and withheld with respect to the making of such payment under applicable Law; provided, however, that if SPAC, Merger Sub, any of their respective Affiliates, or any party acting on their behalf determines that any payment hereunder is subject to deduction and/or withholding, then SPAC shall, prior to so deducting and/or withholding, (a) provide written notice to the Company as soon as reasonably practicable after such determination and (b) consult and cooperate with the Company in good faith to reduce or eliminate any such deduction or withholding to the extent permitted by applicable Law. To the extent that amounts are so withheld and paid over to the appropriate Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Any amounts so withheld shall be timely remitted to the applicable Governmental Authority.
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Article 4
Closing; Closing Statement
Section 4.01. Closing. On the terms and subject to the conditions set forth in this Agreement, the closing of the Transactions (the “Closing”) shall take place (a) electronically by the mutual exchange of electronic signatures (including portable document format (.PDF)) commencing as promptly as practicable (and in any event no later than 10:00 a.m. Eastern Time on the third (3rd) Business Day) following the satisfaction or (to the extent permitted by applicable Law) waiver of the conditions set forth in Article 10 (other than those conditions that by their terms or nature are to be satisfied at the Closing; provided that such conditions are satisfied or (to the extent permitted by applicable Law) waived at the Closing) or (b) at such other place, time or
date as SPAC and the Company may mutually agree in writing. The date on which the Closing shall occur is referred to herein as the “Closing Date.”
Section 4.02. SPAC Closing Statement. At least two (2) Business Days prior to the Special Meeting and in any event not earlier than the time that holders of SPAC Class A Common Stock may no longer elect redemption in accordance with the SPAC Stockholder Redemption, SPAC shall prepare and deliver to the Company a statement (the “SPAC Closing Statement”) setting forth in good faith: (a) the aggregate amount of cash in the Trust Account (prior to giving effect to the SPAC Stockholder Redemption); (b) the aggregate amount of all payments required to be made in connection with the SPAC Stockholder Redemption; (c) the Available Closing SPAC Cash resulting therefrom; (d) the repayment amount (if any) pursuant to the Extension Promissory Note and (e) the number of shares of SPAC Class A Common Stock to be outstanding as of the Closing after giving effect to the SPAC Stockholder Redemption, in each case, including reasonable supporting detail therefor. The SPAC Closing Statement and each component thereof shall be prepared and calculated in accordance with the definitions contained in this Agreement. From and after delivery of the SPAC Closing Statement until the Closing, SPAC shall (x) cooperate with and provide the Company and its Representatives all information reasonably requested by the Company or any of its Representatives and within SPAC’s or its Representatives’ possession or control in connection with the Company’s review of the SPAC Closing Statement and (y) consider in good faith any comments to the SPAC Closing Statement provided by the Company, which comments the Company shall deliver to SPAC no less than two (2) Business Days prior to the Closing Date, and SPAC shall revise such SPAC Closing Statement to incorporate any changes SPAC reasonably determines are necessary or appropriate given such comments.
Section 4.03. Company Closing Statement. At least two (2) Business Days prior to the Closing Date, the Company shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of shares of Company Common Stock issued and outstanding; (b) the aggregate number of shares of Company Preferred Stock (by series) and the Company SAFEs issued and outstanding (in the case of (a) and (b), prior to giving effect to the conversion of Company Preferred Stock and Company SAFEs set forth under Section 3.01); (c) the aggregate number of shares of Company Common Stock to be outstanding after giving effect to the conversion set forth under Section 3.01; (d) the aggregate number of shares of Company Common Stock underlying vested and unvested Company Options issued and outstanding and the exercise prices therefor; (e) the Company’s calculation of the Equity Financing Amount, if any; (f) the Company’s calculation of the Per Share Equity Value; (g) the Company’s calculation of the Exchange Ratio; and (h) the Company’s calculation of the Pro Rata Share of each Eligible Holder, in each case, including reasonable supporting detail therefor. From and after delivery of the Company Closing Statement until the Closing, the Company shall (x) cooperate with and provide SPAC and its Representatives all information reasonably requested by SPAC or any of its Representatives and within the Company’s or its Representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, which comments SPAC shall deliver to the Company no less than two (2) Business Days prior to the Closing Date, and the Company shall revise such Company Closing Statement to incorporate any changes the Company reasonably determines are necessary or appropriate given such comments.
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Article 5
Representations and Warranties of the Company
Except as set forth in the Schedules to this Agreement dated as of the date of this Agreement (each of which qualifies (a) the correspondingly numbered representation, warranty or covenant if specified therein and (b) such other representations, warranties or covenants where its relevance as an exception to (or disclosure for purposes of) such other representation, warranty or covenant is reasonably apparent), the Company represents and warrants to SPAC as follows:
Section 5.01. Corporate Organization of the Company. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has the requisite power and authority to own, operate and lease its properties, rights and assets and to conduct its business as it is now being conducted, except as would not be material to the Company. The Company Certificate of Incorporation, as in effect on the date hereof, previously made available by the Company to SPAC (a) is true, correct and complete, (b) is in full force and effect, and (c) has not been amended. The Company is duly licensed or qualified and in good standing as a foreign entity in each jurisdiction in which the ownership of its property or the character of its activities is such as to require it to be so licensed or qualified, except where failure to be so licensed or qualified would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company is not in violation of any of the provisions of the Company Certificate of Incorporation.
Section 5.02. Subsidiaries. The Subsidiaries of the Company as of the date of this Agreement are set forth on Schedule 5.02 to the disclosure schedules of the Company. The Subsidiaries have been duly formed or organized, are validly existing under the laws of their jurisdiction of incorporation or organization and have the power and authority to own, operate and lease their properties, rights and assets and to conduct their business as it is now being conducted, except as would not be material to the Company and its Subsidiaries, taken as a whole. Each Subsidiary is duly licensed or qualified and in good standing as a foreign or extra-provincial corporation (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be in good standing or so licensed or qualified, except where the failure to be in good standing or so licensed or qualified would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The respective jurisdiction of incorporation or organization of each Subsidiaries is identified on Schedule 5.02 to the disclosure schedules of the Company.
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Section 5.03. Due Authorization. The Company has the requisite power and authority to execute and deliver this Agreement and each Transaction Agreement to which it is a party and (subject to the approvals described in Section 5.05), subject to obtaining the Company Stockholder Approval, to perform all obligations to be performed by it hereunder and thereunder and to consummate the Transactions. Upon the execution and delivery of the Company Voting and Support Agreements by certain Holders, such Holders will have agreed to vote in favor of the approval of this Agreement and the Transactions, including the Merger, and such approval will be sufficient to duly obtain the Company Stockholder Approval. Other than the Company Stockholder Approval, no other corporate proceeding on the part of the Company is necessary to authorize this Agreement or such Transaction Agreements or the Company’s performance hereunder or thereunder. This Agreement has been, and each such Transaction Agreement (when executed and delivered by the Company) will be, duly and validly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery by each other party hereto and thereto, this Agreement constitutes, and each such Transaction Agreement will constitute, a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting or relating to creditors’ rights generally and subject, as to enforceability, to the remedy of specific performance and injunctive and other forms of equitable relief which may be subject to equitable defenses, general principles of equity and to the discretion of the court before which any proceeding therefor may be brought, whether such enforceability is considered in a proceeding in equity or at Law (the “Enforceability Exceptions”).
Section 5.04. No Conflict. Subject to the receipt of the consents, approvals, authorizations and other requirements set forth in Section 5.05 and upon receipt of the Company Stockholder Approval, the execution, delivery and performance of this Agreement and each Transaction Agreement to which it is party by the Company and the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of or default under, the Company Certificate of Incorporation or the Company’s bylaws, (b) violate any provision of, or result in the breach of or default by the Company under, or require any filing, registration or qualification under, any applicable Law, (c) require any consent, waiver or other action by any Person under, violate, or result in a breach of, constitute a default under, result in the acceleration, cancellation, termination or modification of, or create in any party the right to accelerate, terminate, cancel or modify, the terms, conditions or provisions of any Material Contract, including to any payment, posting of collateral (or right to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to the terms, conditions or provisions of any such Material Contract, (d) result in the creation of any Lien upon any of the properties, rights or assets of the Company or any of its Subsidiaries other than Permitted Liens, (e) constitute an event which, after notice or lapse of time or both, would result in any such violation, breach, termination, acceleration, modification, cancellation or creation of a Lien other than Permitted Liens or (f) result in a violation or revocation of any license, permit or approval from any Governmental Authority or other Person, except, in each of cases (a) through (f), for such violations, conflicts, breaches, defaults or failures to act that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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Section 5.05. Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of the SPAC Parties contained in this Agreement, no action by, notice to, consent, approval, waiver, permit or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of the Company with respect to the Company’s execution, delivery and performance of this Agreement and the Transaction Agreements to which the Company is a party and the consummation of the Transactions, except for (a) applicable requirements of the HSR Act, (b) the filing of the Certificate of Merger in accordance with the DGCL, (c) any actions, consents, approvals, permits or authorizations, designations, declarations or filings, the absence of which would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company to perform or comply with on a timely basis any material obligation under this Agreement or to consummate the Transactions in accordance with the terms hereof and (d) as otherwise disclosed on Schedule 5.05 to the disclosure schedules of the Company.
Section 5.06. Current Capitalization.
(a) As of the date hereof, the authorized capital stock of the Company consists of: (i) 14,000,000 shares of Company Common Stock; and (ii) 7,000,000 shares of Company Preferred Stock, of which (A) 4,526,703 shares are designated as Company Series A-1 Preferred Stock; (B) 55,135 shares are designated as Company Series A-2 Preferred Stock; and (C) 2,004,043 shares are designated as Company Series A-2 Preferred Stock.
(b) As of one (1) Business Day prior to the date hereof, there were: (i) 4,771,025 shares of Company Common Stock issued and outstanding; (ii) 4,526,703 shares of Company Series A-1 Preferred Stock issued and outstanding; (iii) 55,135 shares of Company Series A-2 Preferred Stock issued and outstanding; and (iv) 2,004,043 shares of Company Series A-3 Preferred Stock issued and outstanding. All of the issued and outstanding shares of Company Stock have been duly authorized and validly issued and are fully paid and nonassessable.
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(c) As of one (1) Business Day prior to the date hereof, there were outstanding (i) Company Options to purchase an aggregate of 1,127,377 shares of Company Common Stock (of which options to purchase an aggregate of 460,462 shares of Company Common Stock were vested and exercisable), and (ii) 293,097 additional shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plans.
(d) Schedule 5.06(d) to the disclosure schedules of the Company sets forth a complete and correct list of each Company SAFE as of one (1) Business Day prior to the date of this Agreement.
(e) As of the date hereof, other than the (x) Company Options, (y) Company Preferred Stock and (z) Company SAFEs, there are (i) no subscriptions, calls, options, warrants, rights (including preemptive rights), puts or other securities convertible into or exchangeable or exercisable for Company Common Stock or the equity interests of the Company, or any other Contracts to which the Company is a party or by which the Company is bound obligating the Company to issue or sell any shares of, other equity interests in or debt securities of, the Company and (ii) no equity equivalents, stock or stock appreciation rights, phantom stock or stock ownership interests or similar rights in the Company. As of the date hereof, there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any securities or equity interests of the Company. There are no outstanding bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the Company’s stockholders may vote. Other than the Company Stockholder Agreement and the Company Voting and Support Agreements, the Company is not party to any stockholders agreement, voting agreement, proxies, registration rights agreement or other similar agreements relating to its equity interests.
Section 5.07. Capitalization of Subsidiaries. The issued share capital, stock or other equity interests of each of the Company’s Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable. All of the ownership interests in each Subsidiary of the Company are owned by the Company, directly or indirectly, free and clear of any Liens (other than the restrictions under applicable Securities Laws) and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such ownership interests) and have not been issued in violation of preemptive or similar rights. As of the date hereof, there are (a) no subscriptions, calls, options, warrants, rights (including preemptive rights), puts or other securities convertible into or exchangeable or exercisable for the equity interests of any Subsidiary of the Company, or any other Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries to issue or sell any shares, stock, or other equity interests in or debt securities of, any Subsidiary of the Company and (b) no equity equivalents, stock appreciation rights, phantom stock ownership interests or similar rights in any Subsidiary of the Company (the items in clauses (a) and (b), in addition to all ownership interests of the Company’s Subsidiaries, being referred to collectively as the “Company Subsidiary Securities”). As of the date hereof, there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any securities or equity interests of any Subsidiary of the Company. Other than the Company Stockholder Agreements and the Company Voting and Support Agreements, the Company and its Subsidiaries are not party to any stockholders agreement, voting agreement, proxies, registration rights agreement or other similar agreements relating to the equity interests of any Subsidiary of the Company. Except for the Company Subsidiary Securities, neither the Company nor any of its Subsidiaries owns any equity, ownership, profit, voting or similar interest in or any interest convertible, exchangeable or exercisable for, any equity, profit, voting or similar interest in, any Person. No shares of treasury stock are held by any Subsidiary of the Company.
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Section 5.08. Financial Statements.
(a) Attached as Schedule 5.08 to the disclosure schedules of the Company are true, correct, accurate and complete copies of (i) the unaudited consolidated balance sheets of the Company and its Subsidiaries as at December 31, 2021 and December 31, 2022, and the related unaudited consolidated statements of operations, stockholders’ equity and cash flows for the years then ended (the “Unaudited Financial Statements”), and (ii) the unaudited consolidated condensed balance sheet of the Company and its Subsidiaries as at March 31, 2023 and the related unaudited consolidated condensed statements of operations and cash flows for the 3 month period then ended (such March 31, 2023 balance sheet of the Company and its Subsidiaries, the “Most Recent Balance Sheet”) (the “Interim Financial Statements” and, together with the Unaudited Financial Statements, the “Financial Statements”).
(b) The Financial Statements present fairly, in all material respects, the consolidated financial position, cash flows and results of operations of the Company and its Subsidiaries as of the dates and for the periods indicated in such Financial Statements in conformity with GAAP consistently applied in all material respects throughout the periods covered thereby (except for the absence of footnotes and other presentation items and for normal and recurring year-end adjustments, in each case, the impact of which is not material).
Section 5.09. Undisclosed Liabilities. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any liability, debt or obligation, whether accrued, contingent, absolute, determined, determinable or otherwise, required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except for liabilities, debts or obligations (a) reflected or reserved for in the Financial Statements or disclosed in any notes thereto, (b) that have arisen since December 31, 2022 in the ordinary course of business of the Company and its Subsidiaries, (c) arising under this Agreement and/or the performance by the Company of its obligations hereunder, including Company Transaction Expenses, (d) disclosed in the Schedules, or (e) that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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Section 5.10. Litigation and Proceedings. As of the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened in writing Actions against the Company or any of its Subsidiaries or any of their properties, rights or assets that constitutes a Material Adverse Effect. As of the date of this Agreement, there is no Governmental Order imposed upon or, to the knowledge of the Company, threatened in writing against the Company or any of its Subsidiaries or any of their properties, rights or assets that constitutes a Material Adverse Effect. As of the date of this Agreement, there is no unsatisfied judgment or any open injunction binding upon the Company or its Subsidiaries which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Company to enter into and perform its obligations under this Agreement.
Section 5.11. Compliance with Laws. Except with respect to compliance with Environmental Laws (which are the subject of Section 5.24) and compliance with Tax Laws (which are the subject of Section 5.15), or except as would not constitute a Material Adverse Effect, (a) the Company and its Subsidiaries are, and since January 1, 2022 have been, in compliance with all applicable Laws and Governmental Orders; (b) from January 1, 2022, to the knowledge of the Company, neither the Company nor any of its Subsidiaries has received any written notice of any violations of applicable Laws, Governmental Orders or Permits (other than allegations asserted by providers in connection with requests for claims adjustments by such providers in the ordinary course of business), and to the knowledge of the Company, no charge, claim, assertion or Action of any violation of any Law, Governmental Order or Permit by the Company or any of its Subsidiaries is currently threatened against the Company or any of its Subsidiaries (other than allegations asserted by providers in connection with requests for claims adjustments by such providers in the ordinary course of business); and (c) to the knowledge of the Company, as of the date of this Agreement (i) no investigation or review by any Governmental Authority (including without limitation the NRC Office of Investigations or DOE Inspector General) with respect to the Company or any of its Subsidiaries regarding compliance with applicable Laws and
Governmental Orders is pending or threatened, and (ii) no such investigations have been conducted by any Governmental Authority since January 1, 2020.
Section 5.12. Contracts; No Defaults.
(a) Schedule 5.12 to the disclosure schedules of the Company contains a true and complete listing of all Contracts (other than purchase orders) (including without limitations agreements for funding with any Governmental Authority) described in the subclauses of this Section 5.12 to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party (together with all material amendments, waivers or other changes thereto) other than Company Benefit Plans (collectively, the “Material Contracts”). True, correct and complete copies of the Material Contracts have been delivered to or made available to SPAC or its agents or Representatives.
(i) Each Contract that the Company reasonably anticipates will involve aggregate payments or consideration furnished (x) by the Company or by any of its Subsidiaries of more than $500,000 or (y) to the Company or to any of its Subsidiaries of more than $500,000, in each case, in the calendar year ended December 31, 2023;
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(ii) Each Contract that is a definitive purchase and sale or similar agreement for the acquisition of any Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries since January 1, 2022, in each case, involving payments in excess of $500,000 other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(iii) Each Contract with outstanding obligations of the Company or its Subsidiaries that provides for the sale or purchase of personal property, fixed assets or real property and involves aggregate payments in excess of $500,000 in any calendar year, other than sales or purchase agreements in the ordinary course of business and sales of obsolete equipment;
(iv) Each joint venture Contract, partnership agreement, limited liability company agreement or similar Contract (other than Contracts between Subsidiaries of the Company) that is material to the business of the Company and its Subsidiaries taken as a whole;
(v) Each Contract requiring capital expenditures by the Company or its Subsidiaries after the date of this Agreement in an amount in excess of $500,000 in the aggregate;
(vi) Each Contract expressly prohibiting or restricting in any respect the ability of the Company or its Subsidiaries to engage in any business, to operate in any geographical area or to compete with any Person (other than Contracts with providers or other entities limiting the Company’s or any of its Subsidiary’s ability to engage providers in the same geographic area, none of which are material to the Company and its Subsidiaries, taken as a whole);
(vii) Each license or other agreement with respect to which the Company or its Subsidiaries in-licenses from any third party, or out-licenses to any third party, any item of Intellectual Property, but excluding (x) non-exclusive licenses granted by or to customers, suppliers and vendors in
the ordinary course of business and (y) licenses in respect of click-wrap, shrink-wrap and commercially available “off-the-shelf software” that are generally commercially available with an annual aggregate fee of less than $500,000;
(viii) Each Contract providing for the discovery, creation, development or reduction to practice by a third party of any material Intellectual Property for or on behalf of the Company or any of its Subsidiaries (other than Personnel IP Agreements);
(ix) Each employee collective bargaining Contract;
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(x) Each mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money by or from the Company or any of its Subsidiaries in excess of $500,000;
(xi) Each Contract that is a currency or interest hedging arrangement;
(xii) Each material Contract that provides for any most favored nation provision or equivalent preferential terms, exclusivity or similar obligations to which the Company or any of its Subsidiaries is subject;
(xiii) Each Lease of real property providing for annual payments of $500,000 or more in a 12-month period; and
(xiv) Any commitment to enter into agreement of the type described in the subclauses of this Section 5.12(a).
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect, as of the date of this Agreement, all of the Contracts listed pursuant to Section 5.12(a) are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or one of its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, in each case, subject to the Enforceability Exceptions. As of the date of this Agreement, except as would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, (w) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party thereto is or is alleged to be in material breach of or material default under any such Contract, (x) neither the Company nor any of its Subsidiaries has received any written claim or notice of material breach of or material default under any such Contract, (y) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such Contract (in each case, with or without notice or lapse of time or both) and (z) no party to any such Contract that is a customer of or supplier to the Company or any of its Subsidiaries has, within the past 12 months, canceled or terminated its business with, or, to the knowledge of the Company, threatened in writing to cancel or terminate its business with, the Company or any of its Subsidiaries.
Section 5.13. Company Benefit Plans.
(a) Schedule 5.13(a) to the disclosure schedules of the Company sets forth a true and complete list of each material Company Benefit Plan. “Company Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (including “multiemployer plans” as defined in Section 3(37) of ERISA), and any material stock purchase, stock option, severance, employment, individual consulting, retention, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan and all other material employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (except for (i) employment agreements and offer letters establishing at-will employment without obligating the Company to make any payment or provide any benefit upon termination of employment other than through a plan, program, policy, arrangement or agreement listed on Schedule 5.13(a) to the disclosure schedules of the Company, (ii) any standard form employment agreements used outside of the United States and (iii) any statutorily required plan, agreement, program, policy or other arrangement), which are contributed to, sponsored by or maintained by the Company or any of its respective Subsidiaries for the benefit of any current or former employee, officer, director or individual consultant of the Company or its Subsidiaries or which the Company or any of its respective Subsidiaries has any current liability or potential liability.
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(b) With respect to each Company Benefit Plan, the Company has delivered or made available to SPAC copies of (i) each Company Benefit Plan and any trust agreement or other funding instrument relating to such plan, (ii) the most recent summary plan description, if any, required under ERISA with respect to such Company Benefit Plan, (iii) the most recent annual report on Form 5500 and all attachments with respect to each Company Benefit Plan (if applicable), (iv) the most recent actuarial valuation (if applicable) relating to such Company Benefit Plan, and (v) the most recent determination or opinion letter, if any, issued by the Internal Revenue Service with respect to any Company Benefit Plan.
(c) Except as would not, individually or in the aggregate, have a Material Adverse Effect, (i) each Company Benefit Plan has been administered in material compliance with its terms and all applicable Laws, including ERISA and the Code, and (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP.
(d) Each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code (i) has received a favorable determination or opinion letter as to its qualification or (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, and, to the knowledge of the Company, nothing has occurred, whether by action or failure to act, that would reasonably be expected to cause the loss of such qualification.
(e) Except as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Company nor any of its Subsidiaries has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits for current, former or retired employees of Company or any of its Subsidiaries, except as may be required under Section 4980B of the Code or pursuant to any other applicable Law.
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(f) Neither the Company nor any of its Subsidiaries sponsored, maintained or was required to contribute to, at any point during the six year period prior to the date hereof, any plan subject to Title IV of ERISA or Section 412 or Section 4971 of the Code, including any “multiemployer plan” as defined in Section 3(37) of ERISA.
(g) Neither the execution and delivery of this Agreement by the Company nor the consummation of the Transactions (whether alone or in connection with any subsequent event(s)) will entitle any current or former employee, officer, director or consultant of the Company or its Subsidiaries to any material payment or benefit or accelerate the time of payment or vesting of any material compensation or benefits, in either case under any Company Benefit Plan.
(h) Each Company Option was granted, in all material respects, in accordance with the terms of the Company Stock Plans and in compliance with all applicable Laws. No Company Option is subject to Section 409A of the Code and to the knowledge of the Company, each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies.
Section 5.14. Labor Matters.
(a) As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or similar agreements with a labor organization. To the knowledge of the Company, none of the Company Employees are represented by any labor organization or work council with respect to their employment with the Company. To the knowledge of the Company, as of the date of this Agreement, there are no activities or proceedings of any labor organization to organize any of the Company Employees and as of the date of this Agreement, there is no, and since January 1, 2022 has been no, material labor dispute or strike, slowdown, concerted refusal to work overtime, or work stoppage against the Company, in each case, pending or threatened.
(b) Since January 1, 2022, neither the Company nor any of its Subsidiaries has implemented any “plant closings” or “mass layoffs,” as defined by the Worker Adjustment and Retraining Notification Act of 1988, as amended, or similar state or local laws (the “WARN Act”) that would trigger the application of the WARN Act.
(c) Each of the Company and its Subsidiaries (i) is in compliance with all applicable Laws regarding employment and employment practices, including, without limitation, all laws respecting terms and conditions of employment, health and safety, non-discrimination, wages and hours, immigration, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee sick leave, employee medical leave, the proper classification of employees and independent contractors, the proper classification of exempt and non- exempt employees, and unemployment insurance, except as would not reasonably be expected to have a Material Adverse Effect, (ii) has not received written notice of any unfair labor practice complaint against it pending before the National Labor Relations Board that remains unresolved, except as would not reasonably be expected to have a Material Adverse Effect, and (iii) since January 1, 2022, has not experienced any actual or, to the knowledge of the Company, threatened arbitrations, grievances, material labor disputes, strikes, lockouts, picketing, hand billing, slow-downs or work stoppages against the Company or its Subsidiaries, except as would not reasonably be expected to be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole.
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(d) As of the date of this Agreement, the Company has not received written notice that any current direct report to the CEO of the Company presently intends to terminate his or her employment within six months after the Closing.
(e) There are no Actions against the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened that could be brought or filed based on, arising out of, in connection with or otherwise relating to the employment or termination of employment or failure to employ any individual by the Company or any of its Subsidiaries. As of the date of this Agreement, there is no Governmental Order imposing continuing remedial obligations or otherwise limiting or affecting the Company or any of its Subsidiaries’ ability to manage its employees, service providers, or job applicants.
(f) The current Company Employees who work in the United States are authorized and have appropriate documentation to work in the United States. Neither the Company nor any of its Subsidiaries have ever been notified of any pending or threatened investigation by any branch or department of U.S. Immigration and Customs Enforcement (“ICE”), or other federal agency charged with administration and enforcement of federal immigration laws concerning the Company and its Subsidiaries, and neither the Company nor any of its Subsidiaries have received any “no match” notices from ICE, the Social Security Administration, or the IRS.
(g) In the last three years, no allegations of sexual harassment or sexual misconduct have been made by an employee of the Company or any of its Subsidiaries or, to the knowledge of the Company (without inquiry or investigation), any other Person against any current or former officer of the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries have entered into any settlement agreements for purposes of settling allegations of sexual harassment or sexual misconduct by an officer, executive or other employee of the Company or any of its Subsidiaries. The Company and its Subsidiaries have promptly and appropriately investigated all employment discrimination and sexual harassment allegations of, or against, any Company Employee that have been brought to the Company’s attention. The Company and its Subsidiaries have taken prompt corrective action that is reasonably calculated to prevent further discrimination and harassment with respect to each such allegation with merit. Neither the Company nor any of its Subsidiaries have incurred, and no circumstances exist under which the Company or any of its Subsidiaries would reasonably be expected to incur, any material liability arising from such allegation.
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Section 5.15. Taxes. Except as would not reasonably be expected to have a Material Adverse Effect:
(a) All material Tax Returns required by Law to be filed by the Company or its Subsidiaries (taking into account any applicable extensions) have been filed, and all such Tax Returns are true, correct and complete in all material respects.
(b) All material amounts of Taxes due and owing by the Company and its Subsidiaries have been paid, other than Taxes described in clause (iii) of the definition of Permitted Liens, and since the date of the Most Recent Balance Sheet, neither the Company nor any of its Subsidiaries have incurred any material Tax liability outside the ordinary course of business other than Taxes resulting from the Transactions.
(c) Each of the Company and its Subsidiaries (i) has withheld and deducted all material amounts of Taxes required to have been withheld or deducted by it in connection with amounts paid or owed to any employee, independent contractor, creditor, stockholder or any other third party, (ii) to the extent required, has remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Authority and
(iii) has complied in all material respects with applicable Law with respect to Tax withholding, including all reporting and record keeping requirements.
(d) Neither the Company nor any of its Subsidiaries is engaged in any material audit, administrative proceeding or judicial proceeding with respect to Taxes. Neither the Company nor any of its Subsidiaries has received any written notice from any Governmental Authority of a dispute or claim with respect to a material amount of Taxes, other than disputes or claims that have since been resolved and, to the knowledge of the Company, no such claims have been threatened in writing.
(e) No written claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file a Tax Return that such entity is or may be subject to Tax in that jurisdiction in respect of Taxes that would be the subject of such Tax Return, which claim has not been resolved.
(f) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, material Taxes of the Company or any of its Subsidiaries (other than ordinary course extensions of time to file Tax Returns) and no written request for any such waiver or extension is currently pending.
(g) Neither the Company nor any of its Subsidiaries (or any predecessor thereof) has constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(h) Neither the Company nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(i) Except with respect to deferred revenue collected by the Company and its Subsidiaries in the ordinary course of business, neither the Company nor its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and made prior to the Closing; (ii) any “closing agreement” with respect to Taxes with a Governmental Authority executed on or prior to the Closing; (iii) installment sale or open transaction disposition made on or prior to the Closing; or (iv) prepaid amount received on or prior to the Closing.
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(j) There are no Liens with respect to Taxes on any of the assets of the Company or its Subsidiaries, other than Permitted Liens.
(k) Neither the Company nor any of its Subsidiaries has any material liability for the Taxes of any Person (other than the Company or its Subsidiaries) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), (ii) as a transferee or successor or (iii) by Contract or otherwise (except, in each case, for liabilities pursuant to commercial agreements not primarily relating to Taxes).
(l) Neither the Company nor any of its Subsidiaries is a party to, or bound by, or has any obligation to any Governmental Authority or other Person (other than the Company or its Subsidiaries) under any Tax allocation, Tax sharing, Tax indemnification or similar agreements (except, in each case, for any such agreements that are commercial agreements not primarily relating to Taxes).
(m) The Company has not been, is not, and immediately prior to the Effective Time will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(n) The Company has not taken any action, and is not aware of any fact or circumstance, that would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment.
(o) The Company has not 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.
(p) The Company is, and has been since its formation, treated as a corporation that is a tax resident of the United States for U.S. federal income tax purposes.
(q) Nothing in this Agreement, including this Section 5.15, shall be construed as providing a representation or warranty with respect to the existence, amount, expiration date or limitations on (or availability of) any net operating losses, Tax credits, Tax basis or other similar Tax attributes after the Closing Date.
For purposes of this Section 5.15, any reference to the Company or any of its Subsidiaries shall be deemed to include any Person that merged with or was liquidated or converted into the Company or any Subsidiary, if applicable. Other than Section 5.08 and Section 5.13, this Section 5.15 provides the sole and exclusive representations and warranties of the Company in respect of Tax matters.
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Section 5.16. Insurance. As of the date of this Agreement, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (a) all of the material policies of property, fire and casualty, liability, workers’ compensation, directors and officers and other forms of insurance (collectively, the “Policies”) held by, or for the benefit of, the Company or any of its Subsidiaries with respect to policy periods that include the date of this Agreement are in full force and effect, and (b) neither the Company nor any of its Subsidiaries has received a written notice of cancellation of any of the Policies or of any material changes that are required in the conduct of the business of the Company or any of its Subsidiaries as a condition to the continuation of coverage under, or renewal of, any of the Policies.
Section 5.17. Permits. Each of the Company and its Subsidiaries has all material licenses, approvals, consents, registrations, franchises and permits (the “Permits”) that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted (except with respect to licenses, approvals, consents, registrations and permits required under applicable Environmental Laws (as to which certain representations and warranties are made pursuant to Section 5.24)), except where the failure to obtain the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have obtained all of the Permits necessary under applicable Laws to permit the Company and its Subsidiaries to own, operate, use and maintain their assets in the manner in which they are now operated and maintained and to conduct the business and operations of the Company and its Subsidiaries as currently conducted, except where the failure to obtain the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The operation of the business of the Company and its Subsidiaries as currently conducted is not in violation of, nor is the Company or any of its Subsidiaries in default or violation under, any Permit, except where such violation or default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.18. Machinery, Equipment and Other Tangible Property. The Company or one of its Subsidiaries owns and has good title to all material equipment and other tangible property and assets reflected on the books of the Company and its Subsidiaries as owned by the Company or one of its Subsidiaries, free and clear of all Liens other than Permitted Liens, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.19. Real Property.
(a) There exists no Owned Real Property.
(b) Schedule 5.19 to the disclosure schedules of the Company contains a true, correct and complete list, as of the date of this Agreement, of all Leased Real Property including, the address of each Leased Real Property. As of the date hereof, the Leased Real Property identified on Schedule 5.19 to the disclosure schedules of the Company comprise all of the real property used or intended to be used in, or otherwise related to, the business of the Company and its Subsidiaries as it is currently conducted. Neither the Company nor any Subsidiary of the Company is party to any agreement or option to purchase or sell any Leased Real Property or interest therein
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(c) The Company has made available to SPAC true, correct and complete copies of the material Contracts (including all material modifications, amendments, guarantees, supplements, waivers and side letters thereto) pursuant to which the Company or any of its Subsidiaries occupy (or have been granted an option to occupy) the Leased Real Property or is otherwise a party with respect to the Leased Real Property (the “Leases”). The Company or one of its Subsidiaries has a valid and subsisting leasehold estate in, and enjoys peaceful and undisturbed possession of, all Leased Real Property, subject only to Permitted Liens. With respect to each Lease and except as would not constitute a Material Adverse Effect, (i) such Lease is valid, binding and enforceable and in full force and effect against the Company or one of its Subsidiaries and, to the Company’s knowledge, the other party thereto, subject to the Enforceability Exceptions, (ii) to the knowledge of the Company, each Lease has not been materially amended or modified except as reflected in the modifications, amendments, supplements, waivers and side letters made available to the SPAC, (iii) neither the Company nor one of its Subsidiaries has received or given any written notice of material default or material breach under any of the Leases and to the knowledge of the Company, neither the Company nor its Subsidiaries has received oral notice of any material default that has not been cured within the applicable cure period, (iv) as of the date of this Agreement, the Company has not received written notice from any Governmental Authority regarding intent to modify, suspend or revoke any Lease, and (v) there does not exist under any Lease any event or condition which, with notice or lapse of time or both, would become a material default by the Company or one of its Subsidiaries or, to the Company’s knowledge, the other party thereto.
(d) Neither the Company nor its Subsidiaries has a written sublease granting any Person the right to use or occupy Leased Real Property which is still in effect. Neither the Company nor its Subsidiaries has collaterally assigned or granted any other security interest in the Leased Real Property or any interest therein which is still in effect. Neither the Company nor any of its Subsidiaries is in material default or violation of, or not in compliance with, any legal requirements applicable to its occupancy of the Leased Real Property. To the knowledge of the Company, no construction or expansion is currently being performed or is planned for the year ending December 31, 2023 at any of the Leased Real Properties that is expected to result in liability to the Company or any of its Subsidiaries in excess of $500,000 in such calendar year.
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Section 5.20. Intellectual Property and Data Security.
(a) Schedule 5.20(a) to the disclosure schedules of the Company lists all Owned Intellectual Property for which applications have been filed or registrations have been obtained, or which has otherwise been issued, in each case, whether in the United States or internationally (“Registered Intellectual Property”) and (ii) each material unregistered Trademark. Each item of Registered Intellectual Property is subsisting and, to the knowledge of the Company, all issuances and registrations included therein are valid and enforceable. All necessary registration, maintenance, renewal, and other relevant fees due through the Closing Date have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant authorities (including domain name registrars) in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining the Registered Intellectual Property in full force and effect. The Company or one of its Subsidiaries (i) solely and exclusively owns all Owned Intellectual Property and (ii) has (and will continue to have following the Closing) the right to use pursuant to a valid written license, sublicense, agreement or permission, all other material Intellectual Property used in the operation of the business of the Company and its Subsidiaries, as currently conducted (“Licensed Intellectual Property”). The Company Intellectual Property (in the case of Licensed Intellectual Property, when used within the scope of the applicable license), constitutes all of the Intellectual Property necessary and sufficient to enable the Company and its Subsidiaries to conduct the business as currently conducted. None of the material Owned Intellectual Property or, to the knowledge of the Company, any other material Intellectual Property exclusively licensed to the Company or any of its Subsidiaries, is subject to any pending or outstanding injunction, directive, order, judgment or other disposition of a dispute that adversely restricts the use, transfer, registration, or licensing of, or adversely affects the validity or enforceability of any such Intellectual Property.
(b) Except as would not reasonably be expected to have a Material Adverse Effect, the conduct and operation of the business of the Company and its Subsidiaries are not infringing upon, misappropriating or otherwise violating any Intellectual Property rights of any Person, and have not infringed upon, misappropriated or otherwise violated any Intellectual Property rights of any Person. To the knowledge of the Company, no third party is infringing upon, misappropriating or otherwise violating or, since January 1, 2022, has infringed upon, misappropriated, or otherwise violated any Owned Intellectual Property. As of the date of this Agreement, no claims alleging or involving any of the foregoing have been made against any Person by the Company or any of its Subsidiaries. As of the date of this Agreement and except as would not reasonably be expected to have a Material Adverse Effect, the Company and its Subsidiaries (i) are not the subject of any pending or, to the knowledge of the Company, threatened Actions and (ii) have not received from any Person at any time after January 1, 2022 any written notice (A) alleging that the Company or any of its Subsidiaries is infringing upon, misappropriating or otherwise violating or has infringed upon, misappropriated, or otherwise violated, any Intellectual Property rights of any Person or (B) challenging the ownership, use, validity or enforceability of any Owned Intellectual Property and, to the knowledge of the Company, there are no facts or circumstances that would form the reasonable basis for any such claim or challenge.
