Pioneer Acquisition I Corp 8-K, filed Oct 14, 2026
Pioneer Acquisition I Corp (PACH)
About this 8-K
Pioneer Acquisition I Corp filed this 8-K on October 14, 2026, reporting on events of October 6, 2026.
Pioneer Acquisition I Corp agreed on October 6, 2026 to combine with Green AI Cloud, issuing 30,000,000 shares for $300,000,000 plus 5,000,000 earn-out shares valued at $50,000,000, subject to closing conditions. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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(Commission File Number) |
(IRS Employer Identification No.) |
| 00000 |
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| The Stock Market LLC | ||||
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of $11.50 per share |
The Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
| Item 1.01 | Entry Into A Material Definitive Agreement. |
Business Combination Agreement
General Description of the Business Combination Agreement
On October 6, 2026, Pioneer Acquisition I Corp, a Cayman Islands exempted company (“Pioneer” or “SPAC”), entered into a Business Combination Agreement (the “Business Combination Agreement”) with Green AI Cloud, Inc., a Delaware corporation (“Green AI Cloud” or the “Company”), and Pioneer Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of Pioneer (“Merger Sub”). Terms used but not defined herein shall have the meanings defined in the Business Combination Agreement.
Pursuant to the Business Combination Agreement and subject to the terms and conditions set forth therein, (i) prior to the closing (the “Closing”, and the date and time of the Closing, the “Closing Date”) of the transactions contemplated by the Business Combination Agreement (the “Transactions”), SPAC shall de-register from the Register of Companies in the Cayman Islands by way of continuation out of the Cayman Islands and into the State of Delaware, so as to re-domicile as and become a Delaware corporation pursuant to the Companies Act (as revised) of the Cayman Islands and the applicable provisions of the Delaware General Corporation Law (the “Domestication”), and (ii) following the Domestication and on the Closing Date, Merger Sub will merge with and into Green AI Cloud, with Green AI Cloud surviving the merger as a direct, wholly owned subsidiary of Pioneer (the “Merger”). Prior to or concurrently with the Domestication, Green AI Cloud will change its corporate name to a name mutually agreed by Pioneer and Green AI Cloud. The parties intend that the Domestication qualify as a reorganization under Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended (the “Code”), and that the Merger qualify as a reorganization under Section 368(a) of the Code.
Immediately prior to the Domestication, pursuant to the Sponsor Support Agreement (as defined below), each Class B ordinary share of Pioneer (“Class B Ordinary Shares”) will convert on a one-for-one basis into a Class A ordinary share of Pioneer (“Class A Ordinary Shares”) (the “Sponsor Share Conversion”). In connection with the Domestication, (i) each issued and outstanding Class A Ordinary Share will convert automatically, on a one-for-one basis, into a share of common stock, par value $0.0001 per share, of Pioneer as a Delaware corporation (“Domesticated Purchaser Common Stock”), (ii) each issued and outstanding warrant of Pioneer will convert automatically, on a one-for-one basis, into a warrant of Pioneer as a Delaware corporation, each whole warrant entitling the holder thereof to purchase one share of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share, subject to adjustment (“Domesticated Purchaser Warrants”), and (iii) each issued and outstanding unit of Pioneer will convert automatically, on a one-for-one basis, into a unit consisting of one share of Domesticated Purchaser Common Stock and one-half of one Domesticated Purchaser Warrant. At the effective time of the Merger (the “Effective Time”), each such unit will separate automatically into its component securities (with only whole warrants issued and exercisable), and the Domesticated Purchaser Warrants will become exercisable commencing thirty (30) days after the Closing.
Immediately prior to the Effective Time, each convertible security of Green AI Cloud will convert, each warrant of Green AI Cloud will be exercised in full, and each share of Green AI Cloud preferred stock will convert into common stock of Green AI Cloud, par value $0.0001 per share (“Company Common Stock”), in each case in accordance with its terms. At the Effective Time, each share of Company Common Stock (other than excluded shares) will be cancelled and converted into the right to receive a number of shares of Domesticated Purchaser Common Stock equal to the Exchange Ratio (as defined below), and each outstanding option to purchase Company Common Stock will be assumed by Pioneer and converted into an option to purchase Domesticated Purchaser Common Stock, with the number of shares and exercise price adjusted based on the Exchange Ratio. Any restricted stock units of Green AI Cloud granted prior to the Effective Time will be similarly assumed and converted.
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Consideration
The aggregate consideration to be paid to holders of Company Common Stock as of immediately prior to the Effective Time (the “Company Shareholders”) will consist of a number of newly issued shares of Domesticated Purchaser Common Stock equal to Three Hundred Million U.S. Dollars ($300,000,000) divided by Ten U.S. Dollars ($10.00), or 30,000,000 shares (the “Aggregate Consideration”), allocated among the Company Shareholders pro rata in accordance with their holdings of Company Common Stock. The exchange ratio equals the Aggregate Consideration divided by the aggregate number of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time (the “Exchange Ratio”). No fractional shares will be issued, and any fractional shares will be rounded down to the nearest whole share.
In addition to the Aggregate Consideration, at the Closing, Pioneer will issue to the Company Shareholders, pro rata, an aggregate of 5,000,000 shares of Domesticated Purchaser Common Stock, valued at $10.00 per share and having an aggregate value of $50,000,000 (the “Earn-Out Shares”). The Earn-Out Shares will be issued and outstanding at the Closing but will be subject to vesting, transfer restrictions and forfeiture during the three-year period ending December 31, 2029 (the “Earn-Out Period”). The Earn-Out Shares will vest in three tranches of 1,666,666, 1,666,667 and 1,666,667 shares, respectively, upon the earlier of (i) the EBITDA of Pioneer and its subsidiaries, on a consolidated basis, for the fiscal year ending December 31, 2027, 2028 or 2029, as applicable, equaling or exceeding $500,000, $1,000,000 or $1,500,000, respectively, or (ii) the volume-weighted average price of the Domesticated Purchaser Common Stock equaling or exceeding $11.00, $12.00, or $13.00, respectively, for any twenty (20) trading days within any thirty (30) consecutive trading day period during the applicable fiscal year.
A tranche that does not vest for its applicable fiscal year remains eligible to vest on a cumulative “catch-up” basis if specified cumulative EBITDA thresholds are achieved in a later fiscal year of the Earn-Out Period. All unvested Earn-Out Shares will vest automatically upon a Change of Control occurring prior to the final vesting determination. Unvested Earn-Out Shares that have not vested by the final determination for the Earn-Out Period will be forfeited and cancelled for no consideration.
Representations and Warranties
The Business Combination Agreement contains representations and warranties that are reasonably customary for similar transactions that are made by the parties as of the date of the Business Combination Agreement, or other specified dates, solely for the benefit of certain of the parties to the Business Combination Agreement, and in certain cases are subject to specified exceptions and materiality, Company Material Adverse Effect or Purchaser Material Adverse Effect (each as defined in the Business Combination Agreement and, as applicable, a “Material Adverse Effect”), knowledge and other qualifications contained in the Business Combination Agreement or in information provided pursuant to the confidential disclosure letters delivered in connection with the Business Combination Agreement.
No Survival
The representations and warranties of the parties contained in the Business Combination Agreement terminate as of, and do not survive, the Closing, and there are no indemnification rights for another party’s breach, except in the case of a Fraud Claim. The covenants and agreements of the parties contained in the Business Combination Agreement do not survive the Closing, except those covenants and agreements to be performed after the Closing, which covenants and agreements will survive until fully performed.
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Covenants of the Parties
Each party to the Business Combination Agreement has agreed to use its reasonable best efforts to consummate the Transactions, including making any filings required under applicable antitrust laws. The Business Combination Agreement also contains certain customary covenants by each of the parties that apply during the period between the signing of the Business Combination Agreement and the earlier of the Closing or the termination of the Business Combination Agreement (the “Interim Period”), including (i) the provision of access to the applicable party’s properties, books and personnel; (ii) the operation of the parties’ respective businesses in the ordinary course of business; (iii) the current and timely filing of Pioneer’s public filings and the maintenance of its Nasdaq listing; (iv) no insider trading; (v) notifications to the other parties of certain matters; (vi) obtaining third party and regulatory approvals; (vii) tax matters; (viii) further assurances; (ix) public announcements; (x) confidentiality; and other covenants. The Business Combination Agreement also contains certain customary post-Closing covenants, including, without limitation, in regard to (1) the maintenance of books and records; (2) the indemnification of directors and officers and the purchase of a six-year “tail” directors’ and officers’ liability insurance policy; (3) Section 16 matters; and (4) the use of proceeds from Pioneer’s trust account (the “Trust Account”). Additionally:
Each of Pioneer and Green AI Cloud will not solicit, initiate or engage in negotiations regarding a competing alternative transaction, and will cease any existing discussions with respect thereto, in accordance with customary terms and provisions set forth in the Business Combination Agreement.
Pioneer’s board of directors will recommend that Pioneer’s shareholders approve the Transaction Proposals (as defined in the Business Combination Agreement) and will not, except as required by applicable law, withdraw, amend, qualify or modify such recommendation (a “Modification in Recommendation”). Pioneer’s obligation to convene the extraordinary general meeting of its shareholders (the “Shareholders’ Meeting”) and submit the Transaction Proposals will not be affected by any Modification in Recommendation, and if the requisite approval is not obtained, Pioneer will hold additional meetings to obtain such approval. The Transaction Proposals include, among others, approval of the Business Combination Agreement and the Transactions, the Domestication and Pioneer’s Delaware certificate of incorporation and bylaws, the issuance of the Aggregate Consideration and the Earn-Out Shares under Nasdaq Listing Rule 5635, a new equity incentive plan and employee stock purchase plan, and the election of director nominees.
Green AI Cloud will use reasonable best efforts to deliver to Pioneer its audited financial statements (the “Audited Financial Statements”), unaudited consolidated financial statements as of and for the six-month period ended June 30, 2026 (the “Updated 1H Financial Statements”) and any other financial statements of Green AI Cloud required to be included in the Registration Statement (as defined below), in each case as soon as reasonably practicable following the date of the Business Combination Agreement.
Pioneer and Green AI Cloud will jointly prepare, and Pioneer will file with the U.S. Securities and Exchange Commission (the “SEC”), as promptly as practicable after receipt of the required financial statements of Green AI Cloud, a registration statement on Form S-4 (as amended, the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the securities of Pioneer to be issued in the Domestication and the Merger, including the Aggregate Consideration and the Earn-Out Shares, and containing a proxy statement/prospectus for the solicitation of proxies from Pioneer’s shareholders to approve the Transaction Proposals at the Shareholders’ Meeting, which Pioneer will hold no later than thirty (30) Business Days after the Registration Statement is declared effective, and providing Pioneer’s public shareholders with an opportunity to redeem their Class A Ordinary Shares in connection with the Transactions, as required by Pioneer’s organizational documents (the “Redemption”). The SEC filing fees for the Registration Statement will be borne by Green AI Cloud.
Green AI Cloud will use its reasonable best efforts to obtain the approval of its stockholders required to adopt the Business Combination Agreement and approve the Transactions (the “Requisite Shareholder Approval”) by irrevocable written consent of the Sellers (as defined below) pursuant to the Voting and Support Agreement (as defined below) promptly following the effectiveness of the Registration Statement. If the Requisite Shareholder Approval is not delivered within three (3) Business Days after the Registration Statement is declared effective, Green AI Cloud will call and hold a meeting of its stockholders as soon as practicable to obtain such approval.
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The parties will take all action necessary so that, effective as of the Closing, Pioneer’s board of directors will not be classified and will initially consist of seven (7) directors, one (1) of whom will be designated by Pioneer and the remainder of whom will be designated by Green AI Cloud, including such number of independent directors as is required under the listing rules of The Nasdaq Stock Market LLC (“Nasdaq”). The executive officers of Pioneer immediately after the Closing will be the individuals designated pursuant to the Business Combination Agreement and such other individuals as mutually agreed by Pioneer and Green AI Cloud. Prior to the Closing, the parties will also use commercially reasonable efforts to agree on an equity incentive plan with a share reserve equal to fifteen percent (15%) of the fully diluted shares of Domesticated Purchaser Common Stock outstanding immediately after the Closing (with a five percent (5%) annual evergreen) and an employee stock purchase plan with a share reserve equal to two percent (2%) of the outstanding shares of Domesticated Purchaser Common Stock immediately after the Closing (with a two percent (2%) annual evergreen).
During the Interim Period, Pioneer will use its reasonable best efforts to obtain, as of the Closing, committed capital in an aggregate amount of Twenty Million U.S. Dollars ($20,000,000), net of the payment of transaction costs (other than deferred underwriting fees payable to Cantor Fitzgerald & Co.) (the “Funding Commitments”). The Funding Commitments may be satisfied through equity, debt, equity-linked or other alternative financing instruments, including forward purchase agreements, standby equity purchase agreements and equity lines of credit, and include any funds remaining in the Trust Account after the Redemption and any proceeds of any Company Financing (as defined in the Business Combination Agreement). Pioneer may also extend the deadline by which it must complete its initial business combination without the consent of Green AI Cloud, with any related extension fees to be borne by Green AI Cloud on a monthly basis.
At the Closing, Pioneer will pay the transaction costs of Pioneer and Green AI Cloud solely from funds remaining in the Trust Account after the Redemption and the proceeds of any Funding Commitments; provided that Pioneer’s transaction costs payable from such sources may not exceed $2,000,000, and any excess will be borne by Pioneer (from funds held outside the Trust Account) or by Pioneer Acquisition 1 Sponsor Holdco LLC, a Delaware limited liability company (the “Sponsor”), in cash or in founder shares. The deferred underwriting fee payable to Cantor Fitzgerald & Co. in connection with Pioneer’s initial public offering will be borne by Green AI Cloud, in cash or in shares of Domesticated Purchaser Common Stock.
Conditions to Closing
The obligations of the parties to consummate the Transactions are subject to various conditions, including the following mutual conditions of the parties, unless waived: (i) the approval of the Transaction Proposals by Pioneer’s shareholders; (ii) the receipt of the Requisite Shareholder Approval; (iii) no law or order preventing or prohibiting the Transactions; (iv) the effectiveness of the Registration Statement; (v) the conditional approval of Pioneer’s initial listing application with Nasdaq (or such other exchange or market as agreed by the parties) and the approval for listing of the Domesticated Purchaser Common Stock and the Domesticated Purchaser Warrants; and (vi) the expiration or termination of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the receipt of any other required governmental approvals.
In addition, unless waived by Green AI Cloud, the obligations of Green AI Cloud to consummate the Transactions are subject to the satisfaction of the following closing conditions, in addition to customary certificates and other closing deliveries: (i) the fundamental representations and warranties of Pioneer and Merger Sub being true and correct in all respects (other than de minimis inaccuracies) as of the date of the Business Combination Agreement and as of the Closing Date; (ii) all other representations and warranties of Pioneer and Merger Sub being true and correct as of the date of the Business Combination Agreement and as of the Closing Date, except where the failure to be true and correct has not had and would not reasonably be expected to have a Material Adverse Effect on Pioneer; (iii) Pioneer and Merger Sub having performed in all material respects their respective obligations under the Business Combination Agreement; (iv) the absence of any continuing and uncured Material Adverse Effect on Pioneer since the date of the Business Combination Agreement; (v) the Domestication having been completed; (vi) Pioneer having made appropriate arrangements to have the funds remaining in the Trust Account available at the Closing; (vii) the delivery of the A&R Registration Rights Agreement and the Lock-Up Agreements (each as defined below), duly executed by Pioneer and the Sponsor, as applicable; and (viii) Pioneer having obtained Funding Commitments of at least $20,000,000 (the “Minimum Funding Commitment”).
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Unless waived by Pioneer, the obligations of Pioneer and Merger Sub to consummate the Transactions are subject to the satisfaction of the following closing conditions, in addition to customary certificates and other closing deliveries: (i) the fundamental representations and warranties of Green AI Cloud being true and correct in all respects (other than de minimis inaccuracies) as of the date of the Business Combination Agreement and as of the Closing Date; (ii) all other representations and warranties of Green AI Cloud being true and correct as of the date of the Business Combination Agreement and as of the Closing Date, except where the failure to be true and correct has not had and would not reasonably be expected to have a Material Adverse Effect on Green AI Cloud; (iii) Green AI Cloud having performed in all material respects its obligations under the Business Combination Agreement; (iv) the absence of any continuing and uncured Material Adverse Effect on Green AI Cloud and its subsidiaries since the date of the Business Combination Agreement; (v) the delivery of the A&R Registration Rights Agreement and the Seller Lock-Up Agreement (as defined below), duly executed by each holder of Green AI Cloud equity securities who will receive at least 5.0% of the Aggregate Consideration (including upon the exercise or settlement of assumed equity awards); (vi) the delivery of a customary FIRPTA certificate; and (vii) the receipt of consents from the holders of any Green AI Cloud warrants that do not automatically exercise in full in accordance with their terms.
Termination
The Business Combination Agreement may be terminated at any time prior to the Closing by either Pioneer or Green AI Cloud if the conditions to the Closing have not been satisfied or waived by June 30, 2028 (the “Outside Date”); provided that, solely for purposes of Green AI Cloud’s termination right, the Outside Date will be extended by one day for each day after November 30, 2026 that the Audited Financial Statements or the Updated 1H Financial Statements have not been delivered.
The Business Combination Agreement may also be terminated under certain other customary and limited circumstances at any time prior to the Closing, including, among other reasons: (i) by mutual written consent of Pioneer and Green AI Cloud; (ii) by either Pioneer or Green AI Cloud if a governmental authority of competent jurisdiction shall have issued a final, non-appealable order permanently restraining, enjoining or otherwise prohibiting the Transactions; (iii) by Green AI Cloud for Pioneer’s uncured breach of the Business Combination Agreement, such that the related closing condition would not be met, subject to a twenty (20) day cure period; (iv) by Pioneer for Green AI Cloud’s uncured breach of the Business Combination Agreement, such that the related closing condition would not be met, subject to a twenty (20) day cure period; (v) by either Pioneer or Green AI Cloud if the conditions to the other party’s obligations have been satisfied or waived and the other party fails to consummate the Closing within five (5) Business Days after the terminating party confirms in writing that it is ready, willing and able to close; (vi) by Green AI Cloud, if the Transaction Proposals are not approved at the Shareholders’ Meeting; and (vii) by either Pioneer or Green AI Cloud, if Pioneer has not obtained an extension of its business combination deadline and the Closing has not occurred prior to the date on which Pioneer would otherwise be required to liquidate.
If the Business Combination Agreement is terminated by Pioneer pursuant to clause (iv) or (v) above, Green AI Cloud will pay Pioneer a termination fee of $1,000,000 (the “Termination Fee”) plus up to $500,000 of the amounts outstanding under Pioneer’s convertible promissory note issued to the Sponsor. If the Business Combination Agreement is terminated by Green AI Cloud pursuant to clause (iii) or (v) above, Pioneer will pay Green AI Cloud the Termination Fee plus $500,000 as reimbursement of Green AI Cloud’s expenses. Such amounts constitute liquidated damages. Upon termination, all further obligations of the parties under the Business Combination Agreement (except for certain obligations related to public announcements, confidentiality, effect of termination and customary miscellaneous provisions) will terminate, and no party will have any further liability to any other party thereto except for liability for fraud or for willful breach of the Business Combination Agreement prior to such termination.
Trust Account Waiver
Green AI Cloud agreed that it and its affiliates will not have any right, title, interest or claim of any kind in or to any monies in the Trust Account held for Pioneer’s public shareholders, and has agreed not to, and waived any right to, make any claim against the Trust Account (including any distributions therefrom), subject to certain exceptions.
Governing Law
The Business Combination Agreement is governed by Delaware law, except that the laws of the Cayman Islands will also apply to the Domestication.
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Related Agreements
Voting and Support Agreement
Simultaneously with the execution of the Business Combination Agreement, Pioneer, Green AI Cloud and certain holders of Green AI Cloud equity securities representing the Requisite Shareholder Approval (the “Sellers”) entered into a Voting and Support Agreement (the “Voting and Support Agreement”), pursuant to which, among other things, each Seller agreed to vote, or execute a written consent with respect to, its shares of Company Common Stock (the “Subject Securities”) to provide the Requisite Shareholder Approval within three (3) Business Days after the Registration Statement is declared effective, and to vote against any alternative transaction or other proposal that would impede the Transactions. Each Seller also agreed to (i) not transfer its Subject Securities, subject to certain exceptions, until the earlier of the Closing or the termination of the Business Combination Agreement, (ii) waive any appraisal or dissenters’ rights, (iii) not commence or join any claim challenging the Voting and Support Agreement or alleging a breach of fiduciary duty in connection with the Transactions, (iv) be bound by the non-solicitation, public announcement and confidentiality provisions of the Business Combination Agreement, and (v) deliver at the Closing executed copies of the A&R Registration Rights Agreement and the Seller Lock-Up Agreement. The Voting and Support Agreement will terminate upon the earliest of the Closing, the termination of the Business Combination Agreement, the liquidation of Green AI Cloud and the written agreement of the parties. A copy of the Voting and Support Agreement is attached as Exhibit 10.1 hereto and is incorporated herein by reference.
Sponsor Support Agreement
Simultaneously with the execution of the Business Combination Agreement, Pioneer, Green AI Cloud and the Sponsor entered into a Sponsor Support Agreement (the “Sponsor Support Agreement”), pursuant to which the Sponsor, as holder of 6,325,000 Class B Ordinary Shares, and any other holder of Pioneer equity securities who becomes a party by joinder, agreed, among other things, to (i) vote all of its Pioneer equity securities in favor of the Transaction Proposals and against any competing proposal, (ii) effect the Sponsor Share Conversion immediately prior to the Domestication, (iii) not redeem any of its shares in connection with the Transactions, (iv) not exercise any dissenters’ or appraisal rights, (v) not transfer its Pioneer equity securities without the prior written consent of Pioneer and Green AI Cloud, and (vi) waive any claims against the Trust Account. The Sponsor also granted Green AI Cloud an irrevocable proxy to vote its Pioneer equity securities in accordance with the Sponsor Support Agreement and, effective as of the Closing and subject to customary carve-outs, released Pioneer, Green AI Cloud and their respective affiliates from claims arising out of its capacity as a Pioneer shareholder. The Sponsor Support Agreement will terminate upon the earliest of the mutual written consent of Pioneer and Green AI Cloud, the Effective Time and the termination of the Business Combination Agreement. A copy of the Sponsor Support Agreement is attached as Exhibit 10.2 hereto and is incorporated herein by reference.
Lock-Up Agreements
At the Closing, (i) Pioneer and the Sponsor will enter into a lock-up agreement (the “Sponsor Lock-Up Agreement”) with respect to the 6,325,000 shares of Domesticated Purchaser Common Stock to be held by the Sponsor following the Sponsor Share Conversion and the Domestication, and (ii) Pioneer, Green AI Cloud and certain Sellers will enter into a lock-up agreement (the “Seller Lock-Up Agreement” and, together with the Sponsor Lock-Up Agreement, the “Lock-Up Agreements”) with respect to the shares of Domesticated Purchaser Common Stock received in the Merger, the Earn-Out Shares and any securities convertible into or exercisable for Domesticated Purchaser Common Stock held immediately following the Effective Time. Under each Lock-Up Agreement, the applicable holders will agree not to transfer such securities, without the prior written consent of Pioneer’s board of directors, for six (6) months following the consummation of the Merger, subject to customary permitted transfers, including transfers to affiliates, family members and trusts and, under the Sponsor Lock-Up Agreement, private sales in connection with the Funding Commitments at prices no greater than the original purchase price of such shares. Each Lock-Up Agreement will terminate early upon a liquidation, merger or similar transaction that results in all holders of Domesticated Purchaser Common Stock having the right to exchange their shares for cash, securities or other property, or upon Pioneer’s liquidation. Copies of the forms of Sponsor Lock-Up Agreement and Seller Lock-Up Agreement are attached as Exhibits 10.3 and 10.4 hereto, respectively, and are incorporated herein by reference.
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Amended and Restated Registration Rights Agreement
At the Closing, Pioneer, the Sponsor and certain other holders, including certain Sellers, will enter into an amended and restated registration rights agreement (the “A&R Registration Rights Agreement”), which will amend and restate the registration rights agreement entered into in connection with Pioneer’s initial public offering. Pursuant to the A&R Registration Rights Agreement, Pioneer will be required to file, within 30 days after the Closing, a shelf registration statement registering the resale of the registrable securities, including the Earn-Out Shares, and to use commercially reasonable efforts to cause it to become effective as soon as reasonably practicable. Following the expiration of the applicable lock-up period, each of the Sponsor holders, the Seller holders and the other holders, as a group, may demand up to three (3) underwritten shelf takedowns, block trades or other coordinated offerings in the aggregate, subject to a $25 million minimum offering size, and may exercise piggyback registration rights up to three (3) times. The A&R Registration Rights Agreement also contains customary market stand-off, expense allocation and indemnification provisions and will terminate on its tenth anniversary or, with respect to any holder, when such holder no longer holds registrable securities. A copy of the form of A&R Registration Rights Agreement is attached as Exhibit 10.5 hereto and is incorporated herein by reference.
The Business Combination Agreement and other agreements described above have been included to provide investors with information regarding their respective terms. They are not intended to provide any other factual information about Pioneer, Green AI Cloud, or the other parties thereto. In particular, the assertions embodied in the representations and warranties in the Business Combination Agreement were made as of a specified date, are modified or qualified by information in one or more confidential disclosure letters prepared in connection with the execution and delivery of the Business Combination Agreement, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Business Combination Agreement are not necessarily characterizations of the actual state of facts about Pioneer, Green AI Cloud or the other parties thereto at the time they were made or otherwise and should only be read in conjunction with the other information that Pioneer makes publicly available in reports, statements and other documents filed with the SEC. Pioneer and Green AI Cloud investors and securityholders are not third-party beneficiaries under the Business Combination Agreement and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Business Combination Agreement.
The foregoing descriptions of agreements and the transactions and documents contemplated thereby are not complete and are subject to and qualified in their entirety by reference to the Business Combination Agreement, the Voting and Support Agreement, the Sponsor Support Agreement, the form of Sponsor Lock-Up Agreement, the form of Seller Lock-Up Agreement and the form of A&R Registration Rights Agreement, copies of which are filed with this Current Report on Form 8-K as Exhibits 2.1, 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and the terms of which are incorporated by reference herein.
| Item 7.01 | Regulation FD Disclosure. |
On October 8, 2026, Pioneer issued a press release announcing the Business Combination. A copy of the press release is furnished herewith as Exhibit 99.1.
The information in this Item 7.01, including Exhibit 99.1 attached hereto will not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor be deemed incorporated by reference in any filing under the Securities Act, or the Exchange Act, except as expressly set forth by specific reference in such filing.
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Additional Information and Where to Find It
Pioneer intends to file with the SEC the Registration Statement, which will include a preliminary proxy statement of Pioneer and a prospectus (the “Proxy Statement/Prospectus”) in connection with the Shareholders’ Meeting to approve the Transactions. The definitive proxy statement and other relevant documents will be mailed to shareholders of Pioneer as of a record date to be established for voting on the Business Combination and other matters as described in the Proxy Statement/Prospectus. Pioneer will also file other documents regarding the Business Combination with the SEC. This Current Report on Form 8-K does not contain all of the information that should be considered concerning the Business Combination and is not intended to form the basis of any investment decision or any other decision in respect of the Business Combination. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, SHAREHOLDERS OF PIONEER AND OTHER INTERESTED PARTIES ARE URGED TO READ, WHEN AVAILABLE, THE PRELIMINARY PROXY STATEMENT/PROSPECTUS, AND AMENDMENTS THERETO, AND THE DEFINITIVE PROXY STATEMENT/PROSPECTUS AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC IN CONNECTION WITH PIONEER’S SOLICITATION OF PROXIES FOR THE EXTRAORDINARY GENERAL MEETING OF ITS SHAREHOLDERS TO BE HELD TO APPROVE THE BUSINESS COMBINATION AND OTHER MATTERS AS DESCRIBED IN THE PROXY STATEMENT/PROSPECTUS BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT PIONEER, GREEN AI CLOUD AND THE BUSINESS COMBINATION. Investors and security holders will also be able to obtain copies of the Registration Statement and the Proxy Statement/Prospectus and all other documents filed or that will be filed with the SEC by Pioneer, without charge, once available, on the SEC’s website at www.sec.gov or by directing a request to: Pioneer Acquisition I Corp., 131 Concord Street, Brooklyn, New York 11201.
NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE BUSINESS COMBINATION DESCRIBED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR ANY RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS CURRENT REPORT ON FORM 8-K. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
Participants in Solicitation
Pioneer, Green AI Cloud and their respective directors, executive officers, certain of their equity holders and other members of management and employees may be deemed under SEC rules to be participants in the solicitation of proxies from Pioneer’s shareholders in connection with the Business Combination. A list of the names of such persons, and information regarding their interests in the Business Combination and their ownership of Pioneer’s securities will be, contained in Pioneer’s filings with the SEC, including the final prospectus for Pioneer’s initial public offering filed with the SEC on June 20, 2025 (the “IPO Prospectus”). Additional information regarding the interests of the persons who may, under SEC rules, be deemed participants in the solicitation of proxies of Pioneer’s shareholders in connection with the Business Combination, including the names and interests of Green AI Cloud’s directors and executive officers, will be set forth in the Registration Statement and Proxy Statement/Prospectus, which is expected to be filed by Pioneer with the SEC. Investors and security holders may obtain free copies of these documents as described above.
No Offer or Solicitation
This Current Report on Form 8-K and the information contained herein is for informational purposes only and is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the potential transactions and shall not constitute an offer to sell or exchange, or a solicitation of an offer to buy or exchange the securities of Pioneer or Green AI Cloud, or any commodity or instrument or related derivative of Pioneer or Green AI Cloud, nor shall there be any sale of any such securities, commodities, instruments or related derivatives in any state or jurisdiction in which such offer, solicitation, sale or exchange would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities, commodities, instruments or derivatives shall be made except by means of a prospectus meeting the requirements of the Securities Act or an exemption therefrom. Investors should consult with their counsel as to the applicable requirements for a purchaser to avail itself of any exemption under the Securities Act.
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Forward-Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of the U.S. federal securities laws with respect to the Business Combination involving Pioneer and Green AI Cloud, including expectations, hopes, beliefs, intentions, plans, prospects, financial results or strategies regarding Green AI Cloud, Pioneer and the Business Combination, statements regarding the anticipated benefits and timing of the completion of the Business Combination, the potential vesting of the Earn-Out Shares, the expected Funding Commitments, the combined company’s listing on any securities exchange, the anticipated business of the combined company, plans and use of proceeds, objectives of management for future operations of the combined company, market size and growth opportunities, regulatory conditions, technological and market trends, future financial condition and performance and expected financial impacts of the Business Combination, the satisfaction of closing conditions to the Business Combination and the level of redemptions of Pioneer’s public shareholders, and the combined company’s expectations, intentions, strategies, assumptions or beliefs about future events, results of operations or performance or that do not solely relate to historical or current facts. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “potential,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are predictions, projections and other statements about future events or conditions that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this communication, including, but not limited to: the risk that the Business Combination may not be completed in a timely manner or at all, which may adversely affect the price of Pioneer’s securities; the risk that the Business Combination may not be completed by Pioneer’s business combination deadline; the failure by the parties to satisfy the conditions to the consummation of the Business Combination, including the approval of Pioneer’s shareholders and the Minimum Funding Commitment; the failure to obtain the Funding Commitments; failure to realize the anticipated benefits of the Business Combination; the level of redemptions of Pioneer’s public shareholders which may reduce the public float of, reduce the liquidity of the trading market of, and/or affect the listing or trading of the Domesticated Purchaser Common Stock; the failure of the combined company to obtain or maintain the listing of its securities on Nasdaq or any other securities exchange after the closing of the Business Combination; risks associated with the ability of Pioneer and Green AI Cloud to consummate the Business Combination timely or at all, including in connection with potential regulatory delays or impediments, costs related to the Business Combination and as a result of becoming a public company; changes in business, market, financial, political and regulatory conditions; risks relating to the combined company’s anticipated operations and business; risks related to increased competition in the industries in which the combined company will operate; risks related to the ability of Green AI Cloud and the combined company to execute their business plans; the outcome of any potential legal proceedings that may be instituted against Pioneer, Green AI Cloud or others in connection with or following announcement of the Business Combination, and those risk factors discussed in documents that Pioneer filed, or that will be filed, with the SEC, including as will be set forth in the Registration Statement to be filed with the SEC in connection with the Business Combination.
The foregoing list of risk factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the IPO Prospectus, Pioneer’s Quarterly Reports on Form 10-Q and Pioneer’s Annual Reports on Form 10-K filed or to be filed by Pioneer from time to time, the Registration Statement that will be filed by Pioneer and the Proxy Statement/Prospectus contained therein, and other documents that have been or will be filed by Pioneer from time to time with the SEC. These filings do or will identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. There may be additional risks that neither Pioneer nor Green AI Cloud presently know or that Pioneer and Green AI Cloud currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements.
Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and each of Pioneer and Green AI Cloud assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise, except as required by applicable law. Neither Pioneer nor Green AI Cloud gives any assurance that either Pioneer or Green AI Cloud will achieve its expectations. The inclusion of any statement in this Current Report on Form 8-K does not constitute an admission by Pioneer, Green AI Cloud or any other person that the events or circumstances described in such statement are material.
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| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
| * | The exhibits and schedules to this Exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. The registrant agrees to furnish supplementally to the SEC a copy of all omitted exhibits and schedules upon its request. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: October 13, 2026
| Pioneer Acquisition I Corp. | ||
| By: | /s/ Mitchell Creem | |
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
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Exhibit 2.1
Dated October 6, 2026
Business Combination Agreement
by and among
Pioneer Acquisition I Corp.
as the Purchaser
Pioneer Merger Sub, Inc.
as Merger Sub
and
Green AI Cloud, Inc.
as the Company
TABLE OF CONTENTS
| Page | ||||
| Article I THE TRANSACTIONS | 3 | |||
| Section 1.01 | The Domestication | 3 | ||
| Section 1.02 | The Merger | 4 | ||
| Article II CONSIDERATION | 4 | |||
| Section 2.01 | Pre-Effective Time Conversions | 4 | ||
| Section 2.02 | Consideration | 5 | ||
| Section 2.03 | Conversion of Securities | 5 | ||
| Section 2.04 | No Fractional Shares | 6 | ||
| Section 2.05 | Withholding | 6 | ||
| Section 2.06 | Earn-Out Shares | 6 | ||
| Article III CLOSING | 9 | |||
| Section 3.01 | Closing | 9 | ||
| Section 3.02 | Closing Documents | 9 | ||
| Section 3.03 | Payment of Expenses | 9 | ||
| Article IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 10 | |||
| Section 4.01 | Organization and Standing | 10 | ||
| Section 4.02 | Authorization; Binding Agreement | 10 | ||
| Section 4.03 | Capitalization | 11 | ||
| Section 4.04 | Subsidiaries | 11 | ||
| Section 4.05 | No Conflict; Governmental Consents and Filings | 12 | ||
| Section 4.06 | Financial Statements | 12 | ||
| Section 4.07 | Undisclosed Liabilities | 13 | ||
| Section 4.08 | Absence of Certain Changes | 13 | ||
| Section 4.09 | Compliance with Laws | 13 | ||
| Section 4.10 | [Reserved] | 13 | ||
| Section 4.11 | Company Permits | 13 | ||
| Section 4.12 | Litigation | 14 | ||
| Section 4.13 | Material Contracts | 14 | ||
| Section 4.14 | Intellectual Property | 16 | ||
| Section 4.15 | Taxes and Returns | 19 | ||
| Section 4.16 | Real Property | 20 | ||
| Section 4.17 | Personal Property | 21 | ||
| Section 4.18 | Employee Matters | 21 | ||
| Section 4.19 | Company Benefit Plans | 22 | ||
| Section 4.20 | Environmental Matters | 23 | ||
| Section 4.21 | Transactions with Related Persons | 24 | ||
| Section 4.22 | Insurance | 24 | ||
| Section 4.23 | Top Customers and Suppliers | 24 | ||
| Section 4.24 | Certain Business Practices | 25 | ||
| Section 4.25 | Investment Company Act | 26 | ||
| Section 4.26 | Finders and Brokers | 26 | ||
| Section 4.27 | Independent Investigation | 26 | ||
| Section 4.28 | Information Supplied | 26 | ||
| Section 4.29 | Diligence information | 26 | ||
| Section 4.30 | No Additional Representations or Warranties | 26 | ||
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TABLE OF CONTENTS (continued)
| Page | ||||
| Article V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND MERGER SUB | 27 | |||
| Section 5.01 | Organization and Standing | 27 | ||
| Section 5.02 | Authorization; Binding Agreement | 27 | ||
| Section 5.03 | Governmental Approvals | 27 | ||
| Section 5.04 | Non-Contravention | 28 | ||
| Section 5.05 | Capitalization | 28 | ||
| Section 5.06 | SEC Filings and Purchaser Financials; Internal Controls | 29 | ||
| Section 5.07 | Absence of Certain Changes | 30 | ||
| Section 5.08 | Undisclosed Liabilities | 30 | ||
| Section 5.09 | Compliance with Laws | 31 | ||
| Section 5.10 | Legal Proceedings; Orders; Permits | 31 | ||
| Section 5.11 | Taxes and Returns | 31 | ||
| Section 5.12 | Properties | 32 | ||
| Section 5.13 | Investment Company Act | 32 | ||
| Section 5.14 | Trust Account | 32 | ||
| Section 5.15 | Finders and Brokers | 33 | ||
| Section 5.16 | Certain Business Practices | 33 | ||
| Section 5.17 | Insurance | 34 | ||
| Section 5.18 | Material Contracts | 34 | ||
| Section 5.19 | Information Supplied | 35 | ||
| Section 5.20 | Transactions with Related Persons | 35 | ||
| Section 5.21 | Independent Investigation | 35 | ||
| Section 5.22 | No Additional Representation or Warranties | 35 | ||
| Article VI COVENANTS | 36 | |||
| Section 6.01 | Access and Information; Cooperation | 36 | ||
| Section 6.02 | Conduct of Business of the Company | 37 | ||
| Section 6.03 | Conduct of Business of the Purchaser | 40 | ||
| Section 6.04 | Annual and Interim Financial Statements | 42 | ||
| Section 6.05 | Purchaser Public Filings | 43 | ||
| Section 6.06 | No Solicitation | 43 | ||
| Section 6.07 | No Trading | 44 | ||
| Section 6.08 | Notification of Certain Matters | 44 | ||
| Section 6.09 | Efforts | 45 | ||
| Section 6.10 | Trust Account | 46 | ||
| Section 6.11 | Tax Matters | 46 | ||
| Section 6.12 | Company Financing | 47 | ||
| Section 6.13 | Further Assurances | 47 | ||
| Section 6.14 | The Preparation of Proxy Statement/Registration Statement; Shareholders’ Meeting and Approvals | 47 | ||
| Section 6.15 | Employee Matters | 50 | ||
| Section 6.16 | Public Announcements | 51 | ||
| Section 6.17 | Confidential Information | 52 | ||
| Section 6.18 | Documents and Information | 53 | ||
| Section 6.19 | Post-Closing Board of Directors and Executive Officers | 53 | ||
| Section 6.20 | Indemnification of Directors and Officers; Tail Insurance | 54 | ||
| Section 6.21 | Funding Commitments | 55 | ||
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TABLE OF CONTENTS (continued)
| Page | ||||
| Section 6.22 | Redemption | 55 | ||
| Section 6.23 | Domestication | 55 | ||
| Section 6.24 | Adoption of Proxy Statement/Registration Statement | 55 | ||
| Section 6.25 | Affiliate Agreements | 55 | ||
| Section 6.26 | [Reserved] | 55 | ||
| Section 6.27 | Intellectual Property Matters | 55 | ||
| Section 6.28 | Section 16 Matters | 56 | ||
| Section 6.29 | Name Change | 56 | ||
| Article VII CLOSING CONDITIONS | 56 | |||
| Section 7.01 | Conditions to Each Party’s Obligations | 56 | ||
| Section 7.02 | Conditions to Obligations of the Company | 57 | ||
| Section 7.03 | Conditions to Obligations of the Purchaser and Merger Sub | 58 | ||
| Section 7.04 | Frustration of Conditions | 59 | ||
| Article VIII TERMINATION | 59 | |||
| Section 8.01 | Termination | 59 | ||
| Section 8.02 | Termination Fee; Expense Reimbursement | 60 | ||
| Section 8.03 | Effect of Termination | 61 | ||
| Article IX MISCELLANEOUS | 61 | |||
| Section 9.01 | No Survival | 61 | ||
| Section 9.02 | Notices | 61 | ||
| Section 9.03 | Binding Effect; Assignment | 62 | ||
| Section 9.04 | Third Parties | 62 | ||
| Section 9.05 | Governing Law | 62 | ||
| Section 9.06 | Jurisdiction | 62 | ||
| Section 9.07 | WAIVER OF JURY TRIAL | 62 | ||
| Section 9.08 | Specific Performance | 62 | ||
| Section 9.09 | Severability | 62 | ||
| Section 9.10 | Amendment; Waiver | 63 | ||
| Section 9.11 | Entire Agreement | 63 | ||
| Section 9.12 | Interpretation | 63 | ||
| Section 9.13 | Counterparts | 64 | ||
| Section 9.14 | Legal Representation | 64 | ||
| Section 9.15 | Waiver of Claims Against Trust | 65 | ||
| Section 9.16 | Company and Purchaser Disclosure Letters | 65 | ||
| Article X DEFINITIONS | 66 | |||
| Section 10.01 | Certain Definitions | 66 | ||
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BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement (this “Agreement”) is made and entered into as of October 6, 2026 by and among Pioneer Acquisition I Corp, a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), Pioneer Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Purchaser (“Merger Sub”), and Green AI Cloud, Inc., a Delaware corporation (the “Company”). The Purchaser, Merger Sub and the Company are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.”
RECITALS:
WHEREAS, the Purchaser is a special purpose acquisition company incorporated as a Cayman Islands exempted company for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses;
WHEREAS, Merger Sub is a newly incorporated Delaware corporation, wholly owned by the Purchaser, and was formed for the purpose of effectuating the Merger (as defined below);
WHEREAS, at least one (1) day prior to the Closing Date and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at the Closing), the Purchaser shall de-register from the Register of Companies in the Cayman Islands by way of continuation out of the Cayman Islands and in to the State of Delaware and domesticate as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law, as amended (the “DGCL”), and the Companies Act (Revised) of the Cayman Islands (the “Cayman Companies Act,” and such de-registration, continuation and domestication, the “Domestication”);
WHEREAS, in order to effectuate the Domestication, and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at the Closing), the Purchaser shall (a) file all applicable notices, declarations, affidavits, statements of assets and liabilities, shareholder approvals, undertakings and other documents required to be filed, pay all applicable fees required to be paid, and cause the satisfaction of all other conditions to deregistration required to be satisfied, in each case, under Section 206 of the Cayman Companies Act and in accordance therewith, (b) file a certificate of domestication and a certificate of incorporation in form and substance reasonably satisfactory to the Parties (the “Purchaser Charter upon Domestication”) with the Secretary of State of Delaware and (c) adopt bylaws in form and substance reasonably satisfactory to the Parties (the “Purchaser Bylaws upon Domestication”);
WHEREAS, prior to or concurrent with the Domestication, the Company shall effect a change of its corporate name to another name mutually agreed by the Purchaser and the Company prior to the Domestication;
WHEREAS, upon the terms and subject to the conditions of this Agreement, and in accordance with the DGCL and the Cayman Companies Act, as applicable, the Parties intend to enter into a business combination transaction by which the Company and Merger Sub will file with the Delaware Secretary of State a certificate of merger in form and substance reasonably satisfactory to the Parties (the “Certificate of Merger”) in accordance with the applicable provisions of the DGCL and pursuant thereto Merger Sub will merge with and into the Company (the “Merger,” and together with the Domestication and the other transactions contemplated by this Agreement and the Ancillary Documents, the “Transactions”), with the Company being the surviving corporation of the Merger (the Company, in its capacity as the surviving corporation of the Merger, is sometimes referred to as the “Surviving Corporation”);
WHEREAS, (a) immediately prior to the Domestication, pursuant to the Sponsor Support Agreement, the holders of the Purchaser Class B Ordinary Shares shall elect to convert each Purchaser Class B Ordinary Share held by them, on a one-for-one basis, into a Purchaser Class A Ordinary Share (the “Sponsor Share Conversion”); and (b) in connection with the Domestication, (i) each then issued and outstanding Purchaser Class A Ordinary Share shall convert automatically, on a one-for-one basis, into a share of Domesticated Purchaser Common Stock; (ii) each then
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issued and outstanding warrant of the Purchaser (each a “Cayman Purchaser Warrant”) shall convert automatically, on a one-for-one basis, into a Domesticated Purchaser Warrant, each whole Domesticated Purchaser Warrant entitling the holder thereof to purchase one share of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement; and (iii) each then issued and outstanding unit of Purchaser (the “Cayman Purchaser Units”) shall convert automatically, on a one-for-one basis, into a Domesticated Purchaser Unit, each consisting of one share of Domesticated Purchaser Common Stock and one-half of one Domesticated Purchaser Warrant;
WHEREAS, as a condition and inducement to the Company’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, the Sponsor has executed and delivered to the Company the Sponsor Support Agreement, pursuant to which the Sponsor has agreed to, among other things, vote to adopt and approve, upon the effectiveness of the Registration Statement, this Agreement and the other documents contemplated hereby (including the applicable Ancillary Documents) and the transactions contemplated hereby and thereby;
WHEREAS, as a condition and inducement to the Purchaser’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, the Sellers representing the Requisite Shareholder Approval shall have executed and delivered to the Purchaser the Seller Voting and Support Agreement, pursuant to which such Sellers have agreed to, among other things, vote or consent to adopt and approve, upon the effectiveness of the Registration Statement, this Agreement and the other documents contemplated hereby (including the applicable Ancillary Documents) and the transactions contemplated hereby and thereby;
WHEREAS, in connection with the consummation of the Transactions, simultaneously with the Closing, the Sponsor, the Purchaser, the Sellers party thereto and the other parties thereto will enter into an Amended and Restated Registration Rights Agreement (the “A&R Registration Rights Agreement”) in substantially the form attached hereto as Exhibit A, providing for, among other things, up to three (3) demand registrations following expiration of the Lock-Up Period and up to three (3) piggyback registration rights, with such changes thereto as may be agreed in writing by the Purchaser and the Company;
WHEREAS, in connection with the consummation of the Transactions, simultaneously with the Closing, (i) the Sponsor and the Purchaser will enter into a Lock-Up Agreement (the “Sponsor Lock-Up Agreement”) in substantially the form attached hereto as Exhibit B-1, with such changes thereto as may be agreed in writing by the Purchaser and the Company, and the Purchaser, the Sellers party thereto and the other parties thereto will enter into a Lock-Up Agreement (the “Seller Lock-Up Agreement” and, together with the Sponsor Lock-Up Agreement, the “Lock-Up Agreements”), in substantially the form attached hereto as Exhibit B-2, in each case providing for a lock-up period of six (6) months following the consummation of the Merger (the “Lock-Up Period”), with such changes thereto as may be agreed in writing by the Purchaser and the Company;
WHEREAS, the Parties intend that, for U.S. federal, and applicable state and local, income tax purposes, (a) the Domestication qualifies as a “reorganization” described in Section 368(a)(1)(F) of the Code and the Treasury Regulations promulgated thereunder, (b) the Sponsor Share Conversion is treated as a “reorganization” described in Section 368(a)(1)(E) of the Code and the Treasury Regulations promulgated thereunder, and (c) the Merger qualifies as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder (each an “Intended Tax Treatment,” and collectively, the “Intended Tax Treatments”), and that this Agreement be, and hereby is, adopted as a “plan of reorganization” for the purposes of Section 368 of the Code and Treasury Regulations Section 1.368-2(g);
WHEREAS, the board of directors of the Company has unanimously: (a) determined that it is in the best interests of the Company and the shareholders of the Company, and declared it advisable, for the Company to enter into this Agreement and the Ancillary Documents and consummate the Merger and the other Transactions; (b) approved this Agreement, the Ancillary Documents and the Transactions on the terms and subject to the conditions of this Agreement; and (c) adopted a resolution recommending the Merger and the other Transactions be adopted by the Sellers;
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WHEREAS, the board of directors of the Purchaser has unanimously: (a) determined that the Domestication is in the best interests of the Purchaser and its shareholders, as a whole, and declared it advisable for the Purchaser to enter into the Ancillary Documents providing for the Domestication; (b) determined that the Merger is in the best interests of the Purchaser and its shareholders, as a whole, and declared it advisable for the Purchaser to enter into this Agreement and the Ancillary Documents providing for the Merger and the other Transactions; (c) approved this Agreement, the Ancillary Documents and the Transactions on the terms and subject to the conditions of this Agreement; and (d) adopted a resolution recommending the Domestication be approved by the holders of the Purchaser Class B Ordinary Shares and the Merger and the other Transactions be approved by the Purchaser Shareholders;
WHEREAS, the board of directors of Merger Sub has unanimously: (a) determined that it is in the best interests of Merger Sub and the sole shareholder of Merger Sub, and declared it advisable, for Merger Sub to enter into this Agreement and the Ancillary Documents and consummate the Merger and the other Transactions; and (b) approved this Agreement, the Ancillary Documents and the Transactions on the terms and subject to the conditions of this Agreement; and
WHEREAS, in furtherance of the Merger and in accordance with the terms hereof, the Purchaser shall provide an opportunity to the holders of its public shares to have their public shares redeemed on the terms and conditions set forth in this Agreement and the Purchaser’s Organizational Documents, which redemption shall occur as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises set forth above, and the representations, warranties, covenants and agreements contained in this Agreement, and for other consideration, the receipt and sufficiency of which is acknowledged and agreed to by the Parties, and intending to be legally bound hereby, the Parties hereto agree as follows:
ARTICLE I
THE TRANSACTIONS
Section 1.01 The Domestication.
(a) Domestication. Upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at Closing), and in accordance with the DGCL and the Companies Act, at least one (1) Business Day prior to the Closing, the Purchaser shall, in accordance with applicable Law, any applicable rules and regulations of the SEC, Nasdaq and the Purchaser’s Organizational Documents, as applicable, de-register from the Register of Companies of the Cayman Islands by way of continuation out of the Cayman Islands and into the State of Delaware so as to re-domicile and become a Delaware corporation and subject to the receipt of the approval by way of a special resolution passed by the holders of Purchaser Class B Ordinary Shares entitled to vote thereon in accordance with the Purchaser’s Organizational Documents of the Domestication and its terms, cause the Domestication to become effective, including by (i) filing with the Secretary of State of the State of Delaware a certificate of domestication with respect to the Domestication, in form and substance reasonably acceptable to the Purchaser and the Company, together with the Purchaser Charter upon Domestication, in each case, in accordance with the provisions thereof and applicable Law, (ii) adopting the Purchaser Bylaws upon Domestication, (iii) completing and making and procuring all those filings required to be made with the Cayman Registrar in connection with the Domestication, and (iv) filing with the Cayman Registrar all applicable notices, declarations, affidavits, statements of assets and liabilities, shareholder approvals, undertakings and other documents required to be filed, pay all applicable fees required to be paid, and cause the satisfaction of all other conditions to deregistration required to be satisfied, in each case, under Section 206 of the Cayman Companies Act and obtaining a certificate of de-registration from the Cayman Registrar.
(b) Effect on Purchaser Securities. (i) Immediately prior to the Domestication, pursuant to the Sponsor Support Agreement, the holders of the Purchaser Class B Ordinary Shares shall elect to convert each Purchaser Class B Ordinary Share held by them, on a one-for-one basis, into one (1) Purchaser Class A Ordinary Share and (ii) in connection with the Domestication, each then issued and outstanding Purchaser Class A Ordinary Share shall convert automatically, on a one-for-one basis, into one (1) share of Domesticated Purchaser Common Stock.
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Section 1.02 The Merger.
(a) Effective Time. Upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at Closing), on the Closing Date the Company and Merger Sub shall cause the Merger to be consummated by filing the Certificate of Merger with the Secretary of State of the State of Delaware, in accordance with the applicable provisions of the DGCL (the time of such filing, or such later time as may be agreed in writing by the Company, Merger Sub and Purchaser and specified in the Certificate of Merger, being the “Effective Time”).
(b) Merger. At the Effective Time, upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at Closing), 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 Corporation after the Merger and as a direct, wholly-owned subsidiary of the Purchaser. References to the Company for periods after the Effective Time shall mean the Surviving Corporation.
(c) Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger 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 Corporation, which shall include the assumption by the Surviving Corporation 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.
(d) Governing Documents. At the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall be amended and restated to be in form and substance reasonably satisfactory to the Parties.
(e) Directors and Officers of the Surviving Corporation. Immediately after the Effective Time, the board of directors and the executive officers of the Surviving Corporation shall be the same as set forth in Section 6.19 and otherwise in accordance with the terms of this Agreement (or as otherwise may be determined by the Purchaser and the Company).
ARTICLE II
CONSIDERATION
Section 2.01 Pre-Effective Time Conversions. Immediately prior to the Effective Time:
(a) each Company Convertible Security that is outstanding immediately prior to the Effective Time (if any), including all principal and interest thereunder, to the extent applicable, shall automatically convert in full into shares of Company Preferred Stock or Company Common Stock, as applicable, in accordance with the terms thereof, such that immediately thereafter, all of the Company Convertible Securities shall no longer be outstanding and shall cease to exist, and each holder of a Company Convertible Security shall thereafter cease to have any rights with respect thereto;
(b) each Company Warrant exercisable for Company Preferred Stock that is outstanding and unexercised immediately prior to the Effective Time shall automatically be exercised on a cashless basis in full in accordance with its terms or otherwise exercised in full, such that upon such exercise, all of the Company Warrants converted into Company Preferred Stock shall no longer be outstanding and shall cease to exist, and each holder of Company Warrants shall thereafter cease to have any rights with respect to such securities;
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(c) immediately after giving effect to the conversions and exercises set forth in Sections 2.01(a)-(b), each issued and outstanding share of Company Preferred Stock (including each share of Company Preferred Stock issued upon the conversions and exercises described in Sections 2.01(a)-(b)) shall automatically convert into such number of shares of Company Common Stock into which such shares of Company Preferred Stock, as applicable, are convertible in connection with the Merger pursuant to the Company’s Organizational Documents, such that upon such conversion, all of the Company Preferred Stock converted into Company Common Stock shall no longer be outstanding and shall cease to exist, and each holder of Company Preferred Stock shall thereafter cease to have any rights with respect to such securities; and
(d) each Company Warrant exercisable for Company Common Stock that is outstanding and unexercised immediately prior to the Effective Time shall automatically be exercised on a cashless basis in full in accordance with its terms or otherwise exercised in full, such that upon such exercise, all of the Company Warrants shall no longer be outstanding and shall cease to exist, and each holder of Company Warrants shall thereafter cease to have any rights with respect to such securities.