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(c) Except as would not reasonably be expected to have a Material Adverse Effect, (i) the Company and its Subsidiaries take, and have taken, commercially reasonable actions and measures to protect and maintain: (A) the sole ownership, confidentiality and value of their material Owned Intellectual Property (including through valid and enforceable copies of the Company’s form Invention and Non-Disclosure Agreement (a complete and correct copy of which has been made available to SPAC) executed by each of the Company’s and its Subsidiaries’ respective former and current employees and form Contracting Agreement executed by their consultants and independent contractors, (x) in each case who are or were engaged in creating or developing Owned Intellectual Property for the Company or its Subsidiaries, pursuant to which such Person presently assigned to the Company or its Subsidiaries all of such Person’s rights, title and interest in and to all Intellectual Property created or developed for the Company or its Subsidiaries in the course of such Person’s employment or retention thereby and (y) pursuant to which such Person has agreed to hold all Trade Secrets of or held by the Company and its Subsidiaries disclosed to such Person in confidence both during and after such Person’s employment or retention thereby ((x) and (y) collectively, the “Personnel IP Agreements”)) and (B) the security, confidentiality, value, operation and integrity of their IT Systems and Software (and all data stored therein or transmitted thereby); (ii) to the knowledge of the Company, no former or current employee, consultant, or independent contractor is in breach of any Personnel IP Agreement; (iii) no Trade Secret of the Company or any of its Subsidiaries has been authorized to be disclosed or has been actually disclosed by the Company or any of its Subsidiaries to any Person other than pursuant to a valid written non-disclosure agreement adequately restricting the disclosure and use of such Intellectual Property; (iv) no Software owned by the Company or any of its Subsidiaries incorporates or uses any “open source” or similar Software in a manner that (1) requires the contribution, licensing or disclosure to any third party of any portion of the Company’s proprietary source code or, to the knowledge of the Company, any source code which is otherwise developed, licensed, distributed, used or otherwise exploited by or for the Company or any of its Subsidiaries; or (2) would otherwise diminish, require the grant of a license under, or transfer the rights of ownership in any Owned Intellectual Property; (v) except for employees, consultants and other independent contractors engaged by the Company or any of its Subsidiaries in the ordinary course of business under written confidentiality agreements or other written agreements that include confidentiality provisions, no other Person has any right to access, possess, or have disclosed or, to the knowledge of the Company, actually possesses any source code owned by the Company or its Subsidiaries; (vi) neither the Company nor any of its Subsidiaries is a party to (or is obligated to enter into) any source code escrow Contract or any other Contract requiring the deposit of any source code or related materials for any Software; and (vii) the Company and each of its Subsidiaries have complied and are in compliance with all terms and conditions of all relevant licenses for “open source” or similar Software used in the operation of the business of the Company and its Subsidiaries.
(d) Except as would not reasonably be expected to have a Material Adverse Effect, (i) the Company or one of its Subsidiaries owns or has a valid right to access and use pursuant to a written agreement all IT Systems used in connection with their business as currently conducted; (ii) the Company and each of its Subsidiaries has implemented and maintained adequate back-up and disaster recovery arrangements for the continued operation of their businesses in the event of a failure of its IT Systems that are in accordance with standard industry practice; (iii) to the knowledge of the Company, the Company’s Software is free of any malicious or disabling Software including viruses, worms and trojan horses, which may be used to gain unauthorized access to or without authorization, alter, delete, destroy or disable any of its or any third party’s IT Systems or Software or which may in other ways cause material damage to or abuse such IT Systems or Software (“Malware”); and (iv) the Company and each of its Subsidiaries have taken commercially reasonable efforts to ensure that its Software is free from such Malware.
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(e) No funding, facilities, or personnel of any Governmental Authority or any university, college, research institute or other educational institution has been or is being used to create any material Owned Intellectual Property, where, as a result, such Governmental Authority, university, college, research institute or other educational institution has any rights, title or interest in or to such Intellectual Property.
(f) Except as would not reasonably be expected to have a Material Adverse Effect, (i) the Company and, to the knowledge of the Company, any Person acting for or on the Company’s behalf have, since January 1, 2022 through and including the date of this Agreement, at all times complied with (A) all applicable Privacy Laws, (B) all of the Company’s written policies and notices regarding Personal Information, and (C) all of the Company’s contractual obligations with respect to Personal Information; (ii) since January 1, 2020, the Company has implemented and maintained policies, procedures and systems for receiving and responding to requests from individuals concerning their Personal Information that the Company reasonably considered to be adequate; (iii) the Company has implemented and maintained reasonable and appropriate administrative, technical and organizational safeguards, consistent in all respects with practices in the industry in which the Company operates, to protect Personal Information and other confidential data in its possession or under its control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure and the Company has taken reasonable steps to ensure that any third party with access to Personal Information collected by or on behalf of the Company has implemented and maintained the same; (iv) to the knowledge of the Company, any third party who has provided Personal Information to the Company has done so in compliance in all respects with applicable Privacy Laws, including providing any notice and obtaining any consent required.
(g) Other than those the result of which did not, individual or in the aggregate, result in material liability to the Company and its Subsidiaries, taken as whole, (i) there have been no breaches, security incidents, misuse of or unauthorized access to or disclosure of any Personal Information in the possession or control of the Company or Processed by or on behalf of the Company and (ii) the Company has not provided or been legally required to provide any notices to any Person in connection with a disclosure of Personal Information. The Company has not received any written notice of any claims of or investigations or inquiries related to, or been charged with, the violation of any Privacy Laws, applicable privacy policies, or contractual commitments with respect to the Processing of any Personal Information, and to the knowledge of the Company, there are no facts or circumstances that would reasonably form the basis of any such notice or claim. Except as would not reasonably be expected to have a Material Adverse Effect, the Company has conducted commercially reasonable privacy and security reviews at reasonable and appropriate intervals and has resolved or remediated any privacy or data security plans, and taken actions consistent with such plans, to the extent required, to safeguard all Personal Information in its possession or under its control.
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(h) Except as would not reasonably be expected to have a Material Adverse Effect, the Company is not subject to any contractual requirement or other legal obligation that, following and because of the Closing, would prohibit the Company from Processing any Personal Information in the manner in which the Company Processed such Personal Information prior to the Closing. Except as would not reasonably be expected to have a Material Adverse Effect, the transactions contemplated by this Agreement will not violate any Privacy Laws, applicable privacy policies, or contractual commitments with respect to the Processing of any Personal Information as they currently exist or as they existed at any time during which any of the Personal Information was collected or obtained.
Section 5.21. U.S. Nuclear Regulatory Matters. Except as would not constitute a Material Adverse Effect:
(a) Neither the Company nor its Subsidiaries currently holds or requires any license for the possession or use of nuclear materials in order to conduct its current business activities (whether “source material”, “special nuclear material” or “byproduct material”, as these terms are defined by applicable Nuclear Laws) or possesses a license from the NRC for the construction, operation or decommissioning of any facility which would require a license or other prior consent from the NRC.
(b) Neither the Company nor its Subsidiaries has operated or currently operates any “utilization facility” or “production facility,” as those terms are defined by applicable Nuclear Laws and the regulations of the NRC, whether or not owned, in whole or part, by the Company or one of its Subsidiaries.
(c) The Company and each of its Subsidiaries is in compliance with all applicable Laws relating to the design, licensing, construction and operation of a “utilization facility” and a “production facility,” as those terms are defined by applicable Nuclear Laws and the regulations of the NRC. Neither the Company nor its Subsidiaries is subject to any Law that prevents or materially inhibits the Company’s or any of its Subsidiaries’ ability to design, license or fabricate systems, structures or components for, or construct, any such facilities, subject to the necessary approvals from an applicable Governmental Authority. Neither the Company nor any of its Subsidiaries requires prior approval from the NRC to execute, deliver or perform this Agreement and the Transaction Agreements to which it is a party, and the consummation by it of the Transactions, shall not cause the Company or its Subsidiaries to become subject to any Law that prevents or materially inhibits the Company’s or any of its Subsidiaries’ ability to design, license or fabricate systems, structures or components for, or construct, any such facilities subject to the necessary approvals from an applicable Governmental Authority.
Other than Section 5.04, Section 5.05, Section 5.09, Section 5.11 and this Section 5.21, without limitation by Section 5.24, provides the sole and exclusive representations and warranties of the Company in respect of nuclear energy matters, including any and all matters arising under Nuclear Laws.
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Section 5.22. Anti-Bribery, Anti-Corruption, and Anti-Money Laundering. Neither the Company nor any of its Subsidiaries, nor any of their respective directors, officers, employees, agents, or any other Person acting for or on behalf of the Company or any of its Subsidiaries has, directly or indirectly, (a) made, offered, or promised to make or offer any payment, loan, or transfer of anything of value, including any reward, advantage, or benefit of any kind, to or for the benefit of any Government Official, candidate for public office, political party, or political campaign, for the purpose of (i) influencing any act or decision of such Government Official, candidate, party or campaign, (ii) inducing such Government Official, candidate, party or campaign to do or omit to do any act in violation of a lawful duty, (iii) obtaining or retaining business for or with any Person, (iv) expediting or securing the performance of official acts of a routine nature, or (v) otherwise securing any improper advantage; (b) paid, offered, or promised to pay or offer any bribe, payoff, influence payment, kickback, unlawful rebate, or other similar unlawful payment of any nature; (c) made, offered or promised to make or offer any unlawful contributions, gifts, entertainment, or other unlawful expenditures; (d) established or maintained any unlawful fund of corporate monies or other properties; (e) created or caused the creation of any false or inaccurate books and records of the Company or any of its Subsidiaries; or (f) otherwise violated any provision of the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq., the Money Laundering Control Act, the Currency and Foreign Transactions Reporting Act, The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or any other Laws relating to corruption, bribery, or money laundering. Within the past five years, neither the Company nor any of its Subsidiaries has made any voluntary disclosure to any Governmental Authority relating to corruption, bribery, or money laundering Laws; been the subject of any investigation or inquiry regarding compliance with such Laws; or been assessed any fine or penalty under such Laws.
Section 5.23. Sanctions, Import, and Export Controls. Neither the Company nor any of its Subsidiaries, nor any of their respective directors, officers, employees, agents, or any other Person acting for or on behalf of the Company or any of its Subsidiaries (a) is a Person with whom transactions are prohibited or limited under any economic sanctions laws, rules, or regulations, including those administered by the U.S. government (including, without limitation, the Department of the Treasury’s Office of Foreign Assets Control, the Department of State, the Department of Energy National Nuclear Security Administration, or the Department of Commerce), the United Nations Security Council, the European Union, or His Majesty’s Treasury, or (b) has violated any Laws relating to economic sanctions within the last five years. For the avoidance of doubt, the foregoing clause (b) does not apply to requirements under applicable U.S. export control regulations for the Company or any of its Subsidiaries to obtain export licenses and authorizations to transfer goods, software or technology outside of the United States or to foreign nationals within the United States. The Company and its Subsidiaries are and for the past five years has been in possession of and in compliance with any and all authorizations, consents, licenses, registrations, and permits that may be required for their lawful conduct under economic sanctions, import, and export control Laws, including without limitation the Export Administration Regulations. Within the past five years, neither the Company nor any of its Subsidiaries has made any voluntary disclosure to any Governmental Authority relating to sanctions, import, or export control Laws; been the subject of any investigation or inquiry regarding compliance with such Laws; or been assessed any fine or penalty under such Laws.
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Section 5.24. Environmental Matters. Except as would not constitute a Material Adverse Effect:
(a) the Company and its Subsidiaries are, and since January 1, 2022 have been, in material compliance with all applicable Environmental Laws;
(b) the Company and its Subsidiaries are not, and since January 1, 2022, have not been, required to obtain, maintain or comply with any Permit required under applicable Environmental Laws; and
(c) there are no written claims or notices of violation pending against or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries alleging any violations of or liability under any Environmental Law or any violations or liability concerning any Hazardous Materials, nor to the knowledge of the Company, is there any basis for any such claims or notices.
Other than Section 5.04, Section 5.05, Section 5.09, Section 5.11 and Section 5.21, this Section 5.24 provides the sole and exclusive representations and warranties of the Company in respect of environmental matters, including any and all matters arising under Environmental Laws.
Section 5.25. Absence of Changes.
(a) Since the date of the Most Recent Balance Sheet to the date of this Agreement, no Material Adverse Effect has occurred.
(b) Since the date of the Most Recent Balance Sheet to the date of this Agreement, except (i) as set forth on Schedule 5.25(b) to the disclosure schedules of the Company, (ii) in connection with the transactions contemplated by this Agreement and any other Transaction Agreement, through and including the date of this Agreement, the Company and its Subsidiaries have carried on their respective businesses and operated their properties in all material respects in the ordinary course of business.
Section 5.26. Brokers’ Fees. Other than Guggenheim Securities, LLC, no broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other similar fee, commission or other similar payment in connection with the Transactions based upon arrangements made by the Company, any of its Subsidiaries or any of their Affiliates.
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Section 5.27. Related Party Transactions. Except for the Contracts set forth on Schedule 5.27 to the disclosure schedules of the Company, there are no Contracts between the Company or any of its Subsidiaries, on the one hand, and any Affiliate, officer or director of the Company or, to the Company’s knowledge, any Affiliate of any of them, on the other hand, except in each case, for (a) employment agreements, fringe benefits and other compensation paid to directors, officers and employees consistent with previously established policies, (b) reimbursements of expenses incurred in connection with their employment or service (excluding from clause (a) and this clause (b) any loans made by the Company or its Subsidiaries to any officer, director, employee, member or stockholder and all related arrangements, including any pledge arrangements), (c) the Company Stockholder Agreements, (d) Contracts pursuant to which any such Affiliate, officer or director of the Company has purchased equity of the Company, and (e) amounts paid pursuant to Company Benefit Plans. For clarity, no disclosure will be required under this Section 5.27 as to (i) portfolio companies of any venture capital, private equity or angel investor in the Company or (ii) any publicly traded company.
Section 5.28. Registration Statement and Proxy Statement. None of the information relating to the Company or its Subsidiaries supplied or to be supplied by the Company, or by any other Person acting on behalf of the Company, in writing specifically for inclusion in the Registration Statement or Proxy Statement will, as of the date the Proxy Statement (or any amendment or supplement thereto) is first mailed to the SPAC Stockholders, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Article 6
Representations and Warranties of SPAC Parties
Except as set forth in the Schedules to this Agreement dated as of the date of this Agreement (each of which qualifies (a) the correspondingly numbered representation, warranty or covenant if specified therein and (b) such other representations, warranties or covenants where its relevance as an exception to (or disclosure for purposes of) such other representation, warranty or covenant is reasonably apparent) or in the SEC Reports filed or furnished by SPAC prior to the date of this Agreement (excluding (x) any disclosures in such SEC Reports under the headings “Risk Factors,” “Forward-Looking Statements” or “Qualitative Disclosures About Market Risk” and other disclosures that are predictive, cautionary or forward looking in nature and (y) any exhibits or other documents appended thereto) (it being acknowledged that nothing disclosed in such a SEC Report will be deemed to modify or qualify the representations and warranties set forth in Section 6.05 (Litigation and Proceedings); Section 6.07 (Financial Ability; Trust Account); Section 6.11 (Tax Matters); and Section 6.13 (Capitalization)), each SPAC Party represents and warrants to the Company as follows:
Section 6.01. Corporate Organization. Each of SPAC and Merger Sub is duly incorporated and is validly existing as a corporation, in good standing under the Laws of Delaware and has the requisite power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted. The copies of the organizational documents of each of the SPAC Parties previously delivered by SPAC to the Company are true, correct and complete and are in effect as of the date of this Agreement. Each of the SPAC Parties is, and at all times has been, in compliance in all material respects with all restrictions, covenants, terms and provisions set forth in its respective organizational documents. Each of the SPAC Parties is duly licensed or qualified and in good standing as a foreign corporation in all jurisdictions in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified, except where failure to be so licensed or qualified has not and would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the SPAC Parties to enter into this Agreement or consummate the Transactions.
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Section 6.02. Due Authorization.
(a) Each of the SPAC Parties has all requisite corporate power and authority to execute and deliver this Agreement and each Transaction Agreement to which it is a party and, upon receipt of approval of the SPAC Stockholder Matters by the SPAC Stockholders, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement and such Transaction Agreements and the consummation of the Transactions have been duly, validly and unanimously (of those voting) authorized and approved by the board of directors of the applicable SPAC Party and, except for approval of the SPAC Stockholder Matters by the SPAC Stockholders, no other corporate proceeding on the part of any SPAC Party is necessary to authorize this Agreement or such Transaction Agreements or any SPAC Party’s performance hereunder or thereunder. By SPAC’s execution and delivery hereof, it has provided all approvals on behalf of equityholders of Merger Sub required for the Transactions. This Agreement has been, and each such Transaction Agreement to which such SPAC Party will be party, duly and validly executed and delivered by such SPAC Party and, assuming due authorization and execution by each other Party hereto and thereto, this Agreement constitutes, and each such Transaction Agreement to which such SPAC Party will be party, will constitute a legal, valid and binding obligation of such SPAC Party, enforceable against each SPAC Party in accordance with its terms, subject to the Enforceability Exceptions.
(b) Assuming a quorum is present at the Special Meeting, as adjourned or postponed, the only votes of any of SPAC’s capital stock necessary in connection with the entry into this Agreement by SPAC, the consummation of the Transactions, including the Closing, and the approval of the SPAC Stockholder Matters are as set forth on Schedule 6.02(b) to the disclosure schedules of SPAC.
(c) At a meeting duly called and held, the board of directors of SPAC has unanimously (of those voting): (i) determined that this Agreement and the Transactions are fair to and in the best interests of SPAC’s stockholders; (ii) determined that the fair market value of the Company is equal to at least 80% of the amount held in the Trust Account (net of amounts disbursed as Permitted Withdrawals (as defined in the Existing SPAC Certificate of Incorporation) and excluding the amount of any deferred underwriting discount) as of the date hereof; (iii) approved the transactions contemplated by this Agreement as a Business Combination; and (iv) resolved to recommend to the stockholders of SPAC approval of the Transactions.
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(d) The board of directors of Merger Sub, by resolutions duly adopted by written consent and not subsequently rescinded or modified in any way, has unanimously: (i) determined that this Agreement and the Transactions are fair to and in the best interests of Merger Sub’s sole stockholder; (ii) approved the transactions contemplated by this Agreement; and (4) resolved to recommend to the sole stockholder of Merger Sub approval of the Transactions.
(e) To the knowledge of SPAC, the execution, delivery and performance of any Transaction Agreement by any party thereto, other than any SPAC Party or the Company and any of its Affiliates, do not and will not conflict with or result in any violation of any provision of any applicable Law or Governmental Order applicable to such party or any of such party’s properties or assets.
Section 6.03. No Conflict. The execution, delivery and performance of this Agreement and any Transaction Agreement to which any SPAC Party is a party by such SPAC Party and, upon receipt of approval of the SPAC Stockholder Matters by the SPAC Stockholders, the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of the SPAC Organizational Documents or any organizational documents of any Subsidiaries of SPAC, (b) conflict with or result in any violation of any provision of any Law or Governmental Order applicable to SPAC, any Subsidiaries of SPAC or any of their respective properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, or result in the acceleration or trigger of any payment, posting of collateral (or right to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to, any of the terms, conditions or provisions of any Contract to which SPAC or any Subsidiaries of SPAC is a party or by which any of their respective assets or properties may be bound or affected, or (d) result in the creation of any Lien upon any of the properties or assets of SPAC or any Subsidiaries of SPAC, except (in the case of clauses (b), (c) or (d) above) for such violations, conflicts, breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a SPAC Material Adverse Effect.
Section 6.04. Compliance With Laws. The SPAC Parties are and have been in material compliance with all applicable Laws and Governmental Orders. From July 7, 2021 through the date of this Agreement, neither of the SPAC Parties has received any written notice of any material violations of applicable Laws, Governmental Orders or Permits, and to the knowledge of the SPAC Parties, no charge, claim, assertion or Action of any material violation of any Law, Governmental Order or material Permit by the SPAC Parties is currently threatened against the SPAC Parties. To the knowledge of the SPAC Parties, as of the date of this Agreement (1) no material investigation or review by any Governmental Authority with respect to the SPAC Parties is pending or threatened, and (2) no such investigations have been conducted by any Governmental Authority since July 7, 2021, other than those the outcome of which did not, individually or in the aggregate, result in material liability to the SPAC Parties, taken as a whole.
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Section 6.05. Litigation and Proceedings. As of the date of this Agreement, there are no pending or, to the knowledge of SPAC, threatened, Actions and, to the knowledge of SPAC, there are no pending or threatened investigations, in each case, against any SPAC Party, or otherwise affecting any SPAC Party or their respective assets, including any condemnation or similar proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have a SPAC Material Adverse Effect. As of the date of this Agreement, there is no unsatisfied judgment or any open injunction binding upon any SPAC Party which would, individually or in the aggregate, reasonably be expected to have a SPAC Material Adverse Effect.
Section 6.06. Governmental Authorities; Consents. No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of any SPAC Party with respect to the execution or delivery of this Agreement by each SPAC Party or any Transaction Agreement to which any of the SPAC Parties is a party, as applicable, or the consummation of the Transactions, except for applicable requirements of the HSR Act, Securities Laws, the Stock Exchange and the filing of the Certificate of Merger in accordance with the DGCL.
Section 6.07. Financial Ability; Trust Account.
(a) As of the date hereof, there is at least $510,000,000 invested in a trust account (the “Trust Account”), maintained by Continental Stock Transfer & Trust Company, a New York limited purpose trust company, acting as trustee (the “Trustee”), pursuant to the Investment Management Trust Agreement, dated July 7, 2021, by and between SPAC and the Trustee on file with the SEC Reports of SPAC as of the date of this Agreement (the “Trust Agreement”). Prior to the Closing, none of the funds held in the Trust Account may be released except in accordance with the Trust Agreement, SPAC Organizational Documents and SPAC’s final prospectus filed with the SEC on July 9, 2021. Amounts in the Trust Account are invested in United States Government securities, cash (including demand deposit accounts) or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended. SPAC has performed all material obligations required to be performed by it to date under, and is not in material default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. As of the date hereof, there are no claims or proceedings pending with respect to the Trust Account. Since July 7, 2021, SPAC has not released any money from the Trust Account (other than interest income earned on the principal held in the Trust Account as permitted by the Trust Agreement). As of the Effective Time, the obligations of SPAC to dissolve or liquidate pursuant to the SPAC Organizational Documents shall terminate, and, as of the Effective Time, SPAC shall have no obligation whatsoever pursuant to the SPAC Organizational Documents to dissolve and liquidate the assets of SPAC by reason of the consummation of the Transactions. To SPAC’s knowledge, as of the date hereof, following the Effective Time, no stockholder of SPAC shall be entitled to receive any amount from the Trust Account except to the extent such stockholder shall have elected to tender its shares of SPAC Class A Common Stock for redemption pursuant to the SPAC Stockholder Redemption. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of SPAC and, to the knowledge of SPAC, the Trustee, enforceable in accordance with its terms, subject to the Enforceability Exceptions. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified, in any respect, and, to the knowledge of SPAC, no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no side letters and there are no Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (i) cause the description of the Trust Agreement in the SEC Reports to be inaccurate or (ii) entitle any Person (other than stockholders of SPAC who shall have elected to redeem their shares of SPAC Class A Common Stock pursuant to the SPAC Stockholder Redemption or the underwriters of SPAC’s initial public offering in respect of their Deferred Discount (as defined in the Trust Agreement)) to any portion of the proceeds in the Trust Account.
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(b) As of the date of this Agreement, assuming the accuracy of the representations and warranties of the Company contained herein and the compliance by the Company with its respective obligations hereunder, SPAC has no reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to SPAC on the Closing Date.
(c) As of the date of this Agreement, SPAC does not have, or have any present intention, agreement, arrangement or understanding to enter into or incur, any obligations with respect to or under any Indebtedness.
Section 6.08. Brokers’ Fees. Except for the fees described on Schedule 6.08 to the disclosure schedules of SPAC (including the amounts owed with respect thereto), no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee, underwriting fee, deferred underwriting fee, commission or other similar payment in connection with the transactions contemplated by this Agreement based upon arrangements made by SPAC or any of its Affiliates, including Sponsor.
Section 6.09. SEC Reports; Financial Statements; Sarbanes-Oxley Act; Undisclosed Liabilities.
(a) SPAC has filed or furnished in a timely manner all required registration statements, reports, schedules, forms, statements and other documents required to be filed or furnished by it with the SEC since July 7, 2021 (collectively, as they have been supplemented, amended or modified since the time of their filing and including all exhibits and schedules thereto and other information incorporated therein, the “SEC Reports”). Each of the SEC Reports, as of their respective dates of filing (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), complied in all material respects with the applicable requirements of applicable Securities Laws. None of the SEC Reports, as of their respective dates (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The audited financial statements and unaudited interim financial statements (including, in each case, the notes and schedules thereto) included in the SEC Reports complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto and except with respect to unaudited statements as permitted by Form 10-Q of the SEC) and fairly present (subject, in the case of the unaudited interim financial statements included therein, to normal year-end adjustments and the absence of complete footnotes) in all material respects the financial position of SPAC as of the respective dates thereof and the results of their operations and cash flows for the respective periods then ended. No SPAC Party has any material off-balance sheet arrangements that are not disclosed in the SEC Reports.
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(b) SPAC has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to SPAC is made known to SPAC’s principal executive officer and its principal financial officer, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared. To SPAC’s knowledge, such disclosure controls and procedures are effective in timely alerting SPAC’s principal executive officer and principal financial officer to material information required to be included in SPAC’s periodic reports required under the Exchange Act.
(c) SPAC has established and maintained a system of internal controls. To SPAC’s knowledge, such internal controls are sufficient to provide reasonable assurance regarding the reliability of SPAC’s financial reporting and the preparation of SPAC’s financial statements for external purposes in accordance with GAAP.
(d) 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. SPAC has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(e) Except as described in the SEC Reports, since December 31, 2021, neither SPAC (including any employee thereof) nor SPAC’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by SPAC, (ii) any fraud, whether or not material, that involves SPAC’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by SPAC or (iii) any claim or allegation regarding any of the foregoing.
(f) To the knowledge of SPAC, as of the date of this Agreement, there are no outstanding SEC comments from the SEC with respect to the SEC Reports. To the knowledge of SPAC, none of the SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.
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Section 6.10. Business Activities.
(a) Since its incorporation, SPAC has not conducted any business activities other than activities directed toward the accomplishment of a Business Combination. Except as set forth in the SPAC Organizational Documents, there is no agreement, commitment, or Governmental Order binding upon SPAC or to which SPAC is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of SPAC or any acquisition of property by SPAC or the conduct of business by SPAC as currently conducted or as contemplated to be conducted as of the Closing other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected to have a SPAC Material Adverse Effect of the type described in clause (i) of the definition thereof. Merger Sub was formed solely for the purpose of engaging in the Transactions, has not conducted any business prior to the date hereof and has no assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and any Transaction Agreement to which it is a party, as applicable, and the Transactions, as applicable.
(b) SPAC does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. Except for this Agreement and the Transactions, neither SPAC nor any of its Subsidiaries has any interests, rights, obligations or liabilities with respect to, or is party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or would reasonably be interpreted as constituting, a Business Combination.
(c) Except for this Agreement and the agreements expressly contemplated hereby (including any agreements permitted by Section 8.03) or as set forth on Schedule 6.10(c) to the disclosure schedules of SPAC, no SPAC Party is, and at no time has been, party to any Contract with any other Person that would require payments by any SPAC Party in excess of $30,000 monthly, $500,000 in the aggregate with respect to any individual Contract or more than $1,000,000 in the aggregate when taken together with all other Contracts (other than this Agreement and the agreements expressly contemplated hereby (including any agreements permitted by Section 8.03) and Contracts set forth on Schedule 6.10(c) to the disclosure schedules of SPAC).
(d) There is no liability, debt or obligation against SPAC or its Subsidiaries, except for liabilities and obligations (i) reflected or reserved for on SPAC’s consolidated balance sheet as of March 31, 2023 or disclosed in the notes thereto (other than any such liabilities not reflected, reserved or disclosed as are not and would not be, in the aggregate, material to SPAC and its Subsidiaries, taken as a whole), (ii) that have arisen since the date of SPAC’s consolidated balance sheet as of March 31, 2023 in the ordinary course of the operation of business of SPAC and its Subsidiaries (other than any such liabilities as are not and would not be, in the aggregate, material to SPAC and its Subsidiaries, taken as a whole), (iii) disclosed in the Schedules or (iv) incurred in connection with or contemplated by this Agreement and/or the Transactions.
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Section 6.11. Tax Matters. Except as would not reasonably be expected to have a SPAC Material Adverse Effect:
(a) All material Tax Returns required by Law to be filed by SPAC (taking into account any applicable extensions) have been filed, and all such Tax Returns are true, correct and complete in all material respects.
(b) All material amounts of Taxes due and owing by SPAC have been paid, other than Taxes described in clause (iii) of the definition of Permitted Liens.
(c) SPAC (i) has withheld and deducted all material amounts of Taxes required to have been withheld or deducted by it in connection with amounts paid or owed to any employee, independent contractor, creditor, stockholder or any other third party, (ii) to the extent required, has remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Authority and (iii) has complied in all material respects with applicable Law with respect to Tax withholding, including all reporting and record keeping requirements in writing.
(d) SPAC has not engaged in any material audit, administrative proceeding or judicial proceeding with respect to Taxes. SPAC has not received any written notice from any Governmental Authority of a dispute or claim with respect to a material amount of Taxes, other than disputes or claims that have since been resolved and, to the knowledge of SPAC, no such claims have been threatened.
(e) No written claim has been made and by any Governmental Authority in a jurisdiction where SPAC does not file a Tax Return that SPAC is or may be subject to Tax in that jurisdiction in respect of Taxes that would be the subject of such Tax Return, which claim has not been resolved.
(f) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, material Taxes of SPAC (other than ordinary course extensions of time to file Tax Returns) and no written request for any such waiver or extension is currently pending.
(g) Neither SPAC nor any predecessor thereof has constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(h) SPAC has not been a party to any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(i) There are no Liens with respect to Taxes on any of the assets of SPAC, other than Permitted Liens.
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(j) SPAC does not have material liability for the Taxes of any Person (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), (ii) as a transferee or successor or (iii) by Contract or otherwise (except, in each case, for liabilities pursuant to commercial agreements not primarily relating to Taxes).
(k) SPAC is not a party to, or bound by, or has any obligation to any Governmental Authority or other Person under any Tax allocation, Tax sharing, Tax indemnification or similar agreement (except, in each case, for any such agreements that are commercial agreements not primarily relating to Taxes).
(l) Except with respect to deferred revenue collected by the SPAC in the ordinary course of business, the SPAC will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and made prior to the Closing; (ii) any “closing agreement” with respect to Taxes with a Governmental Authority executed on or prior to the Closing; (iii) installment sale or open transaction disposition made on or prior to the Closing; or (iv) prepaid amount received on or prior to the Closing.
(m) SPAC has not taken any action, and is not aware of any fact or circumstance, that would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment.
(n) All of the equity interests in Merger Sub are owned by SPAC, and Merger Sub is, and has been since formation, a corporation for U.S. federal income tax purposes. Merger Sub was newly formed solely to effect the Merger and it will not conduct any business activities or other operations of any kind (other than administrative or ministerial activities) prior to the Merger.
(o) SPAC has not 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.
Section 6.12. Employees. Other than any officers as described in the SEC Reports, the SPAC Parties have no employees on their payroll, and have not retained any contractors, other than professional consultants and professional advisors. Other than reimbursement of any out-of-pocket expenses incurred by SPAC’s officers and directors in connection with activities on SPAC’s behalf in an aggregate amount not in excess of the amount of cash held by SPAC outside of the Trust Account, SPAC has no unsatisfied material liability with respect to any officer or director. The SPAC Parties have never and do not currently maintain, sponsor, or contribute to any employee benefit plan.
Section 6.13. Capitalization.
(a) The authorized capital stock of SPAC consists of 601,000,000 shares of capital stock, including (i) 500,000,000 shares of SPAC Class A Common Stock, (ii) 100,000,000 shares of SPAC Class B Common Stock and (iii) 1,000,000 shares of SPAC Preferred Stock of which (A) 51,450,000 shares of SPAC Class A Common Stock are issued and outstanding as of the date of this Agreement, (B) 12,500,000 shares of SPAC Class B Common Stock are issued and outstanding as of the date of this Agreement and (C) no shares of SPAC Preferred Stock are issued and outstanding as of the date of this Agreement. All of the issued and outstanding shares of SPAC Common Stock (1) have been duly authorized and validly issued and are fully paid and nonassessable, (2) were issued in compliance in all material respects with applicable Law, (3) were not issued in breach or violation of any preemptive rights or Contract and (4) are fully vested and not otherwise subject to a substantial risk of forfeiture within the meaning of Section 83 of the Code, except as disclosed in the SEC Reports with respect to certain SPAC Common Stock held by Sponsor.
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(b) Upon the completion of the Merger, the authorized capital stock of SPAC will consist of 501,000,000 shares of capital stock, including (i) 500,000,000 shares of SPAC Class A Common Stock, and (ii) 1,000,000 shares of SPAC Preferred Stock of which SPAC has committed to issue up to 12,500,000 shares of SPAC Class A Common Stock upon the conversion of SPAC’s Class B Common Stock in accordance with the Sponsor Letter Agreement.
(c) Except for this Agreement, as of the date hereof, there are (i) no subscriptions, calls, options, warrants, rights or other securities convertible into or exchangeable or exercisable for shares of SPAC Common Stock or the equity interests of SPAC, or any other Contracts to which SPAC is a party or by which SPAC is bound obligating SPAC to issue or sell any shares of capital stock of, other equity interests in or debt securities of, SPAC, and (ii) no equity equivalents, stock appreciation rights, phantom stock ownership interests or similar rights in SPAC. Except as disclosed in the SEC Reports, the SPAC Organizational Documents or in the Sponsor Agreement, there are no outstanding contractual obligations of SPAC to repurchase, redeem or otherwise acquire any securities or equity interests of SPAC. There are no outstanding bonds, debentures, notes or other Indebtedness of SPAC having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the SPAC Stockholders may vote. Except as disclosed in the SEC Reports, SPAC is not a party to any stockholders agreement, voting agreement or registration rights agreement relating to SPAC Common Stock or any other equity interests of SPAC. SPAC does not own any capital stock or any other equity interests in any other Person or has any right, option, warrant, conversion right, stock appreciation right, redemption right, repurchase right, agreement, arrangement or commitment of any character under which a Person is or may become obligated to issue or sell, or give any right to subscribe for or acquire, or in any way dispose of, any shares of the capital stock or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any shares of the capital stock or other equity interests, of such Person.
(d) No Person and no syndicate or “group” (as defined in the Exchange Act and the rules thereunder) of a Person owns directly or indirectly beneficial ownership (as defined in the Exchange Act and the rules thereunder) of securities of SPAC representing 35% or more of the combined voting power of the issued and outstanding securities of SPAC.
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Section 6.14. NYSE Stock Market Listing. The issued and outstanding shares of SPAC Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE under the symbol “ALCC”. SPAC is in compliance with the rules of the NYSE and there is no Action pending or, to the knowledge of SPAC, threatened against SPAC by the NYSE or the SEC with respect to any intention by such entity to deregister the SPAC Class A Common Stock or terminate the listing of SPAC Class A Common Stock on the NYSE. None of SPAC or its Affiliates has taken any action in an attempt to terminate the registration of the SPAC Class A Common Stock under the Exchange Act except as contemplated by this Agreement. SPAC has not received any notice from the NYSE or the SEC regarding the revocation of such listing or otherwise regarding the delisting of the SPAC Class A Common Stock from the NYSE or the SEC.
Section 6.15. Sponsor Agreement. SPAC has delivered to the Company a true, correct and complete copy of the Sponsor Agreement. The Sponsor Agreement is in full force and effect and has not been withdrawn or terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination, amendment or modification is contemplated by SPAC. The Sponsor Agreement is a legal, valid and binding obligation of SPAC and, to the knowledge of SPAC, each other party thereto and neither the execution or delivery by any party thereto, nor the performance of any party’s obligations under, the Sponsor Agreement violates any provision of, or results in the breach of or default under, or require any filing, registration or qualification under, any applicable Law. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of SPAC under any material term or condition of the Sponsor Agreement.
Section 6.16. Related Party Transactions. Except as described in the SEC Reports, there are no transactions, Contracts, side letters, arrangements or understandings between any SPAC Party, on the one hand, and any director, officer, employee, stockholder or Affiliate of such SPAC Party.
Section 6.17. Investment Company Act. Neither the SPAC nor any of its Subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 6.18. SPAC Stockholders. Other than existing stockholders of the Company, no foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Company as a result of the Transaction such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Company post-Closing as a result of the Transaction.
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Section 6.19. Registration Statement and Proxy Statement. At the Effective Time, the Registration Statement, and when first filed in accordance with Rule 424(b) or filed pursuant to Section 14A, the Proxy Statement (or any amendment or supplement thereto), will comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act. On the date of any filing pursuant to Rule 424(b) or Section 14A, the date the Proxy Statement is first mailed to SPAC Stockholders, and at the time of the Special Meeting, the Proxy Statement (together with any amendments or supplements thereto) will not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that SPAC makes no representations or warranties as to the information contained in or omitted from the Registration Statement or Proxy Statement in reliance upon and in conformity with information furnished in writing to SPAC by or on behalf of the Company specifically for inclusion in the Registration Statement or the Proxy Statement.
Section 6.20. Opinion of Financial Advisors. The board of directors of SPAC has received the opinion of Ocean Tomo, a part of J.S. Held, to the effect that, as of the date of such opinion and subject to the assumptions, limitations, qualifications and other conditions contained therein, the Merger Consideration is fair, from a financial point of view, to the SPAC Stockholders (other than the Sponsor).
Article 7
Covenants of the Company
Section 7.01. Conduct of Business. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except (i) as expressly contemplated by this Agreement, (ii) as required by applicable Law or any Governmental Authority, (iii) as set forth on Schedule 7.01 to the disclosure schedules of the Company or (iv) as consented to by SPAC (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use its commercially reasonable efforts to operate its business in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, except (i) as contemplated by this Agreement, (ii) as required by applicable Law or any Governmental Authority, (iii) as set forth on Schedule 7.01 to the disclosure schedules of the Company or (iv) as consented to by SPAC in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period, except as otherwise contemplated by this Agreement:
(a) change or amend the Company Certificate of Incorporation or other organizational documents of the Company, except as (i) otherwise required by Law, (ii) required in order to effectuate the conversion of Company SAFEs into Company Common Stock or (iii) in connection with a Permitted Equity Financing;
(b) make, declare, set aside, establish a record date for or pay any dividend or distribution, other than any dividends or distributions from any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiaries of the Company;
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(c) enter into, assume, assign, partially or completely amend any material term of, modify any material term of or terminate (excluding any expiration in accordance with its terms) any collective bargaining or similar agreement (including agreements with works councils and trade unions and side letters) to which the Company or its Subsidiaries is a party or by which it is bound, other than entry into such agreements in the ordinary course of business;
(d) (i) issue, deliver, sell, transfer, pledge, dispose of or place any Lien (other than a Permitted Lien) on any shares or any other equity or voting securities of the Company or any of its Subsidiaries or (ii) issue or grant any options, warrants or other rights to purchase or obtain any shares or any other equity or voting securities of the Company, other than (A) those issuances of Company Options or restricted stock unit awards set forth on Schedule 7.01(d) to the disclosure schedules of the Company, in each case pursuant to a Company Stock Plan, (B) issuances of shares of Company Common Stock upon the exercise of Company Options or the conversion of Company SAFEs (as may be amended prior to the Closing), in the case of Company Options, that are outstanding on the date of this Agreement and in accordance with the terms of the applicable Company Stock Plan and award agreement, (C) issuances of additional Company SAFEs in an aggregate amount not to exceed $25,000,000 prior to Closing (for clarity, such Company SAFEs shall be treated as set forth in Section 3.01) or (D) issuances of Company Stock in connection with a Permitted Equity Financing;
(e) sell, assign, transfer, convey, lease, license, abandon, allow to lapse or expire, subject to or grant any Lien (other than Permitted Liens) on, or otherwise dispose of, any Intellectual Property or material assets, rights or properties of the Company and its Subsidiaries, taken as a whole, other than the sale or license of Software, goods and services to customers, or the sale or other disposition of assets or equipment deemed by the Company in its reasonable business judgement to be obsolete or no longer be material to the business of the Company and its Subsidiaries, in each case, in the ordinary course of business;
(f) (i) Process any Personal Information in material violation of any Privacy Laws, applicable Company privacy policies, or Company contractual commitments with respect to the Processing of any Personal Information or (ii) fail to take actions necessary (i.e., as required by Privacy Laws, applicable Company privacy policies, or Company contractual commitments with respect to the Processing of any Personal Information) to protect the privacy and confidentiality of, and to protect and secure, any Personal Information in the possession or control of, or Processed by or on behalf of, the Company;
(g) (i) cancel or compromise any claim or Indebtedness owed to the Company or any of its Subsidiaries, (ii) settle any pending or threatened Action, (A) if such settlement would require payment by the Company in an amount greater than $500,000, (B) to the extent such settlement includes an agreement to accept or concede injunctive relief or (C) to the extent such settlement involves a Governmental Authority or alleged criminal wrongdoing, or (iii) agree to modify in any respect materially adverse to the Company and its Subsidiaries any confidentiality or similar Contract to which the Company or any of its Subsidiaries are a party;
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(h) directly or indirectly acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by purchasing all of or a substantial equity interest in, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association or other entity or Person or division thereof;
(i) make any loans or advance any money or other property to any Person, except for (i) advances in the ordinary course of business to employees or officers of the Company or any of its Subsidiaries for expenses not to exceed $500,000 in the aggregate and (ii) prepayments made to suppliers of the Company or any of its Subsidiaries;
(j) enter into, assume, assign, or amend any material term of, modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed in subsections (ii), (iii), (iv), (v), (vii), (viii), (ix) or (x) on Schedule 5.12(a) to the disclosure schedules of the Company, any lease related to the Leased Real Property, other than entry into such agreements in the ordinary course of business;
(k) redeem, purchase or otherwise acquire, any shares or stock (as applicable) (or other equity interests) of the Company or any of its Subsidiaries or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares or stock (as applicable) (or other equity interests) of the Company or any of its Subsidiaries;
(l) adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any change in respect of any shares or other equity interests or securities of the Company;
(m) make any change in its customary accounting principles or methods of accounting materially affecting the reported consolidated assets, liabilities or results of operations of the Company and its Subsidiaries, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or its Subsidiaries (other than the transactions contemplated by this Agreement);
(o) make, change or revoke any material Tax election, adopt or change any material accounting method with respect to Taxes, file any amended material Tax Return, settle or compromise any material Tax liability, enter into any material closing agreement with respect to any Tax, surrender any right to claim a material refund of Taxes, consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, or enter into any Tax sharing or Tax indemnification agreement or similar agreement (except, in each case, for such agreements that are commercial agreements not primarily relating to Taxes) or take any similar action relating to Taxes, if such election, change, amendment, agreement, settlement, consent or other action would have the effect of materially increasing the present or future Tax liability of the Company or any of its Subsidiaries in a manner that will disproportionately affect the SPAC Stockholders (as compared to the Company’s stockholders) after the Closing;
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(p) take or cause to be taken any action, or knowingly fail to take or cause to be taken any action, which action or failure to act would reasonably be expected to prevent or impede the Merger from qualifying for the Intended Tax Treatment;
(q) directly or indirectly, incur, or modify in any material respect the terms of, any Indebtedness, or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for Indebtedness (other than Indebtedness under capital leases entered into in the ordinary course of business);
(r) voluntarily fail to maintain in full force and effect material insurance policies covering the Company and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practices (except that the Company shall be authorized to replace existing insurance policies with substantially comparable amounts of insurance coverage);
(s) enter into any transaction or amend in any material respect any existing agreement with any Person that, to the knowledge of the Company, is an Affiliate of the Company or its Subsidiaries (excluding ordinary course payments of annual compensation, provision of benefits or reimbursement of expenses in respect of stockholders who are officers or directors of the Company or its Subsidiaries);
(t) enter into any agreement that materially restricts the ability of the Company or its Subsidiaries to engage or compete in any line of business or enter into a new line of business;
(u) voluntarily suspend (for any material period of time affecting the commercial viability of the subject reactor) or terminate any pre-application activities at the NRC with respect to NRC Docket #99902095;
(v) (i) increase the compensation or benefits of any Company Employee except for increases in annual salary or wage rates or declarations of bonuses or benefits made in the ordinary course of business consistent with past practice or (ii) establish, adopt, enter into, materially amend in any respect or terminate any material Company Benefit Plan or any plan, agreement, program, policy or other arrangement that would be a material Company Benefit Plan if it were in existence as of the date of this Agreement;
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(w) make any capital expenditures that in the aggregate exceed $500,000, other than any capital expenditure (or series of related capital expenditures) consistent in all material respects with the Company’s annual capital expenditures budget for periods following the date hereof, made available to SPAC;
(x) fail to use commercially reasonable efforts to comply with the “Regulatory Engagement Timeline” set forth on Schedule 7.01(x) to the disclosure schedules of the Company, as may be reasonably updated, amended or revised from time to time; or
(y) enter into any Contract to do any action prohibited under this Section 7.01.
Section 7.02. Inspection. Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to the Company or any of its Subsidiaries by third parties that may be in the Company’s or any of its Subsidiaries’ possession from time to time, and except for any information which (w) relates to interactions with prospective buyers of the Company or the negotiation of this Agreement or the Transactions, including with respect to the consideration or valuation of the Merger or any financial or strategic alternatives thereto, or any Acquisition Transaction, (x) is prohibited from being disclosed by applicable Law (y) is subject to statutory non-disclosure or similar provisions, or that is subject to a non-disclosure agreement with a third party or protection as a trade secret, or (z) on the advice of legal counsel of the Company would result in the loss of attorney-client privilege or other privilege from disclosure, the Company shall, and shall cause its Subsidiaries to, afford to SPAC and its Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance notice, in such manner as to not interfere with the normal operation of the Company and its Subsidiaries and so long as reasonably feasible or permissible under applicable Law, to all of their respective properties, books, Contracts, commitments, records and appropriate officers and employees of the Company and its Subsidiaries, and shall use its and their commercially reasonable efforts to furnish such Representatives with all financial and operating data and other information concerning the affairs of the Company and its Subsidiaries that are in the possession of the Company or its Subsidiaries, in each case, as SPAC and its Representatives may reasonably request solely for purposes of consummating the Transactions; provided, however, that SPAC shall not be permitted to perform any environmental sampling at any Leased Real Property, including sampling of soil, groundwater, surface water, building materials, or air or wastewater emissions. The Parties shall use commercially reasonable efforts to make alternative arrangements for such disclosure where the restrictions in the preceding sentence apply. Any request pursuant to this Section 7.02 shall be made in a time and manner so as not to delay the Closing. All information obtained by SPAC and its Representatives under this Agreement shall be subject to the Confidentiality Agreement prior to the Closing.
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Section 7.03. HSR Act and Approvals; NRC Communications.
(a) In connection with the transactions contemplated by this Agreement, the Company shall (and, to the extent required, shall cause its Affiliates to) comply promptly but in no event later than ten (10) Business Days after the date hereof with the notification and reporting requirements of the HSR Act; provided that, in the event the Federal Trade Commission and/or the U.S. Department of Justice is closed or not accepting such filings under the HSR Act (a “Government Closure”), such days shall be extended day-for-day, for each Business Day the Government Closure is in effect. The Company shall (i) use its reasonable best efforts to substantially comply with any Information or Document Requests and (ii) request early termination of any waiting period under the HSR Act; provided, further, that all fees and expenses in connection with filing to obtain clearance pursuant to the HSR Act shall be paid by SPAC.
(b) The Company shall promptly furnish to SPAC copies of any notices or written communications received by the Company or any of its Affiliates from any third party or any Governmental Authority, including, for the avoidance of doubt, the NRC, and disclose to SPAC the nature of any substantive oral communications between the Company or any of its Affiliates and any such Governmental Authority, with respect to the transactions contemplated by this Agreement, and the Company shall permit counsel to SPAC an opportunity to review in advance, any proposed written communications by the Company and/or its Affiliates to any Governmental Authority, including, for the avoidance of doubt, the NRC and excluding any notification and report forms filed under the HSR Act concerning the transactions contemplated by this Agreement; provided, that the Company shall not extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority to so extend such waiting period or comparable period under the HSR Act without the written consent of SPAC. The Company agrees to provide, to the extent permitted by the applicable Governmental Authority, SPAC and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between the Company and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions. Any such disclosures or provisions of information by the Company pursuant to this Section 7.03 may be redacted, withheld or made on an outside-counsel-only basis to the extent required under applicable Law or as appropriate to protect attorney-client or other privileged information or confidential business information.
(c) During the Interim Period, the Company agrees to keep SPAC reasonably apprised of the status of matters relating to the NRC’s review of the Company’s activities under NRC Docket No. 99902095 by furnishing SPAC with material filed on such docket and copies of notes, inspections, audit requests and other material communications received by the Company from the NRC, on a monthly basis or upon reasonable request by SPAC. Further, on a monthly basis or upon reasonable request by SPAC, the Company shall provide summaries of material meetings (including via teleconference or videoconference) between the Company and the NRC. Any such disclosures or provisions of information by the Company pursuant to this Section 7.03 may be redacted, withheld or made on an outside-counsel-only basis to the extent required under applicable Law or as appropriate to protect attorney-client or other privileged information or confidential business information.
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Section 7.04. No Claim Against the Trust Account. The Company acknowledges that it has read SPAC’s final prospectus, filed with the SEC on July 9, 2021 and other SEC Reports, the SPAC Organizational Documents, and the Trust Agreement and understands that SPAC has established the Trust Account described therein for the benefit of SPAC’s public stockholders and that disbursements from the Trust Account are available only in the limited circumstances set forth in the Trust Agreement. The Company further acknowledges that, if the transactions contemplated by this Agreement, or, in the event of a termination of this Agreement, another Business Combination, are not consummated by July 12, 2023 (or October 12, 2023 if SPAC has an executed letter of intent, agreement in principle or definitive agreement for a Business Combination by July 12, 2023), SPAC will be obligated to return to its stockholders the amounts being held in the Trust Account. Accordingly, the Company (on behalf of itself and its controlled Affiliates) hereby waives any past, present or future claim of any kind against, and any right to access, the Trust Account or to collect from the Trust Account any monies that may be owed to them by SPAC or any of its Affiliates for any reason whatsoever, and will not seek recourse against the Trust Account at any time for any reason whatsoever. This Section 7.04 shall survive the termination of this Agreement for any reason; provided, that nothing herein shall serve to limit or prohibit the Company’s right to pursue a claim against SPAC or any of its Affiliates for legal relief against assets held outside the Trust Account (including from and after the consummation of a Business Combination other than as contemplated by this Agreement) or pursuant to Section 12.13 for specific performance or other injunctive relief. This Section 7.04 shall survive the termination of this Agreement for any reason.
Section 7.05. Proxy Solicitation; Other Actions. The Company agrees to use commercially reasonable efforts to provide SPAC as soon as practicable following the date hereof, (i) audited financial statements, including a consolidated balance sheet as of December 31, 2022 and December 31, 2021 and consolidated statements of income and comprehensive income, stockholder’s equity and cash flows, of the Company and its Subsidiaries for the years ended December 31, 2022 and December 31, 2021, and audited financial statements, including consolidated balance sheets and consolidated statements of income and comprehensive income, stockholder’s equity and cash flows, of the Company and its Subsidiaries for any fiscal year subsequent to December 31, 2022 that are required to be included in the Registration Statement in order for the SEC to declare the Registration Statement effective and, in each case, prepared in accordance with GAAP and Regulation S-X and audited in accordance with the auditing standards of the PCAOB (provided, that such audited financial statements as of and for the years ended December 31, 2022 and 2021 shall not be required to include a signed audit opinion, which signed audit opinion shall be delivered upon the initial filing of the Registration Statement with the SEC), (ii) unaudited financial statements, including consolidated condensed balance sheets and consolidated condensed statements of income and comprehensive income, stockholder’s equity and cash flows, of the Company and its Subsidiaries for each fiscal quarter beginning on or after January 1, 2023 that are required to be included in the Registration Statement in order for the SEC to declare the Registration Statement effective, in each case, prepared in accordance with GAAP and Regulation S-X and (iii) auditor’s reports and consents to use such financial statements and reports in the Registration Statement. The Company shall be available to, and the Company and its Subsidiaries shall use commercially reasonable efforts to make their officers and employees available to, in each case, during normal business hours and upon reasonable advanced notice, SPAC and its counsel in connection with (A) the drafting of the Registration Statement or Proxy Statement and (B) responding in a timely manner to comments on the Registration Statement or Proxy Statement from the SEC. Without limiting the generality of the foregoing, the Company shall reasonably cooperate with SPAC in connection with the preparation for inclusion in the Registration Statement or Proxy Statement of pro forma financial statements that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC).
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Section 7.06. Certain Transaction Agreements. Except to the extent provided in writing by SPAC, the Company shall not permit any amendment or modification to be made to any Company Voting and Support Agreement to the extent that such amendment or modification would reasonably be expected to materially and adversely affect the closing of the Transactions. The Company shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to satisfy in all material respects on a timely basis all conditions and covenants applicable to the Company in each Company Voting and Support Agreement and otherwise comply with its obligations thereunder and to enforce its rights under each such agreement, except to the extent that that the failure of the Company to enforce such rights would not reasonable be expected to materially and adversely affect the closing of the Transactions. Without limiting the generality of the foregoing, the Company shall give SPAC, prompt written notice: (a) of any breach or default (or any threatened breach or default) by any party to any Company Voting and Support Agreement known to the Company; or (b) of the receipt of any written notice or other written communication from any other party to any Company Voting and Support Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party under any such agreement or any provisions of any such agreement.
Section 7.07. FIRPTA. At the Closing, the Company shall deliver to SPAC (a) a properly executed certificate in such manner consistent and in accordance with the requirements of Section 1.897-2(h)(1)(i) and 1.1445-2(c)(3)(i) of the Treasury Regulations, and (b) a notice to the IRS (which shall be filed by SPAC with the IRS following the Closing) in accordance with the provisions of Section 1.897-2(h)(2) of the Treasury Regulations.
Section 7.08. Termination of Certain Agreements. On and as of the Closing, the Company shall take all actions necessary to cause the Contracts listed on Schedule 7.08 to the disclosure schedules of the Company to be terminated without any further force and effect without any cost or other liability or obligation to the Company or its Subsidiaries (as applicable), and there shall be no further obligations of any of the relevant parties thereunder following the Closing.
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Article 8
Covenants of SPAC
Section 8.01. HSR Act and Regulatory Approvals.
(a) In connection with the transactions contemplated by this Agreement, SPAC shall (and, to the extent required, shall cause its Affiliates to) comply promptly but in no event later than ten (10) Business Days after the date hereof with the notification and reporting requirements of the HSR Act; provided that, in the event that there is a Government Closure, such days shall be extended day-for-day, for each Business Day the Government Closure is in effect. SPAC shall substantially comply with any Information or Document Requests; provided, further, that all fees and expenses in connection with filing to obtain clearance pursuant to the HSR Act shall be paid by SPAC.
(b) SPAC shall request early termination of any waiting period under the HSR Act and undertake promptly any and all action required to (i) obtain termination or expiration of the waiting period under the HSR Act, (ii) prevent the entry in any Action brought by a Regulatory Consent Authority or any other Person of any Governmental Order which would prohibit, make unlawful or delay the consummation of the transactions contemplated by this Agreement and (iii) if any such Governmental Order is issued in any such Action, cause such Governmental Order to be lifted.
(c) SPAC shall cooperate in good faith with the Regulatory Consent Authorities and undertake promptly any and all action required to complete lawfully the Transactions as soon as practicable (but in any event prior to the Termination Date) and all action necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any proceeding in any forum by or on behalf of any Regulatory Consent Authority or the issuance of any Governmental Order that would delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Transactions, including (i) proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for (A) the sale, licensing or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of the Company or SPAC or (B) the termination, amendment or assignment of existing relationships and contractual rights and obligations of the Company or SPAC and (ii) promptly effecting the disposition, licensing or holding separate of assets or lines of business or the termination, amendment or assignment of existing relationships and contractual rights, in each case, at such time as may be necessary to permit the lawful consummation of the Transactions on or prior to the Termination Date. The entry by any Governmental Authority in any Action of a Governmental Order permitting the consummation of the Transactions but requiring any of the assets or lines of business of SPAC to be sold, licensed or otherwise disposed or held separate thereafter (including the business and assets of the Company and its Subsidiaries) shall not be deemed a failure to satisfy any condition specified in Article 10. Notwithstanding anything to the contrary, portfolio companies managed by Affiliates of SPAC are under no obligation, and SPAC is under no obligation to cause such portfolio companies to undertake any actions in this Section 8.01(c).
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(d) SPAC shall promptly furnish to the Company copies of any notices or written communications received by SPAC or any of its Affiliates from any third party or any Governmental Authority, and disclose to the Company the nature of any substantive oral communications between SPAC and any Governmental Authority, with respect to the transactions contemplated by this Agreement, and SPAC shall permit counsel to the Company an opportunity to review in advance, and SPAC shall consider in good faith the views of such counsel in connection with, any proposed written communications by SPAC and/or its Affiliates to any Governmental Authority (excluding any notification and report forms filed under the HSR Act) concerning the transactions contemplated by this Agreement; provided, that SPAC shall not extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority to so extend such waiting period or comparable period under the HSR Act without the written consent of the Company. SPAC agrees to provide the Company and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between SPAC and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions. Any such disclosures or provisions of information by the SPAC pursuant to this Section 8.01(d) may be redacted, withheld or made on an outside-counsel-only basis to the extent required under applicable Law or as appropriate to protect attorney-client or other privileged information or confidential business information.
(e) Except as required by this Agreement, SPAC shall not engage in any action or enter into any transaction, that would reasonably be expected to materially impair or delay SPAC’s ability to consummate the transactions contemplated by this Agreement or perform its obligations hereunder.
Section 8.02. Indemnification and Insurance.
(a) From and after the Effective Time, SPAC agrees that it shall indemnify and hold harmless each present and former director, manager and officer of the Company and SPAC and each of their respective Subsidiaries against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company, SPAC or their respective Subsidiaries, as the case may be, would have been permitted under applicable Law and their respective certificate of incorporation, bylaws or other organizational documents or indemnification agreements in effect on the date of this Agreement to indemnify such Person (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, SPAC shall cause the Surviving Entity and each of its Subsidiaries to, (i) maintain for a period of not less than six years from the Effective Time provisions in its certificate of incorporation, bylaws and other organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors/managers that are no less favorable to those Persons than the provisions of such certificates of incorporation, bylaws and other organizational documents as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
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(b) For a period of six years from the Effective Time, SPAC shall, or shall cause one or more of its Subsidiaries to, maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by the Company’s or any of its Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to SPAC or its agents or representatives) on terms not less favorable than the terms of such current insurance coverage, except that in no event shall SPAC or its Subsidiaries be required to pay an annual premium for such insurance in excess of 300% of the aggregate annual premium payable by the Company and its Subsidiaries for such insurance policy for the year ended December 31, 2022; provided, however, that (i) SPAC may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Effective Time (the “D&O Tail”) and (ii) if any claim is asserted or made within such six-year period, any insurance required to be maintained under this Section 8.02 shall be continued in respect of such claim until the final disposition thereof.
(c) SPAC and the Company hereby acknowledge (on behalf of themselves and their respective Subsidiaries) that the indemnified Persons under this Section 8.02 may have certain rights to indemnification, advancement of expenses and/or insurance provided by current stockholders, members, or other Affiliates of such stockholders (“Indemnitee Affiliates”) separate from the indemnification obligations of SPAC, the Company and their respective Subsidiaries hereunder. The Parties hereby agree (i) that SPAC, the Company and their respective Subsidiaries are the indemnitors of first resort (i.e., its obligations to the indemnified Persons under this Section 8.02 are primary and any obligation of any Indemnitee Affiliate to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the indemnified Persons under this Section 8.02 are secondary), (ii) that SPAC, the Company and their respective Subsidiaries shall be required to advance the full amount of expenses incurred by the indemnified Persons under this Section 8.02 and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and required by SPAC’s, the Company’s and their respective Subsidiaries’ governing documents or any director or officer indemnification agreements, without regard to any rights the indemnified Persons under this Section 8.02 may have against any Indemnitee Affiliate, and (iii) that the Parties (on behalf of themselves and their respective Subsidiaries) irrevocably waive, relinquish and release the Indemnitee Affiliates from any and all claims against the Indemnitee Affiliates for contribution, subrogation or any other recovery of any kind in respect thereof.
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(d) Notwithstanding anything contained in this Agreement to the contrary, this Section 8.02 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on SPAC and the Surviving Entity and all successors and assigns of SPAC and the Surviving Entity. In the event that SPAC or the Surviving Entity or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of SPAC or the Surviving Entity, as the case may be, shall succeed to the obligations set forth in this Section 8.02.
Section 8.03. Conduct of SPAC During the Interim Period.
(a) During the Interim Period, except as set forth on Schedule 8.03 to the disclosure schedules of SPAC, as reasonably required in connection with the SPAC Extension, as contemplated by this Agreement, as required by applicable Law or any Governmental Authority or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied, except, in the case of clauses (i), (ii), (iv), (vii) and (viii) below, as to which the Company’s consent may be granted or withheld in its sole discretion), SPAC shall not and each shall not permit any of its Subsidiaries to:
(i) change, modify or amend the Trust Agreement, the SPAC Organizational Documents or the organizational documents of Merger Sub;
(ii) (A) declare, set aside or pay any dividends on, or make any other distribution in respect of any outstanding capital stock of, or other equity interests in, SPAC; (B) split, combine or reclassify any capital stock of, or other equity interests in, SPAC; or (C) other than in connection with the SPAC Stockholder Redemption or as otherwise required by SPAC’s Organizational Documents in order to consummate the Transactions, repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock of, or other equity interests in, SPAC;
(iii) make, change or revoke any material tax election, adopt or change any material accounting method with respect to Taxes, file any amended material Tax Return, settle or compromise any material Tax liability, enter into any material closing agreement with respect to any Tax or surrender any right to claim a material refund of Taxes, consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, or enter into any Tax sharing or Tax indemnification agreement or similar agreement (except, in each case, for such agreements that are commercial agreements not primarily relating to Taxes) or take any similar action relating to Taxes, if such election, change, amendment, agreement, settlement, consent or other action would have the effect of materially increasing the present or future Tax liability of the Company or any of its Subsidiaries in a manner that will disproportionately affect Company’s stockholders (as compared to the SPAC Stockholders) after the Closing;
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(iv) take or cause to be taken any action, or knowingly fail to take or cause to be taken any action, which action or failure to act would reasonably be expected to prevent or impede the Merger from qualifying for the Intended Tax Treatment;
(v) enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of SPAC (including, for the avoidance of doubt, (x) Sponsor or anyone related by blood, marriage or adoption to any Sponsor and (y) any Person in which any Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vi) waive, release, compromise, settle or satisfy any pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or compromise or settle any liability;
(vii) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness; provided, that SPAC shall be authorized to issue the Extension Promissory Note; or
(viii) offer, issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any capital stock of, other equity interests, equity equivalents, stock appreciation rights, phantom stock ownership interests or similar rights in, SPAC or any of its Subsidiaries or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock or equity interests.
(b) During the Interim Period, SPAC shall, and shall cause its Subsidiaries to comply with, and continue performing under, as applicable, the SPAC Organizational Documents, the Trust Agreement, the Transaction Agreements and all other agreements or Contracts to which SPAC or its Subsidiaries may be a party.
Section 8.04. Certain Transaction Agreements. Unless otherwise approved in writing by the Company, no SPAC Party shall permit any amendment or modification to be made to, any waiver (in whole or in part) or provide consent to (including consent to termination), of any provision or remedy under, or any replacement of the Sponsor Agreement. SPAC shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to satisfy in all material respects on a timely basis all conditions and covenants applicable to SPAC in the Sponsor Agreement and otherwise comply with its obligations thereunder and to enforce its rights under each such agreement. Without limiting the generality of the foregoing, SPAC shall give the Company, prompt written notice: (a) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would give rise to any breach or default) by any party to the Sponsor Agreement known to SPAC; and (b) of the receipt of any written notice or other written communication from any other party to the Sponsor Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party under any such agreement or any provisions of any such agreement.
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Section 8.05. Inspection. Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to SPAC or its Subsidiaries by third parties that may be in SPAC’s or its Subsidiaries’ possession from time to time, and except for any information (x) which in the opinion of legal counsel of SPAC would result in the loss of attorney-client privilege or other privilege from disclosure, (y) which is prohibited from being disclosed by applicable Law, or (z) is subject to statutory non-disclosure or similar provisions, or that is subject to a non-disclosure agreement with a third party or protection as a trade secret, SPAC shall afford to the Company, its Affiliates and their respective Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance notice, to their respective properties, books, Contracts, commitments, records and appropriate officers and employees of SPAC and its Subsidiaries, and shall use its and their commercially reasonable efforts to furnish such Representatives with all financial and operating data and other information concerning the affairs of SPAC that are in the possession of SPAC, in each case as the Company and its Representatives may reasonably request solely for purposes of consummating the Transactions. The Parties shall use commercially reasonable efforts to make alternative arrangements for such disclosure where the restrictions in the preceding sentence apply. All information obtained by the Company, its Affiliates and their respective Representatives under this Agreement shall be subject to the Confidentiality Agreement prior to the Effective Time.
Section 8.06. SPAC Stock Exchange Listing. From the date hereof through the Closing, SPAC shall use reasonable best efforts to ensure SPAC remains listed as a public company on, and for shares of SPAC Class A Common Stock to be listed on, the Stock Exchange. SPAC shall take all steps reasonably necessary or advisable to cause the shares of SPAC Class A Common Stock to trade under the symbol “OKLO” upon the Closing, or under such other symbol as the Company and SPAC may otherwise agree prior to the Closing.
Section 8.07. SPAC Public Filings. From the date hereof through the Closing, SPAC will keep current and timely file or timely furnish (or obtain extensions in respect thereof and file or furnish within the applicable grace period) all registration statements reports schedules, forms, statements and other documents required to be filed or furnished with the SEC (collectively, as they have been supplemented, amended or modified since the time of their filing and including all exhibits and schedules thereto and other information incorporated therein, the “Additional SEC Reports”) and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws. Each of the Additional SEC Reports, as of their respective dates of filing (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), will comply in all material respects with the applicable requirements of applicable Securities Laws. None of the Additional SEC Reports, as of their respective dates (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), will 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 light of the circumstances under which they were made, not misleading.
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Section 8.08. Section 16 Matters. Prior to the Effective Time, SPAC shall take all commercially reasonable steps as may be required (to the extent permitted under applicable Law) to cause any acquisition or disposition of the SPAC Class A Common Stock or any derivative thereof that occurs or is deemed to occur by reason of or pursuant to the Transactions by each Person who is or will be or may be subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to SPAC to be exempt under Rule 16b-3 promulgated under the Exchange Act, including by taking steps in accordance with the No-Action Letter, dated January 12, 1999, issued by the SEC regarding such matters.
Section 8.09. Extension.
(a) As promptly as reasonably practicable after the date of this Agreement, SPAC shall take all commercially reasonable actions necessary, with the Company’s reasonable cooperation, including the preparation and filing of a proxy statement with the SEC (such proxy statement, together with any amendments or supplements thereto, the “Extension Proxy Statement”), to seek approval of the SPAC Stockholders to extend the deadline for SPAC to consummate a Business Combination to a date after October 12, 2023 (which date shall be no earlier than January 12, 2024) in accordance with the SPAC Organizational Documents so as to permit the consummation of the Transactions (the “SPAC Extension”). The preliminary Extension Proxy Statement shall be filed with the SEC no later than September 1, 2023.
(b) Each of SPAC and the Company agrees to promptly furnish to the other Party all information concerning itself, its Subsidiaries, officers, directors, managers, stockholders and other equityholders and information regarding such matters as may be reasonably necessary or advisable or as may be reasonably requested in connection with the Extension Proxy Statement.
(c) Notwithstanding anything to the contrary contained in this Agreement, in connection with the SPAC Extension, SPAC shall be permitted to effect a distribution of funds from the Trust Account to any SPAC Stockholders who validly exercise and do not withdraw their redemption rights in connection therewith.
Section 8.10. SPAC Board of Directors. The Company and SPAC shall take all necessary action to cause the board of directors of SPAC as of immediately following the Closing to consist of seven (7) directors who are set forth on Schedule 8.10 to the disclosure schedules of SPAC and shall consist of (i) one director designated by Sponsor, who must qualify as “independent” under applicable SEC and the Stock Exchange rules and who must be reasonably acceptable to the Company, (ii) one director mutually designated by Sponsor and the Company and (ii) such other individuals as shall be determined by the Company, in its sole and exclusive discretion, provided that the citizenship of the members of the board shall be such that SPAC will be free of foreign ownership, control or domination. Upon each individual becoming a director of the board of directors of SPAC, SPAC will enter into customary indemnification agreements with each such director.
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Section 8.11. SPAC Management. Schedule 8.11 to the disclosure schedules of SPAC sets forth the names and positions of the members of the senior management of the Company who shall each serve in such positions (or similar positions) at the SPAC following the Effective Time, provided that the citizenship of the members of the senior management of SPAC following the Effective Time will be such that SPAC will be free of foreign ownership, control or domination. The Company and SPAC shall take all necessary action to ensure that such individuals continue to serve after the Effective Time in their respective positions with substantially similar duties and responsibilities at the SPAC.
Section 8.12. Equity Plans. Prior to the Closing Date, SPAC shall approve, and subject to approval of the stockholders of SPAC, adopt, (i) an incentive equity plan, in substantially the form attached hereto as Exhibit F, and (ii) an employee stock purchase plan, in substantially the form attached hereto as Exhibit G ((i) and (ii), together, the “Equity Plans”).
Section 8.13. Qualification as an Emerging Growth Company. SPAC shall, at all times during the period from the date hereof until the Closing: (a) take all actions necessary to continue to qualify as an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”); and (b) not take any action that would cause SPAC to not qualify as an “emerging growth company” within the meaning of the JOBS Act.
Section 8.14. SPAC Charter and Bylaws. Prior to the Effective Time, SPAC shall (i) subject to obtaining the approval of the SPAC Stockholder Matters, amend and restate the Existing SPAC Certificate of Incorporation to be substantially in the form of the SPAC Charter and (ii) amend and restate the bylaws of SPAC to be substantially in the form of the SPAC Bylaws.
Article 9
Joint Covenants
Section 9.01. Support of Transaction. Without limiting any covenant contained in Article 7 or Article 8, including the obligations of the Company and SPAC with respect to the notifications, filings, reaffirmations and applications described in Section 7.03 and Section 8.01, respectively, which obligations shall control to the extent of any conflict with the succeeding provisions of this Section 9.01, SPAC and the Company shall each, and shall each cause their respective Subsidiaries to: (a) use commercially reasonable efforts to assemble, prepare and file any information (and, as needed, to supplement such information) as may be reasonably necessary to obtain as promptly as practicable all governmental and regulatory consents required to be obtained in connection with the Transactions, (b) use commercially reasonable efforts to obtain all material consents and approvals of third parties that any of SPAC, the Company, or their respective Affiliates are required to obtain in order to consummate the Transactions; provided that, the Company shall not be required to seek any such required consents or approvals of third party counterparties to Material Contracts with the Company or its Subsidiaries to the extent such Material Contract is otherwise terminable at will, for convenience or upon or after the giving of notice of termination by a party thereto unless otherwise agreed in writing by the Company and SPAC, and (c) take such other action as may reasonably be necessary or as another Party may reasonably request to satisfy the conditions of the other Party set forth in Article 10 or otherwise to comply with this Agreement and to consummate the Transactions as soon as practicable. Notwithstanding the foregoing, in no event shall SPAC, Merger Sub, the Company or any of its Subsidiaries be obligated to bear any material expense or pay any material fee or grant any material concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or any of its Subsidiaries is a party or otherwise required in connection with the consummation of the Transactions.
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Section 9.02. Registration Statement; Proxy Statement; SPAC Special Meeting.
(a) Registration Statement; Proxy Statement. As promptly as practicable after the date of this Agreement, SPAC and the Company shall, in accordance with this Section 9.02(a), prepare, and SPAC shall file with the SEC, (i) in preliminary form, a proxy statement in connection with the Transactions (as amended or supplemented, the “Proxy Statement”) to be filed as part of the Registration Statement and to be sent to the stockholders of SPAC in advance of the Special Meeting, for the purpose of, among other things: (A) providing the SPAC Stockholders with the opportunity to redeem shares of SPAC Class A Common Stock by tendering such shares for redemption not later than 5:00 p.m. Eastern Time on the date that is two (2) Business Days prior to the date of the Special Meeting (the “SPAC Stockholder Redemption”); and (B) soliciting proxies from holders of SPAC Class A Common Stock to vote at the Special Meeting, as adjourned or postponed, in favor of: (1) the adoption of this Agreement and approval of the Transactions; (2) the issuance of shares of SPAC Class A Common Stock in connection with the Merger (including as may be required by the Stock Exchange); (3) the amendment and restatement of the Existing SPAC Certificate of Incorporation in the form of the SPAC Charter attached as Exhibit A hereto; (4) the approval of the adoption of the Equity Plans; (5) the election of the directors constituting the board of directors of SPAC; (6) the adoption and approval of any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Proxy Statement, the Registration Statement or correspondence related thereto; (7) any other proposals the Parties agree are necessary or desirable to consummate the Transactions; and (8) adjournment of the Special Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (collectively, the “SPAC Stockholder Matters”) and (ii) the Registration Statement, in which the Proxy Statement will be included as a prospectus. Without the prior written consent of the Company, the SPAC Stockholder Matters shall be the only matters (other than procedural matters) which SPAC shall propose to be acted on by the SPAC Stockholders at the Special Meeting, as adjourned or postponed. SPAC and the Company shall use commercially reasonable efforts to cooperate, and cause their respective Subsidiaries, as applicable, to reasonably cooperate, with each other and their respective representatives in the preparation of the Registration Statement and Proxy Statement. The Registration Statement shall also include a consent solicitation statement in preliminary form in connection with the solicitation by the Company of written consents from the stockholders of the Company, to approve, by stockholders holding Company Stock sufficient to obtain the Company Stockholder Approval, this Agreement, the Merger and the Transactions. The Registration Statement and Proxy Statement will comply as to form and substance with the applicable requirements of the Securities Act and Exchange Act, as applicable, and the rules and regulations thereunder. SPAC shall (I) have the Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof and keep the Registration Statement effective as long as is necessary to consummate the Merger, (II) file the definitive Proxy Statement with the SEC (III) cause the Proxy Statement to be mailed to its stockholders of record, as of the record date to be established by the board of directors of SPAC in accordance with Section 9.02(e), as promptly as practicable (but in no event later than five (5) Business Days except as otherwise required by applicable Law) following the effective date of the Registration Statement (such date, the “Proxy Clearance Date”) and (IV) promptly commence a “broker search” in accordance with Rule 14a-12 of the Exchange Act.