Section 2.02 Consideration.
(a) Aggregate Consideration. The aggregate consideration to be paid to the Company Shareholders in, or in connection with, the Merger shall be the Aggregate Consideration, which shall be issued to the Company Shareholders pro rata in accordance with their respective holdings of Company Common Stock immediately prior to the Effective Time.
(b) Earn-Out Shares. In addition to the Aggregate Consideration, the Purchaser shall issue the Earn-Out Shares at the Closing to the Company Shareholders pro rata in accordance with their respective holdings of Company Common Stock immediately prior to the Effective Time, subject to the vesting and forfeiture provisions of Section 2.06.
Section 2.03 Conversion of Securities.
(a) Effect on Company Securities. At the Effective Time, by virtue of the Merger and without any action on the part of the Purchaser, Merger Sub, the Company or any holder of securities of any of the foregoing:
(i) Each share of Company Common Stock that is owned by the Purchaser, Merger Sub or the Company (in treasury or otherwise) immediately prior to the Effective Time (each, an “Excluded Share”) shall be cancelled and shall cease to exist and no consideration shall be delivered in exchange therefor;
(ii) each share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time (other than Excluded Shares) shall be cancelled and converted into the right to receive a number of shares of Domesticated Purchaser Common Stock equal to the Exchange Ratio;
(iii) each Company Option shall automatically (without any further action required of the holder of such Company Option): (x) cease to represent an option to purchase or acquire shares of Company Common Stock as of the Effective Time; and (y) be assumed and converted, on the same terms and conditions as were applicable under the Company Equity Incentive Plan or its terms (as applicable) and any applicable award agreement thereunder as of the Effective Time (subject to the acceleration provisions of the penultimate sentence of this Section 2.03(a)(iii)), into an option to acquire that number of Domesticated Purchaser Common Stock (rounded down to the nearest whole share) equal to the product of (A) the number of shares of Company Common Stock subject to such Company Option and (B) the Exchange Ratio, at an exercise price per share of Domesticated Purchaser Common Stock (rounded up to the nearest whole cent) equal to the quotient obtained by dividing (1) the exercise price per share of Company Common Stock of such Company Option by (2) the Exchange Ratio (a “Purchaser Option”). Notwithstanding the foregoing, each Company Option that, by its terms as in effect on the date hereof, provides for acceleration of vesting upon a change of control or an initial public offering shall vest in full immediately prior to the Closing, and each Purchaser Option into which any such Company Option is converted shall be fully vested as of the Effective Time. Notwithstanding anything in this Section 2.03(a)(iii) to the contrary, the exercise price applicable to the Purchaser Options and the number of shares of Domesticated Purchaser Common Stock subject to the Purchaser Options shall, in each case, be determined in a manner consistent with the requirements of Section 409A of the Code, and, in the case of any Company Options that are intended to qualify as incentive stock options, within the meaning of Section 422 of the Code, consistent with the requirements of Section 424 of the Code; and
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(iv) each Company RSU shall automatically (without any further action required of the holder of such Company RSU): (x) cease to represent a right to acquire shares of Company Common Stock as of the Effective Time; and (y) be assumed and converted, on the same terms and conditions as were applicable under the Company Equity Incentive Plan or its terms (as applicable) and any applicable award agreement thereunder as of the Effective Time, into a restricted stock unit representing the right to acquire that number of Domesticated Purchaser Common Stock (rounded down to the nearest whole share) equal to the product of (A) the number of shares of Company Common Stock subject to such Company RSU and (B) the Exchange Ratio (a “Purchaser RSU”). For the avoidance of doubt, as of the date hereof there are no outstanding Company RSUs, and any Company RSUs that are granted after the date hereof and prior to the Effective Time shall be subject to Purchaser’s written consent and granted in compliance with Section 6.02.
(b) Effect on Purchaser Warrants and Units. At the Effective Time, by virtue of the Merger and without any action on the part of the Purchaser, Merger Sub, the Company or any holder of Domesticated Purchaser Warrants or Domesticated Purchaser Units: (x) each then issued and outstanding Domesticated Purchaser Warrant shall remain outstanding in accordance with its terms and, pursuant to the Warrant Agreement, shall become exercisable for one share of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share commencing thirty (30) days after the Closing; and (y) each then issued and outstanding Domesticated Purchaser Unit shall be automatically separated into one share of Domesticated Purchaser Common Stock and one-half of one Domesticated Purchaser Warrant, with no fractional Domesticated Purchaser Warrants to be issued upon such separation and only whole Domesticated Purchaser Warrants to be exercisable.
Section 2.04 No Fractional Shares. No fractional shares of Domesticated Purchaser Common Stock, or certificates or scrip representing fractional shares of Domesticated Purchaser Common Stock, will be issued upon the conversion of the Company Common Stock pursuant to the Merger, and any such fractional shares or interests therein will not entitle the owner thereof to vote or to any rights of a stockholder of Purchaser. Any fractional shares of Domesticated Purchaser Common Stock will be rounded down to the nearest whole number.
Section 2.05 Withholding. Notwithstanding any other provision to this Agreement, the Purchaser, Merger Sub, the Company, and the Surviving Corporation (and their respective Representatives) shall be entitled to deduct and withhold from any amount payable to any Person pursuant to this Agreement such Taxes that are required to be deducted or withheld with respect to such amounts under the Code, or under any provision of U.S. state or local or non-U.S. tax law. To the extent that amounts are deducted and withheld in accordance with this Section 2.05 and timely paid over to the appropriate Governmental Authorities, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Notwithstanding the foregoing, except for any payments made pursuant to the last sentence of this Section 2.05, the Purchaser shall use commercially reasonable efforts to provide (x) the Company with advance written notice of any intention to deduct and withhold from any consideration payable to the Sellers and (y) such recipients of consideration with a reasonable opportunity to provide documentation establishing exemptions from or reductions of such withholdings. In the case of any such payment payable to employees of the Company or its Subsidiaries in connection with the Merger treated as compensation, the Parties shall reasonably cooperate to pay such amounts through the Company’s or the relevant Subsidiary’s payroll to facilitate applicable withholding.
Section 2.06 Earn-Out Shares.
(a) Issuance at Closing. At the Closing, and in addition to the Aggregate Consideration, the Purchaser shall issue to the Company Shareholders, pro rata in accordance with their respective holdings of Company Common Stock immediately prior to the Effective Time, an aggregate of 5,000,000 shares of Domesticated Purchaser Common Stock, valued at the Per Share Price and having an aggregate value of $50,000,000 (such shares, together with any securities into which such shares are converted or for which such shares are exchanged, the “Earn-Out Shares”). The Earn-Out Shares shall be issued and outstanding as of the Closing, but shall remain subject to the vesting restrictions, transfer restrictions and forfeiture provisions set forth in this Section 2.06 until such Earn-Out Shares become Vested Earn-Out Shares or forfeited, as applicable. In no event shall the aggregate number of shares of Domesticated Purchaser Common Stock issued or issuable as Earn-Out Shares exceed 5,000,000, subject only to Section 2.06(j).
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(b) Earn-Out Period. The Earn-Out Shares shall be eligible to vest based on the determination of whether the applicable EBITDA Targets or Stock Price Targets have been met within the three-year period ending December 31, 2029 (such period, the “Earn-Out Period”), measured as of December 31, 2027, December 31, 2028, and December 31, 2029.
(c) Vesting Targets. Subject to Section 2.06(d):
(i) First Tranche. 1,666,666 Earn-Out Shares (the “First Tranche”) shall vest upon the earliest to occur of: (A) the cumulative EBITDA of the Purchaser and its Subsidiaries, on a consolidated basis, for the fiscal year ending December 31, 2027 equaling or exceeding $500,000 (the “First EBITDA Target”); or (B) the VWAP of the Domesticated Purchaser Common Stock equaling or exceeding $11.00 (the “First Stock Price Target”) for any twenty (20) Trading Days within any thirty (30) consecutive Trading Day period during the fiscal year ending December 31, 2027.
(ii) Second Tranche. 1,666,667 Earn-Out Shares (the “Second Tranche”) shall vest upon the earliest to occur of: (A) the cumulative EBITDA of the Purchaser and its Subsidiaries, on a consolidated basis, for the fiscal year ending December 31, 2028 equaling or exceeding $1,000,000 (the “Second EBITDA Target”); or (B) the VWAP of the Domesticated Purchaser Common Stock equaling or exceeding $12.00 (the “Second Stock Price Target”) for any twenty (20) Trading Days within any thirty (30) consecutive Trading Day period during the fiscal year ending December 31, 2028.
(iii) Third Tranche. 1,666,667 Earn-Out Shares (the “Third Tranche”) shall vest upon the earliest to occur of: (A) the cumulative EBITDA of the Purchaser and its Subsidiaries, on a consolidated basis, for the fiscal year ending December 31, 2029 equaling or exceeding $1,500,000 (the “Third EBITDA Target”, and together with the First EBITDA Target and the Second EBITDA Target, the “EBITDA Targets”); or (B) the VWAP of the Domesticated Purchaser Common Stock equaling or exceeding $13.00 (the “Third Stock Price Target”, and together with the First Stock Price Target and the Second Stock Price Target, the “Stock Price Targets”) for any twenty (20) Trading Days within any thirty (30) consecutive Trading Day period during the fiscal year ending December 31, 2029.
(d) Catch-up Vesting. The vesting of each tranche of Earn-Out Shares is cumulative. If, as of the last day of the fiscal year applicable to any tranche, the applicable EBITDA Target is not satisfied, and the applicable Stock Price Target for such tranche has not been satisfied, such tranche shall not be forfeited, but shall instead remain eligible to vest as follows:
(i) if the First EBITDA Target is not satisfied as of the end of the fiscal year ending December 31, 2027, but the EBITDA of the Purchaser and its Subsidiaries for the fiscal year ending December 31, 2028 equals or exceeds $1,500,000 (the sum of the First EBITDA Target and the Second EBITDA Target), then the First Tranche shall vest (it being understood that the Second Tranche shall also vest, to the extent applicable, pursuant to Section 2.06(c)(ii)(A));
(ii) if the First EBITDA Target is not satisfied as of the end of the fiscal year ending December 31, 2027, the Second EBITDA Target is satisfied but the EBITDA of the Purchaser and its Subsidiaries for the fiscal year ending December 31, 2028 is less than $1,500,000, and the EBITDA of the Purchaser and its Subsidiaries for the fiscal year ending December 31, 2029 equals or exceeds $2,000,000 (the sum of the First EBITDA Target and the Third EBITDA Target), then the First Tranche shall vest (it being understood that the Third Tranche shall also vest, to the extent applicable, pursuant to Section 2.06(c)(iii)(A));
(iii) if the First EBITDA Target is not satisfied as of the end of the fiscal year ending December 31, 2027 and the Second EBITDA Target is not satisfied as of the end of the fiscal year ending December 31, 2028, but the EBITDA of the Purchaser and its Subsidiaries for the fiscal year ending December 31, 2029 equals or exceeds $3,000,000 (the sum of the First EBITDA Target, the Second EBITDA Target, and the Third EBITDA Target), then the First Tranche and the Second Tranche shall each vest (it being understood that the Third Tranche shall also vest, to the extent applicable, pursuant to Section 2.06(c)(iii)(A)); and
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(iv) if the First EBITDA Target is satisfied as of the end of the fiscal year ending December 31, 2027, and the Second EBITDA Target is not satisfied as of the end of the fiscal year ending December 31, 2028, but the EBITDA of the Purchaser and its Subsidiaries for the fiscal year ending December 31, 2029 equals or exceeds $2,500,000 (the Second EBITDA Target plus the Third EBITDA Target), then the Second Tranche shall vest (it being understood that the Third Tranche shall also vest, to the extent applicable, pursuant to Section 2.06(c)(iii)(A)).
(e) Change of Control. Each tranche of Earn-Out Shares will automatically vest in full if a Change of Control occurs at any time prior to the final determination of vesting of the Earn-Out Shares and related release of restrictions on the Vested Earn-Out Shares with respect to the full Earn-Out Period. In such event, all Earn-Out Shares will become Vested Earn-Out Shares and restrictions released in accordance with Section 2.06(g), in each case as of the date of the occurrence of the Change of Control. “Change of Control” means the occurrence of any of the following after the Closing: (a) direct or indirect sale, transfer, conveyance or other disposition in one or a series of related transactions, of all or substantially all of the properties or assets of the Purchaser (or any successor entity) to any Person; or (b) the consummation of any transaction (including any merger or consolidation) the result of which is the stockholders of the Purchaser, or any successor entity, as applicable, as of immediately prior to such transaction holding, in the aggregate, less than 50% of the voting shares of the Purchaser (or any successor or parent company thereof) immediately after the consummation of such transaction (whether by merger, consolidation, tender offer, recapitalization, purchase or issuance of equity securities, tender offer or otherwise). For purposes of this definition, “voting shares” means capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of the Company, even if the right to vote has been suspended by the happening of such a contingency.
(f) Determination; Notice; Disputes. Vesting of the Earn-Out Shares shall be determined on an annual basis following the end of each of the one-year periods ending December 31, 2027, December 31, 2028, and December 31, 2029. Within fifteen (15) Business Days following (i) the filing by the Purchaser of its Annual Report on Form 10-K for each of fiscal years 2027, 2028 and 2029, in the case of an EBITDA Target, and (ii) the end of each such fiscal year, in the case of a Stock Price Target, the Purchaser shall deliver to the Company Shareholders a written statement setting forth in reasonable detail the Purchaser’s calculation of whether the applicable EBITDA Target or Stock Price Target has been satisfied and the number of Earn-Out Shares that have vested (an “Earn-Out Statement”). If the fiscal year of the Purchaser does not end on December 31 in any of 2027, 2028, or 2029, then the Earn-Out Statement shall be delivered within fifteen (15) Business Days following the filing by the Purchaser of its first Form 10-Q following each of December 31, 2027, December 31, 2028, or December 31, 2029, as applicable. The Company Shareholders may deliver a written objection to an Earn-Out Statement within thirty (30) Business Days after receipt thereof, specifying in reasonable detail the basis for such objection. If such an objection is timely delivered and the Purchaser and the Company Shareholders do not resolve the dispute within thirty (30) Business Days thereafter, the dispute shall be submitted to a nationally recognized independent accounting firm mutually agreed by the Purchaser and the Company Shareholders, whose determination shall be final and binding on the Parties absent manifest error, with the fees of such firm borne by the non-prevailing party. The Purchaser shall, upon reasonable request, provide the Company Shareholders with reasonable supporting information and access to such books and records as are reasonably necessary to verify the calculations set forth in an Earn-Out Statement, subject to customary confidentiality restrictions.
(g) Release of Restrictions. Within five (5) Business Days after the final determination of whether any Earn-Out Shares become vested pursuant to this Section 2.06 (such vested shares, “Vested Earn-Out Shares”), the Purchaser shall take all actions reasonably necessary to release the vesting and transfer restrictions applicable to such Vested Earn-Out Shares, including instructing its transfer agent to remove any restrictive legends or book-entry notations, subject to compliance with applicable securities Laws and the Lock-Up Agreements.
(h) Rights Pending Vesting. Prior to vesting, Earn-Out Shares may not be sold, transferred, pledged, hypothecated or otherwise disposed of, other than to a Permitted Transferee who agrees in writing to be bound by this Section 2.06. The holder of unvested Earn-Out Shares shall be entitled to exercise voting rights in respect of such shares, but any dividends or other distributions declared in respect of unvested Earn-Out Shares shall be withheld by the Purchaser and paid to the holder only upon, and to the extent of, the vesting of such Earn-Out Shares, and shall be forfeited to the extent the related Earn-Out Shares are forfeited.
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(i) Forfeiture. Any Earn-Out Shares that have not vested as of the conclusion of the final determination of whether any Earn-Out Shares have vested with respect to the Earn-Out Period shall automatically, and without any action on the part of any Person, be forfeited to the Purchaser and cancelled for no consideration, and the Company Shareholders shall thereafter have no further rights with respect thereto.
(j) Adjustments; No Fractional Shares. The number of Earn-Out Shares, the EBITDA Targets and the Stock Price Targets shall be equitably adjusted to reflect any stock split, reverse stock split, stock dividend, recapitalization, reorganization, combination, subdivision or similar transaction affecting the Domesticated Purchaser Common Stock after the Closing. No fractional Earn-Out Shares shall be issued or shall vest, and any fractional entitlement shall be rounded down to the nearest whole share; no such fractional share or interest therein shall entitle the holder thereof to vote or to any rights of a stockholder of the Purchaser. All issuances and vesting under this Section 2.06 shall be subject to Section 2.04 and Section 2.05.
ARTICLE III
CLOSING
Section 3.01 Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VII, the consummation of the Transactions (other than the transactions contemplated by this Agreement that by their nature are to be satisfied prior to the Closing) (the “Closing”) shall take place by electronic exchange of documents and signatures at a time and date to be specified in writing by the Parties, which date shall be no later than the third (3rd) Business Day after all the Closing conditions in Article VII have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other date, time or place (including remotely) as the Purchaser and the Company may agree (the date and time at which the Closing is actually held being the “Closing Date”).
Section 3.02 Closing Documents.
(a) Purchaser Closing Certificate. Two (2) Business Days prior to the Closing, the Purchaser shall deliver to the Company a written notice setting forth the Purchaser’s good faith calculation of the following: (i) the aggregate amount of cash proceeds that will be required to satisfy any exercise of the Redemption; (ii) the aggregate amount of the Purchaser Transaction Costs as of the Closing; and (iii) the number of shares of Domesticated Purchaser Common Stock to be outstanding as of the Closing and after giving effect to the Domestication and the Redemption (but excluding any securities of Domesticated Purchaser Common Stock to be issued in the Merger).
(b) Company Closing Certificate. Two (2) Business Days prior to the Closing, the Company shall deliver to the Purchaser a written notice (the “Company Closing Certificate”) setting forth the Company’s good faith calculation of the aggregate amount of the Company Transaction Costs as of the Closing, including all invoices, wire instructions and applicable Tax forms for each Person owed (and any other supporting details reasonably requested by the Purchaser).
Section 3.03 Payment of Expenses.
(a) Company Transaction Costs. On the Closing Date, the Purchaser shall pay or cause to be paid by wire transfer of immediately available funds all Company Transaction Costs, such payment to be made solely from (i) the funds remaining in the Trust Account after giving effect to the Redemption and (ii) the proceeds of any Funding Commitments; provided, however, that all Taxes that are treated as included in the calculation of Company Transaction Costs shall be paid by Purchaser to the applicable Company for payment to the applicable Tax Authority.
(b) Purchaser Transaction Costs. On the Closing Date, the Purchaser shall pay or cause to be paid by wire transfer of immediately available funds all Purchaser Transaction Costs, such payment to be made solely from (i) the funds remaining in the Trust Account after giving effect to the Redemption and (ii) the proceeds of any Funding Commitments; provided, that the aggregate amount of Purchaser Transaction Costs payable pursuant to this Section 3.03(b) shall not exceed $2,000,000 (the “Estimated Purchaser Transaction Costs”). Any Purchaser Transaction Costs in excess of the Estimated Purchaser Transaction Costs shall be borne and paid at the Closing by the Purchaser (solely from funds held outside the Trust Account) or by the Sponsor, in either case in cash or in founder shares (for purposes of this Section 3.03(b), the Purchaser Class B Ordinary Shares held by the Sponsor, or the shares of Domesticated Purchaser Common Stock issued in respect thereof), and in no event shall any such excess be paid from the Trust Account.
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(c) Cantor Deferred Underwriting Fees. The deferred underwriting fees payable to Cantor Fitzgerald & Co. in connection with the IPO (the “Cantor Deferred Underwriting Fee”) shall be borne and paid by the Company, in cash or in shares of Domesticated Purchaser Common Stock, at or following the Closing, and shall not constitute Purchaser Transaction Costs for any purpose under this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure letter dated as of the date of this Agreement delivered by the Company to the Purchaser (the “Company Disclosure Letter”) prior to or in connection with the execution and delivery of this Agreement, the Company hereby represents and warrants to the Purchaser and Merger Sub, as of the date hereof and as of the Closing, as follows:
Section 4.01 Organization and Standing. The Company is a Delaware corporation duly incorporated and validly existing under the DGCL and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except as would not be material to the Target Companies, taken as a whole. Each Subsidiary of the Company is a corporation, limited liability company or other entity duly incorporated or formed (as applicable), validly existing and in good standing (or equivalent status) under the Laws of its jurisdiction of organization and has all requisite corporate, limited liability company or other (as applicable) power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be so licensed or qualified or in good standing (or equivalent status) would not have a Company Material Adverse Effect. Each Subsidiary of the Company is duly qualified or licensed and in good standing (or equivalent status) in the jurisdiction in which it is formed or registered and in each other jurisdiction where it does business or operates to the extent that the character of the property owned, or leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing (or equivalent status) would not, individually or in the aggregate, have a Company Material Adverse Effect. The Company has provided to the Purchaser accurate and complete copies of the Target Companies’ Organizational Documents, each as amended to date and as currently in effect. No Target Company is in violation of any provision of its Organizational Documents.
Section 4.02 Authorization; Binding Agreement. Subject to the receipt of the Requisite Shareholder Approval, the Company has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or is required to be a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each Ancillary Document to which the Company is or is required to be a party and the consummation of the transactions contemplated hereby and thereby, (a) have been duly and validly authorized by the Company’s board of directors in accordance with its Organizational Documents and (b) other than the Requisite Shareholder Approval, no other proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which the Company is or is required to be a party shall be when delivered, duly and validly executed and delivered by the Company and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Company’s board of directors, by resolutions duly adopted, has (i) determined that this Agreement and the Transactions are advisable, fair to, and in the best interests of, the Company and its shareholders, (ii) approved this Agreement and Transactions, (iii) directed that this Agreement be submitted to its shareholders for adoption and (iv) recommended that its shareholders adopt this Agreement. Neither the Company nor any Target Company has (a) initiated any negotiations with any creditors regarding composition; (b) is insolvent; or (c) has filed or made a resolution to file, or had filed against it, any petition for its winding-up, company reorganization or bankruptcy, in each case within the meaning of applicable Law.
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Section 4.03 Capitalization.
(a) Section 4.03(a) of the Company Disclosure Letter sets forth each record holder of Company Common Stock and the number of shares held by each such holder as of the date hereof. The Company has no issued or outstanding equity securities other than such Company Common Stock and has no outstanding options, warrants, convertible securities, restricted stock units, phantom equity, stock appreciation rights or other rights or instruments to acquire equity securities of the Company.
(b) Prior to giving effect to the Transactions, all of the equity securities in the Company will be owned by the Sellers free and clear of any Liens other than those imposed under the Company Organizational Documents, applicable securities Laws, Permitted Liens or as set forth on Section 4.03(b)(i) of the Company Disclosure Letter. All of the issued and outstanding equity interests of the Company have been duly authorized and validly issued in accordance with applicable Laws, including applicable securities Law, and the Company Organizational Documents, and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights, except where such violation or failure would not reasonably be expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole. Except as set forth on Section 4.03(b)(ii) of the Company Disclosure Letter, there are no preemptive rights or rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements or restrictions to which the Company or, to the Knowledge of the Company, any of its members is a party or bound relating to any membership interests or other equity securities of the Company, whether or not outstanding. There are no outstanding or authorized equity appreciation, phantom equity or similar rights with respect to the Company. There are no voting trusts, proxies, shareholder agreements or any other agreements or understandings with respect to the voting of the Company’s equity interests. Except as set forth in the Organizational Documents of the Target Companies, there are no outstanding contractual obligations of the Target Companies to repurchase, redeem or otherwise acquire any equity interests or securities of such Target Company, nor has any Target Company granted any registration rights to any Person with respect to such Target Companies’ equity securities. All of the Target Companies’ securities have been granted, offered, sold and issued in compliance with applicable securities Laws.
(c) Except as provided for in this Agreement, as a result of the consummation of the Transactions, no shares of capital stock, warrants, options or other securities of the Target Companies are issuable and no rights in connection with any shares, warrants, options or other securities of the Target Companies accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
(d) No Target Company incorporated in Sweden has issued any share certificates (Sw. aktiebrev) in respect of any of its shares.
Section 4.04 Subsidiaries. The Swedish Subsidiary is the sole direct or indirect Subsidiary of the Company, and the Company directly owns all issued and outstanding shares in the Swedish Subsidiary. Section 4.04 of the Company Disclosure Letter sets forth the name, jurisdiction of incorporation, authorized and outstanding equity interests and record holders of the Swedish Subsidiary. All of the outstanding equity securities of the Swedish Subsidiary are duly authorized and validly issued, and, where such concepts are applicable, fully paid and, to the extent applicable under the Laws of the jurisdiction of organization, non-assessable, and were offered, sold and delivered in compliance with all applicable securities Laws, and owned by the Company free and clear of all Liens other than those imposed under the Swedish Subsidiary’s Organizational Documents, applicable securities Laws, Permitted Liens or as set forth on Section 4.04 of the Company Disclosure Letter. No Target Company owns any shares or other equity interests in any legal entity that is not a Target Company, or carries on, or has agreed to carry on, business in partnership with, or as an equity participant in, a joint venture with, any person that is not a Target Company.
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Section 4.05 No Conflict; Governmental Consents and Filings.
(a) Except as otherwise described in Section 4.05(a) of the Company Disclosure Letter, subject to the receipt of the Requisite Shareholder Approval and the consents, approvals, authorizations and other requirements set forth in Section 4.05(a) of the Company Disclosure Letter, the execution, delivery and performance by the Company of this Agreement and the other Ancillary Documents to which the Company is a party and the consummation by the Company of the Transactions does not and will not: (i) violate any provision of, or result in the breach of, any applicable Law to which the Company is subject or by which any property or asset of any Target Company is bound; (ii) conflict with or violate the Organizational Documents of any Target Company; (iii) violate any provision of or result in a breach, default or acceleration of, require a consent under, or create any right to payment under any Company Material Contract, or terminate or result in the termination of any Company Material Contract, or result in the creation of any Lien (other than a Permitted Lien) under any Company Material Contract upon any of the properties or assets of any Target Company, or constitute an event which, after notice or lapse of time or both, would result in any such violation, breach, default, acceleration, termination or creation of a Lien (other than a Permitted Lien); or (iv) result in a violation or revocation of any required Consents, except to the extent that the occurrence of any of the foregoing items set forth in clauses (i), (iii) or (iv) would not have a Company Material Adverse Effect.
(b) Assuming the truth and completeness of the representations and warranties of the Purchaser and Merger Sub contained in this Agreement, no consent, notice, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of the Target Companies with respect to the Target Companies’ execution, delivery or performance of this Agreement, any of the other Ancillary Documents to which it is a party or the consummation by the Target Companies of the Transactions, except for: (i) any consents, notices, approvals, authorizations, designations, declarations or filings, the absence of which would not, individually or in the aggregate, have a Company Material Adverse Effect; (ii) compliance with any applicable requirements of the securities Laws; (iii) filings contemplated by this Agreement; and (iv) as otherwise disclosed on Section 4.05(b) of the Company Disclosure Letter.
(c) To the Knowledge of the Company, no Target Company is a “TID U.S. business” as defined in 31 C.F.R. § 800.248, and no Target Company (i) produces, designs, tests, manufactures, fabricates, or develops one or more “critical technologies” as defined in 31 C.F.R. § 800.215, (ii) performs the functions set forth in column 2 of Appendix A to 31 C.F.R. Part 800 with respect to “covered investment critical infrastructure” as defined in 31 C.F.R. § 800.212, or (iii) maintains or collects, directly or indirectly, “sensitive personal data” of U.S. citizens as described in 31 C.F.R. § 800.241.
Section 4.06 Financial Statements.
(a) The Company has provided to the Purchaser: (i) draft unaudited consolidated financial statements of the Target Companies (including, in each case, any related notes thereto), consisting of the draft unaudited consolidated balance sheet and the related draft unaudited consolidated income statements and statements of cash flows of the Target Companies as of and for the six (6) month period ending June 30, 2026 (the “Interim Company Financials”) and (ii) the unaudited consolidated financial statements of the Target Companies (including, in each case, any related notes thereto, if any), consisting of the consolidated balance sheets of the Target Companies as of December 31, 2025 and December 31, 2024, and the related consolidated unaudited income statements, changes in Sellers’ equity and statements of cash flows for the fiscal years then ended (together with the Interim Company Financials, the “Draft Company Financials” and, together with the Audited Financial Statements (as defined below), the “Company Financials”). The Company Financials were derived in all material respects from the books and records of the Target Companies. Except as set forth on Section 4.06(a) of Company Disclosure Letter, the Audited Financial Statements, when delivered, will have been prepared in all material respects, in accordance with GAAP consistently applied throughout the periods covered thereby (except in the case of the Draft Company Financials for the absence of footnote disclosures and other presentation items required for GAAP and for year-end adjustments that will not be material) and present fairly in all material respects, the consolidated financial position, results of operations, income (loss), changes in equity and cash flows of the Target Companies as of the dates and for the periods indicated in such Company Financials in conformity with GAAP (except in the case of the Draft Company Financials for the absence of footnote disclosures and other presentation items required for GAAP and for year-end adjustments that will not be material) and were derived from and accurately reflect in all material respects, the books and records of each of the Target Companies. No Target Company has ever been subject to the reporting requirements of Sections 13(a) and 15(d) of the Exchange Act.
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(b) The Target Companies have established and maintain a system of internal controls. Such internal controls are designed to provide reasonable assurance when taking into account the size and nature of the business of the Target Companies and customs for a company of its size that (i) transactions are executed in all material respects in accordance with management’s authorization and (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, and to the extent applicable, the corresponding requirements under applicable Law in any other relevant jurisdiction in all material respects and to maintain accountability for each Target Company’s assets.
(c) The Company has not identified or received written notice from an independent auditor of (x) any significant deficiency or material weakness in the system of internal controls utilized by the Company, (y) any material fraud that involves the Company’s management or other employees who have a significant role in the preparation of financial statements or the internal controls over financial reporting utilized by the Company or (z) any claim or allegation regarding any of the foregoing.
Section 4.07 Undisclosed Liabilities. There is no liability, debt or obligation (absolute, accrued, contingent or otherwise) of any Target Company of a type required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP or, to the extent applicable, the corresponding requirements under applicable Law in any other relevant jurisdiction, except for liabilities, debts and obligations: (a) provided for in, or otherwise reflected or reserved for on the Draft Company Financials or disclosed in the notes thereto; (b) that have arisen since the date of the most recent balance sheet included in the Draft Company Financials in the ordinary course of the operation of business of the Target Companies; (c) arising under this Agreement and/or incurred in connection with the Transactions; or (d) which would not, individually or in the aggregate, have a Company Material Adverse Effect.
Section 4.08 Absence of Certain Changes. Since the date of the Interim Company Financials until the date of this Agreement, (a) there has not been any Company Material Adverse Effect and (b) each Target Company has not taken any action or committed or agreed to take any action that, if taken after the date hereof, would require the consent of Purchaser pursuant to Section 6.02(b)(i), (ii), or (iii).
Section 4.09 Compliance with Laws. Except as would not have a Company Material Adverse Effect, (i) the Target Companies are not in violation of, have not for the last two (2) years violated, or been given written notice within the last two (2) years of any violation or alleged violation of, any Law, and (ii) to the Knowledge of the Company, as of the date hereof, the Target Companies are not under investigation with respect to any such violation; and (iii) as of the date hereof, no Target Company has received any written notice from any Governmental Authority alleging any such non-compliance, and no Target Company is subject to any pending or, to the Knowledge of the Company, threatened investigation by any Governmental Authority in respect thereof.
Section 4.10 [Reserved].
Section 4.11 Company Permits. Except as would not have a Company Material Adverse Effect, each Target Company (and its employees who are legally required to be licensed by a Governmental Authority in order to perform his or her duties with respect to his or her employment with any Target Company) holds all material Permits required to own, lease and operate its assets and properties (collectively, the “Company Permits”). Section 4.11 of the Company Disclosure Letter sets forth a true, correct and complete list of all Company Permits held by the Target Companies. To the Knowledge of the Company, each Company Permit is in full force and effect and will, upon its termination or expiration, be timely renewed or reissued upon terms and conditions substantially similar to its existing terms and conditions and as of the date hereof, except as would not have a Company Material Adverse Effect, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened in writing, that seek the revocation, cancellation, limitation, suspension, restriction, adverse modification or termination of any Company Permit. Except as would not have a Company Material Adverse Effect, no Target Company is in material default or violation of any Company Permit applicable to such Target Company.
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Section 4.12 Litigation. Except as described on Section 4.12 of the Company Disclosure Letter, except as would not have a Company Material Adverse Effect, as of the date hereof, there are no (a) Legal Proceedings of any nature currently pending or, to the Company’s Knowledge, threatened in writing, against any Target Company or any of its properties or assets, or any of the directors or officers of any Target Company with regard to their actions as such; (b) to the Knowledge of the Company, pending or written threatened audits, examinations or investigations by any Governmental Authority against any Target Company; (c) pending or written threatened Legal Proceedings by any Target Company against any third party; (d) settlements or similar agreements that imposes any material ongoing obligations or restrictions on any Target Company; and (e) Orders imposed or, to the Knowledge of the Company, threatened in writing to be imposed upon any Target Company or any of their respective properties or assets, or any of the directors or officers of any Target Company with regard to their actions as such.
Section 4.13 Material Contracts.
(a) Section 4.13(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all Contracts described in clauses (i) through (xvi) below, other than the Company Benefit Plans (except that the Contracts listed in respect of clauses (viii) and (x) shall include any applicable Company Benefit Plans), to which, as of the date of this Agreement, any Target Company is a party or by which any Target Company, or any of its properties or assets, are bound (each Contract required to be set forth on Section 4.13(a) of the Company Disclosure Letter, a “Company Material Contract”). True, correct, complete copies of the Company Material Contracts, including amendments thereto, have been delivered or made available to the Purchaser. The Company Material Contracts include:
(i) Each Contract that contains covenants that limit the ability of any Target Company (or purports to bind any Affiliate thereof) (A) to compete in any line of business or with any Person or in any geographic area or to sell, or provide any service or product or solicit any Person in any material respect, including any non-competition covenants, customer non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses, or (B) to purchase or acquire an interest in any other Person;
(ii) Each joint venture Contract, profit-sharing agreement, partnership, limited liability company agreement with a third party or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(iii) All Contracts that involve any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv) Each Contract for the acquisition of any Person or any business division thereof or the disposition of any assets material to the Target Companies, taken as a whole (other than in the ordinary course of business), in each case, whether by merger, purchase or sale of stock or assets or otherwise (other than Contracts for the purchase or sale of inventory or supplies entered into in the ordinary course of business), occurring in the last two (2) years, in each case, involving aggregate payments in excess of $500,000;
(v) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, (A) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property; and (B) involves aggregate annual payments in excess of $500,000 for agreements related to real property and $100,000 individually for agreements related to personal property;
(vi) Each Contract that by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Target Companies under such Contract or Contracts of at least $1,000,000 per year or $2,000,000 in the aggregate;
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(vii) All Contracts with any Top Customer or Top Supplier (other than purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business that do not contain any material terms relating to the Contract underlying the applicable Top Customer or Top Supplier relationship);
(viii) Each collective bargaining (or similar) agreement or Contract between the Target Company on one hand, and any labor union or other body representing employees of the Target Company on the other hand;
(ix) All Contracts that obligate the Target Companies to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess of $500,000;
(x) Any Contract that is between any Target Company and any directors, officers or employees of a Target Company that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the Transactions;
(xi) Any Contract that obligates the Target Companies to make any capital commitment or expenditure in excess of $1,000,000 (including pursuant to any joint venture);
(xii) All Contracts that relate to a material settlement entered into within two (2) years prior to the date of this Agreement or under which any Target Company has outstanding obligations (other than customary confidentiality obligations) in excess of $500,000;
(xiii) Any Contract which (A) contains any assignment or license of, or any covenant not to assert or enforce, any Owned Intellectual Property material to the business of any Target Company; (B) pursuant to which any Owned Intellectual Property material to the business of any Target Company is or was developed by, with or for any Target Company; or (C) pursuant to which any of the Target Companies either (1) grants to a third Person an exclusive license, immunity, or other right in or to any Owned Intellectual Property; or (2) is granted by a third Person a license, immunity, or other right in or to any Intellectual Property or IT Assets material to the business of any Target Company, provided, however, none of the following will be required to be set forth on Section 4.13(a)(xv) of the Company Disclosure Letter but will constitute Company Material Contracts if they otherwise qualify: (w) non-exclusive licenses of Owned Intellectual Property granted to suppliers, customers, independent contractors, consultants or other end users in the ordinary course of business; (x) licenses of open source Software (including any obligations arising thereunder); (y) Off-the-Shelf Software; (z) invention assignment and confidentiality agreements with employees, consultants and contractors on standard forms made available to Purchaser and without any material deviations or exceptions; and (aa) any Contract that has expired or been terminated and under which the Target Companies have no continuing obligations or rights (other than customary confidentiality or indemnification obligations);
(xiv) All Contracts involving transactions with an Affiliate of any Target Company (other than employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Organizational Documents);
(xv) Any Contract that is a settlement, conciliation, or similar agreement with any Governmental Authority; and
(xvi) All Contracts with any Governmental Authority to which any Target Company is a party.
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(b) Except for any Company Material Contract that is terminated or expires following the date hereof in accordance with its terms, each Company Material Contract is valid, binding and enforceable in all respects against the Target Company party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions). Except as would not have a Company Material Adverse Effect, except for any Company Material Contract that is terminated or expires following the date hereof in accordance with its terms and except as otherwise disclosed in Section 4.13(b) of the Company Disclosure Letter, with respect to each Company Material Contract: (i) no Target Company is in breach of or default under, and to the Knowledge of the Company, no event has occurred that with the passage of time or giving of notice or both would constitute a material breach of or default under by any Target Company or permit termination or acceleration by the other party thereto, such Company Material Contract; (ii) no party to any Company Material Contract has given any written notice of any such breach, default or event described in clause (i); and (iii) no Target Company has received written or, to the Knowledge of the Company, oral notice of an intention by any party to any such Company Material Contract that provides for a continuing obligation by any party thereto to terminate such Company Material Contract or amend the terms thereof, other than modifications in the ordinary course of business that do not adversely affect any Target Company in any material respect.
Section 4.14 Intellectual Property.
(a) Section 4.14(a) of the Company Disclosure Letter sets forth a true, accurate, and complete list of: (i) all U.S. and foreign registered or issued Intellectual Property and applications owned by a Target Company (“Company Registered IP”), specifying as to each item, as applicable: (A) the nature of the item, including the title, (B) the owner of the item, (C) the jurisdictions in which the item is issued or registered or in which an application for issuance or registration has been filed and (D) the issuance, registration or application numbers and dates; and (ii) all material unregistered trademarks and service marks. Each item of Company Registered IP is valid, subsisting and enforceable. Each Target Company owns, free and clear of all Liens (other than Permitted Liens or any Liens set out on Section 4.14(a) of the Company Disclosure Letter), and has valid and enforceable rights in, and has the right to use, sell, license, transfer or assign, all Company Registered IP currently used, licensed or held for use by such Target Company. No item of Company Registered IP that consists of a pending Patent application fails to identify all pertinent inventors, and for each Patent and Patent application in the Company Registered IP, the Target Companies have obtained valid assignments of inventions from each inventor. Except as set forth on Section 4.14(a) of the Company Disclosure Letter, all Company Registered IP and other Owned Intellectual Property are owned exclusively by the applicable Target Company without obligation to pay royalties, licensing fees or other fees, or otherwise account to any third party with respect to such Company Registered IP and other Owned Intellectual Property, and such Target Company has recorded assignments of all Company Registered IP.
(b) Each Target Company has a valid and enforceable written license or other valid right to use all other Company IP, including Intellectual Property that is the subject of the Company IP Licenses applicable to such Target Company. The Company IP Licenses include all of the licenses, sublicenses and other agreements or permissions necessary to operate the Target Companies as presently conducted. Each Target Company has performed all obligations imposed on it in the Company IP Licenses, has made all payments required to date, and such Target Company is not, nor, to the Knowledge of the Company, is any other party thereto, in breach or default thereunder, nor has any event occurred that with notice or lapse of time or both would constitute a default thereunder. The continued use by the Target Companies of the Intellectual Property that is the subject of the Company IP Licenses in the same manner that it is currently being used is not restricted by any applicable license of any Target Company. All registrations for Intellectual Property that are owned by or exclusively licensed to any Target Company are valid, in force and in good standing with all required fees and maintenance fees having been paid with no Legal Proceedings pending, and all applications to register any Intellectual Property are pending and in good standing, all without challenge of any kind. No Target Company is party to any Contract that requires a Target Company to assign to any Person any or all of its rights in any Intellectual Property developed by a Target Company under such Contract.
(c) Each Target Company has performed all material obligations imposed on it in each material license, sublicense and other agreement under which a Target Company is the licensor (each, an “Outbound IP License”), and such Target Company is not, nor, to the Company’s Knowledge, is any other party thereto, in material breach or default thereunder, nor, to the Knowledge of the Company, has any event occurred that with notice or lapse of time or both would constitute a material default thereunder.
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(d) No Legal Proceeding is pending or, to the Company’s Knowledge, threatened against a Target Company that challenges the validity, enforceability, ownership, or right to use, sell, license or sublicense, or that otherwise relates to, any Company IP, nor, to the Knowledge of the Company, is there any reasonable basis for any such Legal Proceeding. No Target Company has received any written or, to the Knowledge of the Company, oral notice or claim asserting that any infringement, misappropriation, violation, dilution or unauthorized use of the Intellectual Property of any other Person is or may be occurring or has or may have occurred, as a consequence of the business activities of any Target Company, nor to the Knowledge of the Company is there a reasonable basis therefor. There are no Orders to which any Target Company is a party or is otherwise bound that (i) restrict the rights of a Target Company to use, transfer, license or enforce any Intellectual Property owned by a Target Company, (ii) restrict the conduct of the business of a Target Company in order to accommodate a third Person’s Intellectual Property, or (iii) other than the Outbound IP Licenses, grant any third Person any right with respect to any Intellectual Property owned by a Target Company. No Target Company is currently infringing, or has, in the past six (6) years, infringed, misappropriated or violated any Intellectual Property of any other Person in any material respect in connection with the ownership, use or license of any Owned Intellectual Property or otherwise in connection with the conduct of the respective businesses of the Target Companies. To the Company’s Knowledge, no third party is currently, or in the past six (6) years has been, infringing upon, misappropriating or otherwise violating any Company IP.
(e) No current or former officers, employees or independent contractors of a Target Company has any ownership interest in any Owned Intellectual Property and no Person has claimed or asserted in writing any ownership interest or other rights in or to any Owned Intellectual Property. To the Company’s Knowledge, there has been no violation of a Target Company’s policies or practices related to protection of Company IP or any confidentiality or nondisclosure Contract relating to the Intellectual Property owned by a Target Company. To the Company’s Knowledge, none of the employees of any Target Company is obligated under any Contract, or subject to any Order, that would materially interfere with the use of such employee’s reasonable efforts to promote the interests of the Target Companies, or that would materially conflict with the business of any Target Company as presently conducted or contemplated to be conducted. Each Target Company has taken commercially reasonable efforts and security measures designed to maintain the security of all material Owned Intellectual Property, including measures designed to protect the secrecy and confidentiality of the material Company IP. All Persons who have participated in or contributed to the creation or development of any material Owned Intellectual Property have executed written agreements pursuant to which all of such Person’s right, title and interest in and to any such Owned Intellectual Property has been irrevocably assigned (by a present tense assignment) to the Target Companies (or all such right, title, and interest vested in the Target Companies by operation of Law).
(f) Each Target Company is in all material respects in compliance with all licenses governing any open source Software that is incorporated (either directly by any Target Company, or indirectly, by the incorporation of third party Software that itself incorporates open source Software) into, used, intermingled, or bundled with any material Owned Intellectual Property. No open source Software is or has been included, incorporated or embedded in, linked to, combined, made available or distributed with, or used in the development, operation, delivery or provision of any Company Software in a manner that requires any Target Company to: (i) disclose, distribute, license or otherwise make available to any Person (including the open source community) any source code to such Company Software; (ii) license any such Company Software or other material Owned Intellectual Property for making modifications or derivative works; (iii) disclose, distribute, license or otherwise make available to any Person any such Company Software or other material Owned Intellectual Property for no or nominal charge; or (iv) grant a license to, or refrain from asserting or enforcing any of, its Patents (each of (i) – (iv), a “Copyleft Action”). No Person other than a Target Company possesses, or has an actual or contingent right to access or possess, a copy in any form of any source code for any Company Software and all such source code is in the applicable Target Company’s sole possession and has been maintained as strictly confidential.
(g) Except as set forth on Section 4.14(g) of the Company Disclosure Letter, no government funding, nor any facilities of a university, college, other educational institution, or similar institution, or research center, was used by any Target Company in the development of any Owned Intellectual Property. No Governmental Authority has any (i) ownership interest or exclusive license in or to any material Owned Intellectual Property, (ii) “unlimited rights” (as defined in 48 C.F.R. § 52.227-14 and in 48 C.F.R. § 252.227-7013(a) or under other applicable Laws) in or to any of the Software, or (iii) “march in rights” (pursuant to 35 U.S.C. § 203, or under other applicable Laws) in or to any Patents constituting material Owned Intellectual Property.
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(h) To the Company’s Knowledge, no Person has obtained unauthorized access to information and data (including personally identifiable information) in the possession of a Target Company or in their control, or otherwise held or processed on their behalf, nor has there been any loss, damage, disclosure, use, breach of security, or other material compromise of the security, confidentiality or integrity of such information or data. No Target Company has experienced any material information security incident that has compromised the integrity or availability of the information technology, operational technology, or software applications the Target Companies own, operate, or outsource, or the information or data thereon. No material written complaint relating to an improper use or disclosure of, or a breach in the security of, any such information or data or relating to any information security-related incident has been received by a Target Company nor has a Target Company been required by applicable law, regulation, or contract to notify in writing, any person or entity of any personal data or information security-related incident. Each Target Company has complied in all material respects with all applicable Laws, Contract requirements and policies relating to privacy, personal data protection, cybersecurity and the collection, processing and use of personal information. Except in each case as set forth on Section 4.14(h) of the Company Disclosure Letter, each Target Company has implemented appropriate policies and commercially reasonable security (a) regarding the collection, use, disclosure, retention, processing, transfer, confidentiality, integrity, and availability of data (including personally identifiable information) and business proprietary or sensitive information, in its possession or control, or held or processed on its behalf, and (b) regarding the integrity and availability of the information technology, operational technology, and software applications the Target Company owns, operates, or outsources. The IT Assets do not contain any material malware, viruses, malicious code, “worms,” “Trojan horses,” “back doors,” or other vulnerabilities, or unauthorized tools or scripts that could reasonably be expected to adversely impact the confidentiality, integrity and availability of the information technology and operational technology systems, and software applications. The IT Assets operate and perform as required by the Target Companies for the operation of its business as currently conducted, except in each case as would not, individually or in the aggregate, reasonably be expected to have a material impact on the Target Companies.
(i) The Target Companies (i) maintain a technical description of any neural networks used in or with any proprietary AI/ML that is sufficiently detailed to reasonably skilled programmers to modify, debug, and improve such neural networks in the ordinary course of business; (ii) retain information in human-readable form that explains (or could be used to explain) the decisions made or facilitated by any proprietary AI/ML, which can readily be provided to regulators upon request; (iii) have materially complied with all applicable legal requirements and industry standards applicable to any proprietary AI/ML (including the ethical or responsible use thereof); (iv) have not received (and are not subject to or otherwise not aware of) any (A) complaint, claim, proceeding or litigation alleging that training data used in the development, training, improvement or testing of any proprietary AI/ML Software was falsified, biased, untrustworthy or manipulated in an unethical or unscientific way; (B) report, finding or impact assessment of any internal or external auditor, technology review committee, independent technology consultant, whistle-blower, transparency or privacy advocate, labor union, journalist or academic that makes any such allegation in (A); or (C) request from regulators or legislators concerning any proprietary AI/ML; (v) have not (1) used any AI/ML (including Generative AI) to generate, create, or develop any Owned Intellectual Property; (2) included any Owned Intellectual Property in any prompts or inputs into any AI/ML (including Generative AI); or (3) used any AI/ML (nor sold or offered for sale or distribution any AI product) either (x) for any “Prohibited Artificial Intelligence Practices” (as described in Article 5 of the European Union’s Artificial Intelligence Act); or (y) that is classified as a “high-risk AI system” pursuant to Article 6 of the European Union’s Artificial Intelligence Act). None of the Target Companies has used any “scrapers,” “spiders,” “bots” or other automated Software programs or processes to extract or collect information, data, or content from any social media network or any other third party online source. Section 4.14(i) of the Company Disclosure Letter sets forth a true, complete, and accurate list of all third-party data used to train, teach, or improve any AI/ML that is material to the development of any Owned Intellectual Property or the ongoing operation or improvement of any Owned Intellectual Property (“Third-Party Datasets”). The Target Companies have complied with all license terms applicable to, and obtained all necessary rights and paid all necessary payment required for, such Third-Party Datasets.
(j) The consummation of any of the transactions contemplated by this Agreement will not result in the material breach, material modification, cancellation, termination, suspension of, or acceleration of any payments with respect to, or release of source code because of (i) any Contract providing for the license or other use of material Intellectual Property owned by a Target Company, or (ii) any Company IP License. Following the Closing, the Company shall be permitted to exercise, directly or indirectly through its Subsidiaries, all of the Target Companies’ rights under such Contracts or Company IP Licenses to the same extent that the Target Companies would have been able to exercise had the transactions contemplated by this Agreement not occurred, without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Target Companies would otherwise be required to pay in the absence of such transactions.
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Section 4.15 Taxes and Returns.
(a) Except in each case as set forth on Section 4.15 of the Company Disclosure Letter and except as would not have a Company Material Adverse Effect:
(i) Each Target Company (i) has or will have timely filed, or caused to be timely filed, all Tax Returns required to be filed by it (taking into account all valid extensions of time to file), and all such Tax Returns are true, accurate and complete in all respects, and (ii) has timely paid or caused to be timely paid all Taxes required to be paid by it, whether or not such Taxes are shown as due and payable on any Tax Return. The unpaid Taxes or Tax liabilities of the Target Companies did not, as of the most recent fiscal month end, exceed the accruals and reserve for Tax liability (rather than any accruals and reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Company Financials in accordance with U.S. GAAP.
(ii) There is no Legal Proceeding currently pending or, to the Knowledge of the Company, threatened against a Target Company by a Governmental Authority in a jurisdiction where the Target Company does not file any Tax Returns or a particular type of Tax Return or pays any Tax or a particular type of Tax that it is or may be subject to such Tax or required to file such Tax Return in that jurisdiction.
(iii) There are no audits, examinations, investigations or other proceedings pending, or to the Knowledge of the Company, threatened against any Target Company in respect of any Tax, and no Target Company has been notified in writing of any proposed claims, deficiencies or assessments against any of them. No Target Company is currently contesting any material Tax liability before any Governmental Authority.
(iv) There are no Liens with respect to any Taxes upon any Target Company’s assets, other than Permitted Liens.
(v) Each Target Company has timely and properly collected or withheld all material amounts of Taxes required to be collected or withheld by it, timely remitted such Taxes to the appropriate Governmental Authorities, and otherwise complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(vi) No Target Company has requested or consented to any waivers or extensions of any applicable statute of limitations for the collection or assessment of any Taxes, which waiver or extension (or request thereof) is outstanding or pending.
(vii) No Target Company will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, as a result of: (i) an installment sale or open transaction disposition that occurred on or prior to the Closing Date; (ii) any change in method of accounting, or use of an improper method of accounting, prior to the Closing Date pursuant to Section 481 of the Code (or any analogous provision of state, local or foreign Law); (iii) any prepaid amounts received or deferred revenue realized or received on or prior to the Closing Date, other than in the ordinary course of business; (iv) any intercompany transaction described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Law) entered into prior to the Closing Date; or (v) any “closing agreement” pursuant to Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Law) executed on or prior to the Closing Date.
(viii) No Target Company has engaged in any transaction that could affect the Tax liability for any taxable year not closed by the applicable statute of limitations that is a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
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(ix) No Target Company (x) has been a member of an affiliated, combined, consolidated, unitary or other group for Tax purposes (other than a group the common parent of which is the Company) and (y) has any liability for the Taxes of another Person (other than another Target Company) (i) pursuant to Treasury Regulations Section 1.1502-6 (or any similar or corresponding provision of U.S. state or local Tax Law), (ii) as a transferee or successor, or (iii) pursuant to a Tax Sharing Agreement. No Target Company is a party to or bound by any Tax Sharing Agreement that will be binding on any Target Company with respect to any taxable period (or portion of any Straddle Period thereof) following the Closing Date.
(x) No Target Company has requested any private letter ruling, technical advice memorandum, closing agreement or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes which could be binding on Purchaser, Merger Sub, any Target Company, or any of their respective Affiliates after the Closing Date, nor is any such request pending or outstanding.
(xi) No Target Company has ever had a permanent establishment, office, branch, or fixed place of business in any country other than its jurisdiction of formation.
(xii) Within the last two (2) years, no Target Company has ever been a party to any transaction that was purported or intended to be treated as a distribution of stock qualifying, in whole or in part, for tax-free treatment under Section 355 of the Code (or any corresponding or similar provision of U.S. state or local Tax Law).