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(b) Prior to filing with the SEC, SPAC will make available to the Company drafts of the Registration Statement, Proxy Statement and any other documents to be filed with the SEC, both preliminary and final, and any amendment or supplement to the Registration Statement, Proxy Statement or such other document and will provide the Company with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. SPAC shall not file any such documents with the SEC without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). SPAC will advise the Company promptly after it receives notice thereof, of: (A) the time when the Registration Statement and Proxy Statement has been filed; (B) the time when the Registration Statement has been declared effective under the Securities Act; (C) the filing of any supplement or amendment to the Registration Statement or Proxy Statement; (D) any request by the SEC for amendment of the Registration Statement or Proxy Statement; (E) any comments from the SEC relating to the Registration Statement or Proxy Statement and responses thereto; and (F) requests by the SEC for additional information. SPAC shall respond to any SEC comments on the Registration Statement and Proxy Statement as promptly as practicable; provided, that prior to responding to any requests or comments from the SEC, SPAC will make available to the Company drafts of any such response and provide the Company with a reasonable opportunity to comment on such drafts.
(c) If, at any time prior to the Special Meeting, there shall be discovered any information that should be set forth in an amendment or supplement to the Registration Statement or Proxy Statement so that the Registration Statement or Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, SPAC shall, subject to Section 9.02(b), promptly file an amendment or supplement to the Registration Statement and Proxy Statement containing such information. If, at any time prior to the Closing, the Company or SPAC, as applicable, discovers any information, event or circumstance relating to such Party, its business or any of its Affiliates, officers, directors or employees that should be set forth in an amendment or a supplement to the Registration Statement or Proxy Statement so that the Registration Statement or Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then such Party shall promptly inform the other Party of such information, event or circumstance.
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(d) SPAC shall make all necessary filings with respect to the Transactions under the Securities Act, the Exchange Act and applicable “blue sky” laws, and any rules and regulations thereunder. The Company agrees to promptly provide SPAC with all information concerning the business, management, operations and financial condition of the Company and its Subsidiaries, in each case, reasonably requested by SPAC for inclusion in the Registration Statement and Proxy Statement.
(e) SPAC Special Meeting. SPAC shall, prior to or as promptly as practicable following the Proxy Clearance Date (and in no event later than the date the Proxy Statement is required to be mailed in accordance with Section 9.02(a)), establish a record date (which date shall be mutually agreed with the Company) for, duly call and give notice of, the Special Meeting. SPAC shall convene and hold a meeting of the SPAC Stockholders, for the purpose of obtaining the approval of the SPAC Stockholder Matters (the “Special Meeting”), which meeting shall be held not more than 25 days after the date on which SPAC commences the mailing of the Proxy Statement to its stockholders. SPAC shall use its reasonable best efforts to take all actions necessary (in its discretion or at the request of the Company) to obtain the approval of the SPAC Stockholder Matters at the Special Meeting, including as such Special Meeting may be adjourned or postponed in accordance with this Agreement, including by soliciting proxies as promptly as practicable in accordance with applicable Law for the purpose of seeking the approval of the SPAC Stockholder Matters. SPAC shall include the SPAC Board Recommendation in the Proxy Statement. The board of directors of SPAC shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the SPAC Board Recommendation for any reason. SPAC agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold the Special Meeting for the purpose of seeking approval of the SPAC Stockholder Matters shall not be affected by any intervening event or circumstance, and SPAC agrees to establish a record date for, duly call, give notice of, convene and hold the Special Meeting and submit for the approval of its stockholders the SPAC Stockholder Matters, in each case in accordance with this Agreement, regardless of any intervening event or circumstance. Notwithstanding anything to the contrary contained in this Agreement, SPAC shall be entitled to (and, in the case of the following clauses (ii) and (iii), at the request of the Company, shall) postpone or adjourn the Special Meeting for a period of no longer than 15 days: (i) to ensure that any supplement or amendment to the Proxy Statement that the board of directors of SPAC has determined in good faith is required by applicable Law is disclosed to the SPAC Stockholders and for such supplement or amendment to be promptly disseminated to the SPAC Stockholders prior to the Special Meeting; (ii) if, as of the time for which the Special Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of SPAC Class A Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special Meeting; (iii) in order to solicit additional proxies from stockholders for purposes of obtaining approval of the SPAC Stockholder Matters; or (iv) only with the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, for purposes of satisfying the condition set forth in Section 10.03(c) hereof; provided, that, notwithstanding any longer adjournment or postponement period specified at the beginning of this sentence, in the event of any such postponement or adjournment, the Special Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
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(f) Company Written Consent. As promptly as practicable following the Proxy Clearance Date, the Company shall solicit the Company Stockholder Approval via written consent in accordance with Section 228 of the DGCL. In connection therewith, prior to the Proxy Clearance Date, the Company Board shall set a record date for determining the stockholders of the Company entitled to provide such written consent. The Company shall use reasonable best efforts to cause the parties to the Company Voting and Support Agreements to duly execute and deliver a stockholder written consent substantially in the form attached hereto as Exhibit H (the “Written Consent”) in respect of the shares of Company Stock beneficially owned by such parties (which parties hold Company Stock sufficient to constitute the Company Stockholder Approval) in accordance with Section 228 of the DGCL within forty-eight (48) hours of the Proxy Clearance Date. As promptly as practicable following the execution and delivery of the Written Consent by such parties to the Company, the Company shall deliver to SPAC a copy of such Written Consent in accordance with Section 12.02. Promptly following the receipt of the Company Stockholder Approval via the Written Consent and delivery to SPAC of a copy of such Written Consent in accordance with Section 12.02, the Company will prepare (subject to the reasonable approval of SPAC) and deliver to the stockholders of the Company who have not executed and delivered the Written Consent the notice required by Section 228(e) of the DGCL and include a description of the appraisal rights of the holders of Company Stock available under Section 262 of the DGCL along with such other information as is required thereunder and pursuant to applicable Law. If stockholders holding Company Stock sufficient to obtain the Company Stockholder Approval fail to deliver the Written Consent to the Company within forty-eight (48) hours of the Registration Statement becoming effective (a “Written Consent Failure”), SPAC shall have the right to terminate this Agreement as set forth in Section 11.01.
(g) The consent solicitation statement shall include the Company Board Recommendation. The Company Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Company Board Recommendation for any reason, unless the Company Board (or the applicable committee or subgroup thereof) determines in good faith by a majority vote, after considering advice from outside legal counsel to the Company, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law.
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Section 9.03. Exclusivity.
(a) During the Interim Period, the Company shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate or engage in discussions or negotiations with, or enter into any agreement with, or encourage, or provide information to, any Person (other than SPAC and/or any of its Affiliates or Representatives) concerning any purchase of any of the Company’s equity securities or the issuance and sale of any securities of, or membership interests in, the Company or its Subsidiaries (other than any purchases of equity securities by the Company from employees of the Company or its Subsidiaries or in a Permitted Equity Financing) or any merger or sale of substantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business (each such acquisition transaction, but excluding the Transactions, an “Acquisition Transaction”); provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(a). The Company shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction.
(b) During the Interim Period, SPAC shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company, its stockholders and/or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective Affiliates and Representatives; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(b). SPAC shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Section 9.04. Tax Matters.
(a) Notwithstanding anything to the contrary contained herein, SPAC shall pay all transfer, documentary, sales, use, stamp, registration, value added or other similar Taxes incurred in connection with the Transactions. SPAC shall, at its own expense, timely file all necessary Tax Returns with respect to all such Taxes, and, if required by applicable Law, the Company will join in the execution of any such Tax Returns.
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(b) For U.S. federal (and, as applicable, state and local) income tax purposes , (i) each of the Parties intends that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations thereunder and (ii) each of the Parties intends that this Agreement be, and hereby is, adopted as a “plan of reorganization” for purposes of Sections 354, 361 and 368 of the Code and Treasury Regulations Section 1.368-2(g) (collectively, the “Intended Tax Treatment”). The Parties will prepare and file all Tax Returns consistent with the Intended Tax Treatment and will not take any inconsistent position on any Tax Return or during the course of any audit, litigation or other proceeding with respect to Taxes, except as otherwise required by a determination within the meaning of Section 1313(a) of the Code. Each of the Parties agrees to promptly notify all other Parties of any challenge to the Intended Tax Treatment by any Governmental Authority.
(c) Each of SPAC and the Company shall (and shall cause its respective Subsidiaries and Affiliates to) use its reasonable best efforts to (i) cause the Merger to qualify for the Intended Tax Treatment and (ii) not take or cause to be taken any action, or fail to take or cause to be taken any action, which action or failure to act would reasonably be expected to prevent the Merger from so qualifying for the Intended Tax Treatment.
Section 9.05. Confidentiality; Publicity.
(a) SPAC acknowledges that the information being provided to it in connection with this Agreement and the consummation of the Transactions is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference. The Confidentiality Agreement shall survive the execution and delivery of this Agreement and shall apply to all information furnished thereunder or hereunder and any other activities contemplated thereby.
(b) None of SPAC, the Company or any of their respective Affiliates shall make any public announcement or issue any public communication regarding this Agreement or the Transactions, or any matter related to the foregoing, without first obtaining the prior consent of the Company or SPAC, as applicable (which consent shall not be unreasonably withheld, conditioned or delayed), except if such announcement or other communication is required by applicable Law or legal process (including pursuant to the Securities Laws or the rules of any national securities exchange), in which case SPAC or the Company, as applicable, shall use their reasonable best efforts to obtain such consent with respect to such announcement or communication with the other Party, prior to announcement or issuance; provided, however, that, subject to this Section 9.05, each Party and its Affiliates may make announcements regarding the status and terms (including price terms) of this Agreement and the Transactions to their respective directors, officers, employees, direct and indirect current or prospective limited partners and investors or otherwise in the ordinary course of their respective businesses, in each case, so long as such recipients are obligated to keep such information confidential without the consent of any other Party; and provided, further, that subject to Section 7.02 and this Section 9.05, the foregoing shall not prohibit any Party from communicating with third parties to the extent necessary for the purpose of seeking any third party consent; provided, further, that notwithstanding anything to the contrary in this Section 9.05(b), nothing herein shall modify or affect SPAC’s obligations pursuant to Section 9.02.
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Section 9.06. Post-Closing Cooperation; Further Assurances. Following the Closing, each Party shall, on the request of any other Party, execute such further documents, and perform such further acts, as may be reasonably necessary or appropriate to give full effect to the allocation of rights, benefits, obligations and liabilities contemplated by this Agreement and the Transactions.
Section 9.07. Stockholder Litigation. SPAC shall notify the Company promptly in connection with any threat to file, or filing of, an Action related to this Agreement or the Transaction by any of its stockholders against any of the SPAC Parties or against any of their respective directors or officers (any such action, a “Stockholder Action”). SPAC shall keep the Company reasonably apprised of the defense, settlement, prosecution or other developments with respect to any such Stockholder Action. SPAC shall give the Company the opportunity to participate in, subject to a customary joint defense agreement, the defense of any such litigation, to give due consideration to the Company’s advice with respect to such litigation and to not settle any such litigation without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed; provided that, for the avoidance of doubt, SPAC shall bear all costs of investigation and all defense and attorneys’ and other professionals’ fees and all settlement payments related to such Stockholder Action incurred by SPAC (“Stockholder Action Expenses”).
Article 10
Conditions to Obligations
Section 10.01. Conditions to Obligations of All Parties. The obligations of the Parties to consummate, or cause to be consummated, the Transactions are subject to the satisfaction of the following conditions, any one or more of which may be waived (if legally permitted) in writing by all of such Parties:
(a) HSR Approval. The applicable waiting period(s) under the HSR Act in respect of the Transactions (and any extension thereof, or any timing agreements, understandings or commitments obtained by request or other action of the U.S. Federal Trade Commission and/or the U.S. Department of Justice, as applicable) shall have expired or been terminated.
(b) No Prohibition. There shall not be in force any Governmental Order, statute, rule or regulation enjoining or prohibiting the consummation of the Transactions.
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(c) Net Tangible Assets. SPAC shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) remaining after the SPAC Stockholder Redemption.
(d) SPAC Stockholder Approval. The approval of the SPAC Stockholder Matters shall have been duly obtained in accordance with the DGCL, the SPAC Organizational Documents and the rules and regulations of the Stock Exchange.
(e) Company Stockholder Approval. The Company Stockholder Approval shall have been duly obtained in accordance with the DGCL and the Company Certificate of Incorporation.
(f) Governance Arrangements. Any organizational documents or agreements necessary to give effect to the governance arrangements contemplated by this Agreement and the Transaction Documents shall have been adopted or executed and delivered by the parties thereto, as applicable.
(g) Board Appointments. All action shall have been taken such that the board of directors of SPAC as of immediately following the Closing shall be constituted of the directors contemplated by Section 8.10.
(h) Stock Exchange Listing Requirements. The shares of SPAC Common Stock contemplated to be listed pursuant to this Agreement (including the Earnout Shares) shall have been listed on the Stock Exchange and shall be eligible for continued listing on the Stock Exchange immediately following the Closing (as if it were a new initial listing by an issuer that had never been listed prior to Closing).
(i) Effectiveness of Registration Statement. The Registration Statement shall have become effective in accordance with the Securities Act, no stop order shall have been issued by the SEC with respect to the Registration Statement and no Action seeking such stop order shall have been threatened or initiated.
Section 10.02. Additional Conditions to Obligations of SPAC Parties. The obligations of the SPAC Parties to consummate, or cause to be consummated, the Transactions are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by SPAC:
(a) Representations and Warranties.
(i) Each of the representations and warranties of the Company contained in the first sentence of Section 5.01 (Corporate Organization of the Company), Section 5.03 (Due Authorization), Section 5.06 (Current Capitalization), Section 5.25(a) (No Material Adverse Effect) and Section 5.25(b) (Brokers’ Fees) (collectively, the “Company Specified Representations”) shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date).
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(ii) Each of the representations and warranties of the Company contained in Article 5 (other than the Company Specified Representations), shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date), except, in either case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Material Adverse Effect.
(b) Agreements and Covenants. The covenants and agreements of the Company in this Agreement to be performed as of or prior to the Closing shall have been performed in all material respects.
(c) No Material Adverse Effect. Since the date of this Agreement, there has not occurred a Material Adverse Effect with respect to the Company which is continuing.
(d) Officer’s Certificate. The Company shall have delivered to SPAC a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 10.02(a), Section 10.02(b) and Section 10.02(c) have been fulfilled.
(e) Nuclear Regulatory Commission. The Company shall have not received from the NRC any communication that would reasonably be expected to have a material adverse impact on the ability of the Company to secure a Combined Construction and Operating License for the subject reactor from the NRC.
Section 10.03. Additional Conditions to the Obligations of the Company. The obligation of the Company to consummate or cause to be consummated the Transactions is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) Representations and Warranties.
(i) Each of the representations and warranties of the SPAC Parties contained in the first sentence of Section 6.01 (Corporate Organization), Section 6.02 (Due Authorization), Section 6.08 (Brokers’ Fees), Section 6.13 (Capitalization) and Section 6.20 (Opinion of Financial Advisors) (collectively, the “SPAC Specified Representations”)) shall be true and correct (without giving any effect to any limitation as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date).
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(ii) Each of the representations and warranties of the SPAC Parties contained in Article 6 (other than the SPAC Specified Representations), shall be true and correct (without giving any effect to any limitation as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation set forth therein) as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date), except, in either case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a SPAC Material Adverse Effect.
(b) Agreements and Covenants. The covenants and agreements of the SPAC Parties in this Agreement to be performed as of or prior to the Closing shall have been performed in all material respects.
(c) No SPAC Material Adverse Effect. Since the date of this Agreement, there has not existed a SPAC Material Adverse Effect with respect to the SPAC which is continuing.
(d) Available Closing SPAC Cash. The Available Closing SPAC Cash shall not be less than $250,000,000.
(e) Officer’s Certificate. SPAC shall have delivered to the Company a certificate signed by an officer of SPAC, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 10.03(a), Section 10.03(b), Section 10.03(c) and Section 10.03(d) have been fulfilled.
(f) Sponsor Agreement. Each of the covenants of Sponsor and the Insiders (as defined in the Sponsor Agreement) required under the Sponsor Agreement to be performed as of or prior to the Closing shall have been performed in all material respects, and Sponsor or the Insiders shall not have threatened (orally or in writing) (i) that the Sponsor Agreement is not valid, binding and in full force and effect, (ii) that the SPAC or the Company is in breach of or default under the Sponsor Agreement or (iii) to terminate the Sponsor Agreement.
Section 10.04. Frustration of Conditions. None of the SPAC Parties or the Company may rely on the failure of any condition set forth in this Article 10 to be satisfied if such failure was caused by such Party’s failure to act in good faith or to take such actions as may be necessary to cause the conditions of the other Party to be satisfied, as required by Section 9.01.
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ARTICLE 11
Termination/Effectiveness
Section 11.01. Termination. This Agreement may be terminated and the Transactions abandoned:
(a) by written consent of the Company and SPAC;
(b) prior to the Closing, by written notice to the Company from SPAC if (i) there is any breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, such that the conditions specified in Section 10.02(a) or Section 10.02(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Company through the exercise of its commercially reasonable efforts, then, for a period of up to 30 days (or any shorter period of the time that remains between the date SPAC provides written notice of such violation or breach and the Termination Date or the Extended Termination Date, as applicable) after receipt by the Company of notice from SPAC of such breach, but only as long as the Company continues to use its commercially reasonable efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period, (ii) the Closing has not occurred on or before October 12, 2023 (the “Termination Date”); provided, that if any Action for specific performance or other equitable relief by the Company with respect to this Agreement, any other Transaction Agreement or otherwise with respect to the Transactions is commenced or pending on or before the Termination Date, then the Termination Date shall be automatically extended without any further action by any Party until the date that is 30 days following the date on which a final, non-appealable Governmental Order has been entered with respect to such Action and the Termination Date shall be deemed to be such later date for all purposes of this Agreement (the “Extended Termination Date”), provided further, that if the SPAC Extension is approved by the SPAC Stockholders pursuant to Section 8.09, the “Termination Date” or “Extended Termination Date”, as applicable, shall mean the date that is the deadline for SPAC to consummate a Business Combination following such approval; or (iii) the consummation of the Merger is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or a statute, rule or regulation; provided, that, in the event that the date that is the deadline for SPAC to consummate a Business Combination has not passed, the right to terminate this Agreement under subsection (i) or (ii) shall not be available if SPAC’s failure to fulfill any obligation under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date;
(c) prior to the Closing, by written notice to SPAC from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of any SPAC Party set forth in this Agreement, such that the conditions specified in Section 10.03(a) or Section 10.03(b) would not be satisfied at the Closing (a “Terminating SPAC Breach”), except that, if any such Terminating SPAC Breach is curable by such SPAC Party through the exercise of its commercially reasonable efforts, then, for a period of up to 30 days (or any shorter period of the time that remains between the date the Company provides written notice of such violation or breach and the Termination Date or the Extended Termination Date, as applicable) after receipt by SPAC of notice from the Company of such breach, but only as long as SPAC continues to exercise such commercially reasonable efforts to cure such Terminating SPAC Breach (the “SPAC Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating SPAC Breach is not cured within the SPAC Cure Period, (ii) the Closing has not occurred on or before the Termination Date, or (iii) the consummation of the Merger is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or a statute, rule or regulation; provided, that the right to terminate this Agreement under subsection (i) or (ii) shall not be available if the Company’s failure to fulfill any obligation under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date;
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(d) by written notice from either the Company or SPAC to the other if the approval of the SPAC Stockholder Matters by the SPAC Stockholders is not obtained at the Special Meeting (subject to any adjournment, postponement or recess of the meeting); provided, that, the right to terminate this Agreement under this Section 11.01(d) shall not be available to SPAC if, at the time of such termination, SPAC is in breach of Section 9.02;
(e) by written notice from SPAC to the Company in the event of a Written Consent Failure; provided, that the right to terminate this Agreement on account of a Written Consent Failure shall not be available if the Company Stockholder Approval is obtained prior to SPAC providing notice of its intent to terminate this Agreement on account of a Written Consent Failure; or
(f) by written notice from SPAC to the Company if the Holders sufficient to obtain the Company Stockholder Approval fail to deliver Company Voting and Support Agreements to SPAC within seventy-two (72) hours of the execution of this Agreement (a “Company Voting and Support Agreement Failure”); provided, that the right to terminate this Agreement on account of a Company Voting and Support Agreement Failure shall not be available if the Company delivers to SPAC executed Company Voting and Support Agreements by Holders sufficient to obtain the Company Stockholder Approval prior to SPAC providing notice of its intent to terminate this Agreement on account of a Company Voting and Support Agreement Failure.
Section 11.02. Effect of Termination. Except as otherwise set forth in this Section 11.02 or Section 12.13, in the event of the termination of this Agreement pursuant to Section 11.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any Party or its respective Affiliates, officers, directors, employees or stockholders, other than liability of any Party for any intentional and willful breach of this Agreement by such Party occurring prior to such termination. The provisions of Section 7.04 (No Claim Against the Trust Account), Section 9.05 (Confidentiality; Publicity), this Section 11.02 (Effect of Termination) and Article 12 (collectively, the “Surviving Provisions”) and the Confidentiality Agreement, and any other Section or Article of this Agreement referenced in the Surviving Provisions which are required to survive in order to give appropriate effect to the Surviving Provisions, shall in each case survive any termination of this Agreement.
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Article 12
Miscellaneous
Section 12.01. Waiver. Any Party may, at any time prior to the Closing, by action taken by its board of directors or equivalent governing body, or officers thereunto duly authorized, waive in writing any of its rights or conditions in its favor under this Agreement or agree to an amendment or modification to this Agreement in the manner contemplated by Section 12.10 and by an agreement in writing executed in the same manner (but not necessarily by the same Persons) as this Agreement.
Section 12.02. Notices. All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service or (iv) when e-mailed during normal business hours (and otherwise as of the immediately following Business Day), addressed as follows:
(a) If to SPAC or Merger Sub to:
AltC Acquisition Corp.
640 Fifth Avenue, 12th Floor
New York, NY 10019
| Attn: | Michael S. Klein | |
| Email: | Michael.Klein@mkleinandcompany.com |
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
| Attn: | Michael J. Aiello | |
| Matthew J. Gilroy | ||
| Amanda Fenster | ||
| Email: | michael.aiello@weil.com | |
| matthew.gilroy@weil.com | ||
| amanda.fenster@weil.com |
(b) If to the Company or the Surviving Entity, to:
Oklo Inc.
3190 Coronado Dr.
Santa Clara, CA 95054
Attn: Jacob DeWitte
Email: j@oklo.com
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with a copy (which shall not constitute notice) to:
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian,
LLP
One Marina Park Drive, Suite 900
Boston, Massachusetts 02210
| Attn: | David D. Gammell | |
| Andrew Luh | ||
| Keith J. Scherer | ||
| Email: | dgammell@gunder.com | |
| aluh@gunder.com | ||
| kscherer@gunder.com |
or to such other address or addresses as the Parties may from time to time designate in writing. Without limiting the foregoing, any Party may give any notice, request, instruction, demand, document or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, ordinary mail or electronic mail), but no such notice, request, instruction, demand, document or other communication shall be deemed to have been duly given unless and until it actually is received by the Party for whom it is intended.
Section 12.03. Assignment. No Party shall assign this Agreement or any part hereof without the prior written consent of the other Parties; provided, that the Company may delegate the performance of its obligations or assign its rights hereunder in part or in whole to any Affiliate of the Company so long as the Company remains fully responsible for the performance of the delegated obligations. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Any attempted assignment in violation of the terms of this Section 12.03 shall be null and void, ab initio.
Section 12.04. Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the Parties, any right or remedies under or by reason of this Agreement; provided, however, that, notwithstanding the foregoing (a) in the event the Closing occurs, the present and former officers and directors of the Company and SPAC (and their successors, heirs and representatives) and each of their respective Indemnitee Affiliates are intended third-party beneficiaries of, and may enforce, Section 8.02(a) and (b) the past, present and future directors, officers, employees, incorporators, members, partners, stockholders, Affiliates, agents, attorneys, advisors and representatives of the Parties, and any Affiliate of any of the foregoing (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, Section 12.14 and Section 12.15.
Section 12.05. Expenses. Except as otherwise provided herein, each Party shall bear its own expenses incurred in connection with this Agreement and the Transactions whether or not the Transactions shall be consummated, including all fees of its legal counsel, financial advisers and accountants; provided that if the Closing occurs, SPAC shall bear and pay at or promptly after Closing, all (x) SPAC Transaction Expenses that consist of (I) deferred underwriting fees, (II) fees, costs and expenses related to the D&O Tail, (III) repayment amounts of the Extension Promissory Note and (IV) capital markets advisory fees and (y) all other SPAC Transaction Expenses in an amount not to exceed $25,000,000 for such other expenses (the “SPAC Expenses Cap”), in the manner described and as further detailed on Schedule 12.05 to the disclosure schedules of SPAC, plus all Company Transaction Expenses. For the avoidance of doubt, all expenses payable by SPAC under clauses (x)(I)-(III) of the preceding sentence and up to $7,000,000 of expenses payable by SPAC under clause (x)(IV) of the preceding sentence shall be excluded from the SPAC Expenses Cap. SPAC shall cooperate with the Company and use its commercially reasonable efforts to minimize the amount of SPAC Transaction Expenses incurred prior to the Closing.
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Section 12.06. Governing Law. This Agreement, and all claims or causes of Action based upon, arising out of, or related to this Agreement or the Transactions, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
Section 12.07. Captions; Counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 12.08. Schedules and Exhibits. The Schedules and Exhibits referenced herein are a part of this Agreement as if fully set forth herein. All references herein to Schedules and Exhibits shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a Party in the Schedules with reference to any section or schedule of this Agreement shall be deemed to be a disclosure with respect to all other sections or schedules to which such disclosure may apply solely to the extent the relevance of such disclosure is reasonably apparent on the face of the disclosure in such Schedule. Certain information set forth in the Schedules is included solely for informational purposes.
Section 12.09. Entire Agreement. This Agreement (together with the Schedules and Exhibits to this Agreement) and that certain Proprietary Information Agreement, dated as of January 3, 2023, between SPAC and the Company (as amended, modified or supplemented from time to time, the “Confidentiality Agreement”), constitute the entire agreement among the Parties relating to the Transactions and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the Parties or any of their respective Subsidiaries relating to the Transactions. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the transactions contemplated by this Agreement exist between the Parties except as expressly set forth or referenced in this Agreement and the Confidentiality Agreement.
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Section 12.10. Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed in the same manner as this Agreement and which makes reference to this Agreement. The approval of this Agreement by the stockholders of any of the Parties shall not restrict the ability of the board of directors (or other body performing similar functions) of any of the Parties to terminate this Agreement in accordance with Section 11.01 or to cause such Party to enter into an amendment to this Agreement pursuant to this Section 12.10.
Section 12.11. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The Parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the Parties.
Section 12.12. Jurisdiction; WAIVER OF TRIAL BY JURY. Any Action based upon, arising out of or related to this Agreement or the Transactions may be brought in federal and state courts located in the State of Delaware, and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Action shall be heard and determined only in any such court, and agrees not to bring any Action arising out of or relating to this Agreement or the Transactions in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this Section 12.12. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS.
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Section 12.13. Enforcement. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate this Agreement) or any Transaction Agreement in accordance with its specified terms or otherwise breach such provisions. The Parties acknowledge and agree that (a) the Parties shall be entitled to an injunction, specific performance, or other equitable relief, to prevent breaches of this Agreement or any Transaction Agreement and to enforce specifically the terms and provisions hereof and thereof, without proof of damages, prior to the valid termination of this Agreement in accordance with Section 11.01, this being in addition to any other remedy to which they are entitled under this Agreement or any Transaction Agreement, and (b) the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and without that right, none of the Parties would have entered into this Agreement. Each Party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement or any Transaction Agreement and to enforce specifically the terms and provisions of this Agreement or any Transaction Agreement in accordance with this Section 12.13 shall not be required to provide any bond or other security in connection with any such injunction. Without limiting the generality of the foregoing, or the other provisions of this Agreement, SPAC acknowledges and agrees that the Company may, without breach of this Agreement, (i) with respect to any Transaction Agreement to which the Company is a party or a third party beneficiary thereof, institute or pursue an Action directly against the counterparty(ies) to such Transaction Agreement seeking, or seek or obtain a court order against the counterparty(ies) to such Transaction Agreement for, injunctive relief, specific performance, or other equitable relief with respect to such Transaction Agreement, (ii) with respect to any Transaction Agreement to which the Company is not a party or a third party beneficiary thereof, be entitled, upon written notice to SPAC, (A) require SPAC to enforce its rights under any such Transaction Agreement through the initiation and pursuit of litigation (including seeking, or seek or obtain a court order against the counterparty(ies) to such Transaction Agreement for, injunctive relief, specific performance, or other equitable relief with respect to such Transaction Agreement) in the event the counterparty under such Transaction Agreement is in breach of its obligations thereunder, (B) have approval rights over SPAC’s selection of counsel for any such litigation (such approval not to be unreasonably withheld, conditioned or delayed), (C) select a separate counsel, which may be or include counsel, to participate alongside SPAC’s counsel in any such litigation (at the expense of the Company); provided that such separate counsel shall not be entitled to control or seek court orders on SPAC’s behalf, and/or (D) fund any such litigation and (c) require SPAC to promptly execute, and SPAC hereby agrees to execute and comply with, any and all documents designed to implement or facilitate the execution of the rights contemplated in this sentence.
Section 12.14. Non-Recourse. Subject in all respect to the last sentence, this Agreement may only be enforced against, and any claim or cause of Action based upon, arising out of, or related to this Agreement or the Transactions may only be brought against, the entities that are expressly named as Parties and then only with respect to the specific obligations set forth herein with respect to such Party. Except to the extent a Party has undertaken specific obligations pursuant to this Agreement, (a) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any Party and (b) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, SPAC or Merger Sub under this Agreement of or for any claim based on, arising out of, or related to this Agreement or the Transactions. Notwithstanding the foregoing, nothing in this Section 12.14 shall limit, amend or waive any rights or obligations of any party to any Transaction Agreement.
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Section 12.15. Nonsurvival of Representations, Warranties and Covenants. None of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing and shall terminate and expire upon the occurrence of the Effective Time (and there shall be no liability after the Closing in respect thereof), except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part at or after the Closing and then only with respect to any breaches occurring at or after the Closing and (b) this Article 12.
Section 12.16. Acknowledgements.
(a) Each of the Parties acknowledges and agrees (on its own behalf and on behalf of its respective Affiliates and its and their respective Representatives) that: (i) it has conducted its own independent investigation of the financial condition, results of operations, assets, liabilities, properties and projected operations of the other Parties (and their respective Subsidiaries) and has been afforded satisfactory access to the books and records, facilities and personnel of the other Parties (and their respective Subsidiaries) for purposes of conducting such investigation; (ii) the Company Representations constitute the sole and exclusive representations and warranties of the Company in connection with the Transactions; (iii) the SPAC Party Representations constitute the sole and exclusive representations and warranties of SPAC and Merger Sub; (iv) except for the Company Representations by the Company and the SPAC Party Representations by the SPAC Parties, none of the Parties or any other Person makes, or has made, any other express or implied representation or warranty with respect to any Party (or any Party’s Subsidiaries), including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the such Party or its Subsidiaries or the transactions contemplated by this Agreement and all other representations and warranties of any kind or nature expressed or implied (including (x) regarding the completeness or accuracy of, or any omission to state or to disclose, any information, including in the estimates, projections or forecasts or any other information, document or material provided to or made available to any Party or their respective Affiliates or Representatives in certain “data rooms,” management presentations or in any other form in expectation of the Transactions, including meetings, calls or correspondence with management of any Party (or any Party’s Subsidiaries), and (y) any relating to the future or historical business, condition (financial or otherwise), results of operations, prospects, assets or liabilities of any Party (or its Subsidiaries), or the quality, quantity or condition of any Party’s or its Subsidiaries’ assets) are specifically disclaimed by all Parties and their respective Subsidiaries and all other Persons (including the Representatives and Affiliates of any Party or its Subsidiaries); and (v) each Party and its respective Affiliates are not relying on any representations and warranties in connection with the Transactions except the Company Representations by the Company and the SPAC Party Representations by the SPAC Parties. The foregoing does not limit any rights of any Party pursuant to any other Transaction Agreement against any other Party pursuant to such Transaction Agreement to which it is a party or an express third party beneficiary thereof. Except as otherwise expressly set forth in this Agreement, SPAC understands and agrees that any assets, properties and business of the Company and its Subsidiaries are furnished “as is”, “where is” and subject to and except for the Company Representations by the Company or as provided in any certificate delivered in accordance with Section 10.02(c), with all faults and without any other representation or warranty of any nature whatsoever. Nothing in this Section 12.16 shall relieve any Party of liability in the case of actual and intentional fraud committed by such Party.
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(b) Effective upon Closing, each of the Parties waives, on its own behalf and on behalf of its respective Affiliates and Representatives, to the fullest extent permitted under applicable Law, any and all rights, Actions and causes of action it may have against any other Party or their respective Subsidiaries and any of their respective current or former Affiliates or Representatives relating to the operation of any Party or its Subsidiaries or their respective businesses or relating to the subject matter of this Agreement, the Schedules, or the Exhibits to this Agreement, whether arising under or based upon any federal, state, local or foreign statute, Law, ordinance, rule or regulation or otherwise. Each Party acknowledges and agrees that it will not assert, institute or maintain any Action, suit, investigation, or proceeding of any kind whatsoever, including a counterclaim, cross-claim, or defense, regardless of the legal or equitable theory under which such liability or obligation may be sought to be imposed, that makes any claim contrary to the agreements and covenants set forth in this Section 12.16. Notwithstanding anything herein to the contrary, nothing in this Section 12.16(b) shall preclude any Party from seeking any remedy for actual and intentional fraud by a Party solely and exclusively with respect to the making of any representation or warranty by it in Article 5 or Article 6 (as applicable). Each Party shall have the right to enforce this Section 12.16 on behalf of any Person that would be benefitted or protected by this Section 12.16 if they were a party hereto. The foregoing agreements, acknowledgements, disclaimers and waivers are irrevocable. For the avoidance of doubt, nothing in this Section 12.16 shall limit, modify, restrict or operate as a waiver with respect to, any rights any Party may have under any written agreement entered into in connection with the transactions that are contemplated by this Agreement, including any other Transaction Agreement.
[Signature pages follow]
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IN WITNESS WHEREOF, the Parties have hereunto caused this Agreement and Plan of Merger and Reorganization to be duly executed as of the date hereof.
| ALTC ACQUISITION CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
| ALTC MERGER SUB, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Agreement and Plan of Merger and Reorganization]
IN WITNESS WHEREOF, the Parties have hereunto caused this Agreement and Plan of Merger and Reorganization to be duly executed as of the date hereof.
| OKLO INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Agreement and Plan of Merger and Reorganization]
Exhibit 10.1
EXECUTION VERSION
July 11, 2023
AltC Acquisition Corp.
640 Fifth Avenue, 12th Floor
New York, NY 10019
(212) 380-7500
Re: Sponsor Agreement
Ladies and Gentlemen:
This letter (this “Sponsor Agreement”) is being delivered to you in connection with that certain Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), dated as of the date hereof, by and among AltC Acquisition Corp., a Delaware corporation (“SPAC”), AltC Merger Sub, Inc., a Delaware corporation and direct, wholly owned subsidiary of SPAC (“Merger Sub”), and Oklo Inc., a Delaware corporation (the “Company”), and hereby amends and restates in their entirety (a) each of those certain letter agreements, dated July 7, 2021, from each of the persons undersigned thereto to SPAC (as may be amended from time to time, collectively, the “July 7 Letter Agreements”) and (b) that certain letter agreement, dated November 10, 2021, from Peter Lattman to SPAC (as may be amended from time to time, the “November 10 Letter Agreement” and, together with the July 7 Letter Agreements, the “Prior Letter Agreements”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
AltC Sponsor LLC (the “Sponsor”) and each of the undersigned individuals, each of whom is a member of SPAC’s board of directors or management team, which parties, for the avoidance of doubt, include all parties to the Prior Letter Agreements (each of the undersigned individuals, an “Insider”, and collectively, the “Insiders”) are currently, and as of immediately prior to the Closing will be, the record owners of the SPAC Capital Stock set forth across such Person’s name on Annex A hereto.