(b) The Company is, and has at all times since its formation been, classified as a C corporation for U.S. federal, state and local income tax purposes. The U.S. federal income tax classification of each of the Company’s Subsidiaries is as set forth on Section 4.15 of the Company Disclosure Letter.
(c) No Target Company has knowingly taken or failed to take (or agreed to take or not take) any action, nor is aware of any fact or circumstance, where such action, failure to act, fact or circumstance would reasonably be expected to prevent or impede the Merger from qualifying for its Intended Tax Treatment.
(d) Notwithstanding any other provision of this Agreement to the contrary, (i) the representations and warranties set forth in this Section 4.15 and in Section 4.18 (insofar as they relate to Taxes) constitute the sole and exclusive representations and warranties made in this Agreement with respect to Tax matters of the Target Companies, and (ii) no representation or warranty is made in this Agreement with respect to Taxes of the Target Companies for any taxable period (or portion thereof) beginning after the Closing Date or the existence, availability, amount, usability or limitation of any net operating loss, Tax basis, or other Tax attribute of any Target Company after the Closing Date.
Section 4.16 Real Property.
(a) The Target Companies do not own and have never owned any real property or hold any site leasehold rights (Sw. tomträtt).
(b) Section 4.16(b) of the Company Disclosure Letter contains a true, correct and complete list as of the date of this Agreement of all premises currently leased or subleased or otherwise used or occupied by a Target Company for the operation of the business of such Target Company, and of all current leases, lease guarantees, agreements and documents related thereto, including all amendments, terminations and modifications thereof or waivers thereto (collectively, the “Company Real Property Leases”). To the Knowledge of the Company, the Company Real Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect, subject, in each case, to the Enforceability Exceptions. Except as would not have a Company Material Adverse Effect, no Target Company is in breach of or default under any Company Real Property Lease, and, to the Knowledge of the Company, no event has occurred and no circumstance exists which, if not remedied, and whether with or without notice or the passage of time or both, would result in such a breach or default,. No Target Company has exercised, nor has any Target Company received written notice of any other parties exercise of, any termination rights with respect to any Company Real Property Lease.
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Section 4.17 Personal Property. Except as set forth on Section 4.17 of the Company Disclosure Letter, the Target Companies own and have good and marketable title to, or a valid leasehold interest in or right to use, their respective material tangible and intangible assets and personal property, free and clear of all Liens other than: (i) Permitted Liens; and (ii) the rights of lessors under any leases. The material tangible and intangible assets and personal property of the Target Companies: (A) constitute all of the assets, rights and properties that are necessary for the operation of the businesses of the Target Companies as they are now conducted, and taken together, are adequate and sufficient for the operation of the businesses of the Target Companies as currently conducted; and (B) have been maintained in accordance with generally accepted industry practice, are in good working order and condition, except for ordinary wear and tear and as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Section 4.18 Employee Matters.
(a) No Target Company is bound by any collective bargaining agreement. There is no Knowledge of any activities or proceedings of any labor union or other party to organize or represent such employees. In the past three (3) years, there has not occurred or, to the Knowledge of the Company, been threatened any strike, slow-down, picketing, work-stoppage, or other similar labor activity with respect to any such employees. Section 4.18(a) of the Company Disclosure Letter sets forth all unresolved labor controversies (including unresolved grievances and age or other discrimination claims), if any, that are pending or, to the Knowledge of the Company, threatened between the Target Companies and Persons employed by or providing services as independent contractors to the Target Companies.
(b) Except as set forth on Section 4.18(b) of the Company Disclosure Letter, the Target Companies are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, health and safety and wages and hours, and other Laws relating to discrimination, disability, labor relations, total working time and working hours, payment of wages, overtime compensation, pay equity, immigration, workers compensation, working conditions, occupational safety and health, parental and medical leave, and employee terminations, and have not received written or, to the Knowledge of the Company, oral notice that there is any pending Legal Proceeding involving any material violation of applicable labor or employment Law of any Target Company. The Target Companies are not and have not been, in the past three (3) years, involved in any litigation, arbitration or any other proceedings in relation to any employee, former employee or trade union, and there are no material Legal Proceedings pending or, to the Knowledge of the Company, threatened against the Target Companies brought by or on behalf of any applicant for employment, any current or former employee, any trade union or any Person alleging to be a current or former employee, or any Governmental Authority, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment relationship. Additionally, no Target Company is liable to make any outstanding payment to any Employee or former director, officer or employee by way of damages or compensation for loss of office or employment or for redundancy or unfair or wrongful dismissal or for other grounds, and no Target Company has an obligation, by Law or otherwise, to employ or re-employ (Sw. företrädesrätt till ateranställning) any former employee of any Target Company.
(c) In the past three (3) years, the Target Companies have not engaged in layoffs, furloughs or similar group termination requiring consultation, notification or other procedures under applicable Law, except where all applicable requirements have been complied with in all material respects, and have not (i) given notice of any dismissals or redundancies or started consultations with any trade union, works council or other body representing the employees or any of them; (ii) been a party to any transfer of a business or undertaking or agreement for such a transfer; or (iii) failed to comply with any duty to inform and consult any trade union, works council or other body representing the employees or any of them. Additionally, the Target Companies have not engaged in layoffs or furloughs (Sw. permittering) or effected any broad-based salary or other compensation or benefits reductions, in each case, whether temporary or permanent, in the three (3) years prior to the date of this Agreement.
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(d) In the past three (3) years, (i) no allegations of sexual harassment or sexual misconduct have been made in writing, or, to the Knowledge of the Company, threatened to be made against or involving any current or former officer, director or other employee at the level of Vice President or above by any current or former officer, employee or individual service provider of the Target Company, and (ii) the Target Company has not entered into any settlement agreements resolving, in whole or in part, allegations of sexual harassment or sexual misconduct by any current or former officer, director or other key employee.
Section 4.19 Company Benefit Plans.
(a) Set forth on Section 4.19(a) of the Company Disclosure Letter is a true and complete list of each material Company Benefit Plan. With respect to each Company Benefit Plan, all contributions that are due have been made or, to the extent not yet due, are properly accrued in accordance with GAAP on the Company Financials.
(b) Each Company Benefit Plan is and has been operated, administered, safeguarded, maintained, and funded at all times in compliance with its terms and all applicable Laws in all material respects, including, to the extent applicable to the relevant Target Company, ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has received a favorable determination letter from the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter upon which the Target Company is entitled to rely) or (ii) the Target Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Company’s Knowledge, no event has occurred or circumstance exists which could reasonably be expected to adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan required to be listed on Section 4.19(a) of the Company Disclosure Letter, the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all Company Benefit Plans (including any amendments, modifications or supplements thereto); (ii) the most recent summary plan descriptions and material modifications thereto; (iii) the most recent Form 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the most recent determination letter (or opinion letter) received from the IRS or the Swedish Tax Agency as applicable, if any; (vi) the most recent actuarial valuation; and (vii) all material communications with any Governmental Authority within the last three (3) years.
(d) With respect to each Company Benefit Plan: (i) no Legal Proceeding is pending, or to the Company’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration and administrative appeals of denied claims); (ii) to the extent applicable to the relevant Company Benefit Plan, no prohibited transaction, as defined in Section 406 of ERISA or Section 4975 of the Code, if applicable, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (iii) all contributions and premiums that are due prior to the date hereof have been made and are safeguarded in all material respects as required under applicable law or have been fully accrued in all material respects on the Company Financials in accordance with GAAP and other applicable reporting standards.
(e) With respect to any Company Benefit Plan in relation to which ERISA, if applicable, or the Code applies, neither any Target Company nor any ERISA Affiliate currently maintains, or within the preceding six (6) years has maintained or contributed to, a Company Benefit Plan which is a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Target Companies have not incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred.
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(f) Except as set forth on Section 4.19(f) of the Company Disclosure Letter, the consummation of the transactions contemplated hereby will not, either alone or in combination with another event, (i) entitle any current or former employee, officer or other service provider of the Target Companies to any severance pay or increase in severance pay or any other compensation payable by the Target Companies, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due to any such employee, officer or other individual service provider by the Target Companies, (iii) directly or indirectly cause the Target Companies to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, (iv) entitle any such employee to terminate, shorten or otherwise change the terms of his/her employment, or (v) otherwise give rise to any material liability under any Company Benefit Plan. The consummation of the transactions contemplated hereby will not, either alone or in combination with another event, result in any “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan that is subject to Sections 409A or 4999 of the Code provides for a Tax gross-up, make whole or similar payment with respect to the Taxes imposed under Sections 409A or 4999 of the Code.
(g) Except to the extent required by Section 4980B of the Code, similar state Law or equivalent provisions under Swedish law as applicable to the relevant Target Company, the Target Companies do not provide health or welfare benefits to any former or retired employee and are not obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(h) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Target Companies, taken as a whole, each Company Benefit Plan that is subject to Section 409A of the Code or equivalent provisions under Swedish law has been administered in compliance, and is in documentary compliance, in all respects with the applicable provisions of Section 409A of the Code or equivalent provisions under Swedish law, the regulations thereunder and other official guidance issued thereunder.
(i) Subject to applicable Law, each Company Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material Liability to the Target Companies, the Purchaser, or any of their Affiliates, other than ordinary administration expenses typically incurred in a termination event.
Section 4.20 Environmental Matters. Except as set forth in Section 4.20 of the Company Disclosure Letter, and except as would not have a Company Material Adverse Effect:
(a) each Target Company is in compliance in all material respects with all applicable Environmental Laws;
(b) as of the date hereof, no material Legal Proceeding is pending or, to the Company’s Knowledge, threatened in writing with respect to the Target Companies’ compliance with or liability under Environmental Laws, and, to the Knowledge of the Company, there are no facts or circumstances that could reasonably be expected to form the basis of such a material Legal Proceeding;
(c) as of the date hereof, no Target Company is the subject of any outstanding Order of any Governmental Authority relating to (i) any material non-compliance by such Target Company with Environmental Laws, (ii) any Remedial Legal Proceeding, or (iii) the Release or threatened Release of a Hazardous Material;
(d) as of the date hereof, to the Knowledge of the Company, there is no investigation of the business, operations, or currently or formerly owned, operated, or leased property of a Target Company pending or threatened in writing that could lead to the imposition of any material Liens (other than Permitted Liens) under any Environmental Law or material Environmental Liabilities; and
(e) to its Knowledge, the Company has provided to the Purchaser all material written environmental reports, audits, assessments, liability analyses, memoranda and studies in the possession of, or conducted by, the Target Companies with respect to compliance or liabilities under Environmental Law.
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Section 4.21 Transactions with Related Persons. Except as set forth on Section 4.21 of the Company Disclosure Letter, and except for in the case of any employee, officer or director, of any employment Contract or Company Benefit Plans made in the ordinary course of business, to the Knowledge of the Company, no Target Company is a party to any material transaction or Contract with any (a) present or former executive officer or director of any of the Target Companies, (b) beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of any of the Target Companies or (c) any Affiliate, “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the foregoing; provided that in each case of the foregoing, excluding (i) any transaction or Contract between or among the Company’s Subsidiaries or between or among the Company and any of its Subsidiaries, (ii) any transaction or Contract on arm’s-length terms entered into in the ordinary course of business, (iii) any Ancillary Document or (iv) any Contract pursuant to which any such person subscribed for or purchased equity interests in the Company. To the Knowledge of the Company, no Related Person or any Affiliate of a Related Person has, directly or indirectly, a material economic interest in any Contract with any of the Target Companies (other than such Contracts that relate to any such Person’s ownership of the equity interests of any Target Company as set forth on Section 4.03(a) of the Company Disclosure Letter or such Person’s employment or consulting arrangements with the Target Companies).
Section 4.22 Insurance.
(a) Section 4.22(a) of the Company Disclosure Letter contains a list of, as of the date hereof, all material policies or binders of property, fire and casualty, product liability, workers’ compensation, and other forms of insurance held by, or for the benefit of, the business of any Target Company (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy). As of the date hereof, all premiums due and payable under all such insurance policies have been paid and the Target Companies are otherwise in material compliance with the terms of such insurance policies. To the Knowledge of the Company, each such insurance policy is legal, valid and binding, and is enforceable and in full force and effect, subject, in each case, to the Enforceability Exceptions. No Target Company has any self-insurance or co-insurance programs. In the two (2) years prior to the date hereof, no Target Company has received any written notice from, or on behalf of, any insurance carrier relating to or involving any adverse material change, notice of cancellation or termination, any change other than in the ordinary course of business in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy. To the Knowledge of the Company, no circumstances have arisen as of the date hereof which would render any of such insurance policies void or unenforceable, or give rise to any right of the applicable insurer to amend the terms of any such policy or to decline to pay all or any part of any claim made thereunder.
(b) Section 4.22(b) of the Company Disclosure Letter identifies each individual insurance claim in excess of $500,000 made by a Target Company in the two (2) years prior to the date hereof. Each Target Company has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except as would not have a Company Material Adverse Effect. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse of time) give rise to or serve as a basis for the denial of any such insurance claim. Except as would not have a Company Material Adverse Effect Target Company has made any claim against an insurance policy as to which the insurer has denied coverage.
Section 4.23 Top Customers and Suppliers.
(a) Section 4.23(a) of the Company Disclosure Letter lists as of the date of this Agreement, by aggregate dollar value of the Target Companies business’ transaction volume with such counterparty, as applicable, for each of (i) the period from January 1, 2026 to the date hereof and (ii) the twelve (12) months ended on December 31, 2025, the three (3) largest customers of the Target Companies, taken as a whole (the “Top Customers”). To the Knowledge of the Company, as of the date hereof, no such Top Customer has provided written notice to the Target Companies (i) of its intention to cancel or otherwise terminate, or materially reduce, its relationship with the Target Companies, taken as a whole, or (ii) that any Target Company is in material breach of the terms of any Contract to which it is a party with such Top Customer.
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(b) Section 4.23(b) of the Company Disclosure Letter lists as of the date of this Agreement, by aggregate dollar value of the Target Companies’ business’ transaction volume with such counterparty, as applicable, for each of (i) the period from January 1, 2026 to the date hereof and (ii) the twelve (12) months ended on December 31, 2025, the ten (10) largest suppliers or manufacturers of goods or services to the Target Companies, taken as a whole (the “Top Suppliers”). To the Knowledge of the Company, as of the date hereof, no such Top Supplier has provided written notice to the Target Companies (i) of its intention to cancel or otherwise terminate, or materially reduce, its relationship with the Target Companies, taken as a whole, or (ii) that any Target Company is in material breach of the terms of any Contract to which it is a party with such Top Supplier.
(c) Except as set forth on Section 4.23(a) of the Company Disclosure Letter and Section 4.23(b) of the Company Disclosure Letter, none of the Top Customers or Top Suppliers has, as of the date of this Agreement, notified any Target Companies in writing that it is in a material dispute with the Target Companies or their respective businesses.
Section 4.24 Certain Business Practices.
(a) To the Company’s Knowledge, since the date two (2) years prior to the date hereof, (i) no Target Company, nor any of their respective Representatives acting on their behalf has offered, given, paid, promised to pay, or authorized the payment of anything of value to (a) an official or employee of a foreign or domestic Governmental Authority; (b) a foreign or domestic political party or an official of a foreign or domestic political party; or (c) a candidate for foreign or domestic political office, in any such case under circumstances where such Target Company or Representative thereof knew that all or a portion of such thing of value would be offered, given, or promised to an official or employee or a foreign or domestic Governmental Authority, a foreign or domestic political party, an official of a foreign or domestic political party, or a candidate for a foreign or domestic political office (in each case in violation of any Anti-Bribery Law); (ii) no Target Company nor any Representative of any Target Company has conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority with respect to any alleged act or omission arising under or relating to any noncompliance with any Anti-Bribery Law or Anti-Money Laundering Law; and (iii) no Target Company nor any Representative of any Target Company has received any written notice, request, or citation from any Governmental Authority for any actual or potential noncompliance with any Anti-Bribery Law or Anti-Money Laundering Law. To the Company’s Knowledge, no Target Company nor any Representative of any Target Company has received any written notice, request, or citation from any Governmental Authority for any actual or potential noncompliance with any Anti-Bribery Law or Anti-Money Laundering Law. To the Company’s Knowledge, there are no actions, conditions, or circumstances that would reasonably be expected to give rise to any future Actions against the Company related to any actual or alleged violation of any Anti-Bribery Law or Anti-Money Laundering Law. Each of the Target Companies has conducted operations in material compliance with all applicable financial recordkeeping and reporting requirements of the Anti-Bribery Laws and Anti-Money Laundering Laws.
(b) The operations of each Target Company are and since the date two (2) years prior to the date hereof have been conducted at all times in material compliance with economic sanctions, export controls, and money laundering statutes in all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority, and as of the date hereof, except as would not have a Company Material Adverse Effect, no Legal Proceeding involving a Target Company with respect to any of the foregoing is pending or, to the Knowledge of the Company, threatened in writing.
(c) No Target Company nor any of their respective directors, officers or, to the Knowledge of the Company, any other Representative acting on behalf of a Target Company, is or has been: (i) identified on any applicable sanctions-related list of designated or blocked persons (including without limitation the SDN List) (ii) otherwise the subject or target of any U.S. sanctions administered by OFAC, (iii) located, organized, or resident in a Sanctioned Jurisdiction; or (iv) owned, directly or indirectly, individually or in the aggregate, fifty percent (50%) or more or otherwise controlled by any of the foregoing.
(d) Except as would not have a Company Material Adverse Effect, the Target Companies have since the date two (2) years prior to the date hereof maintained in place and implemented controls and systems designed to ensure compliance with economic sanctions and export controls administered and maintained by the U.S. government.
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(e) No Target Company has since the date two (2) years prior to the date hereof, directly or indirectly, knowingly used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in a Sanctioned Jurisdiction or for the purpose of financing the activities (x) of any Person currently the subject or target of U.S. sanctions administered by the U.S. government, or (y) in any other manner that would constitute a violation of, any U.S. sanctions administered by U.S. government.
Section 4.25 Investment Company Act. No Target Company is an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, or required to register as an “investment company”, in each case within the meaning of the Investment Company Act of 1940, as amended.
Section 4.26 Finders and Brokers. Except as reflected on Section 4.26 of the Company Disclosure Letter, no broker, finder, investment banker or other Person is entitled to, nor will be entitled to, either directly or indirectly, any brokerage fee, finders’ fee or other similar commission, for which any Target Company would be liable in connection with the Transactions based upon arrangements made by any Target Company or any of their Affiliates.
Section 4.27 Independent Investigation. The Target Companies have conducted their own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Purchaser and Merger Sub, and acknowledge that they have been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Purchaser and Merger Sub for such purpose. The Company acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of the Purchaser and Merger Sub set forth in Agreement (including the related portions of the Purchaser Disclosure Letter) and in any certificate delivered to the Company pursuant hereto; and (b) none of the Purchaser, Merger Sub or any of their respective Representatives have made any representation or warranty as to the Purchaser or Merger Sub or this Agreement, except as expressly set forth in this Agreement (including the related portions of the Purchaser Disclosure Letter) or in any certificate delivered to the Company pursuant hereto.
Section 4.28 Information Supplied. None of the information supplied or to be supplied by the Target Companies in writing expressly for inclusion or incorporation by reference in the Proxy Statement/Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading (subject to the qualifications and limitations that are included in the Proxy Statement/Registration Statement) at (a) the time the Proxy Statement/Registration Statement is declared effective by the SEC; (b) the time the Proxy Statement/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the Purchaser Shareholders; or (c) the time of the Purchaser Shareholders’ Meeting. All information supplied or to be supplied by the Target Companies in writing expressly for inclusion or incorporation by reference in any document filed with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing, the Target Companies make no representation, warranty or covenant with respect to any information supplied by or on behalf of the Purchaser, Merger Sub or their respective Affiliates.
Section 4.29 Diligence information. The Company has made a good faith effort to, before the date hereof, provide to the Purchaser the documents and information relating to the Target Companies requested in writing by the Purchaser in connection with its due diligence investigation, and to the Company’s Knowledge the information so provided is true and correct in all material respects.
Section 4.30 No Additional Representations or Warranties. Except as provided in this Article IV, none of the Target Companies nor any of their respective Affiliates, nor any of their respective directors, managers, officers, employees, equityholders, partners, members or representatives has made, or is making, any representation or warranty whatsoever to Purchaser, Merger Sub or their respective Affiliates or any other Person and no such party shall be liable in respect of the accuracy or completeness of any information provided to the Purchaser, Merger Sub or their respective Affiliates or any other Person.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND MERGER SUB
Except as set forth in (i) any Purchaser SEC Reports filed or submitted on or prior to the date hereof, or (ii) in the disclosure letter delivered by the Purchaser to the Company (the “Purchaser Disclosure Letter”) on the date of this Agreement, the Purchaser and Merger Sub represent and warrant to the Company, as of the date hereof and as of the Closing, as follows:
Section 5.01 Organization and Standing.
(a) The Purchaser is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands. The Purchaser has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. The Purchaser is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing can be cured without material cost or expense. The Purchaser has heretofore made available to the Company accurate and complete copies of its Organizational Documents as currently in effect. The Purchaser is not in violation of any provision of its Organizational Documents.
(b) Merger Sub is a corporation duly formed, validly existing and in good standing under the Laws of Delaware. Merger Sub has heretofore made available to the Company accurate and complete copies of its Organizational Documents as currently in effect. Merger Sub is not in violation of any provision of its Organizational Documents.
Section 5.02 Authorization; Binding Agreement. Each of the Purchaser and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform its respective obligations hereunder and thereunder and to consummate the Transactions, subject to obtaining the Purchaser Shareholder Approval. The execution and delivery of this Agreement and each Ancillary Document to which it is a party and the consummation of the Transactions (a) have been duly and validly authorized by the boards of directors (or equivalent governing body) of the Purchaser and Merger Sub, and (b) other than the Purchaser Shareholder Approval, no other corporate proceedings on the part of the Purchaser or Merger Sub are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the Transactions. This Agreement has been, and each Ancillary Document to which the Purchaser or Merger Sub are a party shall be when delivered, duly and validly executed and delivered by the Purchaser or Merger Sub, as applicable, and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of the Purchaser or Merger Sub, as applicable, enforceable against the Purchaser or Merger Sub, as applicable, in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws of general application affecting the enforcement of creditors’ rights generally or by any applicable statute of limitation or by any valid defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific performance) are subject to the discretion of the court from which such relief may be sought (collectively, the “Enforceability Exceptions”).
Section 5.03 Governmental Approvals.
(a) No Consent of or with any Governmental Authority, on the part of the Purchaser or Merger Sub is required to be obtained or made in connection with the execution, delivery or performance by the Purchaser or Merger Sub of this Agreement and each Ancillary Document to which it is a party or the consummation by the Purchaser or Merger Sub of the transactions contemplated hereby and thereby, other than (a) such filings as contemplated by this Agreement, (b) any filings required with Nasdaq or the SEC with respect to the transactions contemplated by this Agreement, (c) applicable requirements, if any, of the Securities Act, the Exchange Act, and/or any state “blue sky” securities Laws, and the rules and regulations thereunder, and (d) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a Purchaser Material Adverse Effect.
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(b) To the Knowledge of the Purchaser, neither Purchaser nor Merger Sub is a “foreign person” as defined in 31 C.F.R. § 800.224. To the Knowledge of the Purchaser, no foreign person (as so defined) that, individually or together with other foreign persons, holds more than twenty-five percent (25%) of the outstanding equity interests of Purchaser has board representation, information or consultation rights, or other rights described in 31 C.F.R. Part 800 with respect to Purchaser or Merger Sub.
Section 5.04 Non-Contravention. The execution and delivery by each of the Purchaser and Merger Sub of this Agreement and each Ancillary Document to which it is a party, the consummation by the Purchaser and Merger Sub of the transactions contemplated hereby and thereby, and compliance by the Purchaser and Merger Sub with any of the provisions hereof and thereof, do not and will not (a) conflict with or violate any provision of their respective Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 5.03 hereof, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable to the Purchaser or Merger Sub or any of its properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by the Purchaser or Merger Sub under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of the Purchaser or Merger Sub under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any material Contract, except for any deviations from any of the foregoing clauses (b) or (c) that would not reasonably be expected to have a Purchaser Material Adverse Effect.
Section 5.05 Capitalization.
(a) The authorized share capital of Purchaser is $22,100 divided into (i) 200,000,000 Purchaser Class A Ordinary Shares, 22,114,799 of which are issued and outstanding as of the date hereof, (ii) 20,000,000 Purchaser Class B Ordinary Shares, of which 6,325,000 shares are issued and outstanding as of the date hereof, and (iii) 1,000,000 Purchaser Preference Shares, of which no shares are issued and outstanding as of the date hereof. All outstanding Purchaser Ordinary Shares are, and as of the Closing, all Domesticated Purchaser Common Stock will be, duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Cayman Companies Act, Purchaser’s Organizational Documents or any Contract to which the Purchaser is a party or by which the Purchaser is bound. None of the outstanding Purchaser Ordinary Shares have been, and as of the Closing, none of the Domesticated Purchaser Common Stock will have been, issued in violation of any applicable securities Laws.
(b) Subject to the terms and conditions of the Warrant Agreement, (i) in connection with the Domestication, each Cayman Purchaser Warrant shall convert automatically, on a one-for-one basis, into a Domesticated Purchaser Warrant, and (ii) each whole Domesticated Purchaser Warrant will entitle the holder thereof to purchase one share of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share, commencing thirty (30) days after the Closing and subject to adjustment in accordance with the Warrant Agreement, provided that only whole Domesticated Purchaser Warrants shall be exercisable and no fractional shares of Domesticated Purchaser Common Stock will be issued upon exercise thereof. As of the date of this Agreement, 19,050,000 Cayman Purchaser Warrants, consisting of 12,650,000 Purchaser Public Warrants and 6,400,000 Purchaser Private Placement Warrants, are issued and outstanding. All outstanding Cayman Purchaser Warrants are and, as of the Closing, the Domesticated Purchaser Warrants will be, duly authorized, validly issued, fully paid and non-assessable and not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Cayman Companies Act, Purchaser’s Organizational Documents or any Contract to which the Purchaser is a party or by which Purchaser is bound. None of the outstanding Cayman Purchaser Warrants have been, and as of the Closing, none of the Domesticated Purchaser Warrants will have been, issued in violation of any applicable securities Laws.
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(c) Other than the Redemption or as expressly set forth in this Agreement, there are no outstanding obligations of Purchaser to repurchase, redeem or otherwise acquire any shares of Purchaser or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Person. Except as set forth in Section 5.05(c) of the Purchaser Disclosure Letter, there are no shareholders agreements, voting trusts or other agreements or understandings to which the Purchaser is a party with respect to the voting of any shares of Purchaser.
(d) All Indebtedness of Purchaser and the agreements entered into in connection therewith as of the date of this Agreement are disclosed on Section 5.05(d) of the Purchaser Disclosure Letter. No Indebtedness of the Purchaser contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by the Purchaser or (iii) the ability of the Purchaser to grant any Lien on its properties or assets.
(e) Since the date of incorporation of the Purchaser, and except as contemplated by this Agreement, the Purchaser has not declared or paid any distribution or dividend in respect of its shares and has not repurchased, redeemed or otherwise acquired any of its shares, and the Purchaser’s board of directors has not authorized any of the foregoing.
(f) There are 1,000 shares, par value $0.0001 per share, of Merger Sub authorized (the “Merger Sub Common Shares”), of which 100 Merger Sub Common Shares are issued and outstanding as of the date hereof. No other shares or other voting securities of Merger Sub are issued, reserved for issuance or outstanding. Purchaser owns all of the membership interests in Merger Sub. All issued and outstanding membership interests of Merger Sub are duly authorized, validly issued, fully paid and nonassessable and are not subject to, and were not issued in violation of, any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, Merger Sub’s Organizational Documents or any contract to which Merger Sub is a party or by which Merger Sub is bound. There are no outstanding contractual obligations of Merger Sub to repurchase, redeem or otherwise acquire any of its membership interests or any equity capital of Merger Sub. There are no outstanding contractual obligations of Merger Sub to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.
Section 5.06 SEC Filings and Purchaser Financials; Internal Controls.
(a) The Purchaser has, since the IPO, filed all forms, reports, schedules, statements and other documents required to be filed or furnished by the Purchaser with the SEC under the Securities Act and/or the Exchange Act, together with any amendments, restatements or supplements thereto (all of the foregoing filed prior to the date of this Agreement, the “Purchaser SEC Reports”), and will have filed all such forms, reports, schedules, statements and other documents (except for the Proxy Statement/Registration Statement and any other forms, reports, schedules, statements and other documents filed or furnished with respect to the transactions contemplated by this Agreement or any Ancillary Documents) required to be filed subsequent to the date of this Agreement through the Closing Date (the “Additional Purchaser SEC Reports”). All of the Purchaser SEC Reports, Additional Purchaser SEC Reports, any correspondence from or to the SEC or the Nasdaq Stock Market (“Nasdaq”) (other than such correspondence in connection with the IPO of the Purchaser) and all certifications and statements required by: (i) Rule 13a-14 or 15d-14 under the Exchange Act; or (ii) 18 U.S.C. § 1350 (Section 906) of the Sarbanes-Oxley Act with respect to any of the foregoing (collectively, the “Public Certifications”) are available on the SEC’s Electronic Data-Gathering, Analysis and Retrieval system (EDGAR) in full without redaction. The Purchaser has complied in all material respects with all applicable listing and corporate governance rules and regulations.
(b) The Purchaser SEC Reports were, and the Additional Purchaser SEC Reports will be, prepared in accordance with the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations thereunder. The Purchaser SEC Reports did not, and the Additional Purchaser SEC Reports will not, at the time they were or are filed (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), as the case may be, with the SEC 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. Each director and executive officer of Purchaser has filed with the SEC on a timely basis all statements required with respect to Purchaser by Section 16(a) of the Exchange Act and the rules and regulations thereunder. The Public Certifications are, or will be, each true and correct as of their respective dates of filing. There is no unresolved comment, inquiry, or outstanding request for additional information from the SEC or Nasdaq with respect to any Purchaser SEC Report or Additional Purchaser SEC Report, and, to the Knowledge of Purchaser, no such Purchaser SEC Report or Additional Purchaser SEC Report is or will be the subject of ongoing SEC or Nasdaq review or investigation as of the date of this Agreement or the Closing Date, as applicable. As used in this Section 5.06, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC or Nasdaq.
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(c) The financial statements and notes contained or incorporated by reference in the Purchaser SEC Reports fairly present, and the financial statements and notes to be contained in or to be incorporated by reference in the Additional Purchaser SEC Reports will fairly present, the financial condition and the results of operations, changes in shareholders’ equity and cash flows of the Purchaser as at the respective dates of, and for the periods referred to, in such financial statements, all in accordance with: (i) GAAP; and (ii) Regulation S-X or Regulation S-K, as applicable, subject, in the case of interim financial statements, to normal recurring year end adjustments and the omission of notes to the extent permitted by Regulation S-X or Regulation S-K, as applicable.
(d) The Purchaser has no off-balance sheet arrangements that are not disclosed in the Purchaser SEC Reports. No financial statements other than those of the Purchaser are required by GAAP to be included in the consolidated financial statements of the Purchaser.
(e) The issued and outstanding Cayman Purchaser Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “PACHU.” The issued and outstanding Purchaser Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “PACH.” The issued and outstanding Purchaser Public Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “PACHW.” The Purchaser is a listed company in good standing with Nasdaq. There is no action or proceeding pending or, to the Knowledge of the Purchaser, threatened in writing against the Purchaser by Nasdaq or the SEC with respect to any intention by such entity to deregister the Cayman Purchaser Units, the Purchaser Class A Ordinary Shares or the Purchaser Public Warrants or terminate the listing of the Purchaser on Nasdaq. Except in connection with the transactions contemplated by this Agreement or any of the Ancillary Documents, none of the Purchaser or any of its Affiliates has taken any action in an attempt to terminate the registration of the Cayman Purchaser Units, the Purchaser Class A Ordinary Shares or Purchaser Public Warrants under the Exchange Act.
(f) Except as not required in reliance on exemptions from various reporting requirements by virtue of Purchaser’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”), Purchaser 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 Purchaser is made known to Purchaser’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared. Such disclosure controls and procedures are effective in timely alerting Purchaser’s principal executive officer and principal financial officer to material information required to be included in Purchaser’s periodic reports required under the Exchange Act. Since the consummation of the IPO, Purchaser has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of Purchaser’s financial reporting and the preparation of the financial statements included in the Purchaser SEC Reports for external purposes in accordance with GAAP.
Section 5.07 Absence of Certain Changes. The Purchaser has, since the date of its incorporation, (a) conducted no business other than its incorporation, the public offering of its securities (and the related private offerings), public reporting and its search for an initial Business Combination as described in the IPO Prospectus (including the investigation of the Target Companies and the negotiation and execution of this Agreement) and related activities, and (b) not been subject to a Purchaser Material Adverse Effect. Merger Sub was formed solely for the purpose of effecting the Transactions and has not engaged in any business activities or conducted any operations other than in connection with the Transactions.
Section 5.08 Undisclosed Liabilities. Except as set forth in Section 5.08 of the Purchaser Disclosure Letter, there is no liability, debt or obligation of or claim or judgment against Purchaser (whether direct or indirect, absolute or contingent, accrued or unaccrued, known or unknown, liquidated or unliquidated, or due or to become due), except for liabilities and obligations (i) reflected or reserved for on the financial statements or disclosed in the notes thereto included in the Purchaser SEC Reports, (ii) that have arisen since the date of the most recent balance sheet included in the Purchaser SEC Reports in the ordinary course of business of Purchaser, (iii) arising under this Agreement and/or incurred in connection with the Transactions, or (iv) which would not be, or would not reasonably be expected to be, material to Purchaser. Merger Sub has no, and at all times prior to the Effective Time except as contemplated by this Agreement or the ancillary agreements to this Agreement, will have no, assets, liabilities or obligations of any kind or nature whatsoever other than those incident to its formation.
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Section 5.09 Compliance with Laws. Each of the Purchaser and Merger Sub is, and has since its incorporation been, in compliance with all Laws applicable to it and the conduct of its business except for such noncompliance which would not reasonably be expected to be material to the Purchaser or Merger Sub, and neither the Purchaser nor Merger Sub has received written notice alleging any violation of applicable Law in any material respect by the Purchaser or Merger Sub.
Section 5.10 Legal Proceedings; Orders; Permits. Except as would not reasonably be expected to have a Purchaser Material Adverse Effect or that would not have a material adverse effect on the ability of the Purchaser to enter into and perform its obligations under this Agreement and consummate the Transactions, there are no (a) Legal Proceedings of any nature currently pending or, to the Purchaser’s Knowledge, threatened in writing, against any of Purchaser or its Affiliates or any of their properties or assets, or any of the directors or officers of any of Purchaser or its Affiliates with regard to their actions as such; (b) to the Knowledge of the Purchaser, pending or written threatened audits, examinations or investigations by any Governmental Authority against any of Purchaser or its Affiliates; or (c) settlements or similar agreements that impose any material ongoing obligations or restrictions on any of Purchaser or its Affiliates. There is no material Legal Proceeding that the Purchaser or Merger Sub has pending against any other Person. Neither the Purchaser, nor Merger Sub, is subject to any material Orders of any Governmental Authority, nor are any such Orders pending. Each of the Purchaser and Merger Sub holds all material Permits necessary to lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties, all of which are in full force and effect, except where the failure to hold such Consent or for such Consent to be in full force and effect would not reasonably be expected to have a Purchaser Material Adverse Effect.
Section 5.11 Taxes and Returns.
(a) The Purchaser (i) has or will have timely filed, or caused to be timely filed, all Tax Returns required to be filed by it (taking into account all valid extensions of time to file), and all such Tax Returns are true, accurate and complete in all respects, and (ii) has timely paid or caused to be timely paid all Income Taxes and other Taxes required to be paid by it, whether or not such Taxes are shown as due and payable on any Tax Return.
(b) There is no Legal Proceeding currently pending or, to the Knowledge of the Purchaser, threatened against the Purchaser by a Governmental Authority in a jurisdiction where Purchaser does not file any Tax Returns or a particular type of Tax Return or pays any Tax or a particular type of Tax that it is or may be subject to such Tax or required to file such Tax Return in that jurisdiction.
(c) There are no audits, examinations, investigations or other proceedings pending, or to the Knowledge of the Purchaser, threatened against the Purchaser in respect of any Tax, and the Purchaser has not been notified in writing of any proposed Tax claims, deficiencies or assessments against the Purchaser. Purchaser is not currently contesting any Tax liability before any Governmental Authority.
(d) There are no Liens with respect to any Taxes upon any of the Purchaser’s assets, other than Permitted Liens.
(e) The Purchaser has timely and properly collected or withheld all amounts of Taxes required to be collected or withheld by it, timely remitted such Taxes to the appropriate Governmental Authorities, and otherwise complied with all applicable withholding and related reporting requirements with respect to such Taxes.
(f) The Purchaser has not requested or consented to any waivers or extensions of any applicable statute of limitations for the collection or assessment of any Taxes, which waiver or extension (or request thereof) is outstanding or pending.
(g) The Purchaser will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, as a result of: (i) an installment sale or open transaction disposition that occurred on or prior to the Closing Date; (ii) any change in method of accounting, or use of an improper method of accounting, on or prior to the Closing Date, including by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign Law) or the use of an improper method of accounting on or prior to the Closing Date; (iii) any prepaid amounts received or deferred revenue realized or received on or prior to the Closing Date; (iv) any intercompany transaction described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Law); or (v) any “closing agreement” pursuant to Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Law) or any other agreement or arrangement with a Governmental Authority relating to Taxes.
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(h) The Purchaser has not engaged in any transaction that could affect the Tax liability for any taxable year not closed by the applicable statute of limitations that is a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(i) Purchaser: (x) has not been a member of an affiliated, combined, consolidated, unitary or other group for Tax purposes (other than a group the common parent of which is the Company) and (y) does not have any liability for the Taxes of another Person (i) pursuant to Treasury Regulations Section 1.1502-6 (or any similar or corresponding provision of U.S. state or local Tax Law), (ii) as a transferee or successor, or (iii) pursuant to a Tax Sharing Agreement. Purchaser is not a party to nor bound by any Tax Sharing Agreement that will be binding on Purchaser with respect to any taxable period (or portion of any Straddle Period thereof) following the Closing Date.
(j) The Purchaser has not requested, and is not the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes which could be binding on Purchaser, Merger Sub, any Target Company, or any of their respective Affiliates after the Closing Date, nor is any such request pending or outstanding.
(k) Purchaser has never had a permanent establishment, office, branch, or fixed place of business in any country other than its jurisdiction of formation.
(l) The Purchaser and Merger Sub are, and have at all times since their respective dates of formation been, classified as C corporations for U.S. federal, state and local income tax purposes.
(m) The Purchaser has not knowingly taken or failed to take (or agreed to take or not take) any action, nor is it aware of any fact or circumstance, where such action, failure to act, fact or circumstance would reasonably be expected to prevent or impede the Domestication, the Sponsor Share Conversion or the Merger from qualifying for their respective Intended Tax Treatments.
Section 5.12 Properties. Neither the Purchaser, nor Merger Sub, owns, licenses or otherwise has any right, title or interest in any material Intellectual Property. Neither the Purchaser, nor Merger Sub own or lease any material real property or material Personal Property (except for the Purchaser’s ownership of the Merger Sub membership interests).
Section 5.13 Investment Company Act. The Purchaser is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, or required to register as an “investment company”, in each case within the meaning of the Investment Company Act of 1940, as amended.
Section 5.14 Trust Account. As of September 30, 2026, Purchaser has at least $265,308,231.78 in the Trust Account, such monies held in cash or invested in United States government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act pursuant to the Investment Management Trust Agreement, dated as of June 17, 2025, between Purchaser and Continental, as trustee (the “Trustee”) (the “Trust Agreement”). The Trust Agreement is valid and in full force and effect and enforceable in accordance with its terms and has not been amended or modified. There are no separate Contracts, side letters or other arrangements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the Purchaser SEC Reports to be inaccurate or that would entitle any Person (other than Purchaser Shareholders who shall have properly elected to redeem their Purchaser Class A Ordinary Shares pursuant to Purchaser’s Organizational Documents and the underwriters of the IPO with respect to deferred underwriting commissions) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released other than to pay Taxes and payments (a) to the Purchaser’s public shareholders with respect to the redemption of Purchaser Class A Ordinary Shares properly submitted in connection with a shareholder vote on a proposed Business Combination but only in the event that the applicable Business Combination is approved and consummated (or as otherwise approved by the Purchaser’s shareholders by amendment to the Purchaser’s Organizational Documents) and subject to the limitations contained in the Purchaser’s Organizational Documents; (b) to the Purchaser’s public shareholders who elect to have their Purchaser Class A Ordinary Shares repurchased by means of a tender offer subject to the provisions contained in the Purchaser’s Organizational Documents; (c) to the Purchaser’s public shareholders if any amendment is made to the Purchaser’s Organizational Documents to (i) modify the substance or timing of Purchaser’s obligation to allow redemption in connection with its initial business combination or to redeem 100% of its Purchaser Class A Ordinary Shares if it has not consummated an initial business combination by the deadline set forth in the Purchaser’s Organizational Documents, subject to extension by amendment to Purchaser’s Organizational Documents, or (ii) with respect to any
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other material provisions related to shareholders’ rights or pre-initial business combination activity, in each case upon effectiveness of any such amendment, or (d) to the Purchaser’s public shareholders if Purchaser fails to consummate a Business Combination by the deadline set forth in the Purchaser’s Organizational Documents, and subject to extension by amendment to Purchaser’s Organizational Documents, including interest earned on the amounts held in the Trust Account (which interest shall be net of any taxes payable and up to $100,000 of interest to pay dissolution expenses), and (e) to Purchaser after or concurrently with the consummation of a Business Combination. The Trust Agreement has not been amended or modified and is a valid and binding obligation of Purchaser and is in full force and effect and is enforceable in accordance with its terms, subject to the Enforceability Exceptions. There are no claims or proceedings pending or, to the Knowledge of Purchaser, threatened with respect to the Trust Account. Purchaser has performed all material obligations required to be performed by it to date under, and is not in default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. Prior to the Closing, none of the funds held in the Trust Account have been released, except to pay Taxes from any interest income earned in the Trust Account as permitted by the Trust Agreement. As of the Closing, the obligations of Purchaser to dissolve or liquidate pursuant to Purchaser’s Organizational Documents shall terminate, and as of the Closing, Purchaser shall have no obligation whatsoever pursuant to Purchaser’s Organizational Documents to dissolve and liquidate the assets of Purchaser. To Purchaser’s Knowledge, as of the date hereof, following the Closing, no Purchaser Shareholder shall be entitled to receive any amount from the Trust Account except to the extent such Purchaser Shareholder is exercising their option to redeem Domesticated Purchaser Common Stock in connection with the Redemption. As of the date hereof, assuming the accuracy of the representations and warranties of the Company contained herein and the compliance by the Company with its obligations hereunder, Purchaser does not have any reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to Purchaser on the Closing Date.
Section 5.15 Finders and Brokers. Except as reflected on Section 5.15 of the Purchaser Disclosure Letter, no broker, finder, investment banker or other Person is entitled to, nor will be entitled to, either directly or indirectly, any brokerage fee, finders’ fee or other similar commission, for which the Purchaser or Merger Sub would be liable in connection with the transactions contemplated by this Agreement or the Transactions based upon arrangements made by the Purchaser or any of their Affiliates.
Section 5.16 Certain Business Practices.
(a) To the Knowledge of the Purchaser, none of the Purchaser, Merger Sub or any of their Representatives acting on behalf of the Purchaser or Merger Sub, has offered, given, paid, promised to give or pay, or authorized the giving or payment of anything of value to (i) an official or employee of a foreign or domestic Governmental Authority; (ii) a foreign or domestic political party or an official of a foreign or domestic political party; (iii) a candidate for foreign or domestic political office; or (iv) any Person, in any such case under circumstances the Purchaser, Merger Sub or the Representative thereof knew that all or a portion of such thing of value would be offered, given, paid, or promised to an official of employee of a foreign or domestic Governmental Authority, a foreign or domestic political party, an official of a foreign or domestic political party, or a candidate for foreign or domestic political office, in each case in violation of any Anti-Bribery Laws. To the Knowledge of the Purchaser, none of the Purchaser, Merger Sub or any Representative thereof has conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority with respect to any alleged act or omission relating to any noncompliance with any Anti-Bribery Laws. To the Knowledge of the Purchaser, none of the Purchaser, Merger Sub or any Representative thereof has received any written notice, request, or citation from any Governmental Authority for any actual or potential noncompliance with any Anti-Bribery Laws. The Purchaser has instituted and maintains policies and procedures reasonably designed to ensure compliance in all material respects with the Anti-Bribery Laws.
(b) The operations of the Purchaser and Merger Sub are and since the date two (2) years prior to the date hereof have been conducted at all times in material compliance with economic sanctions, export controls, and money laundering statutes in all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority, and no Legal Proceeding involving the Purchaser or Merger Sub with respect to any of the foregoing is pending or, to the Knowledge of the Purchaser, threatened.
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(c) None of the Purchaser, Merger Sub or any of their respective directors or officers nor, to the Knowledge of the Purchaser, any other Representative acting on behalf of the Purchaser or Merger Sub is or has been: (i) identified on any applicable sanctions-related list of designated or blocked persons (including without limitation the Specially Designated Nationals and Blocked Persons List (“SDN List”) maintained by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”)), (ii) otherwise the subject or target of any U.S. sanctions administered by OFAC, (iii) located, organized or resident in any country or territory that is the subject of comprehensive economic sanctions maintained by OFAC (as of the date of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine) (each a “Sanctioned Jurisdiction”), or (iv) owned, directly or indirectly, individually or in the aggregate, 50% or more or otherwise controlled by any of the foregoing.
Section 5.17 Insurance. Section 5.17 of the Purchaser Disclosure Letter lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by the Purchaser or Merger Sub or relating to the Purchaser or Merger Sub or their business, properties, assets, directors, officers and employees, copies of which have been provided to the Company. All premiums due and payable under all such insurance policies have been timely paid and the Purchaser and Merger Sub are otherwise in material compliance with the terms of such insurance policies. All such insurance policies are in full force and effect, and to the Knowledge of the Purchaser, there is no threatened termination of, or material premium increase with respect to, any of such insurance policies. There have been no insurance claims made by the Purchaser or Merger Sub. Each of the Purchaser and Merger Sub has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to have a Purchaser Material Adverse Effect.
Section 5.18 Material Contracts.
(a) Schedule 5.18(a) sets forth a list of each (i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K) to which, as of the date of this Agreement, any of the Purchaser or its Affiliates is a party or by which any of their assets are bound, each of which the Purchaser has filed as an exhibit to the applicable Purchaser SEC Reports, and (ii) each other Contract to which any of the Purchaser or any of its Affiliates is a party or by which any of their properties or assets may be bound, subject or affected that (A) creates or imposes a Liability greater than $100,000, (B) may not be cancelled by the Purchaser or such Affiliate on less than sixty (60) days’ prior notice without payment of a penalty or termination fee or (C) prohibits, prevents, restricts or impairs in any material respect any business practice of any of the Purchaser or any of its Affiliates as its business is currently conducted, any acquisition of material property by any of the Purchaser or any of its Affiliates, or restricts in any material respect the ability of any of the Purchaser or any of its Affiliates to engage in business as currently conducted by it or compete with any other Person (each, a “Purchaser Material Contract”). True, correct, and complete copies of the Purchaser Material Contracts have been delivered to the Company.
(b) Except for any Purchaser Material Contract that is terminated or expires following the date hereof in accordance with its terms, each Purchaser Material Contract is valid, binding and enforceable in all respects against the Purchaser or its Affiliate, as applicable, that is party thereto and, to the Knowledge of the Purchaser, each other party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions). Except as would not have a Purchaser Material Adverse Effect, except for any Purchaser Material Contract that is terminated or expires following the date hereof in accordance with its terms and except as otherwise disclosed in Section 5.18(b) of the Company Disclosure Letter, with respect to each Purchaser Material Contract: (i) none of the Purchaser or its Affiliates, as applicable, is in breach of or default under, and to the Knowledge of the Purchaser, no event has occurred that with the passage of time or giving of notice or both would constitute a material breach of or default under by any of the Purchaser or its Affiliates, as applicable, or permit termination or acceleration by the other party thereto, such Purchaser Material Contract; (ii) no party to any Purchaser Material Contract has given any written notice of any such breach, default or event described in clause (i); and (iii) none of the Purchaser or its Affiliates, as applicable, has received written or, to the Knowledge of the Purchaser, oral notice of an intention by any party to any such Purchaser Material Contract that provides for a continuing obligation by any party thereto to terminate such Purchaser Material Contract or amend the terms thereof, other than modifications in the ordinary course of business that do not adversely affect any of the Purchaser or its Affiliates in any material respect.
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Section 5.19 Information Supplied. None of the information supplied or to be supplied by, or on behalf of, Purchaser or Merger Sub in writing expressly for inclusion in the Proxy Statement/Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading (subject to the qualifications and limitations that are included in the Proxy Statement/Registration Statement) at (a) the time the Proxy Statement/Registration Statement is declared effective by the SEC; (b) the time the Proxy Statement/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the Purchaser Shareholders; or (c) the time of the Purchaser Shareholders’ Meeting. Notwithstanding the foregoing, the Purchaser and Merger Sub make no representations, warranties or covenants with respect to any information supplied by or on behalf of the Target Companies or their respective Affiliates. All documents that the Purchaser and Merger Sub is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Section 5.20 Transactions with Related Persons. Except as set forth on Section 5.20 of the Purchaser Disclosure Letter, as of the date hereof, no Related Person of the Purchaser is a party to any material transaction or Contract with the Purchaser or Merger Sub (other than employment or compensation arrangements entered into in the ordinary course of business), including any Contract with the Sponsor or any Affiliate of the Sponsor.
Section 5.21 Independent Investigation. The Purchaser and Merger Sub have conducted their own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Target Companies, and acknowledges that they have been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Target Companies for such purpose. The Purchaser and Merger Sub acknowledge and agree that: (a) in making their decision to enter into this Agreement and to consummate the Transactions, they have relied solely upon their own investigation and the express representations and warranties of the Company set forth in this Agreement (including the related portions of the Company Disclosure Letter) and in any certificate delivered to Purchaser or Merger Sub pursuant hereto; and (b) neither the Company, nor its Representatives have made any representation or warranty as to the Target Companies, or this Agreement, except as expressly set forth in Article IV (including the related portions of the Company Disclosure Letter) or in any certificate delivered to Purchaser or Merger Sub pursuant hereto.
Section 5.22 No Additional Representation or Warranties. Except as provided in this Article V, none of the Purchaser, Merger Sub, any of their respective Affiliates, or any of their respective directors, managers, officers, employees, stockholders, partners, members or representatives has made, or is making, any representation or warranty whatsoever to the Target Companies or their Affiliates and no such party shall be liable in respect of the accuracy or completeness of any information provided to the Target Companies or their Affiliates. Without limiting the foregoing, the Company acknowledges that the Target Companies or their advisors, have made their own investigation of the Purchaser and Merger Sub and, except as provided in this Article V, are not relying on any representation or warranty whatsoever as to the condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Purchaser and Merger Sub, the prospects (financial or otherwise) or the viability or likelihood of success of the business of the Purchaser and Merger Sub as conducted after the Closing, or as contained in any materials provided by the Purchaser or Merger Sub or any of their respective Affiliates or any of their respective directors, officers, employees, shareholders, partners, members or representatives or otherwise.
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ARTICLE VI
COVENANTS
Section 6.01 Access and Information; Cooperation.
(a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 8.01 or the Closing (the “Interim Period”), subject to Section 6.17, the Company shall give, and shall cause the Target Companies and its and their respective Representatives to give, the Purchaser and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all officers, managers, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information, of or pertaining to the Target Companies as the Purchaser or its Representatives may reasonably request regarding the Target Companies and their respective businesses, assets, Liabilities, financial condition, operations, management, employees and other aspects and cause each of the Target Companies’ Representatives to reasonably cooperate with the Purchaser and its Representatives in their investigation; provided, however, that the Purchaser and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Target Companies. The Purchaser hereby agrees that, during the Interim Period, it shall not contact any employee (other than executive officers), customer, supplier, distributor or other material business relation of any Target Company regarding any Target Company, its business or the Transactions without the prior written consent of the Company. Notwithstanding the foregoing, the Company shall not be required to provide, or cause to be provided, to Purchaser or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which the Company is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of the Company with respect to confidentiality, non-disclosure or privacy, (D) jeopardize protections afforded to the Company under the attorney-client privilege or the attorney work product doctrine (provided that, in the case of each of clauses (A) through (D), the Company shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (E) that is directly related to the negotiation and execution of the Transactions (or any transactions that are or were alternatives to the Transactions) or (ii) if the Company, on the one hand, and Purchaser or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto. For the avoidance of doubt, the Company shall not be obligated under this Section 6.01(a) to permit Purchaser or any of its Representatives to conduct any invasive, intrusive or subsurface sampling or testing of any media at the properties of any of the Target Companies.
(b) During the Interim Period, subject to Section 6.17, the Purchaser shall give, and shall cause its Representatives to give, the Company and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all officers, directors, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information, of or pertaining to the Purchaser or its Subsidiaries, as the Company or its Representatives may reasonably request regarding the Purchaser, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects and cause each of the Purchaser’s Representatives to reasonably cooperate with the Company and its Representatives in their investigation; provided, however, that the Company and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Purchaser or any of its Subsidiaries. Notwithstanding the foregoing, the Purchaser shall not be required to provide, or cause to be provided, to the Company or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which the Purchaser is subject, (B) violate any legally-binding obligation of the Purchaser with respect to confidentiality, non-disclosure or privacy, (C) jeopardize protections afforded to the Purchaser under the attorney-client privilege or the attorney work product doctrine (provided that, in the case of each of clauses (A) through (C), the Purchaser shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law) or (D) not divulge information directly related to the negotiation and execution of the Transactions (or any transactions that are or were alternatives to the Transactions), or (ii) if the Purchaser, on the one hand, and the Company or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto.