In order to induce the Company, SPAC and Merger Sub to enter into the Merger Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Sponsor, each of the Insiders hereby severally (and not jointly or jointly and severally) and the Company for the limited purposes set forth in paragraph 7, agrees with SPAC and, at all times prior to any valid termination of the Merger Agreement, the Company as follows:
1. The Sponsor and each Insider hereby unconditionally and irrevocably agrees: (i) that at any duly called meeting of the stockholders of SPAC (or any adjournment or postponement thereof), and in any action by written consent of the stockholders of SPAC requested by SPAC’s board of directors or undertaken as contemplated by the Transactions, the Sponsor and each such Insider shall, if a meeting is held, appear at the meeting, in person or by proxy, or otherwise cause all of its, his or her shares of SPAC Capital Stock to be counted as present thereat for purposes of establishing a quorum, and shall vote or consent (or cause to be voted or consented), in person or by proxy, all of its, his or her shares of SPAC Capital Stock (a) in favor of the approval of the Merger Agreement and approval of the Transactions and all other SPAC Stockholder Matters (and any actions required in furtherance thereof), (b) against any action, proposal, transaction or agreement that would reasonably be expected to result in a breach of any representation, warranty, covenant, obligation or agreement of SPAC contained in the Merger Agreement, (c) in favor of any other proposals set forth in SPAC’s proxy statement to be filed by SPAC with the Commission relating to the Transactions (including any proxy supplements thereto, the “Proxy Statement”), (d) in favor of any proposals relating to the extension of the time by which SPAC must complete its initial business combination, (e) in favor of any proposal to adjourn or postpone the applicable stockholder meeting to a later date if (and only if) (1) there are not sufficient votes for approval of the Merger Agreement and any other proposals related thereto as set forth in the Proxy Statement on the dates on which such meetings are held or proposed to be held or (2) the condition to the Company’s obligation to consummate or cause to be consummated the Transactions pursuant to Section 10.03(d) of the Merger Agreement regarding Available Closing SPAC Cash (the “Minimum Cash Condition”) has not been satisfied, and (f) against the following actions or proposals: (1) any Business Combination Proposal or any proposal in opposition to approval of the Merger Agreement or in competition with or inconsistent with the Merger Agreement and (2) (A) any change in the present capitalization of SPAC or any amendment of the Charter (as defined below), except (x) as contemplated by clause (c) above or (y) to the extent expressly contemplated by the Merger Agreement, (B) any liquidation, dissolution or other change in SPAC’s corporate structure or business (other than as may be proposed pursuant to an extension proxy), (C) any action, proposal, transaction or agreement that would result in a breach in any material respect of any covenant, representation or warranty or other obligation or agreement of such Sponsor or Insider under this Sponsor Agreement, or (D) any other action or proposal involving SPAC or any of its subsidiaries that is intended, or would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect the Transactions and (ii) not to redeem, elect to redeem or tender or submit any shares of SPAC Common Stock owned by it, him or her for redemption in connection with any of the stockholder approvals or proposals described in clause (i) above, or in connection with any vote to amend the Charter. Prior to any valid termination of the Merger Agreement, (x) the Sponsor and each Insider shall take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary under applicable Law to consummate the Transactions on the terms and subject to the conditions set forth therein, including Sponsor using commercially reasonable efforts to enter into an agreement or agreements with one or more third parties to not redeem their shares of SPAC Common Stock in connection with the Transactions and/or to make an investment in SPAC in connection with the Transactions (in addition to the investment contemplated by paragraph 7 hereof), which agreements may (except to the extent such agreements relate to the obligations under paragraph 7), if reasonably necessary, include incentives in the form of Founder Shares (which will convert to shares of SPAC Common Stock at the Closing), in amounts and on such terms as the Sponsor and the Company shall mutually agree (collectively, “Incentive Shares”) and (y) the Sponsor and each Insider shall be bound by and comply with Sections 9.03 (Exclusivity) and 9.05 (Confidentiality; Publicity) of the Merger Agreement (and any relevant definitions contained in any such Sections) as if such Person were a signatory to the Merger Agreement with respect to such provisions. If SPAC seeks to consummate a proposed Business Combination by engaging in a tender offer, the Sponsor and each Insider agrees that it, he or she will not sell or tender any shares of SPAC Capital Stock owned by it, him or her in connection therewith. The obligations of the Sponsor and the Insiders specified in this paragraph 1 shall apply whether or not the Merger, any of the Transactions or any action described above is recommend by SPAC’s board of directors.
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2. The Sponsor and each Insider hereby agrees that in the event that SPAC fails to consummate a Business Combination by October 12, 2023, or such later period approved by SPAC’s stockholders in accordance with SPAC’s amended and restated certificate of incorporation (the “Charter”), the Sponsor and each Insider shall take all reasonable steps to cause SPAC to (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than 10 Business Days thereafter, subject to lawfully available funds therefor, redeem 100% of the SPAC Common Stock (the “Offering Shares”), at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (net of amounts withdrawn to fund SPAC’s working capital requirements, subject to an annual limit of $1,000,000, and/or to pay SPAC’s taxes (“Permitted Withdrawals”)) and less up to $100,000 of interest to pay dissolution expenses), divided by the number of then outstanding Offering Shares, which redemption will completely extinguish all Public Stockholders’ rights as stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of SPAC’s remaining stockholders and SPAC’s board of directors, dissolve and liquidate, subject in each case to SPAC’s obligations under Delaware law to provide for claims of creditors and other requirements of applicable law. The Sponsor and each Insider agree to not propose any amendment to the Charter that would modify the substance or timing of SPAC’s obligation to redeem 100% of the Offering Shares if SPAC does not complete a Business Combination within the required time period set forth in the Charter or with respect to any other material provisions relating to stockholders’ rights or pre-initial business combination activity, unless SPAC provides its Public Stockholders with the opportunity to redeem their Offering Shares upon approval of any such amendment at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (net of Permitted Withdrawals), divided by the number of then outstanding Offering Shares.
The Sponsor and each Insider acknowledges that it, he or she has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of SPAC as a result of any liquidation of SPAC with respect to the Founder Shares held by it, him or her. The Sponsor and each Insider hereby further waive, with respect to any shares of SPAC Common Stock held by it, him or her, if any, any redemption rights it, he or she may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of a tender offer made by SPAC to purchase shares of SPAC Common Stock (although the Sponsor, the Insiders and their respective Affiliates shall be entitled to redemption and liquidation rights with respect to any Offering Shares it or they hold if SPAC fails to consummate a Business Combination within the time period set forth in the Charter or in connection with a stockholder vote to approve an amendment to the Charter to modify the substance or timing of SPAC’s obligation to redeem 100% of the Offering Shares if SPAC does not complete a Business Combination within the time period set forth in the Charter or with respect to any other material provisions relating to stockholders' rights or pre-initial business combination activity).
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3. Without limiting their obligations under paragraph 6 below, during the period commencing on the date hereof and ending on the earlier of (a) the valid termination of the Merger Agreement or (b) the Closing, the Sponsor and each Insider shall not, without the prior written consent of the Company, Transfer any shares of SPAC Capital Stock or any securities convertible into, or exercisable, or exchangeable for, shares of SPAC Common Stock owned by it, him or her. In the event that (i) any shares of SPAC Capital Stock or other equity securities of SPAC are issued to the Sponsor or any Insider after the date hereof pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of SPAC Capital Stock of, on or affecting the shares of SPAC Capital Stock owned by the Sponsor or any Insider or otherwise, (ii) the Sponsor or any Insider purchases or otherwise acquires beneficial ownership of any shares of SPAC Capital Stock or other equity securities of SPAC after the date hereof or (iii) the Sponsor or any Insider acquires the right to vote or share in the voting of any shares of SPAC Capital Stock or other equity securities of SPAC after the date hereof (such shares of SPAC Capital Stock or other equity securities of SPAC described in clauses (i), (ii) and (iii), the “New SPAC Shares”), then such New SPAC Shares acquired or purchased by the Sponsor or any Insider shall be subject to the terms of this paragraph 3 and paragraph 1 above to the same extent as if they constituted the SPAC Capital Stock owned by the Sponsor or any Insider as of the date hereof.
4. In the event of the liquidation of the Trust Account, the Sponsor (which for purposes of clarification shall not extend to any other shareholders, members or managers of the Sponsor or any other Insider) agrees to indemnify and hold harmless SPAC against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) to which SPAC may become subject as a result of any claim by (i) any third party for services rendered or products sold to SPAC or (ii) any prospective target business with which SPAC has entered into a letter of intent, confidentiality or other similar agreement for a Business Combination (a “Target”); provided, however, that such indemnification of SPAC by the Sponsor (x) shall apply only to the extent necessary to ensure that such claims by a third party or a Target do not reduce the amount of funds in the Trust Account to below the lesser of (i) $10.00 per Offering Share or (ii) the actual amount per Offering Share held in the Trust Account as of the date of the liquidation of the Trust Account, if less than $10.00 per Offering Share is then held in the Trust Account due to reductions in the value of the trust assets less Permitted Withdrawals, (y) shall not apply to any claims by a third party (including a Target) that executed a waiver of any and all rights to the monies held in the Trust Account (whether or not such waiver is enforceable) and (z) shall not apply to any claims under SPAC’s indemnity of Citigroup Global Markets Inc. (the “Representative”) against certain liabilities, including liabilities under the Securities Act of 1933, as amended. The Sponsor shall have the right to defend against any such claim with counsel of its choice reasonably satisfactory to SPAC if, within 15 days following written receipt of notice of the claim to the Sponsor, the Sponsor notifies SPAC in writing that it shall undertake such defense. For the avoidance of doubt, none of SPAC’s officers or directors will indemnify SPAC for claims by third parties, including, without limitation, claims by vendors and prospective target businesses.
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5. The Sponsor and each Insider hereby agrees and acknowledges that: (i) the Representative, SPAC and, prior to any valid termination of the Merger Agreement, the Company would be irreparably injured in the event of a breach by such Sponsor or Insider of its, his or her obligations under paragraphs 1, 2, 3, 4, 6(a), 6(b), 6(c), 6(d), 6(e), 7, 8 and 12, as applicable, of this Sponsor Agreement (with respect to the Representative, only such provisions as were contained in the Prior Letter Agreements), (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach.
6. (a) In the event that the Closing does not occur for any reason (including, without limitation, as a result of the valid termination of the Merger Agreement), the Sponsor and each Insider agrees that it, he or she shall not Transfer (i) any Founder Shares (or shares of SPAC Common Stock issuable upon conversion thereof) until the earlier of (A) one year after the completion of SPAC’s initial Business Combination (including the Merger) or (B) subsequent to the Business Combination, (x) if the closing price of the SPAC Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after SPAC’s initial Business Combination or (y) the date on which SPAC completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of SPAC’s stockholders having the right to exchange their shares of SPAC Common Stock for cash, securities or other property (the “Standalone Founder Shares Lock-Up Period”) and (ii) any Private Placement Shares until 30 days after the completion of a Business Combination (the “Standalone Private Placement Shares Lock-up Period”).
(b) In the event that the Closing does occur, the Sponsor agrees that it shall not Transfer any of the Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) or the Private Placement Shares owned by the Sponsor as of the Closing Date (after giving effect to the consummation of the Transactions); provided that the Sponsor (and its permitted transferees) may transfer (to the extent vested pursuant to subsection (d) below) up to:
(i) 40% of the Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) and 40% of the Private Placement Shares owned by the Sponsor (and its permitted transferees) as of the Closing Date (after giving effect to the consummation of the Transactions) from and after the earlier to occur of (x) the 12 month anniversary of the Closing Date and (y) the date on which the closing share price of SPAC Common Stock equals or exceeds $12.00 per share for 20 Trading Days within any 60 consecutive Trading Day period commencing after the Closing Date (such period, the “12 Month Lock-Up Period”);
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(ii) 30% of the Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) and 30% of the Private Placement Shares owned by the Sponsor (and its permitted transferees) as of the Closing Date (after giving effect to the consummation of the Transactions) from and after the earlier to occur of (x) the 24 month anniversary of the Closing Date and (y) the date on which the closing share price of SPAC Common Stock equals or exceeds $14.00 per share for 20 Trading Days within any 60 consecutive Trading Day period commencing after the Closing Date (such period, the “24 Month Lock-Up Period”); and
(iii) 30% of the Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) and 30% of the Private Placement Shares owned by the Sponsor (and its permitted transferees) as of the Closing Date (after giving effect to the consummation of the Transactions) from and after the earlier to occur of (x) the 36 month anniversary of the Closing Date and (y) the date on which the closing share price of SPAC Common Stock equals or exceeds $16.00 per share for 20 Trading Days within any 60 consecutive Trading Day period commencing after the Closing Date (such period, the “36 Month Lock-Up Period” and, collectively with the 12 Month Lock-Up Period and the 24 Month Lock-Up Period, the “Lock-Up Periods”). For the purposes of this paragraph 6(b), “Trading Day” means a day on which the New York Stock Exchange or such other principal United States securities exchange on which the SPAC Common Stock is listed, quoted or admitted to trading and is open for the transaction of business (unless such trading shall have been suspended for the entire day).
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(c) Notwithstanding the provisions set forth in paragraphs 3 and 6(a) and (b), but subject to the provisions set forth in paragraph 6(d), (i) upon the valid termination of the Merger Agreement, the following Transfers of the Founder Shares, the Private Placement Shares and shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares that are held by the Sponsor, any Insider or any of their permitted transferees (that have complied with this paragraph 6(c)), are permitted: (A) to SPAC’s officers or directors, any affiliates or family members of any of SPAC’s officers or directors, any members of the Sponsor, or any affiliates of the Sponsor; (B) in the case of an individual, transfers by gift to a member of the individual’s immediate family, to a trust, the beneficiary of which is a member of the individual’s immediate family or an Affiliate of such person, or to a charitable organization; (C) in the case of an individual, transfers by virtue of laws of descent and distribution upon death of the individual; (D) in the case of an individual, transfers pursuant to a qualified domestic relations order; (E) transfers by private sales or transfers made in connection with the consummation of a Business Combination at prices no greater than the price at which the securities were originally purchased; (F) transfers in the event of SPAC’s liquidation prior to the completion of an initial Business Combination; (G) transfers by virtue of the laws of the State of Delaware or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor; (H) in the event of SPAC’s completion of a liquidation, merger, stock exchange, reorganization or other similar transaction which results in all of SPAC’s public stockholders having the right to exchange their shares of SPAC Common Stock for cash, securities or other property, subsequent to the completion of an initial Business Combination; (I) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (A) through (H) above; provided, however, that in the case of clauses (A) through (E) and (I), these permitted transferees must enter into a written agreement with SPAC agreeing to be bound by the transfer restrictions herein and the other restrictions contained in this Sponsor Agreement (including provisions relating to voting, the Trust Account and liquidating distributions) and (ii) during the period commencing on the date hereof and ending on the earlier of (x) the expiration of the Lock-up Periods and (y) the date of any valid termination of the Merger Agreement, the following Transfers of the Founder Shares, the Private Placement Shares, shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares, that are held by the Sponsor or any of its permitted transferees (that have complied with this paragraph 6(c)), are permitted: (A) in the case of an individual, transfers by gift to a member of the individual’s immediate family, to a trust, the beneficiary of which is a member of the individual’s immediate family, or to a charitable trust; (B) in the case of an individual, transfers by virtue of laws of descent and distribution upon death of such individual; (C) in the case of an individual, transfers to such individual’s spouse pursuant to a qualified domestic relations order; (D) transfers to the Sponsor or to any Insider; and (E) transfers by the Sponsor to its members and such members’ respective members; provided that to the extent such members have obligations pursuant to this Sponsor Agreement, such members shall agree in writing to SPAC and the Company that the securities so distributed to them will continue to be subject to such obligations; provided, further, that any other permitted transferees must enter into a written agreement with SPAC or the Company agreeing to be bound by the transfer restrictions herein.
(d) Vesting Provisions. The Sponsor agrees that, as of the Closing, all of the Founder Shares or shares of SPAC Common Stock issued or issuable upon the exercise or conversion of the Founder Shares as identified on Annex A as “Vesting Founder Shares” shall be unvested and shall be subject to the vesting and forfeiture provisions set forth in this paragraph 6(d). The Sponsor agrees that it shall not (and will cause its Affiliates not to) Transfer any unvested Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the unvested Founder Shares prior to the later of (x) the expiration of the applicable Lock-Up Period, and (y) the date such Founder Shares or shares of SPAC Common Stock become vested pursuant to this paragraph 6(d). For the avoidance of doubt, it is acknowledged and agreed that the Private Placement Shares shall not be subject to the provisions of this paragraph 6(d).
| (i) | Vesting Schedule. |
(1) 50% of the Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares owned by the Sponsor as of the Closing and identified on Annex A as “Vesting Founder Shares” shall vest on the date on which the Stock Price Level is equal to or greater than the First Vesting Price (the “First Vesting Date”); provided, however, that if the First Vesting Date occurs on or after the date that is five years after the Closing Date, such Founder Shares shall not vest.
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(2) 25% of the Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares owned by the Sponsor as of the Closing and identified on Annex A as “Vesting Founder Shares” shall vest on the date on which the Stock Price Level is equal to or greater than the Second Vesting Price (the “Second Vesting Date”); provided, however, that if the Second Vesting Date occurs on or after the date that is five years after the Closing Date, such Founder Shares shall not vest.
(3) 12.5% of the Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares owned by the Sponsor as of the Closing and identified on Annex A as “Vesting Founder Shares” shall vest on the date on which the Stock Price Level is equal to or greater than the Third Vesting Price (the “Third Vesting Date”); provided, however, that if the Third Vesting Date occurs on or after the date that is five years after the Closing Date, such Founder Shares shall not vest.
(4) 12.5% of the Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares owned by the Sponsor as of the Closing and identified on Annex A as “Vesting Founder Shares” shall vest on the date on which the Stock Price Level is equal to or greater than the Fourth Vesting Price (the “Fourth Vesting Date”); provided, however, that if the Fourth Vesting Date occurs on or after the date that is five years after the Closing Date, such Founder Shares shall not vest.
(5) Founder Shares (or shares of SPAC Common Stock) identified on Annex A as “Vesting Founder Shares” that do not vest in accordance with this paragraph 6(d)(i) on or before the date that is five years after the Closing Date will be automatically forfeited for no additional consideration immediately following the five-year anniversary of the Closing Date.
(ii) Acceleration of Vesting upon a Sale. In the event of a Sale (as defined below) prior to the fifth anniversary of the Closing Date, the vesting of unvested Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the unvested Founder Shares shall be accelerated or the unvested Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the unvested Founder Shares will be forfeited, as follows:
(1) With respect to the unvested Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) that were eligible to vest pursuant to paragraph 6(d)(i)(1), (A) such Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) will fully vest as of immediately prior to the closing of such Sale only if the per share price of the SPAC Common Stock paid or implied in such Sale equals or exceeds the First Vesting Price and (B) no portion of such Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) will vest in connection with such Sale if the per share price of the SPAC Common Stock paid or implied in such Sale is less than the First Vesting Price.
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(2) With respect to the unvested Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) that were eligible to vest pursuant to paragraph 6(d)(i)(2), (A) such Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) will fully vest as of immediately prior to the closing of such Sale only if the per share price of the SPAC Common Stock paid or implied in such Sale equals or exceeds the Second Vesting Price and (B) no portion of such Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) will vest in connection with such Sale if the per share price of the SPAC Common Stock paid or implied in such Sale is less than the Second Vesting Price.
(3) With respect to the unvested Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) that were eligible to vest pursuant to paragraph 6(d)(i)(3), (A) such Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) will fully vest as of immediately prior to the closing of such Sale only if the per share price of the SPAC Common Stock paid or implied in such Sale equals or exceeds the Third Vesting Price and (B) no portion of such Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) will vest in connection with such Sale if the per share price of the SPAC Common Stock paid or implied in such Sale is less than the Third Vesting Price.
(4) With respect to the unvested Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) that were eligible to vest pursuant to paragraph 6(d)(i)(4), (A) such Founder Shares (or shares of SPAC Common Stock) will fully vest as of immediately prior to the closing of such Sale only if the per share price of the SPAC Common Stock paid or implied in such Sale equals or exceeds the Fourth Vesting Price and (B) no portion of such Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) will vest in connection with such Sale if the per share price of the SPAC Common Stock paid or implied in such Sale is less than the Fourth Vesting Price.
(5) Unvested Founder Shares (or shares of SPAC Common Stock issuable or issued upon conversion thereof) that do not vest in accordance with this paragraph 6(d)(ii) upon the occurrence of a Sale will be forfeited immediately prior to the closing of such Sale and in accordance with paragraph 6(d)(iii).
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(6) For purposes of this paragraph 6(d)(ii), “Sale” means following the Closing Date, (A) a purchase, sale, exchange, business combination or other transaction (including a merger or consolidation of SPAC with or into any other corporation or other entity) in which the equity securities of SPAC, its successor or the surviving entity of such business combination or other transaction are not registered under the Securities Exchange Act or 1934, as amended (the “Exchange Act”) or listed or quoted for trading on a national securities exchange, (B) a sale, lease, exchange or other transfer in one transaction or a series of related transactions of all or substantially all of SPAC’s assets to a third party that is not an Affiliate of the Sponsor (or a group of third parties that are not Affiliates of the Sponsor) or (C) the transfer to or acquisition by (whether by tender offer, merger, consolidation, division or other similar transaction), in one transaction or a series of related transactions, a person or entity or group of affiliated persons or entities (other than an underwriter pursuant to an offering), of SPAC’s voting securities if, after such transfer or acquisition, such person, entity or group of affiliated persons or entities would beneficially own (as defined in Rule 13d-3 promulgated under the Exchange Act) more than 50% of the outstanding voting securities of SPAC (it being understood for the purposes of this clause (C), a bona fide equity financing shall not be considered a “Sale”). For avoidance of doubt, following a transaction or business combination that is not a “Sale” hereunder, including a transaction or business combination in which the equity securities of the surviving entity of such business combination or other transaction are registered under the Exchange Act and listed or quoted for trading on a national securities exchange, the equitable adjustment provisions of paragraph 21 shall apply, including, without limitation, to performance vesting criteria.
(7) Holders of Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares subject to the vesting provisions of this paragraph 6(d) shall be entitled to vote such Founder Shares or shares of SPAC Common Stock and receive dividends and other distributions with respect to such Founder Shares or shares of SPAC Common Stock prior to vesting; provided that dividends and other distributions with respect to Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares that are subject to vesting pursuant to paragraph 6(d)(i) shall be set aside by SPAC and shall only be paid to such holders upon the vesting of such Founder Shares or shares of SPAC Common Stock (if at all); for the avoidance of doubt, (A) such dividends and other distributions shall be paid only on the portion of the unvested Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares that vest and (B) if any dividends or other distributions with respect to Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares that are subject to vesting pursuant to paragraph 6(d)(i) are set aside and such Founder Shares or shares of SPAC Common Stock are subsequently forfeited, such set aside dividends or distributions shall become the property of SPAC.
(iii) Forfeiture of Founder Shares.
(1) If the Closing occurs with the Minimum Cash Condition being waived by the Company (such waiver to be made in the Company’s sole discretion), the Sponsor agrees to forfeit at the time of the Closing such number of Founder Shares equal to (A) the amount of additional cash that SPAC would have been required to deliver at the Closing to satisfy the Minimum Cash Condition (notwithstanding any waiver by the Company) divided by (B) $10.00 (the “Forfeited Shares”); provided that the number of Forfeited Shares shall not be in excess of 50% of the Founder Shares owned by the Sponsor as of the date hereof.
(2) Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares that are forfeited pursuant to paragraph 6(d)(i), 6(d)(ii), this paragraph 6(d)(iii) or paragraph 6(f) shall be automatically transferred by the Sponsor to SPAC, without any consideration for such Transfer, and cancelled.
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(iv) Stock Price Level. For purposes of this paragraph 6(d), the applicable “Stock Price Level” will be considered achieved only when the closing price per share of SPAC Common Stock on the New York Stock Exchange, or such other securities exchange where the SPAC Common Stock is primarily listed or quoted, equals or exceeds the applicable threshold for 20 trading days within any 60 consecutive trading day period. The Stock Price Levels (and the share price levels in a Sale in paragraph 6(d)(ii)) will be equitably adjusted on account of any stock split, reverse stock split or similar equity restructuring transaction.
(e) Waiver of Conversion Ratio Adjustment.
(i) (A) Section 4.3(b)(i) of the Charter provides that each share of SPAC Class B Common Stock shall automatically convert into one share of SPAC Common Stock (the “Initial Conversion Ratio”) at the time of a Business Combination, and (B) Section 4.3(b)(ii) of the Charter provides that the Initial Conversion Ratio shall be adjusted (the “Adjustment”) in the event that additional shares of SPAC Common Stock are issued in excess of the amounts offered in SPAC’s initial public offering of securities such that the Sponsor and the Insiders, along with any other holders of SPAC Class B Common Stock, shall continue to own 25% of the issued and outstanding shares of Capital Stock after giving effect to such issuance.
(ii) As of and conditioned upon the Closing, the Sponsor and each Insider hereby irrevocably relinquishes and waives any and all rights the Sponsor and each Insider has or will have under Section 4.3(b)(ii) of the Charter to receive shares of SPAC Common Stock in excess of the number issuable at the Initial Conversion Ratio upon conversion of the existing SPAC Class B Common Stock held by him, her or it, as applicable, in connection with the Closing as a result of any Adjustment, and, as a result, the shares of SPAC Class B Common Stock shall convert into shares of SPAC Common Stock (or such equivalent security) at Closing on a one-for-one basis.
(f) Transaction Expenses. The Sponsor hereby agrees that to the extent SPAC Transaction Expenses as of immediately prior to the Closing (including any such amounts that become payable as a result of the Closing) exceeds $25,000,000 (the “Expense Cap”), then the Sponsor shall, as of and conditioned upon the Closing, at its election, either (x) pay any such amount in excess of the Expense Cap (the “Excess Amount”) to SPAC or an account designated by SPAC in cash, by wire transfer of immediately available funds to the account designated by SPAC or (y) forfeit in accordance with paragraph 6(d)(iii)(2) such number of Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares (valued at $10.00 per Founder Share) held by the Sponsor that, in the aggregate, have a value equal to the Excess Amount; provided that any Excess Amount greater than $15,000,000 shall be paid in cash pursuant to clause (x). In the event that the amount of any contingent liabilities of SPAC as of immediately prior to the Closing are unknown, the Sponsor and the Company will negotiate in good faith in order to reach agreement on the amount thereof and, in the event that the Sponsor and the Company are unable to reach agreement prior to the Closing, such disagreement shall not delay the Closing and the SPAC Transaction Expenses shall be recalculated each time such contingent liabilities crystallize and if such recalculation results in SPAC Expenses exceeding the Expense Cap or an increase in the amount of such excess, this paragraph 6(f) shall apply to such excess.
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7. (a) Sponsor Commitment. The Sponsor, on the terms and subject to the conditions set forth in this paragraph 7, agrees to purchase, or cause the purchase (through one or more of its affiliated co-investors designated by it (including an Insider as defined in this Sponsor Agreement)) on the Closing Date shares of SPAC Common Stock at a purchase price of $10.00 per share, equal to up to $50,000,000 (the “Sponsor Commitment”); provided, however, that no such action will reduce the amount of the Sponsor Commitment or otherwise affect the obligations of Sponsor under this paragraph 7, except to the extent the Sponsor Commitment is actually funded by an affiliated co-investor; and provided, further, that for the purposes of this paragraph 7, “Sponsor” shall, as applicable, refer to the Sponsor or any affiliated co-investor designated by the Sponsor that actually funds the Sponsor Commitment). For the avoidance of doubt, the Sponsor Commitment, to the extent funded pursuant to the terms hereof, shall be deemed to be included in the “Available Closing SPAC Cash” as of the Closing Date. Notwithstanding anything to the contrary in this Agreement, at any time and from time to time, the Company and the Sponsor may mutually agree to reduce the Sponsor Commitment. The obligations of the Sponsor under this paragraph 7 will terminate automatically and immediately upon the valid termination of the Merger Agreement pursuant to its terms.
(b) Notices.
(i) On the date that is one (1) Business Day following the date by which the SPAC Stockholder Redemption is required to be completed in accordance with the terms of the Merger Agreement, SPAC shall deliver a written notice (the “SPAC Notice”) to the Sponsor and the Company, which shall include (A) the aggregate amount (in shares of and dollars) of redemption elections tendered by SPAC Stockholders in respect of such SPAC Stockholders’ SPAC Common Stock, and (B) the projected amount of Available Closing SPAC Cash at or immediately prior to the Closing after reduction for the aggregate amount of payments required to be made in connection with such SPAC Stockholder Redemption.
(ii) Following receipt of the SPAC Notice by the Sponsor and the Company, the Company shall deliver to the Sponsor a notice (the “Funding Notice”) specifying (A) the amount of the Sponsor Commitment that the Company requests the Sponsor to fund pursuant to this paragraph 7, which, for the avoidance of doubt, shall be an amount equal to: (I) $250,000,000 minus (II) the Available Closing SPAC Cash before any funding of the Sponsor Commitment (the “Sponsor Commitment Purchase Price”); provided, that the Sponsor Commitment Purchase Price shall not exceed $50,000,000, (B) the number of shares of SPAC Common Stock that the Company requires the Sponsor to purchase, at a purchase price of $10.00 per share, which shall be a number of shares equal to the Sponsor Commitment Purchase Price divided by $10.00 (rounded down to the nearest whole share); provided, that such number of shares of SPAC Common Stock shall not exceed 5,000,000, (C) the anticipated Closing Date, and (D) a statement from the Company that to the extent that the amount of Available Closing SPAC Cash is less than the Minimum Cash Condition, such Minimum Cash Condition shall be deemed waived by the Company effective as of the Closing Date (the “Minimum Cash Condition Waiver”); provided, further, if the aggregate Sponsor Commitment Purchase Price for the number of shares of SPAC Common Stock specified in the Funding Notice is not paid and the Minimum Cash Condition is not met, such Minimum Cash Condition Waiver shall be null and void.
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(iii) Subject to the terms and conditions hereof, SPAC shall issue and sell to the Sponsor, and the Sponsor shall purchase from SPAC, on a private placement basis, the amount of shares of SPAC Common Stock set forth in the Funding Notice (the “Purchased Shares”). The Sponsor shall have registration rights with respect to the Purchased Shares commensurate with the registration rights provided in the Registration Rights Agreement that will be entered into by and among SPAC, the Company, the Sponsor and certain other parties thereto in connection with the consummation of the Transactions.
(c) Prior to the Closing Date, the Sponsor shall deliver to SPAC, to be held in escrow until the Closing, the aggregate Sponsor Commitment Purchase Price by wire transfer of dollars in immediately available funds to the account specified by SPAC against delivery by SPAC of the shares of SPAC Common Stock in accordance with the terms of this paragraph 7.
(d) The Sponsor hereby acknowledges and agrees that any SPAC Common Stock received by AltC Sponsor LLC, an Insider, or an Affiliate thereof pursuant to this paragraph 7 will be deemed to constitute additional Private Placement Shares and be subject to the terms and conditions as set forth in this Sponsor Agreement applicable to Private Placement Shares. The Sponsor hereby acknowledges and agrees that any purchase of SPAC Common Stock by Sponsor pursuant to this paragraph 7 will be deemed irrevocable in the event that the Closing occurs and any attempt by the Sponsor to refund or rescind all or any portion of the Sponsor Commitment Purchase Price (as specified in the Funding Notice) it is obligated to make to SPAC pursuant to this paragraph 7 prior to the valid termination of the Merger Agreement in accordance with its terms shall be deemed to be a breach of this Sponsor Agreement.
(e) The obligation of Sponsor to purchase shares of SPAC Common Stock under this paragraph 7 shall be subject to (i) the satisfaction (or waiver by SPAC) of the conditions set forth in Section 10.01 and Section 10.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing), (ii) the substantially concurrent consummation of the Closing, and, (iii) if the Company waives the Minimum Cash Condition, the amount of the Available Closing SPAC Cash equals an amount of at least $125,000,000 (which such amount, for the avoidance of doubt, shall include the Sponsor Commitment Purchase Price to the extent actually funded). In the event the Closing does not occur on the anticipated Closing Date and the Merger Agreement is thereafter terminated in accordance with its terms, SPAC shall promptly (but no later than two (2) Business Days thereafter) return the Sponsor Commitment Purchase Price back to the Sponsor and cancel the corresponding shares of SPAC Common Stock.
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8. The Sponsor and each Insider represents and warrants that it, he or she has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked. Each Insider represents that such Insider’s biographical information furnished to SPAC (including any such information included in the Proxy Statement) is true and accurate in all respects and does not omit any material information with respect to the Insider’s background. The Sponsor and each Insider represents and warrants that: it, he or she is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction; it, he or she has never been convicted of, or pleaded guilty to, any crime (i) involving fraud, (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining to any dealings in any securities and it, he or she is not currently a defendant in any such criminal proceeding.
9. Except as disclosed on Schedule 6.08 (Brokers’ Fees) of the Merger Agreement, neither the Sponsor nor any Insider nor any Affiliate of the Sponsor or any Insider, nor any director or officer of SPAC, shall receive from SPAC any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of a Business Combination (regardless of the type of transaction that it is), other than the following, none of which will be made from the proceeds held in the Trust Account prior to the completion of the Business Combination and each of which shall, as of and in connection with the Closing, be paid off in full and no further liabilities or obligations in respect thereof shall be due and owing by SPAC or the Company or any of its Subsidiaries from and after the Closing; payment to an Affiliate of the Sponsor for office space and related support services for a total of $30,000 per month; reimbursement for any reasonable out-of-pocket expenses related to identifying, investigating and consummating a Business Combination; and repayment of loans, if any, and on such terms as to be determined by SPAC from time to time, made by the Sponsor or certain of SPAC’s officers and directors to finance transaction costs in connection with an intended Business Combination, provided that if SPAC does not consummate a Business Combination, a portion of the working capital held outside the Trust Account may be used by SPAC to repay such loaned amounts so long as no proceeds from the Trust Account are used for such repayment. Up to $1,500,000 of such loans may be convertible into shares (“Working Capital Shares”) of SPAC Common Stock at a price of $10.00 per share at the option of the lender. Any such shares will be identical to the Private Placement Shares. During the period commencing on the date hereof and ending on the earlier of (i) the consummation of the Closing and (ii) the valid termination of the Merger Agreement, the Sponsor and each Insider agrees not to enter into, modify or amend any Contract between or among the Sponsor, any Insider, anyone related by blood, marriage or adoption to any Insider or any Affiliate of any such Person (other than SPAC or any of its Subsidiaries), on the one hand, and SPAC or any of its Subsidiaries, on the other hand, that would contradict, limit, restrict or impair (x) any party’s ability to perform or satisfy any obligation under this Sponsor Agreement or (y) the Company’s, SPAC’s or Merger Sub’s ability to perform or satisfy any obligation under the Merger Agreement.
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10. The Sponsor and each Insider has full right and power, without violating any agreement to which it is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Sponsor Agreement and, as applicable, to serve as an officer and/or a director on the board of directors of SPAC.
11. As used herein, the following terms shall have the respective meanings set forth below:
(a) “Business Combination” shall mean a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving SPAC and one or more businesses;
(b) “Commission” shall mean the U.S. Securities and Exchange Commission;
(c) “First Vesting Price” shall mean $10.00;
(d) “Founder Shares” shall mean the 12,500,000 shares of SPAC Class B Common Stock owned by the Sponsor;
(e) “Fourth Vesting Price” shall mean $16.00;
(f) “Private Placement Shares” shall mean the 1,450,000 shares of SPAC’s Common Stock (as may be increased to 1,600,000 shares of SPAC’s Common Stock in accordance with paragraph 9 hereof) owned by the Sponsor;
(g) “Public Offering” shall mean the underwritten initial public offering of 50,000,000 shares of SPAC Common Stock;
(h) “Public Stockholders” shall mean the holders of securities issued in the Public Offering;
(i) “Second Vesting Price” shall mean $12.00;
(j) “SPAC Capital Stock” shall mean, collectively, the SPAC Common Stock, the Private Placement Shares and the Founder Shares;
(k) “SPAC Class B Common Stock” shall mean SPAC’s Class B common stock, par value $0.0001 per share;
(l) “SPAC Common Stock” shall mean SPAC’s Class A common stock, par value $0.0001 per share;
(m) “Third Vesting Price” shall mean $14.00;
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(n) “Transfer” shall mean the, direct or indirect, voluntary or involuntary, (I) transfer, sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase, distribution or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the Commission promulgated thereunder with respect to, any security, (II) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (III) public announcement of any intention to effect any transaction specified in clause (I) or (II) above; and
(o) “Trust Account” shall mean the trust fund into which the net proceeds of the Public Offering and a portion of the proceeds from the sale of the Private Placement Shares were deposited.
12. This Sponsor Agreement and the other agreements referenced herein constitute the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersede all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby, including, without limitation, the Prior Letter Agreements. This Sponsor Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto and the Company, it being acknowledged and agreed that the Company’s execution of such an instrument will not be required after any valid termination of the Merger Agreement.
13. Except as otherwise provided herein, no party hereto may assign either this Sponsor Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties and the Company (except that, following any valid termination of the Merger Agreement, no consent from the Company shall be required); provided, that, the Sponsor may assign and/or delegate all or a portion of its obligation to fund the Sponsor Commitment under Section 7 hereof to affiliated co-investors designated by it; provided, further, that, any such assignment by Sponsor shall not relieve Sponsor of its obligations to fund the Sponsor Commitment hereunder unless actually funded by such other affiliated co-investor. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Sponsor Agreement shall be binding on SPAC, the Sponsor and each of the Insiders and each of their respective successors, heirs and assigns and permitted transferees.
14. Nothing in this Sponsor Agreement shall be construed to confer upon, or give to, any person or entity other than the parties hereto any right, remedy or claim under or by reason of this Sponsor Agreement or of any covenant, condition, stipulation, promise or agreement hereof. All covenants, conditions, stipulations, promises and agreements contained in this Sponsor Agreement shall be for the sole and exclusive benefit of SPAC, the Sponsor and the Insiders (and, prior to any valid termination of the Merger Agreement, the Company) and their successors, heirs, personal representatives and assigns and permitted transferees. Notwithstanding anything herein to the contrary, each of SPAC, the Sponsor and each Insider acknowledges and agrees that, until the valid termination of the Merger Agreement, the Company is an express third party beneficiary of this Sponsor Agreement and may directly enforce (including by an action for specific performance, injunctive relief or other equitable relief) each of the provisions set forth in this Sponsor Agreement as though directly party hereto.
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15. This Sponsor Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
16. This Sponsor Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Sponsor Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Sponsor Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
17. This Sponsor Agreement, and all claims or causes of action (each, an “Action”) based upon, arising out of, or related to this Sponsor Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction. Any Action based upon, arising out of or related to this Sponsor Agreement or the transactions contemplated hereby may be brought in federal and state courts located in the State of Delaware, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Action shall be heard and determined only in any such court, and agrees not to bring any Action arising out of or relating to this Sponsor Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this paragraph. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS SPONSOR AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. Any notice, consent or request to be given in connection with any of the terms or provisions of this Sponsor Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or email transmission to the receiving party’s address or email address set forth above or on the receiving party’s signature page hereto; provided that any such notice, consent or request to be given to SPAC or the Company at any time prior to the valid termination of the Merger Agreement shall be given in accordance with the terms of Section 12.02 (Notices) of the Merger Agreement.
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19. This Sponsor Agreement shall terminate on the earlier of (i) the later of (x) the expiration of the 24 Month Lock-Up Period, and (y) the vesting and/or forfeiture in full of all Founder Shares or shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares owned by the Sponsor as of the Closing; and (ii) the liquidation of SPAC; provided, however, that paragraph 4 of this Sponsor Agreement shall survive such liquidation for a period of six years; provided, further, that no such termination shall relieve the Sponsor, any Insider or SPAC from any liability resulting from a breach of this Sponsor Agreement occurring prior to such termination.
20. Each party hereto that is also a party to that certain Registration Rights Agreement, dated as of July 7, 2021, by and among SPAC and the Sponsor (the “Existing Registration Rights Agreement”) hereby agrees to terminate the Existing Registration Rights Agreement effective as of the Closing. On or about the Closing Date, the Sponsor shall deliver to SPAC the Registration Rights Agreement, duly executed by the Sponsor, in the form attached to the Merger Agreement.
21. Each of the Sponsor and the Insiders hereby represents and warrants (severally and not jointly as to itself, himself or herself only) to SPAC and the Company as follows: (i) if such Person is not an individual, it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Sponsor Agreement and the consummation of the transactions contemplated hereby are within such Person’s corporate, limited liability company or organizational powers and have been duly authorized by all necessary corporate, limited liability company or organizational actions on the part of such Person; (ii) if such Person is an individual, such Person has full legal capacity, right and authority to execute and deliver this Sponsor Agreement and to perform his or her obligations hereunder; (iii) this Sponsor Agreement has been duly executed and delivered by such Person and, assuming due authorization, execution and delivery by the other parties to this Sponsor Agreement, this Sponsor Agreement constitutes a legally valid and binding obligation of such Person, enforceable against such Person in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies); (iv) the execution and delivery of this Sponsor Agreement by such Person does not, and the performance by such Person of his, her or its obligations hereunder will not, (A) if such Person is not an individual, conflict with or result in a violation of the organizational documents of such Person or (B) require any consent or approval that has not been given or other action that has not been taken by any third party (including under any Contract binding upon such Person or its, his or her Founder Shares or Private Placement Shares, as applicable), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by such Person of its, his or her obligations under this Sponsor Agreement; (v) there are no Actions pending against such Person or, to the knowledge of such Person, threatened against such Person, before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such Person of such Person’s obligations under this Sponsor Agreement; (vi) except for fees described on Schedule 6.08 (Brokers’ Fees) of the Merger Agreement, no financial advisor, investment banker, broker, finder or other similar intermediary is entitled to any fee or commission from such Person, SPAC, any of its Subsidiaries or any of their respective Affiliates in connection with the Merger Agreement or this Sponsor Agreement or any of the respective transactions contemplated thereby and hereby, in each case, based upon any arrangement or agreement made by or, to the knowledge of such Person, on behalf of such Person, for which SPAC, the Company or any of their respective Affiliates would have any obligations or liabilities of any kind or nature; (vii) such Person has had the opportunity to read the Merger Agreement and this Sponsor Agreement and has had the opportunity to consult with its tax and legal advisors; (viii) such Person has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere with the performance of such Person’s obligations hereunder; (ix) except as otherwise described in this Sponsor Agreement, such Person has the direct or indirect interest in all of its, his or her SPAC Common Stock, Founder Shares and Private Placement Shares, which are held through the Sponsor, the Sponsor has good title to all such Founder Shares and Private Placement Shares and any SPAC Common Stock held by the Sponsor, and there exist no Liens or any other limitation or restriction (including, without limitation, any restriction on the right to vote, sell or otherwise dispose of such securities (other than transfer restrictions under the Securities Act) affecting any such securities, other than pursuant to (A) this Sponsor Agreement, (B) the Charter, (C) the Merger Agreement, (D) the Existing Registration Rights Agreement, or (E) any applicable securities laws; (x) the Founder Shares and Private Placement Shares listed on Annex A are the only equity securities in SPAC (including, without limitation, any equity securities convertible into, or which can be exercised or exchanged for, equity securities of SPAC) owned of record or beneficially by such Person as of the date hereof and such Person has 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) such Founder Shares and Private Placement Shares and none of such Founder Shares or Private Placement Shares is subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Founder Shares or Private Placement Shares, except as provided in this Sponsor Agreement.
22. If, and as often as, there are any changes in SPAC, the SPAC Common Stock, the Founder Shares or the Private Placement Shares by way of stock split, stock dividend, combination or reclassification, or through merger, consolidation, reorganization, recapitalization or business combination, or by any other means, equitable adjustment shall be made to the provisions of this Sponsor Agreement as may be required so that the rights, privileges, duties and obligations hereunder shall continue with respect to SPAC, SPAC’s successor or the surviving entity of such transaction, the SPAC Common Stock, the Founder Shares or the Private Placement Shares, each as so changed. For the avoidance of doubt, such equitable adjustment shall be made to the performance criteria set forth in paragraph 6(d).
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23. Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment, transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof and as may be reasonably requested in writing by another party hereto.
[Signature Page Follows]
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| Sincerely, | |
| SPONSOR: | |
| ALTC SPONSOR LLC |
| By: | ||
Name: [●] Title: [●] |
[Signature Page to Sponsor Agreement]
| INSIDERS: |
| By: | |||
| Name: Sam Altman | |||
| Address: | c/o AltC Acquisition Corp. | ||
| 640 Fifth Avenue, 12th Floor | |||
| New York, NY 10019 | |||
| Email: sam.hg.altman@gmail.com | |||
| By: | |||
| Name: Michael Klein | |||
| Address: | c/o AltC Acquisition Corp. | ||
| 640 Fifth Avenue, 12th Floor | |||
| New York, NY 10019 | |||
| Email: Michael.Klein@mkleinandcompany.com | |||
| By: | |||
| Name: Jay Taragin | |||
| Address: | c/o AltC Acquisition Corp. | ||
| 640 Fifth Avenue, 12th Floor | |||
| New York, NY 10019 | |||
| Email: Jay.Taragin@mkleinandcompany.com | |||
| By: | |||
| Name: Francis Frei | |||
| Address: | c/o AltC Acquisition Corp. | ||
| 640 Fifth Avenue, 12th Floor | |||
| New York, NY 10019 | |||
| Email: francesfrei@gmail.com | |||
| By: | |||
| Name: Allison Green | |||
| Address: | c/o AltC Acquisition Corp. | ||
| 640 Fifth Avenue, 12th Floor | |||
| New York, NY 10019 | |||
| Email: agreen@surocap.com | |||
[Signature Page to Sponsor Agreement]
| By: | |||
| Name: Peter Lattman | |||
| Address: | c/o AltC Acquisition Corp. | ||
| 640 Fifth Avenue, 12th Floor | |||
| New York, NY 10019 | |||
| Email: peter@emersoncollective.com | |||
| By: | |||
| Name: John L. Thornton | |||
| Address: | c/o AltC Acquisition Corp. | ||
| 640 Fifth Avenue, 12th Floor | |||
| New York, NY 10019 | |||
| Email: jthornton@asiasociety.org | |||
[Signature Page to Sponsor Agreement]
FOR THE LIMITED PURPOSES SET FORTH IN PARAGRAPH 7
COMPANY:
OKLO INC.
| By: |
| Name: | ||
| Title: |
[Signature Page to Sponsor Agreement]
Acknowledged and Agreed:
ALTC ACQUISITION CORP.
| By: | ||
Name: [●] Title: [●] |
[Signature Page to Sponsor Agreement]
Annex A
| Founder Shares* | Vesting
Founder Shares |
Private
Placement Shares | |
| ALTC SPONSOR LLC | 12,500,000 | 12,500,000 minus the Forfeited Shares (as defined in paragraph 6 above) | 1,450,000 (provided the Private Placement Shares may be increased to up to 1,600,000 in accordance with paragraph 9 above) |
| Sam Altman** | -- | -- | -- |
| Michael Klein*** | -- | -- | -- |
| Jay Taragin | -- | -- | -- |
| Frances Frei | -- | -- | -- |
| Allison Green | -- | -- | -- |
| Peter Lattman | -- | -- | -- |
| John Thornton | -- | -- | -- |
* Includes shares of SPAC Common Stock issued or issuable upon the conversion of the Founder Shares.
**Sam Altman has an economic interest in shares of SPAC’s Common Stock through his ownership of a membership interest in AltC Sponsor LLC.
***Michael Klein may be deemed to beneficially own the Founder Shares and Private Placement Shares owned by AltC Sponsor LLC.
Exhibit 99.1
Oklo, an Advanced Fission Technology Company, to Go Public via Merger with AltC Acquisition Corp.
| • | Oklo’s mission is to provide clean, reliable, affordable energy on a global scale through the design and deployment of next-generation fast reactor technology. |
| • | Oklo is pursuing an owner-operator model with an intention to sell power directly to customers under long-term contracts, providing recurring revenue. |
| • | Oklo has an embedded opportunity to enhance its mission with potential advanced fuel recycling technology to convert used fuel into clean energy. |
| • | Oklo is backed by leading technology and decarbonization investors, including Sam Altman, who has served as Chairman of Oklo since 2015. Mr. Altman is also the co-founder and CEO of AltC. |
| • | The transaction is expected to provide up to $500 million of gross capital with net proceeds going to accelerate Oklo’s business plan and fund the first deployment of the Aurora powerhouse. |
| • | Transaction values Oklo at a pre-money equity value of $850 million, providing an attractive entry point for AltC’s shareholders that is roughly half the value of comparable clean energy go-public transactions. |
| • | Existing Oklo shareholders will roll 100% of their existing equity into the combined company and AltC’s sponsor will subject 100% of its retained founder equity to performance hurdles. |
SANTA CLARA, Calif. and NEW YORK, July 11, 2023 — Oklo Inc. (“Oklo” or the “Company”), an advanced fission technology and nuclear fuel recycling company, and AltC Acquisition Corp. (“AltC”) (NYSE: ALCC), a special purpose acquisition company, announced today that they have entered into a definitive business combination agreement (the “transaction”). Upon closing of the transaction, the combined company will operate as Oklo and is expected to be listed on the New York Stock Exchange under the ticker “OKLO.”
AltC was co-founded by Sam Altman and Churchill Capital in July 2021 to combine the technology thought leadership and deep industry relationships of Mr. Altman with the public markets expertise of Churchill Capital to provide public investors access to a compelling “hard tech” opportunity.
Mr. Altman serves as CEO of AltC and has served as Chairman of Oklo since 2015.
Mr. Altman said, “I am thrilled to announce this partnership that provides the opportunity for AltC’s shareholders to become investors in Oklo and fund the first deployment of the Aurora powerhouse. I think the two most important inputs to a great future are abundant intelligence and abundant energy. I have long been interested in the potential that nuclear energy offers to provide clean, reliable, and affordable energy at great scale.”
Mr. Altman continued, “I was fortunate to meet Jake and Caroline from Oklo in 2013. I recruited Oklo to Y Combinator in 2014 and additionally invested in the business in 2015, becoming Chairman. It has been a pleasure to be involved with Oklo over the last eight years and I strongly believe it is the best positioned player to pursue commercialization of advanced fission energy solutions. Oklo is underpinned by demonstrated technology and has a design approach that is expected to reduce plant complexity, costs, and construction time, allowing for streamlined deployment. Oklo has a site and fuel secured for its first plant, which it expects to be online in 2026 or 2027, and it has strong and growing customer interest in future deployments. Lastly, and most important to me, Oklo benefits from a strong founder-led team with deep technical expertise. I am excited to support this important milestone for Oklo and look forward to continuing to build the business with Jake and Caroline as a public company.”
About Oklo
Oklo intends to revolutionize the energy landscape by developing affordable, reliable, clean energy solutions at scale. Global demand for reliable, emission-free energy is growing rapidly with 38% of Fortune 500 companies publicly committing to decarbonization and an expected global $2 trillion annual spend on new power generation. Oklo is pursuing two complementary tracks to address this demand: providing reliable, commercial-scale energy to customers; and selling used nuclear fuel recycling services to the U.S. market.
The Company plans to commercialize its liquid metal fast reactor technology with the Aurora powerhouse, which is designed to produce up to 15 megawatts of electricity (“MWe”) on both recycled nuclear fuel and fresh fuel. Oklo’s advanced fission technology has a history of successful operation, first demonstrated by the Experimental Breeder Reactor-II, which sold and supplied power to the grid and showed effective waste recycling capabilities for over 30 years of operation. Furthermore, the Company has achieved several significant deployment and regulatory milestones, including securing a site use permit from the U.S. Department of Energy (DOE) and a fuel award from the Idaho National Laboratory (INL) for a commercial-scale advanced fission power plant in Idaho, which is targeted to go online in 2026 or 2027.
Oklo is playing a leading role in catalyzing the commercialization of advanced fission technologies and has attracted strong customer interest. The Company has a robust pipeline of potential customer engagements across a number of industries and signed non-binding indications of interest that it believes could result in sales of over 700 MWe. The early demand for Oklo’s solutions exemplifies the market interest in its scalable size range and differentiated business model, involving selling power, not power plants, as well as offering fuel recycling services.
Oklo’s technology is designed to be installed across a broad array of sites, require significantly less land compared to traditional nuclear reactors, and to run for at least a decade on recycled or fresh fuel before refueling, which is expected to make its solutions ideal for customers such as data centers, utilities, defense facilities, communities, factories, and industrial sites.
Dr. Jacob DeWitte, Co-Founder and Chief Executive Officer of Oklo, said, “Since founding Oklo in 2013, we have made considerable progress in advancing our vision of transforming how fission technologies come to market and meet the urgent need for affordable, reliable, clean energy. Our long-term goal is to build a wide range of advanced fission power plants, including small and large designs and designs that are economically competitive. I am very proud of the team’s accomplishments to date and believe that we can accelerate our ambitious vision in partnership with the team at AltC. AltC supports our mission and brings an extensive commercial network and executive expertise. We have advanced our technology, regulatory engagement and business model to a critical inflection point, and the substantial capital that we have the opportunity to raise from this transaction will be crucial in positioning Oklo for continued success. As a public company, we believe Oklo will be better positioned to execute its commercial strategy and deliver a differentiated energy solution to a massive market that demands clean energy.”
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“Today’s news marks a pivotal moment for a company that holds significant promise for humanity,” said Zachary Bogue, Co-Founder and Managing Partner of DCVC, which has been an investor in Oklo since 2018. “The world needs safe, zero-carbon energy at massive scale, as soon as possible, if we are to avert catastrophic climate change. Thanks to Jake and Caroline’s exceptional blend of vision and practicality, a new, viable path is before us: Oklo is next-generation nuclear power.”
“Oklo’s pioneering design has the potential to address the vital need for highly scalable deployments of clean, cost-efficient baseload-quality energy,” noted Ajay Royan, Managing Member of early Oklo backer Mithril Capital and a member of Oklo’s board of directors. “Oklo’s thoughtful business model addresses multiple valuable markets at once, affording safe, reliable and clean electricity, energy efficient industrial heat, and recycled nuclear fuel that powers conventional reactors while reducing waste.”
Oklo’s Highlights
| • | Reactor Size: Oklo’s reactors are designed to be self-stabilizing and self-controlling, as well as flexible, and require fewer parts to enable a more streamlined deployment, which is expected to make them cost-competitive and more capital efficient compared to peers. The size that Oklo is currently targeting (15 and 50 MWe) is based on significant market demand, with non-binding indications of interest to build over 50 power plants, representing the opportunity for over 700 MWe of clean energy. |
| • | Business Model: Oklo plans to break away from the traditional commercial nuclear energy model and sell power directly to customers, offering the flexibility to purchase clean, reliable power and delivering more favorable financial terms to an estimated $3 trillion market. The novel business model for the nuclear industry is enabled by Oklo’s focus on small reactors, which have a highly competitive expected project cost of less than $60 million for the 15 MWe plant, compared to large multibillion-dollar utility scale projects pursued by competitors. |
| • | Track Record: Oklo garnered institutional recognition by securing a site use permit from the DOE and a fuel award from INL for its first commercial power plant deployment in Idaho. The Company has also signed an agreement with Southern Ohio Diversification Initiative at the DOE Piketon Site for its second and third commercial plants. |
| • | Regulatory Maturity: Oklo has one of the longest continuous regulatory engagements of any advanced fission company. The Company has pursued a pathway that it believes will enable it to more easily scale, through repeatable licensing. As such, Oklo is the only company to have successfully submitted a custom combined license application (COLA) to the U.S. Nuclear Regulatory Commission (NRC), which includes design, construction and operations, all in one. In part, due to the complexities caused by the pandemic, the NRC denied Oklo’s COLA in 2022, requesting additional information to resume its review. With the learnings from this process, and the expansion of its regulatory team, Oklo has been actively engaging with the NRC to progress towards its next application. The NRC has approved Oklo’s quality assurance program description, which was a key milestone. In late 2022, Oklo announced its submission of a licensing project plan for recycling technologies. |
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| • | Fuel Recycling Capabilities: Oklo’s fuel recycling capabilities have the potential to unlock a market opportunity estimated to represent hundreds of billions of dollars with enough energy content in today’s used fuel to produce the power needs in the U.S. for more than 100 years, safely and with near zero carbon emissions. The Company and its partners have been selected by the DOE for four cost-share awards to potentially commercialize advanced recycling technologies to produce fuel from used fuel. In addition, Oklo is planning to construct a commercial-scale fuel recycling facility in the U.S. by the early 2030s. |
| • | Enhanced Safety and Efficiency: The fast fission reactor technology on which Oklo’s power plant is based has a history of operation. Its design is anticipated to significantly reduce the number of nuclear grade components required to assure safety, through demonstrated technological advancements. This reduction in complexity is expected to streamline construction and substantially reduce the pricing and uncertainty associated with procuring each component. |
| • | Leadership Team: Oklo is a founder-led company with a strong leadership team which has significant technical, commercial, and regulatory expertise. Oklo was founded by nuclear engineers Dr. DeWitte and Caroline Cochran, two visionaries who have built the Company from the ground up. The highly skilled team, along with Oklo’s efficient use of capital and lean startup design, better positions it to solve meaningful engineering challenges. |
Summary of the Transaction
The transaction values Oklo at a pre-money equity value of $850 million, providing an attractive entry point for AltC’s shareholders that is roughly half the value of comparable clean energy go-public transactions. The transaction is expected to deliver up to $500 million in gross proceeds from the cash held in AltC’s trust account, subject to redemptions by AltC shareholders.
No existing Oklo shareholders will receive cash as part of the transaction, as all existing Oklo shareholders will roll all of their existing equity into the combined company. In connection with the transaction, AltC’s sponsor has entered into an agreement to subject all of its founder equity to performance hurdles, aligning with the long-term value creation and performance of Oklo. Additionally, the Oklo founders and AltC’s sponsor have committed to long duration lock-ups.
Upon completion of the transaction, Oklo expects to have up to $516 million in cash on its balance sheet (assuming no redemptions by AltC shareholders and before payment of transaction expenses), including existing cash on Oklo’s balance sheet and expected cash proceeds from AltC’s trust account, which is expected to be used to support Oklo’s go-to-market strategy for emission-free energy production targeted to go online in 2026 or 2027, and commercial-scale fuel recycling facility, expected to begin construction by the early 2030s. In the intermediate to longer term, the transaction is expected to have a positive impact on Oklo’s operating results, providing funding for the commercialization of its power plants, further technology integration, and developing economies of scale.
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The transaction, which has been approved by the Boards of Directors of Oklo and AltC, is expected to close in late 2023 or early 2024 and is subject to approval by AltC shareholders, Oklo shareholders, AltC having available cash at closing of at least $250 million, and other customary closing conditions, including AltC’s Registration Statement (as defined below) being declared effective by the Securities and Exchange Commission (the “SEC”) and the expiration of the waiting period under the Hart-Scott Rodino Antitrust Improvements Act of 1975.
Additional information about the transaction, including a copy of the business combination agreement will be filed by AltC in a Current Report on Form 8-K with the SEC and available at www.sec.gov.
Advisors
Guggenheim Securities, LLC, served as financial advisor to Oklo.
Ocean Tomo, a part of J.S. Held, served as financial and technical advisor to AltC.
Citigroup Global Markets Inc., served as capital markets advisor to AltC.
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, served as legal counsel to Oklo.
Weil, Gotshal & Manges LLP, served as legal counsel to AltC.
Pillsbury Winthrop Shaw Pittman LLP, served as nuclear regulatory counsel to Oklo.
Morgan, Lewis & Bockius LLP, served as nuclear regulatory counsel to AltC.
Webcast Details
Oklo and AltC will host a joint investor webcast to discuss the transaction at 2:30 p.m. ET on July 11, 2023.
To listen to the prepared remarks via telephone, please use the following information:
| Date: | Tuesday, July 11, 2023 |
| Time: | 2:30 p.m. Eastern Time, 11 a.m. Pacific Time |
| U.S. dial-in number: | 1 (646) 960-0830 |
| International dial-in number: | 1 (888) 440-4336 |
| Access code: | 7841125 |
The webcast will be broadcast live and available for replay at https://app.webinar.net/YyaMRoZ8p50. A copy of the investor presentation can be found at https://app.webinar.net/YyaMRoZ8p50 and via the Investor Relations section of Oklo’s website at https://oklo.com/investor.
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About Oklo
Oklo is developing advanced fission power plants to provide emission-free, reliable, and affordable energy. Oklo received a site use permit from the U.S Department of Energy, was awarded fuel material from Idaho National Laboratory, submitted the first advanced fission combined license application to the U.S. Nuclear Regulatory Commission, and is developing advanced fuel recycling technologies in collaboration with the U.S. Department of Energy and U.S. national laboratories.
About AltC Acquisition Corp.
AltC Acquisition Corp. was formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses.
Forward-Looking Statements
This communication includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict” or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. We have based these forward-looking statements on our current expectations and projections about future events. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of financial and operational metrics; estimates and projections of market opportunity; Oklo’s projected commercialization costs and timeline; Oklo’s ability to attract, retain, and expand its future customer base; Oklo’s expectations concerning relationships with strategic partners, suppliers, governments, regulatory bodies and other third parties; Oklo’s ability to maintain, protect, and enhance its intellectual property; future ventures or investments in companies or products, services, or technologies; Oklo’s ability to attract and retain qualified employees; development of favorable regulations and government incentives affecting the markets in which Oklo operates; Oklo’s expectations regarding regulatory framework development; and the success of proposed projects for which Oklo’s Powerhouses would provide power, which is outside of Oklo’s control.
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These statements are based on various assumptions, whether or not identified in this communication, and on the current expectations of Oklo’s and AltC’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Oklo and AltC. These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions about us that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such forward-looking statements. Such risks and uncertainties, include changes in domestic and foreign business, the risk that Oklo is pursuing an emerging market, with no commercial project operating, regulatory uncertainties, the fact that Oklo has not entered into any definitive agreements with customers for the sale of power or recycling of nuclear fuel, the potential need for financing to construct plants, market, financial, political and legal conditions; the inability of the parties to successfully or timely consummate the proposed transaction, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the proposed transaction or that the approval of the shareholders of AltC or Oklo is not obtained; the risk that shareholders of AltC could elect to have their shares redeemed by AltC, thus leaving the combined company insufficient cash to grow its business; the outcome of any legal proceedings that may be instituted against Oklo or AltC following announcement of the proposed transaction; failure to realize the anticipated benefits of the proposed transaction; risks relating to the uncertainty of the projected financial information with respect to Oklo; the effects of competition; changes in applicable laws or regulations; the ability of Oklo to manage expenses and recruit and retain key employees; the ability of AltC or the combined company to issue equity or equity-linked securities in connection with the proposed transaction or in the future; the outcome of any potential litigation, government and regulatory proceedings, investigations and inquiries; and the impact of the global COVID-19 pandemic on Oklo, AltC, the combined company’s projected results of operations, financial performance or other financial metrics, or on any of the foregoing risks; those factors discussed in AltC’s Quarterly Reports filed by AltC with the SEC on Form 10-Q and the Annual Reports filed by AltC with the SEC on Form 10-K, in each case, under the heading “Risk Factors,” and other documents filed, or to be filed, with the SEC by AltC. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither Oklo nor AltC presently know or that Oklo and AltC currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect Oklo’s and AltC’s expectations, plans or forecasts of future events and views as of the date of this communication. Oklo and AltC anticipate that subsequent events and developments will cause Oklo’s and AltC’s assessments to change. However, while Oklo and AltC may elect to update these forward- looking statements at some point in the future, Oklo and AltC specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing Oklo’s and AltC’s assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements. An investment in AltC is not an investment in any of our founders' or sponsors' past investments or companies or any funds affiliated with any of the foregoing. The historical results of these investments are not indicative of future performance of AltC, which may differ materially from the performance of the founders or sponsors past investments, companies or affiliated funds.
Additional Information About the Transaction and Where to Find It
The proposed transaction will be submitted to shareholders of AltC for their consideration. AltC intends to file a registration statement on Form S-4 (the “Registration Statement”) with the SEC, which will include preliminary and definitive proxy statements to be distributed to AltC’s shareholders in connection with AltC’s solicitation for proxies for the vote by AltC’s shareholders in connection with the proposed transaction and other matters to be described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to Oklo’s shareholders in connection with the completion of the proposed transaction. After the Registration Statement has been filed and declared effective, AltC will mail a definitive proxy statement/prospectus/consent solicitation statement and other relevant documents to its shareholders as of the record date established for voting on the proposed transaction. AltC’s shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus/consent solicitation statement and any amendments thereto and, once available, the definitive proxy statement/prospectus/consent solicitation statement, in connection with AltC’s solicitation of proxies for its special meeting of shareholders to be held to approve, among other things, the proposed transaction, as well as other documents filed with the SEC by AltC in connection with the proposed transaction, as these documents will contain important information about AltC, Oklo and the proposed transaction. Shareholders may obtain a copy of the preliminary or definitive proxy statement/prospectus/consent solicitation statement, once available, as well as other documents filed by AltC with the SEC, without charge, at the SEC’s website located at www.sec.gov or by directing a written request to AltC Acquisition Corp., 640 Fifth Avenue, 12th Floor, New York, NY 10019.
7
Participants in the Solicitation
AltC, Oklo 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 AltC’s shareholders in connection with the proposed transaction. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of AltC’s shareholders in connection with the proposed transaction will be set forth in AltC’s proxy statement/prospectus/consent solicitation statement when it is filed with the SEC. You can find more information about AltC’s directors and executive officers in AltC’s final prospectus filed with the SEC on July 7, 2021 and in the Annual Reports filed by AltC with the SEC on Form 10-K. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in the proxy statement/prospectus/consent solicitation statement when it becomes available. Shareholders, potential investors and other interested persons should read the proxy statement/prospectus/consent solicitation statement carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from the sources indicated above.
No Offer or Solicitation
This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. This communication is not, and under no circumstances is to be construed as, a prospectus, an advertisement or a public offering of the securities described herein in the United States or any other jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or exemptions therefrom. INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Media Contacts
Bonita Chester
Oklo Inc.
Director of Communications and Media
media@oklo.com
Christina Stenson / Michael Landau
Gladstone Place Partners
(212) 230-5930
Investor Contact
Caldwell Bailey / Eduardo Royes
ICR, Inc.
OkloIR@icrinc.com
8
Exhibit 99.2
Investor Presentation July 2023 Oklo’s Aurora powerhouse 15 MWe liquid metal fast fission power plant site and fuel secured for commercial plant deployment at the Idaho National Laboratory (“INL”) to go public in partnership with Alt C Acquisition Corp. Experimental Breeder Reactor II (“ EBR - II”) The inspiration for the Aurora powerhouse Digital rendering for illustrative purposes only
| Alt C Acquisition Corp. 2 About this presentation This presentation is provided for informational purposes only and has been prepared to assist interested parties in making their own evaluation with respect to a potential transaction (the “proposed transaction”) between Oklo Inc . (“Oklo”) and AltC Acquisition Corp . (“ AltC ”) and related transactions and for no other purpose . The information contained herein does not purport to be all inclusive and no representations or warranties, express or implied, are given in, or in respect of, this presentation . To the fullest extent permitted by law, in no circumstances will Oklo, AltC or any of their respective subsidiaries, interest holders, affiliates, representatives, partners, directors, officers, employees, advisers or agents be responsible or liable for any direct, indirect or consequential loss or loss of profit arising from the use of this presentation, its contents, its omissions, reliance on the information contained within it, or on opinions communicated in relation thereto or otherwise arising in connection therewith . Forward - Looking Statements This communication includes “forward - looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995 . Forward - looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict” or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters . We have based these forward - looking statements on our current expectations and projections about future events . These forward - looking statements include, but are not limited to, statements regarding estimates and forecasts of financial and operational metrics ; estimates and projections regarding future manufacturing capacity and plant performance ; estimates and projections of market opportunity and market share ; estimates and projections of adjacent energy sector opportunities ; Oklo’s projected commercialization costs and timeline ; Oklo’s ability to demonstrate scientific and engineering feasibility of its technologies ; Oklo’s ability to attract, retain, and expand its future customer base ; Oklo’s ability to timely and effectively meet construction timelines and scale its production and manufacturing processes ; Oklo’s ability to develop products and services and bring them to market in a timely manner ; Oklo’s ability to achieve a competitive levelized cost of electricity ; Oklo’s ability to compete successfully with fission energy products and solutions offered by other companies, including fusion, as well as with other sources of clean energy ; Oklo’s expectations concerning relationships with strategic partners, suppliers, governments, regulatory bodies and other third parties ; Oklo’s ability to maintain, protect, and enhance its intellectual property ; future ventures or investments in companies or products, services, or technologies ; Oklo’s ability to attract and retain qualified employees ; development of favorable regulations and government incentives affecting the markets in which Oklo operates ; Oklo’s expectations regarding regulatory framework development ; the potential for and timing of receipt of a license to operate nuclear facilities from the U . S . Nuclear Regulatory Commission ; the ability to achieve the results illustrated in the unit economics ; the potential benefits of the proposed transaction and expectations related to the terms and timing of the proposed transaction ; and the success of proposed projects for which Oklo’s powerhouses would provide power, which is outside of Oklo’s control . These statements are based on various assumptions, whether or not identified in this communication, and on the current expectations of Oklo’s and AltC’s management and are not predictions of actual performance . These forward - looking statements are provided for illustrative purposes only and are not intended to serve as and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability . Actual events and circumstances are difficult or impossible to predict and will differ from assumptions . Many actual events and circumstances are beyond the control of Oklo and AltC . These forward - looking statements are subject to known and unknown risks, uncertainties and assumptions about us that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such forward - looking statements . Such risks and uncertainties include changes in domestic and foreign business, the risk that Oklo is pursuing an emerging market, with no commercial project operating, regulatory uncertainties, the fact that Oklo has not entered into any definitive agreements with customers for the sale of power or recycling of nuclear fuel, the potential need for financing to construct plants, market, financial, political and legal conditions ; the inability of the parties to successfully or timely consummate the proposed transaction, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the proposed transaction or that the approval of the shareholders of AltC or Oklo is not obtained ; the risk that shareholders of AltC could elect to have their shares redeemed by AltC , thus leaving the combined company insufficient cash to grow its business ; the outcome of any legal proceedings that may be instituted against Oklo or AltC following announcement of the proposed transaction ; failure to realize the anticipated benefits of the proposed transaction ; risks relating to the uncertainty of the projected financial information with respect to Oklo ; the effects of competition ; changes in applicable laws or regulations ; the ability of Oklo to manage expenses and recruit and retain key employees ; the ability of AltC or the combined company to issue equity or equity - linked securities in connection with the proposed transaction or in the future ; the outcome of any potential litigation, government and regulatory proceedings, investigations and inquiries ; and the impact of the global COVID - 19 pandemic on Oklo, AltC , the combined company’s projected results of operations, financial performance or other financial metrics, or on any of the foregoing risks ; those factors discussed in AltC’s Quarterly Reports filed by AltC with the U . S . Securities and Exchange Commission (“SEC”) on Form 10 - Q and the Annual Reports filed by AltC with the SEC on Form 10 - K, in each case, under the heading “Risk Factors,” as well as the factors summarized in this presentation under “Risk Factors” and other documents filed, or to be filed, with the SEC by AltC . If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward - looking statements . There may be additional risks that neither Oklo nor AltC presently know or that Oklo and AltC currently believe are immaterial that could also cause actual results to differ from those contained in the forward - looking statements . In addition, forward - looking statements reflect Oklo’s and AltC’s expectations, plans or forecasts of future events and views as of the date of this communication . Oklo and AltC anticipate that subsequent events and developments will cause Oklo’s and AltC’s assessments to change . However, while Oklo and AltC may elect to update these forward - looking statements at some point in the future, Oklo and AltC specifically disclaim any obligation to do so . These forward - looking statements should not be relied upon as representing Oklo’s and AltC’s assessments as of any date subsequent to the date of this communication . Accordingly, undue reliance should not be placed upon the forward - looking statements . An investment in AltC is not an investment in any of our founders' or sponsors' past investments or companies or any funds affiliated with any of the foregoing . The historical results of these investments are not indicative of future performance of AltC , which may differ materially from the performance of the founders or sponsors past investments, companies or affiliated funds . Additional Information About the Proposed Transaction and Where to Find It The proposed transaction will be submitted to shareholders of AltC for their consideration . AltC intends to file a registration statement on Form S - 4 (the “Registration Statement”) with the SEC, which will include preliminary and definitive proxy statements to be distributed to AltC’s shareholders in connection with AltC’s solicitation for proxies for the vote by AltC’s shareholders in connection with the proposed transaction and other matters to be described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to Oklo’s shareholders in connection with the completion of the proposed transaction . After the Registration Statement has been filed and declared effective, AltC will mail a definitive proxy statement/prospectus/consent solicitation statement and other relevant documents to its shareholders as of the record date established for voting on the proposed transaction . AltC’s shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus/consent solicitation statement and any amendments thereto and, once available, the definitive proxy statement/prospectus/consent solicitation statement, in connection with AltC’s solicitation of proxies for its special meeting of shareholders to be held to approve, among other things, the proposed transaction, as well as other documents filed with the SEC by AltC in connection with the proposed transaction, as these documents will contain important information about AltC , Oklo and the proposed transaction . Shareholders may obtain a copy of the preliminary or definitive proxy statement/prospectus/consent solicitation statement, once available, as well as other documents filed by AltC with the SEC, without charge, at the SEC’s website located at www . sec . gov or by directing a written request to AltC Acquisition Corp . , 640 Fifth Avenue, 12 th Floor, New York, NY 10019 .
| Alt C Acquisition Corp. 3 About this presentation Participants in the Solicitation AltC , Oklo 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 AltC’s shareholders in connection with the proposed transaction . Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of AltC’s shareholders in connection with the proposed transaction will be set forth in AltC’s proxy statement/prospectus/consent solicitation statement when it is filed with the SEC . You can find more information about AltC’s directors and executive officers in AltC’s final prospectus filed with the SEC on July 7 , 2021 and in the Annual Reports filed by AltC with the SEC on Form 10 - K . Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in the proxy statement/prospectus/consent solicitation statement when it becomes available . Shareholders, potential investors and other interested persons should read the proxy statement/prospectus/consent solicitation statement carefully when it becomes available before making any voting or investment decisions . You may obtain free copies of these documents from the sources indicated above . No Offer or Solicitation This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction . This communication is not, and under no circumstances is to be construed as, a prospectus, an advertisement or a public offering of the securities described herein in the United States or any other jurisdiction . No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933 , as amended, or exemptions therefrom . INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN . ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE . Unit Economics and Use of Projections The unit economics in this presentation (“Unit Economics”) were prepared solely for internal use and not with a view toward public disclosure or toward complying with Generally Accepted Accounting Principles, any published guidelines of the SEC or any guidelines established by the American Institute of Certified Public Accountants . The Unit Economics have been prepared by Oklo’s financial advisors and are the responsibility of Oklo’s management . The Unit Economics constitute forward - looking information, and is for illustrative purposes only, and should not be relied upon as necessarily being indicative of future results . The assumptions and estimates underlying the Unit Economics are inherently uncertain and are subject to a wide variety of significant business, economic, competitive, and other risks and uncertainties . See “Forward - Looking Statements” earlier in this presentation as well as “Risk Factors” at the end of this presentation . Actual results may differ materially from the results contemplated by Unit Economics contained in this presentation, and the inclusion of such information in this presentation should not be regarded as a representation by any person that the results reflected by the Unit Economics will be achieved . No Incorporation by Reference The information contained in the third party citations referenced in this communication is not incorporated by reference into this communication . Trademarks This presentation contains trademarks, service marks, trade names and copyrights of AltC , Oklo and other companies, which are the property of their respective owners . Risk Factors For a description of certain risks relating to Oklo, including its business and operations, and the proposed transaction, we refer you to “Risk Factors” at the end of this presentation .