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(c) During the Interim Period, each of the Company and the Purchaser shall, and shall cause their respective Representatives to, reasonably cooperate in a timely manner in connection with any financing arrangement the Parties mutually agree to seek in connection with the transactions contemplated by this Agreement (including in connection with obtaining Funding Commitments), including, (i) by providing such information and assistance as the other Party may reasonably request, (ii) granting such access to the other Party and its Representatives as may be reasonably necessary for their due diligence, and (iii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with respect to such financing efforts (including direct contact between senior management and other Representatives of the Company at reasonable times and locations). All such cooperation, assistance and access shall be granted during normal business hours and shall be granted under conditions that shall not unreasonably interfere with the business and operations of the Company, the Purchaser, or their respective Representatives. Notwithstanding the foregoing, the Company shall not be required to provide, or cause to be provided, to Purchaser or any of its Representatives, or any financing course, any information (i) if and to the extent doing so would (A) violate any Law to which the Company is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of the Company with respect to confidentiality, non-disclosure or privacy, (D) jeopardize protections afforded to the Company under the attorney-client privilege or the attorney work product doctrine (provided that, in the case of each of clauses (A) through (D), the Company shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (E) that is directly related to the negotiation and execution of the Transactions (or any transactions that are or were alternatives to the Transactions).
Section 6.02 Conduct of Business of the Company.
(a) During the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, as required by applicable Law (including COVID-19 Measures), as set forth on Section 6.02 of the Company Disclosure Letter or as consented to in writing by the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall use commercially reasonable efforts to, and shall use commercially reasonable efforts to cause its Subsidiaries to, (i) conduct its and their respective businesses, in all material respects, in the ordinary course of business, (ii) comply in all material respects with all Laws applicable to the Target Companies and their respective businesses, assets and employees, and (iii) take commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, their respective business organizations. Nothing in this Section 6.02 shall be deemed to prohibit or restrict the Company’s ability to (i) take actions that are reasonably necessary to abide by its obligations under this Agreement, including but not limited to actions taken in furtherance of Nasdaq filing, organizing to have a requisite number of round lot holders (as may be required by Nasdaq Listing Standards), (ii) make any Nasdaq (or other exchange) listing application, filing, or submission, and take any other action reasonably necessary or advisable in connection therewith, and (iii) any corporate action that may be taken by the Company in connection with and in furtherance of the Company’s obligations under this Agreement and the Ancillary Documents.
(b) Without limiting the generality of Section 6.02(a) and except as contemplated by the terms of this Agreement, or the Ancillary Documents, as required by applicable Law (including COVID-19 Measures) or as set forth on Section 6.02(b) of the Company Disclosure Letter, during the Interim Period, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities, except as required by existing Company Benefits Plans or any Contract (including any warrant or option award) outstanding as of the date hereof which has been disclosed in writing to the Purchaser;
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(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) allow the aggregate Indebtedness of the type referred to in clause (a) of the definition thereof of the Target Companies to exceed an amount equal to the sum of $20,000,000 plus the aggregate amount of Indebtedness of the Target Companies as reflected on the most recent Audited Financial Statements (as defined below);
(v) except as otherwise required by Law, or Company Benefit Plans in effect as of the date hereof, (i) grant any severance, retention, change in control or termination or similar pay, (ii) terminate, adopt, enter into or materially amend or grant any new awards (including, for the avoidance of doubt, any equity or equity-based awards) under any Company Benefit Plan or any plan, policy, practice, program, agreement or other arrangement that would be deemed a Company Benefit Plan if in effect as of the date hereof, (iii) increase the cash compensation or bonus opportunity of any employee, officer, director or other individual service provider, except for such increases to any such individuals who are not directors or officers of the Target Companies made in the ordinary course of business, (iv) take any action to amend or waive any performance or vesting criteria or to accelerate the time of payment or vesting of any compensation or benefit payable by the Company or any of the Company’s Subsidiaries, (v) hire or engage any new employee or independent contractor if such new employee or independent contractor will receive annual base compensation in excess of $200,000, other than in the ordinary course of business, (vi) terminate the employment or engagement, other than for cause, death or disability, of any employee or independent contractor with an annual base compensation in excess of $200,000, (vii) waive any restrictive covenants applying to any current or former employee or independent contractor, or (viii) plan, announce, implement, or effect the reduction in force, lay-off, furloughs, early-retirement program, severance program or other program or effort concerning the termination of a group of employees of the Target Companies (other than individual employee terminations permitted under prong (ii) of this Section 6.02(b)(v));
(vi) enter into or extend any collective bargaining agreement or similar labor agreement, other than as required by applicable Law or as reasonably necessary to comply with any mandatory consultation, negotiation or similar obligation under applicable Law, or recognize or certify any labor union, labor organization, or group of employees of the Target Company as the bargaining representative for any employees of the Target Company;
(vii) except as would not have a Company Material Adverse Effect: (A) make, change or rescind any election relating to Taxes, (B) settle any Legal Proceeding relating to Taxes, (C) file any amended income Tax or other Tax Return, (D) change (or request to change) any method of accounting for Tax purposes (E) enter into any “closing agreement” as described in Section 7121 of the Code, (F) surrender or allow to expire any right to claim a refund of material amounts of Taxes, (G) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of Income Taxes or other material Taxes may be issued or in respect of any Income Tax or other material Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to Target Companies, or (H) enter into any Tax Sharing Agreement (excluding customary commercial Contracts the primary purpose of which is not the sharing of Taxes);
(viii) knowingly take or agree to take any action, or knowingly fail to take or agree to fail to take any action, where such action or failure to act would reasonably be expected to prevent or impede the Merger from qualifying for its Intended Tax Treatment;
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(ix) transfer, sell, assign, license, sublicense, covenant not to assert, subject to a Lien (other than a Permitted Lien), abandon, allow to lapse, transfer or otherwise dispose of, any right, title or interest of the Target Company in or to any Owned Intellectual Property material to any of the businesses of the Target Companies (other than non-exclusive licenses of Owned Intellectual Property granted in the ordinary course of business or abandoning, allowing to lapse or otherwise disposing of Owned Intellectual Property registrations or applications that the Target Company, in the exercise of its good faith business judgment, has determined to abandon, allow to lapse or otherwise dispose of), or otherwise materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP (excluding non-exclusive licenses of Company IP granted to a Target Company’s customers, resellers, vendors, or service providers, in the ordinary course of business), or disclose, divulge, furnish to or make accessible to any Person who has not entered into a confidentiality agreement sufficiently protecting the confidentiality thereof any material Trade Secrets constituting Owned Intellectual Property, or include, incorporate or embed in, link to, combine, make available or distribute with, or use in the development, operation, delivery or provision of any Company Software any open source Software in a manner that requires any Target Company to take a Copyleft Action;
(x) fail to maintain its books, accounts and records in all material respects in the ordinary course of business;
(xi) prior to its expiration, terminate or assign any Company Material Contract, or enter into any Contract that would be a Company Material Contract, in any case outside of the ordinary course of business;
(xii) establish any Subsidiary or enter into any new line of business;
(xiii) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect, or terminate without replacement or amend in a manner materially detrimental to the Target Companies, taken as a whole, any material insurance policy insuring the Target Companies;
(xiv) make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP or changes that are made in accordance with PCAOB standards;
(xv) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $500,000 (individually or in the aggregate);
(xvi) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice, except pursuant to any Contract in existence as of the date hereof which has been disclosed in writing to the Purchaser;
(xvii) make capital expenditures outside of the ordinary course of business consistent with past practice in excess of $10,000,000 (individually for any project) or $20,000,000 in the aggregate;
(xviii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other reorganization;
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(xix) other than in the ordinary course of business, sell, lease, license, transfer, exchange or swap or otherwise dispose of any material portion of its tangible properties, assets or rights, provided that nothing in this Section 6.02 shall limit the Company’s ability to encumber, securitize, mortgage, or otherwise pledge its assets as collateral in connection with its entry into any loan, credit, financing agreement or note;
(xx) enter into any written agreement, understanding or arrangement with respect to the voting of equity securities of the Company, other than the Seller Voting and Support Agreements;
(xxi) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business); or
(xxii) authorize or agree to do any of the foregoing actions.
Section 6.03 Conduct of Business of the Purchaser.
(a) During the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, as required by applicable Law, as set forth on Section 6.03(a) of the Purchaser Disclosure Letter or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Purchaser shall, and shall cause Merger Sub to, (i) conduct its business, in all material respects, in the ordinary course of business, (ii) comply in all material respects with all Laws applicable to it and its businesses, assets and employees, and (iii) take commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organizations. Notwithstanding anything to the contrary in this Section 6.03, nothing in this Agreement shall prohibit or restrict the Purchaser from extending, in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus, the deadline by which it must complete its Business Combination (an “Extension”), by way of an amendment to the Purchaser’s Organizational Documents, and no consent of any other Party shall be required in connection therewith; provided, that any extension fees or other amounts required to be deposited into the Trust Account in connection with any such Extension (collectively, “Extension Fees”) shall be borne by the Company on a monthly basis.
(b) Without limiting the generality of Section 6.03(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents (including the Domestication or as contemplated by any agreements in respect of Funding Commitments), as required by applicable Law or as set forth on Section 6.03(b) of the Purchaser Disclosure Letter, during the Interim Period, without the prior written consent of the Company (such consent, other than with respect to Sections 6.03(b)(i), (ii), (iii), (vii), and (xvi), not to be unreasonably withheld, conditioned or delayed), the Purchaser shall not, and shall cause Merger Sub not to:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents except as required by applicable Law (other than in relation to an Extension, as described in Section 6.03(a), or to remove any net tangible asset requirement);
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares or other equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities other than the Redemption or a conversion of the Purchaser Class B Ordinary Shares in accordance with the Purchaser’s Organizational Documents;
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(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $100,000 individually or $250,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person; provided, however, that the Purchaser may obtain Funding Commitments;
(v) (A) make, change or rescind any material election relating to Taxes, (B) settle any claim, suit, litigation, proceeding, arbitration, investigation, audit, controversy or other Legal Proceeding relating to material Taxes, (C) file any amended Income Tax or other material Tax Return, (D) surrender or allow to expire any right to claim a refund of material amounts of Taxes, (E) change (or request to change) any method of accounting for Tax purposes, (F) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of Income Taxes or other material Taxes may be issued or in respect of any Income Tax or other material Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to Purchaser, (G) enter into any “closing agreement” as described in Section 7121 of the Code or any other agreement or arrangement with any Governmental Authority or (H) enter into any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement or arrangement (excluding customary commercial Contracts the primary purpose of which is not the sharing of Taxes) with respect to Taxes;
(vi) knowingly take or agree to take any action, or knowingly fail to take or agree to fail to take any action, where such action or failure to act could reasonably be expected to prevent or impede the relevant portions of the Transactions from qualifying for their respective Intended Tax Treatments;
(vii) amend, waive or otherwise change the Trust Agreement;
(viii) terminate, waive or assign any material right under any Purchaser Material Contract;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business;
(x) establish any Subsidiary or enter into any new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP or PCAOB standards;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Purchaser or its Subsidiary) not in excess of $500,000 (individually or in the aggregate);
(xiv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business;
(xv) make capital expenditures in excess of $100,000 individually for any project (or set of related projects) or $250,000 in the aggregate (excluding for the avoidance of doubt, incurring any expenses);
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(xvi) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xvii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $250,000 individually or $500,000 in the aggregate (excluding the incurrence of any expenses) other than pursuant to the terms of a Contract in existence as of the date of this Agreement or entered into in the ordinary course of business or in accordance with the terms of this Section 6.03 during the Interim Period;
(xviii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its tangible properties, assets or rights;
(xix) grant or establish any form of compensation or benefits to any current or former employee, officer, director, individual independent contractor or other individual service provider of Purchaser;
(xx) enter into any agreement, understanding or arrangement with respect to the voting or transfer of any of its equity securities;
(xxi) enter into, renew, modify or revise any Contract with any current or former Affiliate of the Purchaser or any Related Person;
(xxii) enter into any new Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions;
(xxiii) issue, redeem, repurchase or otherwise acquire any capital stock, share capital, membership interests or other securities, or issue any securities exchangeable for or convertible into any share or any shares of its capital stock; or
(xxiv) authorize or agree to do any of the foregoing actions.
Section 6.04 Annual and Interim Financial Statements.
(a) To the extent not already delivered, the Company shall use reasonable best efforts to deliver to the Purchaser as soon as reasonably practicable following the date of this Agreement audited consolidated balance sheets and statements of operations, comprehensive loss, stockholders’ equity and cash flows of the Target Companies as of and for the years ended December 31, 2024 and June 30, 2026, and for any subsequent fiscal year to the extent such audited financial statements are required by applicable Law to be included in the Proxy Statement/Registration Statement or any other filing with the SEC in connection with the Transactions, together with the auditor’s reports thereon, audited by a PCAOB qualified auditor in accordance with GAAP and PCAOB standards and which comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (collectively, the “Audited Financial Statements”); provided, that upon delivery of such Audited Financial Statements, such financial statements shall be deemed “Company Financials” for the purposes of this Agreement and the representation and warranties set forth in Section 4.06 shall be deemed to apply to such Audited Financial Statements with the same force and effect as if made as of the date of this Agreement.
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(b) The Company shall use reasonable best efforts to deliver, as soon as reasonably practicable following the date of this Agreement, to the Purchaser unaudited consolidated balance sheets and statements of operations, comprehensive loss, stockholders’ equity and cash flows of the Target Companies as of and for the six-month period ending June 30, 2026, which comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Updated 1H Financial Statements”) and the Company shall use reasonable best efforts to deliver, as soon as reasonably practicable, to the Purchaser any other audited or unaudited financial statements of the Target Companies that are required by applicable law to be included in the Proxy Statement/Registration Statement; provided, that upon delivery of such Updated 1H Financial Statements and any other audited or unaudited financial statements of the Target Companies, the representation and warranties set forth in Section 4.06 shall be deemed to apply to the Updated 1H Financial Statements and any other audited or unaudited financial statements of the Target Companies, mutatis mutandis, with the same force and effect as if made as of the date of this Agreement.
Section 6.05 Purchaser Public Filings.
(a) During the Interim Period, the Purchaser will keep current all of its public filings with the SEC (after giving effect to all applicable extension periods) and otherwise comply in all material respects with applicable securities Laws and shall use its commercially reasonable efforts prior to the Closing to maintain the listing of the Purchaser Class A Ordinary Shares and the Purchaser Public Warrants on Nasdaq. All forms, reports, schedules, statements and other documents required to be filed by the Purchaser with the SEC (including any financial statements or schedules included therein) (i) shall be prepared in all material respects in accordance with either the requirements of the Securities Act and the Exchange Act, as the case may be, and (ii) will not, at the time they are filed or, if amended, as of the date of such amendment, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(b) At least three (3) Business Days prior to the filing, issuance, or other submission or public disclosure of any statement, filing, notice, application, press release or other document made by or on behalf of the Purchaser to any Governmental Authority or other third party in connection with the transactions contemplated by this Agreement, including the Proxy Statement/Registration Statement, and amendment or supplement thereto and any other filing with the SEC, or the submission of responses to comments from the SEC or its staff in connection therewith, the Company and its counsel shall be given a reasonable opportunity to review and comment upon such document or response prior to filing, issuance, submission or disclosure thereof and cooperate and mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed) upon any response to any SEC comments on any such document. Furthermore, the Purchaser shall consider the comments of the Company or its counsel in good faith. The Purchaser shall provide the Company and its counsel with a reasonable opportunity to participate in the response of the Purchaser to any written or oral comments received from the SEC or its staff.
Section 6.06 No Solicitation.
(a) For purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal (whether written or oral), from any Person or group at any time relating to an Alternative Transaction (other than the Purchaser and the Sponsor or their respective Representatives), and (ii) an “Alternative Transaction” means (A) with respect to the Company and its Affiliates, a transaction or a series of transactions (other than the transactions contemplated by this Agreement) concerning the sale (whether directly or indirectly) of (x) 15% or more of the business or assets of the Target Companies, (y) 15% or more of the outstanding shares or other equity interests of the Target Companies, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise, or (z) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the sale or disposition of the Target Companies and (B) with respect to the Purchaser and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning a Business Combination involving Purchaser or any of its Affiliates.
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(b) During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of the transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the prior written consent of the Company and the Purchaser, directly or indirectly, (i) solicit, assist, initiate, engage or facilitate the making, submission or announcement of, or encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, (v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal, or (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party in connection with an Acquisition Proposal.
(c) Each Party shall notify the others as promptly as practicable (and in any event within two (2) Business Days) in writing of the receipt by such Party or any of its Representatives of (i) any inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to such Party or its Affiliates in connection with any Acquisition Proposal. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.
Section 6.07 No Trading. The Company acknowledges and agrees that it is aware, and that the Company’s Affiliates are aware (and each of their respective Representatives is aware or, upon receipt of any material nonpublic information of the Purchaser, will be advised) of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC and Nasdaq promulgated thereunder or otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees that, while it is in possession of such material nonpublic information, it shall not, it shall cause its Subsidiaries not to, and it shall instruct its other Affiliates and Representatives not to, purchase or sell any securities of the Purchaser (unless otherwise explicitly contemplated in this Agreement), communicate such information to any third party, take any other action with respect to the Purchaser in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
Section 6.08 Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice to the other Parties if such Party or its Affiliates: (a) receives any notice or other communication in writing from any third party (including any Governmental Authority) alleging that the Consent of such third party is or may be required in connection with the transactions contemplated by this Agreement; (b) receives any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; or (c) becomes aware of the commencement or threat, in writing, of any Legal Proceeding against such Party or any of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such Party, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with respect to the consummation of the transactions contemplated by this Agreement. No such notice shall constitute an acknowledgement or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached. In the event that any litigation related to this Agreement, any Ancillary Documents or the transactions contemplated hereby or thereby is brought, or, to the knowledge of the Parties, respectively, threatened, against such Party, or the board of directors (or similar governing body) of such Party or its Subsidiaries, respectively, by a third party prior to the Closing, such Party shall promptly notify the other Party of any such litigation and keep the other Party reasonably informed with respect to the status thereof. Each Party shall provide the other Party the opportunity to participate in (subject to a customary joint defense agreement), but not control, the defense of any such litigation, shall give due consideration to the other Party’s advice with respect to such litigation and shall not settle or agree to settle any such litigation without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed.
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Section 6.09 Efforts.
(a) Subject to the terms and conditions of this Agreement, each Party shall use its reasonable best efforts, and shall cooperate fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including the receipt of all applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental Authorities applicable to the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of Section 6.09(a), to the extent required under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition (“Antitrust Laws”), each Party hereto agrees to make any required filing or application under Antitrust Laws, as applicable, with the cost and expense of any fees or other amounts charged by any Governmental Authorities relating to such filings or applications to be borne equally (50% each) by Purchaser and the Company, with respect to the transactions contemplated hereby as promptly as practicable, to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under Antitrust Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the Antitrust Laws. Each Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under any Antitrust Law, use its reasonable best efforts to: (i) cooperate in all respects with each other Party or its Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private Person; (ii) keep the other Parties reasonably informed of any communication received by such Party or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private Person, in each case regarding any of the transactions contemplated by this Agreement; (iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences; (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto; and (v) use reasonable best efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(c) As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) their respective reasonable best efforts to prepare and file with Governmental Authorities any requests for approval, to the extent applicable or required, of the transactions contemplated by this Agreement and shall use their reasonable best efforts to have such Governmental Authorities approve the transactions contemplated by this Agreement. Each Party shall give prompt written notice to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection with the transactions contemplated by this Agreement, and shall promptly furnish the other Parties with a copy of such Governmental Authority notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the transactions contemplated hereby, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to be present for such hearing or meeting. If any objections are asserted with respect to the transactions contemplated by this Agreement under any applicable Law or if any Legal Proceeding is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby
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or thereby, the Parties shall use their reasonable best efforts to resolve any such objections or Legal Proceedings so as to timely permit consummation of the transactions contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections or Legal Proceedings which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby. In the event any Legal Proceeding is instituted (or threatened to be instituted) by a Governmental Authority or private Person challenging the transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective reasonable best efforts to contest and resist any such Legal Proceeding and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement or the Ancillary Documents.
(d) Prior to the Closing, each Party shall use its reasonable best efforts to obtain any Consents of Governmental Authorities or other third Persons as may be necessary for the consummation by such Party or its Affiliates of the transactions contemplated by this Agreement or required as a result of the execution or performance of, or consummation of the transactions contemplated by, this Agreement by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
Section 6.10 Trust Account. Upon satisfaction or waiver of the conditions set forth in Article VII and provision of notice thereof to the Trustee (which notice Purchaser shall provide to the Trustee in accordance with the terms of the Trust Agreement), (i) in accordance with and pursuant to the Trust Agreement, at the Closing, Purchaser (a) shall cause any documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (b) shall use its reasonable best efforts to cause the Trustee to, and the Trustee shall thereupon be obligated to (1) pay as and when due all amounts payable to the Purchaser Shareholders pursuant to the Redemption, and (2) pay all remaining amounts then available in the Trust Account to Purchaser for immediate use, subject to this Agreement and the Trust Agreement, and (ii) thereafter, the Trust Account shall terminate, except as otherwise provided therein.
Section 6.11 Tax Matters.
(a) The Parties hereby agree and acknowledge that, for U.S. federal, and applicable state and local, income Tax purposes, it is intended that the Domestication, the Sponsor Share Conversion and the Merger qualify for their respective Intended Tax Treatments, and that this Agreement constitutes, and hereby is adopted as, a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) for purposes of Sections 354, 361 and 368 of the Code and the Treasury Regulations promulgated thereunder. No Party shall knowingly take or knowingly cause to be taken, or knowingly fail to take or knowingly cause to be failed to be taken, any action, if such action or failure to act, as the case may be, would reasonably be expected to prevent or impede the Domestication, the Sponsor Share Conversion or the Merger from qualifying for their respective Intended Tax Treatments. If the Company reasonably determines that there is a significant risk that the Merger will not qualify for its respective Intended Tax Treatment, but would reasonably be expected to so qualify if a second-step merger of the Surviving Corporation into a limited liability company disregarded as an entity separate from Purchaser for U.S. federal income tax purposes were consummated, in accordance with Delaware law, as promptly as practicable following the Merger (such second-step merger, the “Second Merger”), the Company shall notify and consult with Purchaser promptly after such determination, and the Company and Purchaser shall work together in good faith and use commercially reasonable efforts to restructure the Transactions to incorporate the Second Merger so that (and to the extent) the Merger and the Second Merger, taken together, qualify for such Intended Tax Treatment. The Parties hereby agree to file all Tax Returns on a basis consistent with the Intended Tax Treatments unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code or a change in applicable Law. Each Party agrees to use reasonable best efforts to promptly notify all other Parties of any challenge to the qualification of the Domestication, the Sponsor Share Conversion or the Merger for its Intended Tax Treatment by any Governmental Authority.
(b) Purchaser and the Company shall promptly notify the other party in writing if, before the Closing Date, either such party becomes aware that the Domestication may not qualify for its Intended Tax Treatment or that the Merger may not qualify for its Intended Tax Treatment.
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(c) Notwithstanding anything to the contrary herein, if the SEC requires that a Tax opinion be prepared and submitted in connection with the Proxy Statement/Registration Statement and any other filings to be made with the SEC in connection with the Transactions, whether as an exhibit to the Proxy Statement/Registration Statement or otherwise, and if such a Tax opinion is being provided by a Tax counsel, the Parties hereto shall, and shall cause their Affiliates to, (i) reasonably cooperate in order to facilitate the issuance of any such Tax opinion and (ii) deliver to such counsel, to the extent requested by such counsel, a duly executed certificate reasonably satisfactory to such Party and such counsel dated as of the date requested by such counsel, containing such customary representations, warranties and covenants as shall be reasonably necessary or appropriate to enable such counsel to render any such opinion; provided, that, notwithstanding anything herein to the contrary, to the extent a Tax opinion is required in connection with the Proxy Statement/Registration Statement and any other filings to be made with the SEC in connection with the Transactions, it shall be provided by Purchaser or its advisors.
(d) All transfer, documentary, sales, use, stamp, registration, excise, recording, registration, value added and other such similar Taxes and fees (including any penalties and interest) that become payable in connection with or by reason of the execution of this Agreement and the Transactions (“Transfer Taxes”) shall constitute Company Transaction Costs (if incurred by or on behalf of the Company) or Purchaser Transaction Costs (if incurred by or on behalf of Purchaser and its Affiliates). The Party responsible for filing any necessary Tax Returns or other documentation with respect to Transfer Taxes under applicable Law shall cause such Tax Returns to be filed, and, if required by applicable Law, the other Parties shall join in the execution of any such Tax Returns or other documentation. The Parties shall use their commercially reasonable efforts to obtain any certificate or other document from any Governmental Authority or any other Person or take any other reasonable action as may be necessary to mitigate, reduce or eliminate any Transfer Tax.
Section 6.12 Company Financing. During the Interim Period, Purchaser shall use its commercially reasonable efforts to, and shall use its commercially reasonable efforts to cause its representatives to, reasonably cooperate with the Company in connection with any Company Financing sought by the Company.
Section 6.13 Further Assurances. Each Party hereto shall execute and deliver such documents and take such action, as may reasonably be considered within the scope of such Party’s obligations hereunder, necessary to effectuate the transactions contemplated by this Agreement.
Section 6.14 The Preparation of Proxy Statement/Registration Statement; Shareholders’ Meeting and Approvals.
(a) Registration Statement and Prospectus.
(i) As promptly as practicable after the execution of this Agreement and receipt by the Purchaser of the Audited Financial Statements, the Updated 1H Financial Statements and any other audited or unaudited financial statements of the Target Companies that are required by applicable Law to be included in the Proxy Statement/Registration Statement, (x) the Purchaser and the Company shall jointly prepare and the Purchaser shall file with the SEC, mutually acceptable materials that shall include the proxy statement to be filed with the SEC as part of the Registration Statement and sent to the Purchaser Shareholders relating to the Purchaser Shareholders’ Meeting (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”), and (y) the Purchaser shall prepare (with the Target Companies’ and their respective Representatives reasonable cooperation) and file with the SEC the Registration Statement, in which the Proxy Statement will be included as a prospectus (the “Proxy Statement/Registration Statement”), in connection with the registration under the Securities Act of (A) (x) the Domesticated Purchaser Units to be issued in exchange for the Cayman Purchaser Units, (y) the Domesticated Purchaser Warrants to be issued in exchange for the Cayman Purchaser Warrants and (z) the shares of Domesticated Purchaser Common Stock to be issued in exchange for (I) the issued and outstanding Purchaser Class A Ordinary Shares in the Domestication and (II) issuable upon exercise of the Domesticated Purchaser Warrants, (B) the shares of Domesticated Purchaser Common Stock that constitute the Aggregate Consideration, (C) the Earn-Out Shares, (D) the shares of Domesticated Purchaser Common Stock subject to the Purchaser Options, and (E) the shares of Domesticated Purchaser Common Stock subject to the Purchaser RSUs (if any) (collectively, the “Registration Statement Securities”). The filing fees payable to
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the SEC in connection with the Proxy Statement/Registration Statement will be borne by the Company. Each of the Purchaser and the Company shall use its reasonable best efforts to cause the Proxy Statement/Registration Statement to comply with the rules and regulations promulgated by the SEC, to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the transactions contemplated hereby. The Purchaser also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated hereby, and the Company shall furnish all information within its possession concerning the Target Companies and any of their respective members or stockholders as may be reasonably requested in connection with any such action. Each of the Purchaser and the Company agrees to furnish to the other party all information concerning itself, its Subsidiaries, officers, directors, managers, stockholders, and other equityholders and information regarding such other matters as may be reasonably necessary or advisable or as may be reasonably requested in connection with the Proxy Statement/Registration Statement, a Current Report on Form 8-K pursuant to the Exchange Act in connection with the transactions contemplated by this Agreement, or any other statement, filing, notice or application made by or on behalf of the Purchaser or the Target Companies to any regulatory authority (including the Nasdaq) in connection with the Transactions (the “Offer Documents”).