| Alt C Acquisition Corp. 4 Introduction video Click image to view video | Alt C Acquisition Corp.
| Alt C Acquisition Corp. 5 Partnership team Jacob DeWitte Co - Founder and CEO Co - Founded Oklo in 2013 • 15+ years of experience in nuclear technology • PhD in nuclear engineering, MIT • Prior experiences at GE, Sandia National Labs, Urenco U.S., and the US Naval Nuclear Laboratory Caroline Cochran Co - Founder and COO Co - Founded Oklo in 2013 • 15+ years of experience in nuclear technology • MS in nuclear engineering, MIT • Prior experiences in the Office of the Secretary of Defense and U.S. Department of Energy Nuclear Energy Advisory Committee Alt C Acquisition Corp. Michael Klein Co - Founder and Chairman • Founder, Churchill Capital and Archimedes Advisors • Managing Partner, M. Klein & Company • Former Vice Chairman and CEO of Global Banking, Citi CHURCHILL CAPITAL Sam Altman Co - Founder, CEO, and Director Initial lead investor in Oklo and Chairman since 2015 • CEO and Co - Founder, OpenAI • Former President, Y Combinator • Operating Partner, Churchill Capital Corp V, VI and VII • Thought leader in artificial intelligence and energy technology
| Alt C Acquisition Corp. Note: (1) AltC cash - in - trust was $515,791,749 as of June 30, 2023. For illustrative purposes only. Assumes no AltC shareholders exercise their redemption rights to receive cash from the trust account at closing. 6 Oklo to go public in partnership with AltC Acquisition Corp. AltC ( NYSE: ALCC ) proposes to combine with Oklo at an $850 million pre - money equity value with net transaction proceeds to be invested in growth initiatives to accelerate the business plan and fund the first deployment of the Aurora powerhouse (1) Sam Altman was an early investor in Oklo and has been Chairman since 2015 – partnership is consistent with AltC’s objective to provide public investors access to a compelling “hard tech” opportunity 1 2 3 4 6 Nuclear energy was a “hard tech” vertical of interest for AltC at formation and Oklo’s mission is to provide clean, reliable, affordable energy through the deployment of next generation fast reactor technology Oklo seeks customer adoption by targeting unaddressed decentralized grid use cases (e.g., data centers, defense) and by pursuing an attractive owner - operator model with an intention to sell power directly to customers under long - term contracts Oklo believe it has embedded opportunity to enhance its business with advanced fuel recycling technology to convert spent fuel to clean energy, which could provide future margin uplift and new revenue streams Existing Oklo shareholders will roll 100% of their existing equity into the combined company, AltC’s sponsor will subject 100% of its founder equity to performance hurdles , and Oklo’s founders and AltC’s sponsor have committed to long duration lock - ups 5
| Alt C Acquisition Corp. 1.5 1.7 2.0 2.6 $0.85 $1.8 $3.4 $3.8 $3.1 $3.7 Sources: X - energy, NuScale, and NetPower information is per public disclosure by the respective companies. Market data is per FactSet as of July 7, 2023. Notes: (1) Pre - money equity value per X - energy press release on June 12, 2023, (2) All - time high estimated fully diluted equity value and enterprise value, (3) Current estimated fully diluted equity value and enterprise value. 7 Simple proposed transaction structure with an attractive entry valuation Transaction values Oklo at a pre - money equity value of $850 million, which is roughly half the value of comparable clean energy go public transactions Attractive entry valuation with upside potential $850 million Oklo pre - money equity value Oklo’s unique attributes Comparatively efficient operating cost structure Expected annual operating costs of $19.5 million in 2024 Strong expected fit with unaddressed target markets given expected plant size Decentralized grid use cases (e.g., data centers, defense) Differentiated owner - operator business model intended to accelerate adoption Zero upfront capital costs to the customer and quick targeted construction time Targeting first plant deployment by 2026 or 2027 Additionally, AltC is a unique vehicle with no dilutive warrants Clear alignment with public investors x All net transaction proceeds invested in Oklo, no cash to Oklo shareholders x Oklo shareholders to roll 100% of existing equity x AltC’s sponsor to subject 100% of retained shares to performance vesting x Long duration lock - up for Oklo founders and AltC’s sponsor x Board of director talent to be assembled to provide support from proven business leaders and value creators in the public markets x Single class of shares with equal voting rights for all shareholders x No complex corporate structure or special shareholder tax agreements Transaction Pre - Money Equity Value ($ in billions) Announced Enterprise Value Equity Value Enterprise Value Equity Value Closed – Trading Value Oklo valuation relative to comparable clean energy go public transactions Nuclear 15 - 50 MWe Nuclear 320 MWe Nuclear 924 MWe Natural Gas 300 MWe Current Value (3) Max Value (2) (1)
| Alt C Acquisition Corp. Sources: Y Combinator website – Startup Directory, Churchill Capital I, II, III, IV and CF Finance Acquisition Corp. public disc losure. Notes: (1) Past performance is not indicative of future results. (2) Represents trust proceeds (net of redemptions) plus incr eme ntal capital raised in connection with Churchill Capital I, II, III, IV and CF Finance Acquisition Corp. 8 Alt C Acquisition Corp. Alt C Acquisition Corp. $500,000,000 raised at IPO Listed in July 2021 Our Mission Taking “early stage” to the next stage to deliver value to AltC shareholders x Leverage our unique access to innovative companies to source a compelling “hard tech” opportunity x Partner with a target company to prepare them for success in the public markets x Utilize our extensive strategic and financial networks to unlock new growth opportunities C hurchill Capital Sam Alt man Sponsoring leading companies with a track record of completing unique go public transactions 5 transactions closed with $10+ billion of capital delivered (1)(2) Pioneer in equity vehicles Differentiated business partnership model and first GP team focused purely on public equity vehicles Experienced dealmaker Leading expertise leveraging our strategic and transaction experience on behalf of our partner companies Unique sourcing capability Renowned base of operating partners with extensive access to global network of industry leaders Value creation playbook Lineup of former executives of S&P 500 companies with deep operational expertise across sectors Track record of success Demonstrated history of partnering with transformative high - growth companies to provide capital to scale Management partner Interests aligned with and skills complementary to those of our target’s existing management team Lucid Motors case study: CHURCHILL CAPITAL IV (1) Nasdaq: LCID x $11.75 billion transaction value x $4.4 billion of growth capital at closing x Proven technology, ready to scale, accelerated by Churchill Capital CEO and Co - Founder, OpenAI Former President, Y Combinator Operating Partner, Churchill Capital Corp V, VI, and VII Select Investments x AI research and deployment company focused on ensuring artificial general intelligence is safe and benefits all of humanity x Released world’s most powerful AI model in 2023: GPT - 4 x Long - term strategic partnership with Microsoft Founded to provide public investors access to a compelling “hard tech” opportunity x President of Y Combinator from 2014 through 2019 x Significantly grew Y Combinator’s cohort size x Funded and supported numerous “hard tech” companies
| Alt C Acquisition Corp. 9 Advancing atomic energy has been a long - standing investment focus of Sam Altman… …and nuclear technology was set as a “hard tech” vertical of interest for AltC at formation Energy Sam Altman June 29 , 2015 ( 1 ) I think a lot about how important cheap, safe, and abundant energy is to our future . A lot of problems – economic, environmental, war, poverty, food and water availability, bad side effects of globalization, etc . – are deeply related to the energy problem . I believe that if you could choose one single technological development to help the most people in the world, radically better energy generation is probably it . Throughout history, quality of life has gone up as the cost of energy has gone down . The 20 th century was the century of carbon - based energy . I am confident the 22 nd century is going to be the century of atomic energy (i . e . terrestrial atomic generation and energy relatively directly from the sun’s fusion) . I am unsure how the majority of the 21 st century will be powered, but I’d like to help get things moving . Although a lot of people are working on solar, I don’t think enough people are working on terrestrial - based atomic energy , which has major advantages when it comes to cost, density, and predictability . Given the potential importance, I’m making an exception to my normal policy of not joining YC boards for Helion and Oklo . Both of these companies went through YC about a year ago . Helion is working on fusion and Oklo is working on fission ; I’ve looked at many companies working on both and think these are the two best . I’ll be the chairman of both companies and I’m also investing in the seed/A rounds for both companies . “ ” Source: (1) https://blog.samaltman.com/energy | AltC Acquisition Corp.
| Alt C Acquisition Corp. Notes: (1) Department of Energy - Pathway to Commercial Liftoff: Advanced Nuclear report (March 2023). (2) Oklo’s initial focus is on the design and deployment of 15 MWe and 50 MWe plant sizes. Megawatt electric (“MWe”) is defined as one m il lion watts of electric capacity. (3) Targeted plant costs and construction timeline reflects expected run - rate operations after first deployme nt is achieved, and relies upon current assumptions of timing and costs, which may change through the regulatory process. (4) Id aho National Laboratory (“INL”), a Department of Energy national laboratory, is the nation's leading center for nuclear energy re sea rch and development. (5) Assumes all regulatory approvals have been obtained on the expected timelines. The regulatory proces s, including necessary NRC approvals and licensing, is a lengthy, complex process and projected timelines could vary materially fro m the actual time necessary to obtain all the required approvals. (6) Department of Energy (5 Fast Facts about Spent Nuclear Fue l). 10 Compelling investment opportunity aligned with AltC’s “hard tech” focus Oklo’s Aurora powerhouse Policy support driven by the critical need for nuclear energy • Emission - free baseload energy deployable at scale today • Bipartisan U.S. government support evidenced by the Inflation Reduction Act (“IRA”) • Nuclear capacity would need to increase 3x for the U.S. to achieve a net - zero energy grid (1) AltC has been working with Oklo for a significant amount of time and has developed unique insight into its value creation opportunity x Went through Y Combinator in 2014 and Sam Altman has been Chairman since 2015 x AltC and Oklo have been working together on public company readiness for over 9 months Simplified, modern design applied to demonstrated technology Attractive business model targeting profitable recurring revenue Winning value proposition intended to accelerate customer adoption Embedded potential upside from unique fuel recycling opportunity Strong founder - led team with deep technical expertise Site and fuel secured for first deployment • Strategic focus on small reactors (15 - 50 MWe) (2) to eliminate complexity and cost • Expected 15 MWe plant costs of <$60 million with targeted construction time of <1 year (3) • Underlying technology has inherent safety and has been operated for 30+ years • Pursuing an owner - operator model with an intention to sell power directly to customers under long - term contracts providing recurring revenue that cannot be disintermediated • Plants anticipated to be profitable in their first year of operation • Strong expected fit with unaddressed decentralized grid use cases (e.g., data centers, defense) • No upfront capital and quick target construction time expected to motivate customer adoption • Robust customer interest with over 700 MWe under non - binding indications of interest • Site and initial fuel load secured for first 15 MWe plant at the Idaho National Laboratory (4) • Non - binding commitments to pursue two 15 MWe Aurora powerhouses in Southern Ohio • Intensive regulatory work underway to support first deployment in 2026/2027 (5) • >90% (6) of potential energy remains in spent fuel after use by current reactors • Oklo’s fast reactor technology is designed to uniquely operate on either fresh fuel or recycled fuel • Fuel recycling could provide Oklo potential future margin uplift and new revenue streams • Strong leadership across nuclear engineering, regulation, policy, economics, and marketing • Supported by leading technology and decarbonization focused investors Digital rendering for illustrative purposes only
| AltC Acquisition Corp. 11 Our mission is to provide clean, reliable, affordable energy on a global scale We are executing our mission through the design and deployment of next generation fast reactor technology We believe we have an embedded opportunity to enhance our mission with advanced fuel recycling technology to convert spent fuel into clean energy
| AltC Acquisition Corp. Oklo was founded a decade ago to address stagnation in the U.S. nuclear industry Oklo origin story | AltC Acquisition Corp. 12 U.S. operable nuclear power capacity ( GWe ) (1) 0 50 100 1970 1980 1990 2000 2010 2020 2.8 4.1 1990 2022 U.S. nuclear capacity stagnant for over 30 - years… …meanwhile, U.S electricity consumption grew over 40% U.S. electricity consumption (trillion kWh) (2) Notes: (1) World Nuclear Association (Nuclear Power in the USA – June 2023). (2) U.S. Energy Information Administration (Electri city explained – Use of electricity webpage last updated April 20, 2023). Industry challenges observed by Oklo founders Lack of innovation and activity Project models disconnected from changing customer needs ✗ Large, complex, high - risk projects ✗ Intensive, specialized on - site labor ✗ Expensive (multi - billions of dollars) ✗ Multi - year construction prone to delays Opportunity Oklo founders saw x Forward signals indicated need for clean, abundant, reliable, and affordable energy x Potential design simplification of advanced reactor technology could address observed industry challenges
| AltC Acquisition Corp. Notes: (1) Targeted plant costs and construction timeline reflects expected run - rate operations after first deployment is achiev ed, and relies upon current assumptions of timing and costs, which may change through the regulatory process. (2) Department of Energy (5 Fast Facts about Spent Nuclear Fuel). 13 Purpose - built to solve legacy nuclear deployment and fuel challenges Power sales Base business x Demonstrated technology, inherent safety, and recycled fuel capabilities x Strategically focused on small reactors using a modern design approach to develop the Aurora powerhouse x Reduced plant complexity and cost to streamline deployment Expected 15 MWe plant costs of <$60 million with targeted construction time of <1 year (1) x Pursuing an attractive owner - operator business model that is designed to accelerate customer adoption Strong customer interest with over 700 MWe under non - binding indications of interest x Three project sites; targeting first deployment in 2026/27 x Intensive regulatory work underway Fuel recycling Upside opportunity x Spent fuel recycling is done in other countries but not in the U.S. x Spent nuclear fuel still contains >90% (2) of its energy content x Oklo selected fast reactor technology due to its ability to use either fresh or recycled fuel x Oklo selected by the Department of Energy for four cost - share awards to potentially commercialize recycling technologies x Fuel recycling could provide potential future margin uplift and new revenue streams Oklo business model
| AltC Acquisition Corp. 14 | Alt C Acquisition Corp. ✓ Power the energy needs of artificial intelligence Accelerate energy transition and reliability Enhance energy security and access Revitalize domestic nuclear fuel manufacturing ✓ ✓ ✓ How we intend to deliver value to the world: Our mission is to provide clean, reliable, affordable energy on a global scale
| Alt C Acquisition Corp. 15 Clean, reliable, and abundant energy is critical to our future Daily Life Emerging U.S. grid reliability issues as demand grows and severe weather events strain aging infrastructure Global electricity demand to triple by 2050 as electrification and living standards grow The problem: The world is simultaneously growing its energy consumption while trying to reverse climate change C - U.S. energy grid grade by the American Society of Civil Engineers 64% Increase in U.S. power outages in the last decade Sources: World Health Organization (climate change and health), McKinsey & Company (Global Energy Perspectives 2022), America n S ociety of Civil Engineers (Report Card for America’s Infrastructure), Department of Energy – Office of Energy Efficiency & Renewable Energy (Data Centers and Servers), Climate Central. Health Climate change viewed as the biggest health threat facing humanity 250,000 Expected additional deaths per year globally between 2030 and 2050 due to climate change Innovation Innovation in artificial intelligence is driving unprecedented computing power and data storage needs 10 – 50x Energy intensity of a data center vs. a traditional office
| Alt C Acquisition Corp. 16 Nuclear is a reliable clean energy solution deployable at scale today Emission - free Firm Deployable at Scale Today Nuclear energy advantages ✓ ✓ ✓ x Lowest lifecycle emissions of any major generating energy source x Highest capacity utilization of any major generating energy source at 93% x Operated reliably for over 60 years with 400+ GW of installed capacity in 32 countries x Safe baseload energy source x Most efficient land use of any energy source x Ability to use existing transmission infrastructure x Wide variety of applications providing grid flexibility and decarbonization beyond the grid o n - demand , uninterruptible Source: Department of Energy - Pathway to Commercial Liftoff: Advanced Nuclear report (March 2023). How other energy solutions compare ✗ Natural gas provides firm, baseload energy but it is not clean ✗ Requires expensive gas distribution infrastructure ✗ Carbon capture technology not scalable today ✗ Wind and solar are clean but cannot provide firm, baseload energy ✗ Requires expensive electric transmission infrastructure ✗ Battery storage technology not scalable today Natural gas with carbon capture Renewables with battery storage
| Alt C Acquisition Corp. Source: Department of Energy (Pathway to Commercial Liftoff: Advanced Nuclear report - March 2023). Notes: (1) Firm power is generating capacity that is intended to be always available. Clean, firm power options include nucle ar, renewables paired with long duration energy storage, fossil with carbon capture, and geothermal. (2) Includes estimates for l im itations on renewables buildout that come from current understanding of land - use intensity, regional siting requirements, supply chain, tran smission, and interconnection difficulties that may impact utility - scale renewables deployment. 17 Nuclear capacity would need to increase 3x for the U.S. to achieve a net - zero energy grid Nuclear has the potential to replace fossil fuels with clean baseload power and solve the variability issues with current ren ewa ble technology, at scale Up to 770 GW of new clean baseload power required in the U.S. to reach a net - zero energy grid by 2050 Nuclear could provide 200+ GW as the most viable clean baseload option Renewables with variable capacity Non - clean baseload power (fossil fuels) Clean baseload power (1) 206 979 866 515 205 1,175 1,278 GW 2,669 GW 2021 2050 ~5.0x (770 GW) (2) Declining ~6.0x (970 GW) Clean % of total 16% 37% Clean % of baseload 19% 66% Renewables require large growth in clean baseload power ~ 100 ~ 200 ~ 300 GW Current operating U.S. nuclear capacity New advanced nuclear capacity required by 2050 to reach a net - zero (2) energy grid 2050 nuclear capacity +3.0x x 2050 nuclear capacity as a multiple of currently operating U.S. nuclear capacity
| Alt C Acquisition Corp. 18 Policymakers recognize the importance of U.S. leadership in nuclear technology Bipartisan action has delivered meaningful funding and support via the Inflation Reduction Act In August 2022, Congress passed the Inflation Reduction Act , representing a meaningful increase in government support for advanced nuclear through the IRA’s Investment and Production Tax Credits Benefits under the IRA for nuclear include: $700 million Funding for advanced nuclear fuel $250 b illion For Department of Energy Loan Program Office x FY23 and FY24 Appropriations providing $3 billion to support nuclear x ADVANCE (1) Act , introduced in April 2023, to support development and deployment of nuclear energy technologies x International Nuclear Energy Act , reintroduced in March 2023 to promote the facilitation of nuclear energy cooperation with ally and partner nations Up to 50% Investment tax credits Additional bipartisan U.S. support for nuclear Source: The Inflation Reduction Act of 2022, Department of Energy (Inflation Reduction Act Keeps Momentum Building for Nuclea r P ower). Note: (1) Defined as Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy.
| AltC Acquisition Corp. Notes: (1) Targeted plant costs and construction timeline reflects expected run - rate operations after first deployment is achiev ed, and relies on current assumptions of timing and costs, which may change through the regulatory process. (2) Idaho Nationa l L aboratory (“INL”), a Department of Energy national laboratory, is the nation's leading center for nuclear energy research and developme nt. 19 Modern design approach Attractive business model Winning value proposition Progressing first deployment Demonstrated technology Power sales Oklo was inspired by the Experimental Breeder Reactor II x Ability to produce and sell commercial power x Inherent safety x Fuel flexibility (fresh fuel and recycled fuel) x Competitive with light water reactors EBR - II demonstrated at scale the unique benefits of fast reactor technology Strategically focused on small reactors to eliminate complexity and cost x Fewer parts x Readily available components x Passive safety systems x Factory fabrication x Streamlined deployment Expected 15 MWe plant cost of <$60 million and <1 - year targeted construction time (1) Owner - operator model enabled by unique product attributes x Capital efficient x Low land use x Quick expected construction time x Operating simplicity x Attractive expected unit economics with upside Existing competitors cannot replicate model due to larger and more expensive designs Compelling offering that is expected to accelerate customer adoption x Low capex solution designed to quickly meet customer needs x Contracted access to clean, reliable energy x Demonstrated technology with low expected risk (execution and operations) Strong customer interest with over 700 MWe under non - binding indications of interest First Aurora powerhouse deployment target of 2026/27 x Advancing three projects x Site and fuel secured for first plant at INL (2) x Non - binding commitments to pursue two sites in Southern Ohio Intensive regulatory work underway to support first deployment Base business Oklo
| Alt C Acquisition Corp. 20 Oklo was inspired by the Experimental Breeder Reactor II Experimental Breeder Reactor II Argonne National Laboratory (1964 – 1994) • Fast reactor demonstration plant operated by the U.S. government • Produced about 20 MWe of electric power and operated for 30 years Operated at the Argonne National Laboratory Began operations in 1964 Decommissioned in 1994 Moved to the Idaho National Laboratory in 2005 Why EBR - II inspired Oklo EBR - II demonstrated at scale the benefits of fast reactors that supported design simplification and cost reduction opportunities: Ability to produce and sell commercial power to the grid Flexibility to run on either fresh fuel or recycled fuel Inherent safety performance (self - stabilizing, self - controlling, cooled by natural forces, walk - away safe) Competitive operating and maintenance characteristics compared to commercial light water reactors ✓ ✓ ✓ ✓ EBR - II and Oklo Idaho National Laboratory awarded Oklo access to spent fuel from EBR - II to be used to power the first commercial Aurora powerhouse
| Alt C Acquisition Corp. Notes: (1) Oklo’s initial focus is on the design and deployment of 15 MWe and 50 MWe plant sizes. (2) Targeted plant costs and construction tim el ine reflects expected run - rate operations after first deployment is achieved, and relies upon current assumptions of timing and costs, which may change through the regulatory process. (3) Inclusive of the Emergency Planning Zone, which for th e A urora reactor is expected to be bounded within the powerhouse building structure. 21 Simplified, modern design approach to enable streamlined deployment Aurora powerhouse design intended to reduce plant complexity, cost, and construction time Aurora powerhouse <1 year Estimated construction time 40+ years Estimated plant design life <$60 million Estimated construction costs (2) 15+ MWe Design is expected to be scalable to 50+ MWe (1) Liquid metal fast reactor technology for electricity and heat production <2 acre of land required (3) Strategically small • 15 MWe initial design is expected to reduce complexity while providing a broad set of use cases • Oklo intends to scale design to 50 MWe Modern design approach • Fewer parts, non - pressurized • Readily available components • Inherent safety attributes, enabling passive safety system • Standardized, factory fabrication Targeting streamlined deployment • Low land use enables greater site availability • Cost - competitive and capital efficient • Unique fuel flexibility (fresh or recycled) • Reduced supply chain complexity and risk • Highly repeatable factory fabrication • Rapid target construction time Digital rendering for illustrative purposes only
| Alt C Acquisition Corp. Source: Department of Energy - Pathway to Commercial Liftoff: Advanced Nuclear report (March 2023), Center for Advanced Nuclear Energy Systems. Notes: (1) Targeted plant costs and construction timeline reflects expected run - rate operations after first deployment is achiev ed, and relies upon current assumptions of timing and costs, which may change through the regulatory process. (2) Advanced reactor overnight capital costs for next - of - a - kind (“NOAK”) assumed to be $3,600 / kw based on Department of Energ y analysis. (3) Overnight capital costs based on the AP - 1000. 22 Owner - operator model enabled by reduced product complexity and cost Oklo intends to build, own, and operate Aurora powerhouses – reactor design enables cost, land, material, and construction time advantages Lower anticipated plant cost Small footprint Reduced complexity Quick installation Unique business model 15 MWe plant capacity (Technology is potentially scalable to 50 MWe) x <$60 million (1) x <2 acres of land required x Advantaged proximity to customers x Fewer parts than traditional nuclear x Readily available components x Simple operations with passive safety systems x <1 year manufacturing and installation timeline (1) x Standardized, factory fabrication x Build, own, and operate Aurora powerhouses x Sell electricity/heat under long - term contracts ~30 acres High - cost specialty material 3 – 4 years 500+ acres High - cost legacy supply chain 6+ years $2.0+ billion $5.0+ billion Competing approaches 1+ GWe (3) Traditional nuclear 300+ MWe (2) Other advanced nuclear Large utility - scale projects pursued under a traditional licensing model where customers must fund high project costs and bear multi - year construction timelines
| Alt C Acquisition Corp. Notes: (1) The unit economics described herein, including any potential margin upside, is forward - looking information and should not be relied upon as necessarily being indicative of future results. Actual results may differ materially. (2) Reflects mark et capitalization as sourced from FactSet as of July 7, 2023. 23 Attractive business model expected to generate compelling recurring revenue Oklo is pursuing a widely - used revenue model in the global power markets with the sale of electricity under long - term contracts Shareholder opportunity Revenue model proven across markets Oklo value proposition for shareholders x Large market opportunity – Oklo is targeting unaddressed decentralized grid use cases (e.g., data centers, defense) x Long duration contracted revenue that is expected to be recurring and grow over time x Revenue source cannot be disintermediated by competitors x Expected profitable unit economics from first year of plant operations (1) x High repeatability to drive unit growth and launch higher output versions (e.g., 50 MWe) x Fuel recycling could provide potential future margin uplift and new revenue streams Country Focus Market Value (2) Denmark Canada Canada Canada Canada France Wind Diverse Wind Wind / Solar Wind / Solar Wind / Solar ~$40 billion ~$14 billion ~$5 billion ~$5 billion ~$3 billion ~$2 billion Portugal Wind / Solar ~$20 billion
| Alt C Acquisition Corp. Note: (1) Assumes all regulatory approvals have been obtained on the expected timelines. The regulatory process, including ne ces sary NRC approvals and licensing, is a lengthy, complex process and projected timelines could vary materially from the actual ti me necessary to obtain all the required approvals. Assumes capital costs of $24 million and $61 million for the 15 MWe and 50 MW e A urora powerhouse, respectively, and a 40 - year life span for each powerhouse. Assumes NOAK status for each. The unit economics are presented in real terms. Additionally, the unit economics provided herein are for illustrative purposes only. Actual resu lts may differ materially. Refer to slides 37 - 40 for additional details. 24 Compelling anticipated unit economics with potential upside Illustrative unit economics: 15 MWe Aurora powerhouse (1) Cumulative 40 - year unit economics ($ millions) $288 $198 $1,452 $1,163 $966 Revenue from power sales Operating expenses Plant profit Capital costs Plant cash flow Capital cost build-up $198 80% 5.0x $120 $107 $508 $388 $281 Revenue from power sales Operating expenses Plant profit Capital costs Plant cash flow Capital cost build-up $107 • Initial plant cost: $24 • Initial fuel cost: $33 • Refueling cost: $50 75% 2.5x Illustrative unit economics: 50 MWe Aurora powerhouse (1) Cumulative 40 - year unit economics ($ millions ) • Initial plant cost: $61 • Initial fuel cost: $55 • Refueling cost: $82 75% 2.5x Potential life of plant profit margin Potential plant cash flow vs. capital costs Potential upside levers: x Fuel recycling x Investment tax credits 80% 5.0x Potential life of plant profit margin Potential plant cash flow vs. capital costs Potential upside levers: x Fuel recycling x Investment tax credits
| Alt C Acquisition Corp. 25 Winning value proposition intended to accelerate customer adoption Strong customer interest with over 700 MWe under non - binding indications of interest Potential customers Oklo target markets What customers want □ To buy power, not own/operate plants □ Low capex solutions that meet environmental and operational goals □ Access to affordable and reliable carbon - free energy □ Proven technology with low execution and operational risk Oklo value proposition x Potential for zero upfront customer cost , accelerating adoption x Reliable, affordable emission - free energy under long - term contracts , a proven and standard model in global power markets x Underlying technology that has been demonstrated at scale Data centers Defense Factories Industrial Off - grid/ rural Utilities ✓ ✓ ✓ ✓ ✓ ✓ ✓ Active dialogues with potential customers
| Alt C Acquisition Corp. 26 Advancing three exciting projects towards deployment Site and initial fuel load secured for 15 MWe plant at the Idaho National Laboratory. Opportunity to deploy two 15 MWe plants in Southern Ohio Idaho National Laboratory Aurora powerhouse (15 MWe) 1 Oklo signs an MOU with the DOE for a site and High - Assay Low - Enriched Uranium (“HALEU”) DOE issues Oklo a Site Use Permit at Idaho National Laboratory Idaho National Laboratory awards fuel material to Oklo 2017 2019 2021 2024 2024 – 26 2026/27 2020 Oklo obtains DOE Site Use Permit for Aurora powerhouse Targeted application acceptance review with the NRC (1) Anticipated NRC review period for Oklo supply chain development Targeting first electricity production Fuel Secured ✓ Site Identified ✓ x Partnership with the Southern Ohio Diversification Initiative ( SODI ) (2) announced on May 18, 2023 x Non - binding commitments to deploy two commercial Oklo power plants in Southern Ohio Site Identified ✓ • Plants expected to provide clean electric power and heat, with opportunities to expand • The plants support job creation in the area, furthering SODI’s mission to improve the quality of life for the southern Ohio community through economic diversification and the advancement of clean energy solutions • SODI is funded through a grant from the DOE Office of Nuclear Energy to support the deployment of advanced reactor technology and the use of a former nuclear plant site Southern Ohio Diversification Initiative Two Aurora powerhouses (15 MWe each) 2 - 3 Notes: (1) The U.S. Nuclear Regulatory Commission (“NRC”). (2) The Southern Ohio Diversification Initiative ( SODI ) mission is to improve the quality of life for Jackson, Pike, Ross, and Scioto Counties through economic diversification, de vel opment of underutilized land and facilities on the Department of Energy (DOE) Portsmouth Gaseous Diffusion Plant Site, and continued support of local in dustry.
| Alt C Acquisition Corp. 27 Intensive regulatory work underway to support first deployment Oklo has one of the longest continuous regulatory engagements of any advanced, non - light - water reactor company First ever advanced reactor Combined License Application (“COLA ”) submitted x NRC engagement initiated in 2016 x COLA submitted in March 2020 x Deep engagement with the NRC staff in 2020 through 2022 during the COLA review process x Valuable experience being leveraged to succeed in its next application submission x NRC approved Oklo’s Quality Assurance Program Description Intensive work underway in preparation for the next application filing x Substantially expanded the licensing and regulatory team to bring in - house former NRC staff and regulatory experts ‒ Nearly 10% of Oklo’s current employees are former NRC staff members x Frequent engagement and information sharing in 2022 - 23 ‒ 9 formal pre - application meetings held on key licensing topics ‒ Over 70 coordination meetings held ‒ Over 50 licensing documents shared x Oklo intends to pursue a pre - application audit in 2024 x Application submission targeted for late 2024 / early 2025 x Oklo is deeply appreciative of the NRC staff’s hard work and commitment to advancing safe nuclear solutions • COLA is a licensing pathway with the NRC combining a construction permit and an operating license • Oklo was the first advanced reactor company in history to submit a COLA for NRC review • In 2022, the NRC denied Oklo’s COLA, requesting additional information to resume its review • Oklo gained valuable experience during the process and used the NRC’s responses to enhance its regulatory model
| AltC Acquisition Corp. Notes: (1) U.S. Energy Information Administration (Uranium Marketing Annual Report – 2022). (2) Department of Energy (5 Fast Fac ts about Spent Nuclear Fuel). 28 Fuel recycling Upside opportunity Oklo Large spent fuel stockpiles Spent fuel potential Oklo design advantage Unique upside opportunity Fuel supply constraints The U.S. currently relies on imports for fresh nuclear fuel ✗ In 2022, 95% (1) of uranium for U.S. nuclear plants was foreign - sourced ✗ In 2022, 33% (1) of uranium enrichment services for U.S. nuclear plants were purchased from Russia ✗ U.S. has limited HALEU production, which is the fuel for advanced reactors Limited U.S. fuel capabilities is a pressing concern for advanced reactor growth The U.S. has large and growing spent fuel stockpiles ✗ Expensive to manage ✗ U.S. reactors have generated 90,000 tons of spent fuel since 1950 (2) ✗ 2,000 tons of spent fuel generated each year (2) ✗ Spent fuel is currently stored at 70 reactor sites across 35 states (2) Spent fuel management is complex; needs will grow with new reactor deployment Spent fuel retains its energy potential and can be recycled x Fuel can be recycled and is done so in other countries, such as France x >90% of potential energy remains in spent fuel after use by current reactors (2) ✗ The U.S. does not currently recycle fuel Opportunity to address fuel supply constraints and spent fuel stockpiles with recycling Fast reactors can use either fresh or recycled fuel x EBR - II demonstrated fast reactor’s ability to use recycled fuel x Oklo plants designed with flexibility to use either fresh or recycled fuel x First Aurora powerhouse to be fueled by spent fuel recovered from EBR - II Fuel recycling could provide future margin uplift and new revenue streams Oklo is developing fuel recycling capabilities x Waste to clean energy x Selected for four projects with the Department of Energy to develop fuel recycling technologies x Initial plans to pursue a commercial - scale fuel recycling facility in the U.S. by 2030’s Oklo has the potential opportunity to lead the industry in fuel recycling
| AltC Acquisition Corp. U.S. nuclear power plants are heavily reliant on imported nuclear fuel Nuclear fuel imports | AltC Acquisition Corp. 29 Source of uranium for U.S. nuclear power plants (Uranium oxide, million pounds) (1) Notes: (1) U.S. Energy Information Administration (Nuclear explained – where our uranium comes from). (2) U.S. Energy Information Administration (Uranium Marketing Annual Report – 2022), (3) Orano (All about used fuel processing and recycling). Evolving geopolitical concerns In 2022, 95% (2) of uranium for U.S. nuclear plants was foreign - sourced In 2022, 33% (2) of foreign uranium enrichment services required by U.S. nuclear plants were purchased from Russia 0 20 40 60 80 1950 1960 1970 1980 1990 2000 2010 2020 Domestic production Purchased imports Fuel recycling could reduce U.S. imports The U.S. does not currently recycle spent fuel However, fuel can be recycled and is done so in other countries, such as France Nearly 1 in 10 light bulbs in France runs on recycled nuclear materials (3)
| Alt C Acquisition Corp. 30 Fuel recycling could provide potential future margin uplift and new revenue streams Potential opportunity to build and operate facilities that could supply recycled fuel to Aurora powerhouses as well as third - par ty customers Spent fuel recycling is a significant potential cost savings opportunity for Oklo that could reduce both initial plant capital costs as well as ongoing operating costs Vertically integrated fuel source will provide security and assurance Oklo’s recycling approach utilizes pyro - processing, which is a mature technology Additional potential revenue streams through the sale of spent fuel management services as well as the sale of byproducts and specialty isotopes to various end markets Fuel recycling solves a longstanding issue in the market and can create a sustainab le competitive advantage In January 2023, Oklo submitted a commercial - scale fuel recycling facility licensing project plan to the Nuclear Regulatory Commission How fuel recycling works Separate fuel material via electrochemistry Produce power in reactor Fabricate fuel by casting Dissolve fuel Chop up used fuel 1 2 3 4 5
| Alt C Acquisition Corp. 31 Oklo has the potential opportunity to lead the industry in fuel recycling Oklo selected by the Department of Energy for four cost - share awards to potentially commercialize recycling technologies Oklo’s recycling technology development projects Technology Commercialization Fund x Develop advanced sensors for key recycling process efficiency improvements ARPA – E Open x Utilize machine learning and digital twinning for recycling efficiency improvements and material accountability ARPA – E Onwards x Demonstrate the recycling process end - to - end and develop the technical basis for commercial - scale fuel recycling facility ARPA – E Curie x Demonstrate the conversion of used oxide fuel into metal, enabling the recycling of waste from the current fleet into advanced reactor fuel
| Alt C Acquisition Corp. 32 Deep and differentiated “hard tech,” nuclear engineering, and regulatory expertise …with a highly experienced team Founder - led organization with deep technical expertise and a highly experienced team x Oklo's team comes from Fortune 500 and global companies, as well as government and science backgrounds x Bringing together expertise and experience from several industries to deliver an advanced energy product (e.g., nuclear power, aerospace, automotive and tech) Jacob DeWitte Co - Founder and CEO Co - Founded Oklo in 2013 Caroline Cochran Co - Founder and COO Co - Founded Oklo in 2013 • 15+ years of experience in nuclear technology • PhD in nuclear engineering, MIT • Prior experiences at GE, Sandia National Labs, Urenco U.S., and the US Naval Nuclear Laboratory • 15+ years of experience in nuclear technology • MS in nuclear engineering, MIT • Prior experiences in the Office of the Secretary of Defense and U.S. Department of Energy Nuclear Energy Advisory Committee Founder - led organization… 51 employees, including 8 PhDs (16%) and 20 Masters in Engineering / Science (39%) Multiple engineers and regulatory experts have joined the Oklo team since the last licensing process Six former NRC staff members to assist with the next application filing Board of Directors includes leading hard tech investors
| AltC Acquisition Corp. 33 Strong policy support driven by critical need for nuclear energy Simplified, modern design approach applied to demonstrated technology Attractive business model targeting profitable recurring revenue Winning value proposition intended to accelerate customer adoption Site and fuel secured for first deployment Embedded potential upside from unique fuel recycling opportunity Strong founder - led team with deep technical expertise Our mission is to provide clean, reliable, affordable energy on a global scale Compelling opportunity aligned with AltC’s “hard tech” investment focus Why invest 1 2 3 4 5 6 7 Oklo’s Aurora powerhouse Digital rendering for illustrative purposes only
| Alt C Acquisition Corp. Oklo history 1 Transaction information Oklo financial information 2 3 Supporting material Digital rendering for illustrative purposes only
| Alt C Acquisition Corp. 35 Oklo is building upon a strong track record of development success 2013 Oklo founded 2014 Oklo raises seed round from 2015 Oklo raises second seed round from led by Sam Altman and a Series A round led by & 2016 Oklo begins formal pre - application process with NRC 2017 Oklo demonstrates ability to fabricate fuel prototypes using gravity casting 2018 Oklo pilots novel application with the NRC Thermal testing at Sandia National Lab 2019 DOE issues Oklo a Site Use Permit at Idaho National Laboratory and Idaho National Laboratory awards fuel material to Oklo 2020 Oklo submits novel combined license application to the NRC NRC approves Oklo’s quality assurance program description 2021 Oklo receives site specific authorization for Aurora powerhouse located at the Idaho National Laboratory 2023 Oklo submitted commercial - scale fuel recycling facility licensing project plan to the NRC Oklo announces partnership with the Southern Ohio Diversification Initiative (SODI) for two plants in Ohio 2024/2025 Oklo plans submission of updated combined license application to the NRC 2026/2027 Oklo targets first deployment and electricity production at Idaho National Laboratory Deep technical background, strong partnerships, and intensive regulatory engagement
| Alt C Acquisition Corp. Oklo history 1 Transaction information Oklo financial information 2 3 Supporting material Digital rendering for illustrative purposes only
| Alt C Acquisition Corp. 37 Illustrative unit economics: Aurora powerhouse (15 MWe) Oklo believes that expected cumulative plant cash flow equals more than 2.5x expected cumulative capital costs Notes: (1) Key assumptions based on expected NOAK (nth of a kind) plant. (2) Assumes all regulatory approvals have been obtai ned on the expected timelines. The regulatory process, including necessary NRC approvals and licensing, is a lengthy, complex process and projected timelines could vary materially from the actual time necessary to obtain all the required approvals. Th e u nit economics are presented in real terms and are presented as of May 2023. The unit economics provided herein are for illust rat ive purposes only. Actual results may differ materially. (3) FOAK (first - of - a - kind) plant capital expenditure expected to be ~$34 mi llion. (4) Represents 15 MWe generating capacity at a 92% capacity factor. Aurora powerhouse (15 MWe) (2) 0 50 100 150 Year 2 Year 4 Year 6 Year 8 Year 10 Illustrative Annual Deployments (Units) Low High • 40 - year plant design life • Plant capital expenditures: ‒ Initial plant construction cost of approximately $24.0 million (excluding initial fuel load) (3) • Fuel capital expenditures: ‒ Initial fuel load of 4,750 kg ‒ Refueling load of 2,375 kg every 10 years over the 40 - year plant design life ‒ Does not assume Oklo recycles fuel for internal supply. Assumes all fuel is newly fabricated HALEU purchased from a third - party supplier at a cost of $7,000 / kg • Revenue from annual power sales : recurring revenue of approximately $13.0 million assuming annual generation of approximately 121,000 MWh (4) and average real power price of $105 / MWh • Operating costs: ‒ Annual fixed expense of $2.4 million ‒ Annual variable expense of $5.00 / MWh T+0 T+1 T+2 T+3 T+4 T+5 T+10 40-Yr Life of Plant ($ in Millions) Capital Expenditures ($57) ($17) ($107) Construction of Plant ($24) ($24) Fuel Capex ($33) ($33) Refueling Capex ($17) ($50) Revenue $13 $13 $13 $13 $13 $13 $508 Revenue from Power Sales $13 $13 $13 $13 $13 $13 $508 Expenses ($3) ($3) ($3) ($3) ($3) ($3) ($120) Fixed Plant ($2) ($2) ($2) ($2) ($2) ($2) ($96) Variable Plant ($1) ($1) ($1) ($1) ($1) ($1) ($24) Annual Plant Cash Flow ($57) $10 $10 $10 $10 $10 ($7) $281 Cash Margin NA 76.4% 76.4% 76.4% 76.4% 76.4% (54.4%) 55.4% Key Assumptions (1)(2) Aurora 15 MWe Illustrative Unit Economics (1)(2)
| Alt C Acquisition Corp. 38 Illustrative unit economics: Aurora powerhouse (50 MWe) Oklo believes that expected cumulative plant cash flow equals more than 5.0x expected cumulative capital costs Notes: (1) Key assumptions based on expected NOAK (nth of a kind) plant. (2) Assumes all regulatory approvals have been obtai ned on the expected timelines. The regulatory process, including necessary NRC approvals and licensing, is a lengthy, complex process and projected timelines could vary materially from the actual time necessary to obtain all the required approvals. Th e u nit economics are presented in real terms and are presented as of May 2023. The unit economics provided herein are for illust rat ive purposes only. Actual results may differ materially. (3) FOAK (first - of - a - kind) plant capital expenditure expected to be ~$86 mi llion. (4) Represents 50 MWe generating capacity at a 92% capacity factor. • 40 - year plant design life • Plant capital expenditures: ‒ Initial plant construction cost of approximately $61.0 million (excluding initial fuel load) (3) • Fuel capital expenditures: ‒ Initial fuel load of 7,800 kg ‒ Refueling load of 3,900 kg every 10 years over the 40 - year plant design life ‒ Does not assume Oklo recycles fuel for internal supply. Assumes all fuel is newly fabricated HALEU purchased from a third - party supplier at a cost of $7,000 / kg • Revenue from annual power sales : recurring revenue of approximately $36.0 million assuming annual generation of approximately 403,000 MWh (4) and average real power price of $90 / MWh • Operating costs: ‒ Annual fixed expense of $5.6 million ‒ Annual variable expense of $4.00 / MWh Key Assumptions (1)(2) Aurora 50 MWe Illustrative Unit Economics (1)(2) T+0 T+1 T+2 T+3 T+4 T+5 T+10 40-Yr Life of Plant ($ in Millions) Capital Expenditures ($116) ($27) ($198) Construction of Plant ($61) ($61) Fuel Capex ($55) ($55) Refueling Capex ($27) ($82) Revenue $36 $36 $36 $36 $36 $36 $1,452 Revenue from Power Sales $36 $36 $36 $36 $36 $36 $1,452 Expenses ($7) ($7) ($7) ($7) ($7) ($7) ($288) Fixed Plant ($6) ($6) ($6) ($6) ($6) ($6) ($224) Variable Plant ($2) ($2) ($2) ($2) ($2) ($2) ($65) Annual Plant Cash Flow ($116) $29 $29 $29 $29 $29 $2 $966 Cash Margin NA 80.1% 80.1% 80.1% 80.1% 80.1% 4.9% 66.5% Aurora powerhouse (50 MWe) (2) 0 50 100 150 Year 2 Year 4 Year 6 Year 8 Year 10 Illustrative Annual Deployments (Units) Low High
| Alt C Acquisition Corp. Inputs FOAK NOAK Plant Capital Cost ($mm) Approx. $34.0 Approx. $24.0 Fuel Capital Expenditures Initial Fuel Load (kg) 5,000 4,750 Initial Fuel Capex ($mm) Approx. $35.0 Approx. $33.0 Refueling Load (kg) 2,500 2,375 Refuel Capex ($mm) (2) Approx. $53.0 Approx. $50.0 Operating Costs Annual Fixed Expense ($mm) $3.8 $2.4 Annual Variable Expense ($ / MWh) $6.00 $5.00 Notes: (1) Assumes all regulatory approvals have been obtained on the expected timelines. The regulatory process, including n ece ssary NRC approvals and licensing, is a lengthy, complex process and projected timelines could vary materially from the actua l t ime necessary to obtain all the required approvals. The unit economics provided herein are for illustrative purposes only. Actual re sults may differ materially, (2) Run - rate of 20 units is expected requirement to achieve NOAK unit economics, (3) Reflects total refueling capex over the 40 - year plant design life. 39 Illustrative FOAK to NOAK unit economics overview Aurora powerhouse (15 MWe) (1)(2) Aurora powerhouse (50 MWe) (1)(2) Inputs FOAK NOAK Plant Capital Cost ($mm) Approx. $86.0 Approx. $61.0 Fuel Capital Expenditures Initial Fuel Load (kg) 8,000 7,800 Initial Fuel Capex ($mm) Approx. $56.0 Approx. $55.0 Refueling Load (kg) 4,000 3,900 Refuel Capex ($mm) (2) Approx. $84.0 Approx. $82.0 Operating Costs Annual Fixed Expense ($mm) $7.2 $5.6 Annual Variable Expense ($ / MWh) $5.00 $4.00
| Alt C Acquisition Corp. 40 Additional financial information Assumption Commentary General and Administrative Expenses • Before first deployment : Approximately $19.5 million in 2024 scaling to approximately $34.5 million by 2027 • Long - term assumption : Approximately 20% of power revenue Manufacturing Facility Expenditures • Reflects the required spend by Oklo to establish manufacturing and fabrication capabilities to support deployment of the Aurora powerhouse • Approximately $40 million in plant manufacturing facility capital expenditures by 2030 (1) Maintenance Expenditures • Approximately 10% maintenance capital expenditures of initial plant capital costs every 10 years Occupancy Expense • Approximately 5.0% of power revenue Working Capital • Approximately 4.0% of power revenue Notes: (1) Does not include any potential fuel fabrication or recycling investment.
| Alt C Acquisition Corp. Oklo history 1 Transaction information Oklo financial information 2 3 Supporting material Digital rendering for illustrative purposes only
| Alt C Acquisition Corp. Sources $ millions % AltC cash-in-trust 516 38% Existing Oklo shareholders 850 62% Total sources 1,366 100% Uses $ millions % Cash to balance sheet 478 35% Existing Oklo shareholders 850 62% Illutrative fees and expenses 38 3% Total uses 1,366 100% Notes: (1) AltC cash - in - trust was $515,791,749 as of June 30, 2023. For illustrative purposes only, (2) Assumes no AltC shareholders exercise their redemption rights to receive cash from the trust account at closing, (3) Proposed transaction pre - m oney equity value, subject to potential increase for permitted company financings prior to close of the business combination. Pre - money equity valu e to convert at $10 per share at close of the business combination. Excludes impact of potential earnout shares, (4) AltC cash - in - trust less illustrative fees and expenses, (5) Includes all outstanding AltC Class A shares. Includes the potential dilutive impact of 6.250 million Class B founder shares that are unvested at close and s ubject to vesting if the post - closing share price remains at or above $10 per share for 20 of 60 days. Excludes the impact of 3.125 million Class B founder shares that vest at $12.00 per share an d 3 .125 million Class B founder shares that vest ratably at $14.00 per share and $16.00 per share within 5 - years of closing. 42 Transaction values Oklo at a pre - money equity value of $850 million, which is roughly half the value of comparable clean energy go public transactions Estimated transaction sources and uses Pro forma ownership Transaction highlights (1)(2) (4) Proposed transaction overview (3) (3) Assumes $10 per share Shares (millions) % Ownership Existing Oklo shareholders 85 60% AltC shareholders 58 40% Total sources 143 100% (3) (1)(5) • Pre - money equity value of $850 million, which is roughly half the value of comparable clean energy go public transactions • Up to 15.0 million earnout shares available for existing Oklo shareholders, vesting ratably at $12.00, $14.00, and $16.00 per share within 5 - years of closing • No cash to Oklo shareholders – will roll 100% of existing shares • All proceeds raised, net of transaction expenses, will go directly to Oklo’s balance sheet and will be used to accelerate its business plan and fund the first deployment of the Aurora powerhouse • AltC sponsor will subject 100% of retained shares to performance vesting • Oklo founders and AltC sponsor shares will be subject to a staggered lock - up over 3 years following closing of the business combination
| Alt C Acquisition Corp. Notes: (1) Excluding earnout shares and adjustments for permitted financings. 43 Simple transaction structure with alignment of long - term interests between public investors, the AltC sponsors, and existing Oklo shareholders • Oklo shareholders will receive 85.0 million shares (1) in the combined company as part of the transaction; no cash proceeds to be received by Oklo shareholders • Up to 15.0 million earnout shares available upon share price appreciation of 20 – 60% within 5 - years; enables transaction value to be set at an attractive level by providing upside to Oklo shareholders if the share price rises • AltC sponsor will un - vest 100% of founder shares at close of the business combination and will not earn back its shares unless the share price appreciates • Oklo founders and AltC sponsor shares will be subject to a staggered lock - up over 3 years following close of the business combination • Committed to operate with strong public company governance • Board with relevant expertise to be assembled; one director nominated by AltC and another director mutually designated by AltC and Oklo • Oklo will have a single class of shares following the transaction with equal voting rights for all shareholders • Simplicity is core to Oklo’s ethos – straightforward corporate structure and no special agreements that only benefit existing Oklo shareholders x All net transaction proceeds invested in Oklo, no cash to Oklo shareholders x Oklo shareholders to roll 100% of existing equity x AltC’s sponsor to subject 100% of retained shares to performance vesting x Long duration lock - up for Oklo founders and AltC’s sponsor x Board of director talent to be assembled to provide support from proven business leaders and value creators in the public markets x Single class of shares with equal voting rights for all shareholders x No complex corporate structure or special shareholder tax agreements Oklo shareholders to roll 100% of existing equity into the combined company Oklo shareholders eligible for performance - based earnout shares AltC sponsor will subject 100% of retained shares to performance vesting Long duration lock - up for Oklo founders and AltC sponsor Leading governance and board of director talent Single class of shares No complex corporate structure or special shareholder tax agreements Transaction structure priorities Public investor benefits Proposed transaction structure
| Alt C Acquisition Corp. 44 Risk Factors 1. Our business plan requires substantial investment . If there are significant redemptions in connection with the proposed Business Combination, we may need to make significant adjustments to our business plan or seek additional capital . Depending on our available capital resources, we may need to delay or discontinue expected near - term expenditures, which could materially impact our business prospects, financial condition, results of operations and cash flows by limiting our ability to pursue some of our other strategic objectives and/or reducing the resources available to further develop our design, sales and manufacturing efforts . 2. In order to fulfill our business plan, we will require additional funding in addition to any funding resulting from the proposed Business Combination . Such funding may be dilutive to our investors and no assurances can be provided as to the availability or terms of any such funding . Any such funding and the associated terms will be highly dependent upon market conditions and the progress of our business at the time we seek such funding . 3. Our projected corporate expenditures and our ability to achieve profitability are subject to numerous risks and uncertainties, including uncertainties related to the impact of inflation, evolving regulatory requirements, raw material and nuclear fuel availability, global conflicts, global supply chain challenges and component manufacturing and testing uncertainties, local and domestic energy policies, international energy policies, international trade policies, government contracting and procurement rules, among other factors . Accordingly, it is possible that our overall expenditures could be higher than the levels we currently estimate, and any increases could have a material adverse effect on our business prospects, financial condition, results of operations and cash flows . 4. We may experience a disproportionately larger impact from inflation and rising costs . Although the impact of material cost, labor, or other inflationary or economically driven factors will impact the entire nuclear and energy transition industry (including renewable sources of electricity, like solar and wind), the relative impact will not be the same across the industry, and the particular effects within the industry will depend on a number of factors, including material use, technology, design, structure of supply agreements, project management and other factors, which could result in significant changes to the competitiveness of our technology and our ability to sell our powerhouses, which could have a material adverse effect on our business prospects, financial condition, results of operations and cash flows . 5. We are an early - stage company with a history of financial losses (e . g . , negative cash flows), and we expect to incur significant expenses and continuing financial losses at least until our powerhouses become commercially viable, which may never occur . 6. If we fail to manage our growth effectively, we may be unable to execute our business plan which could have a material adverse effect on our business prospects, financial condition, results of operations and cash flows . 7. We have not yet sold any powerhouses or entered into any binding contract with any customer to deliver electricity or heat and there is no guarantee that we will be able to do so in the future . This limited commercial operating history makes it difficult to evaluate our prospects and the risks and challenges we may encounter . 8. Our business plan includes the use of investment tax credits, production tax credits or other forms of government funding to finance the commercial development of our powerhouses, and there is no guarantee that our projects will qualify for these credits or that government funding will be available in the future . 9. The amount of time and funding needed to bring our powerhouses to market may greatly exceed our projections . 10. Our construction and delivery timeline estimates for our powerhouses may increase due to a number of factors, including the degree of pre - fabrication, standardization, on - site construction, long - lead procurement, contractor performance, plant qualification testing and other site - specific considerations . 11. We do not currently employ any risk sharing structures to mitigate the risks associated with the delivery and performance of our powerhouses . Any delays or setbacks we may experience for our first commercial delivery or failure to obtain final investment decisions for future orders could have a material adverse effect on our business prospects, financial condition, results of operations and cash flows and could harm our reputation . 12. Any failure to effectively update the design, construction, and operations of our powerhouses to ensure cost competitiveness could reduce the marketability of our powerhouses and adversely impact our expected deployment schedules . 13. Our business plan and our ability to achieve profitability relies on the concurrent development of two configurations of our powerhouses ( 15 MWe and 50 MWe), and makes certain assumptions with respect to learnings, efficiencies and regulatory approvals as a result of this concurrent development approach which may not be accurate or correct . Any adverse change to these assumptions may have a material adverse effect on our business prospects, financial condition, results of operations and cash flows . 14. Our business plan and our ability to achieve profitability may also rely on the development of other configurations of our powerhouses ( 100 MWe, or other sizes), and makes certain assumptions with respect to learnings, efficiencies and regulatory approvals as a result of this new development approach which may not be accurate or correct . Any adverse change to these assumptions may have a material adverse effect on our business prospects, financial condition and results of operation and cash flows . 15. Our cost estimates are highly sensitive to broader economic factors, and our ability to control or manage our costs may be limited . Capital and operating costs for the deployment of a first - of - a - kind powerhouse like the Aurora are difficult to project, inherently variable and are subject to significant change based on a variety of factors including site specific factors, customer off - take requirements, regulatory oversight, operating agreements, supply chain availability, supply chain availability effects on reactor and power plant performance, inflation and other factors . 16. Opportunities for cost reductions with subsequent deployments are similarly uncertain . To the extent cost reductions are not achieved within the expected timeframe or magnitude, the Aurora may not be cost competitive with alternative technologies, which may have a material adverse effect on our business prospects, financial condition, results of operations and cash flows and could harm our reputation . 17. The amount of time and funding needed to bring our nuclear fuel to market at scale may significantly exceed our expectations . Any material change to our assumptions or expectations with respect to our timeline and funding needs, or any material overruns or other unexpected increase in costs or delays, which may have a material adverse effect on our business prospects, financial condition, results of operations and cash flows and could harm our reputation . 18. The market for advanced fission power is not yet established and may not achieve the growth potential we expect or may grow more slowly than expected and may be superseded or rendered obsolete by new technology or the novel application of existing technology . 19. The market for recycled nuclear fuel in the United States is not yet established and may not achieve the growth potential we expect or may grow more slowly than expected as a result our investment in recycling may be misplaced . 20. We and our customers operate in a politically sensitive environment, and the public perception of fission energy can affect our customers and us . 21. Our technology requires regulatory approvals, and policies around the handling and use of radioactive materials that affect regulatory requirements, processes and the ability to regulate these technologies may change and make regulatory approvals not attainable, adversely affecting our business .
| Alt C Acquisition Corp. 45 Risk Factors 22. Our business plan involves contracting with the government and government - affiliated entities, and any changes or delays to contracting procedures, rules and regulations could lengthen our timeframes to construct and operate our plants, which could materially and adversely affect our business . 23. Incidents involving nuclear energy facilities in the United States or globally, including accidents, terrorist acts or other high profile events involving radioactive materials, could materially and adversely affect the public perception of the safety of nuclear energy, our customers and the markets in which we operate, and such adverse effects could potentially decrease demand for nuclear energy, increase regulatory requirements and costs or result in liability or claims that could materially and adversely affect our business . 24. While we believe our cost estimates are reasonable, they may increase significantly through design maturity, when accounting for supply chain availability, fabrication costs, as we progress through the regulatory process, or as a result of other factors, including unexpected cost increases that particularly effect our powerhouses . 25. Building a new fuel fabrication facility is challenging as a result of many factors, including regulatory and construction complexity, and may take longer or cost more than we expect . 26. We have not sought nor received third - party cost estimates at this time but expect to do so in the future . Such third - party cost estimates may be significantly higher than our current estimates, which may affect the marketability of our powerhouses and our expectations with respect to our business plan and future profitability 27. There is limited precedent for independent developer construction and operation, or use of power purchase agreements, other behind - the - meter or off - grid business models relating to deployment of fission power plants . 28. There is limited operating experience for metal - fueled fast reactors of this type, configuration and scale, compared to that of the existing fleet of large light water reactors . This may result in greater than expected construction cost, deployment timelines, maintenance requirements, differing power output and greater operating expense . 29. Operating a nuclear power plant in a remote environment or in an industrial application has additional risks and costs compared to conventional electric power and heat applications . Such deployments may require additional costs including costs associated with the licensing process, configuration control of the plant, minimum operating staff, training, security infrastructure, radiation protection, government reporting, and nuclear insurance, all of which may be cost prohibitive or reduce the competitiveness of technology . 30. Competition from existing or new competitors or technologies could cause us to experience downward pressure on prices, fewer customer orders, reduced margins, the inability to take advantage of new business opportunities, and the loss of market share . 31. Successful commercialization of new, or further enhancements to existing, alternative carbon - free energy generation technologies, such as adding carbon capture and sequestration/storage mechanisms to fossil fuel power plants, wind, solar, or fusion, may prove to be more cost effective or appealing to the global energy markets and therefore may adversely affect the market demand for, and our ability to, successfully commercialize our targeted powerhouses . 32. The cost of electricity and heat generated from our powerhouses may not be cost competitive with electricity and/or heat generated from other sources, and there is no guarantee that we will be able to charge a premium relative to other energy sources, which could materially and adversely affect our business prospects, financial condition, results of operations and cash flows . 33. Changes in the availability and cost of oil, natural gas and other forms of energy are subject to volatile market conditions that could adversely affect our business prospects, financial condition, results of operations and cash flows . 34. We rely on a limited number of suppliers for certain materials and supplied components, some of which are highly specialized and are being designed for first - of - a - kind or sole use in our power plants . We and our third party vendors may not be able to obtain sufficient materials or supplied components to meet our manufacturing and operating needs or obtain such materials on favorable terms . 35. The operations of our planned fuel facility in Idaho, planned power plants in Idaho and Ohio, and any future facilities, will be highly regulated by the U . S . federal and state - level governmental authorities, including the U . S . Nuclear Regulatory Commission (“NRC”) and regulatory bodies in other jurisdictions in which we may establish operations . Our operations and business plans could be significantly impacted by changes in government policies and priorities . 36. Our business is subject to stringent U . S . export control laws and regulations . Unfavorable changes in these laws and regulations or U . S . government licensing policies, our failure to secure timely U . S . government authorizations under these laws and regulations, or our failure to comply with these laws and regulations could have a material adverse effect on our ability to expand globally and thereby affect our business prospects, financial condition, results of operations and cash flows . 37. Changes in governmental agency budgets as well as staffing shortages at national laboratories and other governmental agencies may lengthen our estimated timelines for regulatory approval and construction . 38. We are pursuing an application for a novel design with the NRC, which will require NRC approval of our safety system design among other approvals and may result in additional analysis and design changes, including potential redesigns of certain systems, and could lead to increased costs and delays with respect to regulatory approvals . 39. We have not yet submitted our updated combined operating license application to the NRC and no powerhouse in the Aurora product family has yet been approved or licensed for use at any site by the NRC or any other regulatory agency, and approval or licensing of these designs and the timing of such approval or licensing, if any, is not guaranteed . 40. The existing NRC framework has not been applied to license a nuclear fuel recycling facility for commercial use, and there is no guarantee that the NRC will support the development of our proposed nuclear fuel recycling facility on the timeline we anticipate or at all . 41. Our fuel fabrication facilities will be highly regulated by the U . S . government, potentially including both the NRC and the U . S . Department of Energy and approval or licensing of these facilities is not guaranteed . 42. The design of the Aurora powerhouses has not been approved in any country, and approvals must be obtained on a country - by - country basis before the powerhouses can be deployed . Approvals may be delayed or denied or may require modification to our design, which could have a material adverse effect on our business prospects, financial condition, results of operations and cash flows . 43. Our operations involve the use, transportation and disposal of toxic, hazardous and/or radioactive materials and could result in liability without regard to fault or negligence . 44. Our powerhouses, like many advanced fission reactors, are expected to rely, in part, on high assay low enriched uranium (“ HALEU ”) which is not currently available at scale . Access to a domestic supply of HALEU may require significant government assistance, regulatory approval, and additional third - party development and investment to ensure availability . If we are unable to access HALEU , or our access is delayed, our ability to manufacture fuel and to produce electricity and/or heat will be adversely affected, which could have a material adverse effect on our business prospects, financial condition, results of operations and cash flows . 45. We must obtain governmental licenses to possess and use radioactive materials, including isotopes of uranium, in our fuel facility operations . Failure to obtain or maintain, or delays in obtaining, such licenses could impact our ability to generate electricity and/or heat for our customers and have a material adverse effect on our business prospects, financial condition, results of operations and cash flows .
| Alt C Acquisition Corp. 46 Risk Factors 46. We must obtain regulatory approvals for the use of various materials in our powerhouse designs . This includes long lead time irradiation testing and analysis, which may require redesign or use of alternative suppliers if results are unsatisfactory . 47. We may require certain materials and components which are only produced in limited quantity and may be predominantly produced outside of the United States . Cultivating supply chain manufacturing capacity for key materials and components depends on supply chain partners and may require cooperation from the United States or other governments and may result in shortages and delays if not accomplished within assumed timelines or costs . 48. Unresolved spent nuclear fuel storage and disposal policy issues and associated costs could have a significant negative impact on our plans to recycle spent fuel as a potential fuel source for our powerhouses . Additionally, U . S . policy related to storage and disposal of used fuel from our power plant and/or negative customer perception of risks relating to these policies could have a significant negative impact on our business prospects, financial condition, results of operations and cash flows . 49. The nature of our business requires us to interact with various governmental entities, making us subject to the policies, priorities, regulations, mandates and funding levels of such governmental entities and we may be negatively or positively impacted by any change thereto . 50. Prospective future customers may also require that we comply with their own unique requirements relating to their compliance with policies, priorities, regulations, controls and mandates, including provision of data and related assurance for environmental, social, and governance related standards or goals . 51. Power purchase agreements are a key component to our anticipated business model for sales of power, and customers may be able to void all or part of these contracts under certain circumstances . We may need to find substitute customer power and/or heat offtake, or may need to cancel licensing work related to particular customers and sites as a result of changes in customer demand or contracts with customers . 52. Power purchase agreements may include penalties for not delivering sufficient electric and/or heat energy on schedule, which may result in liabilities and reductions in cash flow . 53. We could incur substantial costs as a result of violations of, or liabilities under, environmental laws . 54. Changes in tax laws could adversely affect our business prospects and financial results . 55. The U . S . government’s budget deficit and the national debt, as well as any inability of the U . S . government to complete its budget or appropriations process for any government fiscal year could have an adverse impact on our business prospects, financial condition, results of operations and cash flows . 56. We rely on intellectual property law and confidentiality agreements to protect our intellectual property . We may also rely on intellectual property we license from third parties . Our failure to protect our intellectual property rights, our infringement of third - party intellectual property or our inability to obtain or renew licenses to use intellectual property of third parties, could adversely affect our business . 57. Uncertain global macro - economic and political conditions could materially adversely affect our business prospects, financial condition, results of operations and cash flows . 58. We depend on key executives and management to execute our business plan and conduct our operations . A departure of key personnel could have a material adverse effect on our business . 59. Our business plan requires us to attract and retain qualified personnel including personnel with highly technical expertise . Our failure to successfully recruit and retain experienced and qualified personnel could have a material adverse effect on our business . 60. Reduction in energy demand or changes in climate - related policies may change market conditions, reducing our product’s competitiveness and affecting company performance . 61. There is substantial doubt about our ability to continue as a going concern, and we may require additional future funding whether or not the Business Combination is consummated . 62. Beginning in January 2022 , there has been a precipitous drop in the market values of growth - oriented companies like ours, particularly companies that entered into business combination agreements with SPACs . In recent months, inflationary pressures, increases in interest rates and other adverse economic and market forces have contributed to these drops in market value . As a result, our securities are subject to potential downward pressures, which may result in high redemptions of the cash available from the trust fund . If there are substantial redemptions, there will be a lower float of our common stock outstanding, which may cause further volatility in the price of our securities and adversely impact our ability to secure financing following the closing of the Business Combination . 63. Securities of companies formed through SPAC mergers such as the proposed transaction may experience a material decline in price relative to the share price of the SPAC prior to the merger .
| Alt C Acquisition Corp. Digital rendering for illustrative purposes only
Exhibit 99.3
Sam Altman Transcript
| Sam Altman: | “AltC was formed out of excitement about the idea of bringing public market investors access to high quality hard tech companies. AltC raised $500 million of capital in July of 2021, and today we're excited to announce that we're partnering with Oklo. Oklo aims to provide clean, reliable, and affordable energy to a wide range of markets. I got interested in nuclear energy a long time ago, very fortunate to meet Jake back in 2013. Jake and Caroline went through the Y Combinator in 2014. I invested additionally and became chairman of the company in 2015. It's really been a pleasure to be involved over these last eight years. I think the two most important inputs to a really great future are abundant intelligence and abundant energy. The world has seen a lot of the progress we've made at OpenAI in in recent months, really although it's years that we've been working on it towards, towards abundant intelligence. But abundant energy is the other element of that. Energy is so important in so many things that we all do every day. And if we can bring the, the amount of cheap, clean, safe energy that the world has access to to new heights, that'll be a wonderful thing. The energy market is so massive and the need for energy is so acute that I'm excited to support many different projects pursuing this goal of abundant, cheap, safe, clean energy. So I think fusion and fission will play roles. Wind and solar will play roles. We're not gonna run out of market space here anytime soon. This is this is like a desperate need for as much energy as we can manufacture. Fission, I think, is one of the best ways to do this. It's been underexplored in recent years, but there's been a lot of technological development and Oklo has an approach, a technology and a business model that I think makes sense to do this at, at big scale now throughout the world. Oklo has a number of advantages that I believe make them best positioned to succeed in fission. First of all, the company has proven technology, which I think is always, you know, step one for any project like this. Second, the company has a first plant identified and a rich pipeline beyond that. And third, the company is making significant regulatory progress. I think they've got a unique technological approach that involves safety at a scale that we haven't seen from other systems before. This system is self-regulating, self-controlling, uses, natural forces to cool—it's really the first plant design that I've seen that that is really walkaway safe, and I think that's quite important. The business model makes a lot of sense. The ability to recycle fuel is very exciting and always I believe in strong founder led teams. But I'm probably most excited of all about the richness of the pipeline and how many people are excited to buy this technology and deploy it in the coming years. I believe that what Oklo is doing is one of our best shots to get out of the energy crisis and get into this world of energy abundance.” |
Forward-Looking Statements
This communication includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict” or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. We have based these forward-looking statements on our current expectations and projections about future events. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of financial and operational metrics; estimates and projections regarding future manufacturing capacity and plant performance; estimates and projections of market opportunity and market share; estimates and projections of adjacent energy sector opportunities; Oklo Inc.’s (“Oklo”) projected commercialization timeline; Oklo’s ability to demonstrate scientific and engineering feasibility of its technologies; Oklo’s ability to attract, retain, and expand its future customer base; Oklo’s ability to timely and effectively meet construction timelines and scale its production and manufacturing processes; Oklo’s ability to develop products and services and bring them to market in a timely manner; Oklo’s ability to achieve a competitive levelized cost of electricity; Oklo’s ability to compete successfully with fission energy products and solutions offered by other companies, including fusion, as well as with other sources of clean energy; Oklo’s expectations concerning relationships with strategic partners, suppliers, governments, regulatory bodies and other third parties; Oklo’s ability to maintain, protect, and enhance its intellectual property; future acquisitions, ventures or investments in companies or products, services, or technologies; Oklo’s ability to attract and retain qualified employees; development of favorable regulations and government incentives affecting the markets in which Oklo operates; Oklo’s expectations regarding regulatory framework development; the potential for and timing of receipt of a license to operate nuclear facilities from the U.S. Nuclear Regulatory Commission; the ability to achieve the results illustrated in the unit economics and the potential benefits of the proposed transaction and expectations related to the terms and timing of the proposed transaction. These statements are based on various assumptions, whether or not identified in this communication, and on the current expectations of Oklo’s and AltC Acquisition Corp.’s (“AltC”) management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Oklo and AltC. These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions about us that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such forward-looking statements. Such risks and uncertainties include changes in domestic and foreign business, market, financial, political and legal conditions; the inability of the parties to successfully or timely consummate the proposed transaction, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the proposed transaction or that the approval of the shareholders of AltC or Oklo is not obtained; the outcome of any legal proceedings that may be instituted against Oklo or AltC following announcement of the proposed transaction; failure to realize the anticipated benefits of the proposed transaction; risks relating to the uncertainty of the projected financial information with respect to Oklo; the effects of competition; changes in applicable laws or regulations; the ability of Oklo to manage expenses and recruit and retain key employees; the ability of AltC or the combined company to issue equity or equity-linked securities in connection with the proposed transaction or in the future; the outcome of any potential litigation, government and regulatory proceedings, investigations and inquiries; and the impact of the global COVID-19 pandemic on Oklo, AltC, the combined company’s projected results of operations, financial performance or other financial metrics, or on any of the foregoing risks; those factors discussed in AltC’s Quarterly Reports filed by AltC with the U.S. Securities and Exchange Commission (“SEC”) on Form 10-Q and the Annual Reports filed by AltC with the SEC on Form 10-K, in each case, under the heading “Risk Factors,” as well as the factors summarized in this communication under “Risk Factors” and other documents filed, or to be filed, with the SEC by AltC. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither Oklo nor AltC presently know or that Oklo and AltC currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect Oklo’s and AltC’s expectations, plans or forecasts of future events and views as of the date of this communication. Oklo and AltC anticipate that subsequent events and developments will cause Oklo’s and AltC’s assessments to change. However, while Oklo and AltC may elect to update these forward- looking statements at some point in the future, Oklo and AltC specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing Oklo’s and AltC’s assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements. An investment in AltC is not an investment in any of our founders' or sponsors' past investments or companies or any funds affiliated with any of the foregoing. The historical results of these investments are not indicative of future performance of AltC, which may differ materially from the performance of the founders or sponsors past investments, companies or affiliated funds.
Additional Information About the Proposed Transaction and Where to Find It
The proposed transaction will be submitted to shareholders of AltC for their consideration. AltC intends to file a registration statement on Form S-4 (the “Registration Statement”) with the SEC, which will include preliminary and definitive proxy statements to be distributed to AltC’s shareholders in connection with AltC’s solicitation for proxies for the vote by AltC’s shareholders in connection with the proposed transaction and other matters to be described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to Oklo’s shareholders in connection with the completion of the proposed transaction. After the Registration Statement has been filed and declared effective, AltC will mail a definitive proxy statement/prospectus/consent solicitation statement and other relevant documents to its shareholders as of the record date established for voting on the proposed transaction. AltC’s shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus/consent solicitation statement and any amendments thereto and, once available, the definitive proxy statement/prospectus/consent solicitation statement, in connection with AltC’s solicitation of proxies for its special meeting of shareholders to be held to approve, among other things, the proposed transaction, as well as other documents filed with the SEC by AltC in connection with the proposed transaction, as these documents will contain important information about AltC, Oklo and the proposed transaction. Shareholders may obtain a copy of the preliminary or definitive proxy statement/prospectus/consent solicitation statement, once available, as well as other documents filed by AltC with the SEC, without charge, at the SEC’s website located at www.sec.gov or by directing a written request to AltC Acquisition Corp., 640 Fifth Avenue, 12th Floor, New York, NY 10019.
Participants in the Solicitation
AltC, Oklo 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 AltC’s shareholders in connection with the proposed transaction. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of AltC’s shareholders in connection with the proposed transaction will be set forth in AltC’s proxy statement/prospectus/consent solicitation statement when it is filed with the SEC. You can find more information about AltC’s directors and executive officers in AltC’s final prospectus filed with the SEC on July 7, 2021 and in the Annual Reports filed by AltC with the SEC on Form 10-K. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in the proxy statement/prospectus/consent solicitation statement when it becomes available. Shareholders, potential investors and other interested persons should read the proxy statement/prospectus/consent solicitation statement carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from the sources indicated above.
No Offer or Solicitation
This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. This communication is not, and under no circumstances is to be construed as, a prospectus, an advertisement or a public offering of the securities described herein in the United States or any other jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or exemptions therefrom. INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.