(ii) To the extent not prohibited by Law, the Purchaser will advise the Company, reasonably promptly after the Purchaser receives notice thereof, of the time when the Proxy Statement/Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of the Domesticated Purchaser Common Stock for offering or sale in any jurisdiction, of the initiation or written threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Proxy Statement/Registration Statement or for additional information. To the extent not prohibited by Law, the Company and their counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement/Registration Statement and any Offer Document each time before any such document is filed with the SEC, and the Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. To the extent not prohibited by Law, the Purchaser shall provide the Company and their counsel with (i) any comments or other communications, whether written or oral, that the Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement/Registration Statement or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of the Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any discussions or meetings with the SEC.
(iii) Each of the Purchaser and the Company shall use reasonable best efforts to ensure that none of the information supplied by or on its behalf for inclusion or incorporation by reference in (A) the Registration Statement will, at the time the Registration Statement is filed with the SEC, at each time at which it is amended and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading or (B) the Proxy Statement will, at the date it is first mailed to the Purchaser Shareholders and at the time of the Purchaser Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
(iv) If at any time prior to the Closing any information relating to the Company, the Purchaser or any of their respective Subsidiaries, Affiliates, directors or officers is discovered by the Company or the Purchaser, which is required to be set forth in an amendment or supplement to the Proxy Statement or the Registration Statement, so that neither of such documents would include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, with respect to the Proxy Statement, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the Purchaser Shareholders.
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(b) Purchaser Shareholder Approval.
(i) The Purchaser shall (a) as promptly as practicable after the Registration Statement is declared effective under the Securities Act, (i) cause the Proxy Statement to be disseminated to Purchaser Shareholders in compliance with applicable Law, (ii) duly (1) give notice of and (2) convene and hold an extraordinary general meeting of Purchaser Shareholders (the “Purchaser Shareholders’ Meeting”) in accordance with the Purchaser’s Organizational Documents and applicable Law, for a date no later than thirty (30) Business Days following the date the Registration Statement is declared effective, and (iii) solicit proxies from the holders of Purchaser Ordinary Shares to vote in favor of each of the Transaction Proposals, and (b) provide its shareholders with the opportunity to elect to effect a Redemption in conjunction with the shareholder vote on the Transaction Proposals. The Purchaser shall, through its board of directors, recommend to the Purchaser Shareholders (A) to approve, as an ordinary resolution, this Agreement and the transactions contemplated hereby or referred to herein, including the Domestication and the Merger, in accordance with applicable Law and exchange rules and regulations, (B) to approve, as a special resolution passed by the holders of the Purchaser Class B Ordinary Shares entitled to vote thereon, the Domestication, (C) to approve, as a special resolution passed by the holders of the Purchaser Class B Ordinary Shares entitled to vote thereon, the adoption of the Purchaser Charter upon Domestication and the Purchaser Bylaws upon Domestication, including any separate or unbundled advisory proposals as are required to implement the foregoing, (D) to approve, as an ordinary resolution, the issuance of shares of Domesticated Purchaser Common Stock (including the Aggregate Consideration and the Earn-Out Shares) as required by Nasdaq Listing Rule 5635, (E) to approve, as an ordinary resolution, the adoption by the Purchaser of the Purchaser Incentive Award Plan and the Purchaser ESPP (as defined below), (F) to approve, as an ordinary resolution passed by the holders of the Purchaser Class B Ordinary Shares entitled to vote thereon, the appointment of the director nominees in accordance with Section 6.19 of this Agreement, (G) to approve, as an ordinary resolution (or if required by applicable Law or the Purchaser Organizational Documents, as a special resolution), any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto, (H) to approve, as an ordinary resolution (or if required by applicable Law or the Purchaser Organizational Documents as a special resolution), any other proposals as reasonably agreed by the Purchaser and the Company to be necessary or appropriate in connection with the Transactions, including but not limited to any amendments to the Purchaser Organizational Documents prior to Domestication, for the purposes of approving, or in conjunction with the consummation of, the Business Combination, and (I) to approve, as an ordinary resolution, the adjournment of the Purchaser Shareholders’ Meeting to a later date or dates, if necessary or convenient, in the reasonable determination of the chairman of the Purchaser (x) to permit further solicitation and vote of proxies in the event that there are insufficient votes for any of the foregoing, (y) if the Purchaser determines that one or more of the conditions to Closing is not or will not be satisfied or waived or (z) to facilitate the Domestication, the Merger or any other Transaction (such proposals in (A) through (I), together, the “Transaction Proposals”), or if the Purchaser determines that one or more of the conditions to Closing is not satisfied or waived, and include such recommendation in the Proxy Statement. The board of directors of Purchaser shall not, except as required by applicable Law, withdraw, amend, qualify or modify its recommendation to the shareholders of the Purchaser that they vote in favor of the Transaction Proposals (together with any withdrawal, amendment, qualification or modification of its recommendation to the shareholders of Purchaser described in the Recitals hereto, a “Modification in Recommendation”). To the fullest extent permitted by applicable Law, (x) the Purchaser’s obligations to establish a record date for, duly call, give notice of, convene and hold the Purchaser Shareholders’ Meeting shall not be affected by any Modification in Recommendation, (y) the Purchaser agrees to establish a record date for, duly call, give notice of, convene and hold the Purchaser Shareholders’ Meeting and submit for approval the Transaction Proposals and (z) the Purchaser agrees that if the Purchaser Shareholder Approval shall not have been obtained at any such Purchaser Shareholders’ Meeting, then the Purchaser shall promptly continue to take all such necessary actions, including the actions required by this Section 6.14(b), and hold additional Purchaser Shareholders’ Meetings in order to obtain the Purchaser Shareholder Approval; provided, that, the Purchaser may make one or more successive postponements or, with the consent of the Purchaser Shareholders’ Meeting, adjournments of the Purchaser Shareholders’ Meeting, subject to applicable Law and the Purchaser Organizational Documents; provided that when the Purchaser Shareholders’ Meeting is postponed or adjourned for thirty days or more, notice of the postponed or adjourned meeting shall be given as in the case of an original meeting. The Purchaser agrees that it shall provide the holders of Purchaser Class A Ordinary Shares the opportunity to elect redemption of such Purchaser Class A Ordinary Shares in connection with the vote on the Transaction Proposals at the Purchaser Shareholders’ Meeting, as required by the Purchaser’s Organizational Documents (the “Redemption”).
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(c) Company Stockholder Approvals.
(i) Upon the terms set forth in this Agreement, the Company shall use its reasonable best efforts to solicit and obtain the Requisite Shareholder Approval in the form of an irrevocable written consent (the “Written Consent”) of each of the Sellers pursuant to the terms of the Seller Voting and Support Agreement promptly following the time at which the Registration Statement shall have been declared effective under the Securities Act and delivered or otherwise made available to the Sellers. The Company shall provide the Purchaser with copies of each Written Consent it receives within two (2) Business Days following receipt of such Written Consent.
(ii) To the extent the Requisite Shareholder Approval is not delivered pursuant to Section 6.14(c)(i) within three (3) Business Days following the effectiveness of the Registration Statement (as declared effective under the Securities Act), then the Company shall take all action necessary to duly call, give notice, convene and hold a meeting of the shareholders of the Company as soon as practicable, and, in connection therewith, the Company shall (a) mail an information statement and proxy solicitation which shall include, without limitation, the Registration Statement in advance of such meeting for the purpose of soliciting from the shareholders of the Company proxies to vote in favor of the adoption of this Agreement and approval of the Transactions; and (b) use its reasonable best efforts to secure the vote or consent of the shareholders of the Company required by applicable Law to obtain such approval. The Company shall keep the Purchaser updated with respect to proxy solicitation results as requested by the Purchaser. Once the shareholder meeting of the Company has been duly called and noticed, the Company shall not postpone or adjourn such shareholder meeting without the consent of the Purchaser (other than: (i) in order to obtain a quorum of shareholders of the Company; or (ii) as reasonably determined by the Company to comply with applicable Law). The Company shall use its reasonable best efforts to cooperate with the Purchaser to hold the shareholder meeting of the Company prior to, or, on the same day and at the same time as the Purchaser Shareholders’ Meeting as soon as reasonably practicable after the date of this Agreement, and to set the same record date for each such meeting.
Section 6.15 Employee Matters.
(a) The Purchaser and the Company shall use their commercially reasonable efforts to agree (taking Tax effects for Swedish participants, and dilution of Company Shareholders into account), prior to the Closing, to (i) a form of equity incentive plan that provides for the grant of equity and equity-based incentive awards to eligible service providers of the Company and the Company’s Subsidiaries following the Closing, which shall provide for a share reserve equal to fifteen percent (15%) of the number of fully-diluted shares of Domesticated Purchaser Common Stock outstanding immediately after the Closing, with a five percent (5%) annual evergreen (the “Purchaser Incentive Award Plan”), and (ii) a form of employee stock purchase plan in which eligible employees of the Company and the Company’s Subsidiaries may be eligible to participate following the Closing, which shall provide for a share reserve equal to two percent (2%) of the number of issued and outstanding shares of Domesticated Purchaser Common Stock immediately after the Closing, with a two percent (2%) annual evergreen (the “Purchaser ESPP”), and such agreement by either Party shall not be unreasonably withheld, conditioned or delayed. If such Purchaser Incentive Award Plan and Purchaser ESPP are in agreed form prior to the effective date of the Registration Statement, the Purchaser shall, prior to the Closing Date, adopt such Purchaser Incentive Award Plan and Purchaser ESPP and submit them for approval of the Purchaser Shareholders at the Purchaser Shareholders’ Meeting. As soon as practicable following the date that is sixty (60) days after the Closing Date and subject to applicable securities Laws, Purchaser shall file an effective registration statement on Form S-8 (or other applicable form) with respect to the Domesticated Purchaser Common Stock issuable under the Purchaser Incentive Award Plan and the Purchaser ESPP, and Purchaser shall use commercially reasonable efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the Purchaser Incentive Award Plan and the Purchaser ESPP remain outstanding. The Purchaser and the Company shall determine the initial awards that shall be granted under the Purchaser Incentive Award Plan to eligible service providers identified by the Company and agreed to by the Purchaser as soon as reasonably practicable following the Effective Time and in a form of award agreement, in
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each case, as mutually agreed between the Purchaser and the Company based upon benchmarking against peer public companies (taking into account employee hiring needs and the development stage nature of the Company) and in consultation with an independent outside compensation advisor (the “Initial Grants”), such agreement by either Party not to be unreasonably withheld, conditioned or delayed. For clarity, the Purchaser’s rights under this Section 6.15(a) with respect to the Initial Grants shall not apply to any awards that are granted under the Purchaser Incentive Award Plan following the Effective Time, other than the Initial Grants. For further clarity, any other awards that are granted under the Purchaser Incentive Award Plan after the Effective Time shall be determined and approved by the Post-Closing Purchaser Board or the compensation committee of the Post-Closing Purchaser Board if designated for such purpose by the Post-Closing Purchaser Board.
(b) No Third-Party Beneficiaries. Notwithstanding anything herein to the contrary, each of the parties to this Agreement acknowledges and agrees that all provisions contained in this Section 6.15 are included for the sole benefit of Purchaser and the Company, and that nothing in this Agreement, whether express or implied, (i) shall be construed to establish, amend, or modify any employee benefit plan, program, agreement or arrangement, (ii) shall limit the right of Purchaser, the Company or their respective Affiliates to amend, terminate or otherwise modify any Company Benefit Plan or other employee benefit plan, agreement or other arrangement following the Closing Date, or (iii) shall confer upon any Person who is not a party to this Agreement (including any equityholder, any current or former director, manager, officer, employee or independent contractor of the Company, or any participant in any Company Benefit Plan or other employee benefit plan, agreement or other arrangement (or any dependent or beneficiary thereof)), any right to continued or resumed employment or recall, any right to compensation or benefits, or any third-party beneficiary or other right of any kind or nature whatsoever.
Section 6.16 Public Announcements.
(a) The Parties agree that during the Interim Period no public release, filing or announcement concerning this Agreement or the Ancillary Documents or the transactions contemplated hereby or thereby shall be issued by any Party or any of their Affiliates without the prior written consent of the Purchaser and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party shall use commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange for any required filing with respect to, such release or announcement in advance of such issuance.
(b) The Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement, issue a press release announcing the execution of this Agreement (the “Signing Press Release”). Promptly after the issuance of the Signing Press Release (but in any event within four (4) Business Days thereafter), the Purchaser shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by Federal Securities Laws, which shall be subject to the review, comment and approval of the Company (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing. The Parties shall mutually agree upon and, as promptly as practicable after the Closing, issue a press release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”). Promptly after the issuance of the Closing Press Release (but in any event within four (4) Business Days thereafter), the Purchaser shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Federal Securities Laws which the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing, the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a Party to any Governmental Authority or other third party in connection with the transactions contemplated hereby, each Party shall, upon request by any other Party, furnish the Parties with all information concerning themselves, their respective directors, officers and equity holders, and such other matters as may be reasonably necessary or advisable in connection with the transactions contemplated hereby, or any other report, statement, filing, notice or application made by or on behalf of a Party to any third party and/ or any Governmental Authority in connection with the transactions contemplated hereby.
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Section 6.17 Confidential Information.
(a) The Company hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article VIII, for a period of five (5) years after such termination, it shall, and shall cause its Affiliates and its and their respective Representatives to, except to the extent otherwise consented to by Purchaser: (i) treat and hold in strict confidence any Purchaser Confidential Information, and will not use for any purpose (except in connection with the consummation of the Transactions, performing their obligations hereunder or thereunder, enforcing their rights hereunder or thereunder, or in furtherance of their authorized duties on behalf of the Purchaser), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Purchaser Confidential Information without the Purchaser’s prior written consent; and (ii) in the event that the Company or any of its Affiliates or its or their respective Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VIII, for a period of five (5) years after such termination, becomes legally obligated to disclose any Purchaser Confidential Information, (A) provide the Purchaser, to the extent legally permitted, with prompt written notice of such requirement so that the Purchaser or an Affiliate thereof may seek, at the Purchaser’s sole cost and expense, a protective Order or other remedy or waive compliance with this Section 6.17(a), and (B) in the event that such protective Order or other remedy is not obtained, or the Purchaser waives compliance with this Section 6.17(a) furnish only that portion of such Purchaser Confidential Information; provided, that with respect to Purchaser Confidential Information constituting trade secrets under applicable Law and has been identified as such to the Company in writing prior to or promptly after its disclosure to the Company or its Representatives, such covenants shall apply for as long as such Purchaser Confidential Information constitutes a trade secret under applicable Law and continues to constitute Purchaser Confidential Information under this Agreement. In the event that this Agreement is terminated and the transactions contemplated hereby are not consummated, the Company shall, and shall cause its Representatives to, promptly deliver to the Purchaser or destroy (at the Purchaser’s election) any and all copies (in whatever form or medium) of Purchaser Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Company, its Affiliates and its and their respective Representatives shall be entitled to keep any records required by (i) applicable Law or (ii) legal, fiduciary or professional obligation, (iii) in accordance with written document retention policies and procedures and/or (iv) contained in any electronic file created pursuant to bona fide backup storage or archival processes in the ordinary course of business; and provided, further, that any Purchaser Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement.
(b) The Purchaser and Merger Sub hereby agree that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article VIII, for a period of five (5) years after such termination, they shall, and shall cause their respective Affiliates and their Representatives to, except to the extent otherwise consented to by the Company: (i) treat and hold in strict confidence any Company Confidential Information, and will not use for any purpose (except in connection with the consummation of the Transactions, performing its obligations hereunder or thereunder or enforcing its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Company Confidential Information without the Company’s prior written consent; and (ii) in the event that the Purchaser, Merger Sub or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VIII, for a period of five (5) years after such termination, becomes legally obligated to disclose any Company Confidential Information, (A) provide the Company to the extent legally permitted with prompt written notice of such requirement so that the Company may seek, at the Company’s sole cost and expense, a protective Order or other remedy or waive compliance with this Section 6.17(b) and (B) in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with this Section 6.17(b), furnish only that portion of such Company Confidential Information which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Company Confidential Information; provided, that with respect to Company Confidential Information constituting trade secrets under applicable Law, such covenants shall apply for as long as such Company Confidential Information constitutes a trade secret under applicable Law and continues to constitute Company Confidential Information under this Agreement. In the event that this Agreement is terminated and the transactions contemplated hereby are not consummated, the Purchaser shall, and shall cause its Representatives to, promptly deliver to the Company or destroy (at the Purchaser’s election) any and all copies (in
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whatever form or medium) of Company Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Purchaser, Merger Sub and their respective Affiliates and Representatives shall be entitled to keep any records required by applicable Law or legal, fiduciary or professional obligation, in accordance with written document retention policies and procedures and/or contained in any electronic file created pursuant to bona fide backup storage or archival processes in the ordinary course of business; and provided, further, that any Company Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement. Notwithstanding the foregoing, (i) the Purchaser, Merger Sub and their respective Representatives shall be permitted to disclose any and all Company Confidential Information to the extent required by the Federal Securities Laws, (ii) no notice or further action shall be required in respect of disclosure of the Company Confidential Information (or provision of access thereto) to regulatory authorities or self-regulatory organizations having authority over the Purchaser, Merger Sub or their respective Representatives in connection with routine regulatory examinations or pursuant to statutory requirements that are not targeted at the Target Companies, the Transactions or the Company Confidential Information.
Section 6.18 Documents and Information. After the Closing Date, the Purchaser and the Company shall, and shall cause their respective Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, retain all books, records and other documents pertaining to the business of the Target Companies in existence on the Closing Date and make the same available for inspection and copying by the Purchaser during normal business hours of the Company and its Subsidiaries, as applicable, upon reasonable request and upon reasonable notice. No such books, records or documents shall be destroyed after the seventh (7th) anniversary of the Closing Date by the Purchaser or its Subsidiaries (including any Target Company) without first advising a representative of the Sponsor (or its successors or assigns) in writing and giving such representative a reasonable opportunity to obtain possession thereof.
Section 6.19 Post-Closing Board of Directors and Executive Officers.
(a) The Parties shall take all such action within their power as may be necessary or appropriate so that effective as of the Closing, the Purchaser’s board of directors (the “Post-Closing Purchaser Board”) will not be classified as to term and will initially consist of seven (7) directors, of whom one (1) shall be designated by the Purchaser and the remainder shall be designated by the Company, in each case as listed on Section 6.19(a) of the Company Disclosure Letter (as may be amended or supplemented as provided in Section 6.19(a) of the Company Disclosure Letter) and such that the Post-Closing Purchaser Board includes such number of directors qualifying as independent as is required under the applicable listing rules of Nasdaq; one of whom will be appointed as initial chairperson of the Post-Closing Purchaser Board, one of whom will be appointed as initial chairperson of the audit committee and one of whom will be appointed as initial chairperson on the compensation committee as set forth on Section 6.19(a) of the Company Disclosure Letter (the “Designated Directors”). To the extent any Designated Director declines to serve, is unable to serve, or is anticipated to fail to meet the applicable independence and other requirements of Nasdaq and SEC rules (as mutually determined by the Company and the Purchaser with the advice of counsel), the Company and the Purchaser shall mutually agree upon a replacement individual to serve as a director on the Post-Closing Purchaser Board. The Purchaser shall use commercially reasonable efforts to obtain resignations effective immediately after Closing from the directors of the Purchaser that are not to remain directors on the Post-Closing Purchaser Board.
(b) The Parties agree that (i) their mutual intent is that the initial offices and committees of the Post-Closing Purchaser Board, and certain initial actions of the Post-Closing Purchaser Board, will be as set forth on Section 6.19(b) of the Company Disclosure Letter subject to the limitations therein (as may be amended or supplemented as mutually agreed by the Company and the Purchaser), and (ii) they will use commercially reasonable efforts to prepare mutually agreeable written resolutions implementing such designations and appointments for the Post-Closing Purchaser Board to consider and, if thought fit, to adopt immediately following the Closing (or as soon thereafter as the Post-Closing Purchaser Board determines), provided, that each of the Parties acknowledges and agrees that such designations, appointments and actions (including with respect to clause (i) and (ii) above) shall be made by the Post-Closing Purchaser Board in its sole and absolute discretion.
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(c) At or prior to the Closing, the Company, if requested, and the Purchaser shall provide each initial director with a customary director indemnification agreement, in form and substance reasonably acceptable to such director, the Company and the Purchaser.
(d) The Parties shall take all action necessary, including the Purchaser causing the executive officers of Purchaser to resign, so that the individuals serving as the executive officers of the Purchaser immediately after the Closing will be (i) the individuals listed on Section 6.19(d) of the Company Disclosure Letter (as may be amended or supplemented as mutually agreed by the Company and the Purchaser) and (ii) such other individuals as mutually agreed by the Company and the Purchaser.
Section 6.20 Indemnification of Directors and Officers; Tail Insurance.
(a) The Parties agree that for a period of six (6) years from the Closing Date, the Parties shall, and shall cause the Purchaser, Merger Sub and the Target Companies to, maintain in effect the exculpation, indemnification and advancement of expenses provisions in favor of any individual who, at or prior to the Closing, was a director, officer, employee or agent of the Purchaser, Merger Sub and the Target Companies, as the case may be, or who, at the request of the Parties, as the case may be, served as a director, officer, member, manager, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, with such individual’s heirs, executors or administrators, (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”)), of the Purchaser’s, Merger Sub’s and the Target Companies’ respective Organizational Documents as in effect immediately prior to the Closing Date or in any indemnification agreements of the Purchaser, Merger Sub or any of the Target Companies, on the one hand, with any D&O Indemnified Party, on the other hand, as in effect immediately prior to the Closing Date, and the Parties shall, and shall cause the Purchaser, Merger Sub and the Target Companies to, not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party; provided, however, that all rights to indemnification or advancement of expenses in respect of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the Closing Date, the Purchaser shall cause the Target Companies to honor, in accordance with their respective terms, each of the covenants contained in this Section 6.20 without limit as to time.
(b) At or prior to the Closing, the Purchaser shall purchase a “tail” directors’ and officers’ liability insurance policy (the “D&O Tail”) in respect of acts or omissions occurring prior to the Closing covering each such Person that is covered by a directors’ and officers’ liability insurance policy of the Purchaser or one or more Target Companies, respectively, on terms with respect to coverage, deductibles and amounts no less favorable than those of such applicable policy in effect on the date of this Agreement for the six (6) year period following the Closing; provided that in no event shall the Purchaser be required to expend on the premium thereof in excess of 300% of the aggregate annual premiums currently payable by the Purchaser or the Target Companies with respect to such current policies (the “Premium Cap”); provided, further, that if such minimum coverage under any such D&O Tail is or becomes not available at the Premium Cap, then any such D&O Tail shall contain the maximum coverage available at the Premium Cap. The Purchaser shall maintain the D&O Tail in full force and effect for its full term and cause all obligations thereunder to be honored by the Target Companies, as applicable, and no other party shall have any further obligation to purchase or pay for such insurance pursuant to this Section 6.20(b). No claims made under or in respect of the D&O Tail related to any fiduciary or employee of any Target Company shall be settled without the prior written consent of the Purchaser.
(c) The rights of each D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of the Purchaser or any Target Company, any other indemnification arrangement, any Law or otherwise. The obligations of the Purchaser and the Target Companies under this Section 6.20(c) shall not be terminated or modified after the Closing in such a manner as to materially and adversely affect any D&O Indemnified Party without the consent of such D&O Indemnified Party. The provisions of this Section 6.20 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 6.20.
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(d) If the Purchaser or, after the Closing, any Target Company, or any of their respective successors or assigns: (i) consolidates with or merges into any other Person and shall not be the continuing or surviving entity of such consolidation or merger; or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, in each such case, proper provision shall be made so that the successors and assigns of the Purchaser or such Target Company, as applicable, assume the obligations set forth in this Section 6.20.
Section 6.21 Funding Commitments. The Purchaser shall use reasonable best efforts to obtain, as of the Closing, committed capital in an aggregate amount of $20,000,000, net of the payment of the Purchaser Transaction Costs and the Company Transaction Costs (other than any deferred underwriting fees payable to Cantor Fitzgerald & Co.) (the “Funding Commitments”). The Funding Commitments may be satisfied through equity, debt- or equity-linked instruments, debt or other alternative financing instruments or agreements entered into or issued at or prior to the Closing, including without limitation, a forward purchase agreement, pre-paid advance, standby equity purchase agreement, share purchase agreement, equity line of credit or debt instrument, and shall include any funds remaining in the Trust Account after giving effect to the Redemption and any proceeds of the Company Financing.
Section 6.22 Redemption. In connection with the Purchaser Shareholders’ Meeting, the Purchaser agrees that it shall provide the holders of Purchaser Class A Ordinary Shares the opportunity to elect redemption of such Purchaser Class A Ordinary Shares, as required by the Purchaser’s Organizational Documents in the Redemption. Subject to receipt of the Purchaser Shareholder Approval, the Purchaser shall carry out the Redemption (prior to the Domestication, or at such later time as required by the Purchaser’s Organizational Documents) and use the proceeds held in the Trust Account to redeem the Purchaser Class A Ordinary Shares of holders who properly exercise their right to redemption in accordance with the Purchaser’s Organizational Documents.
Section 6.23 Domestication. Subject to receipt of the Purchaser Shareholder Approval, at least one (1) day prior to the Closing, the Purchaser shall, in accordance with applicable Law, any applicable rules and regulations of the SEC, the Nasdaq and the Purchaser’s Organizational Documents, as applicable, cause the Domestication to become effective, including by (a) filing with the Delaware Secretary of State a certificate of domestication with respect to the Domestication, in form and substance reasonably acceptable to the Purchaser and the Company, together with the Purchaser Charter upon Domestication, in each case, in accordance with the provisions thereof and applicable Law, and (b) completing and making and procuring all those filings required to be made with the Cayman Registrar in connection with the Domestication.
Section 6.24 Adoption of Proxy Statement/Registration Statement. Within one (1) Business Day of the Closing Date, the post-Domestication Purchaser, as the successor to the pre-Domestication Purchaser, shall file a post-effective amendment to the Proxy Statement/Registration Statement pursuant to Rule 414(d) of the Securities Act.
Section 6.25 Affiliate Agreements. Except as set forth on Section 6.25 of the Company Disclosure Letter, all agreements with Related Persons shall be terminated or settled at or prior to the Closing without further liability to the Purchaser or the Target Companies, in each case.
Section 6.26 [Reserved].
Section 6.27 Intellectual Property Matters.
(a) To the extent that any Company Registered IP is subject to any form of Liens, other than Permitted Liens, prior to the Closing Date, the applicable Target Company shall have prepared, executed, filed and recorded (and paid all costs, including legal and filing fees) as necessary to remove such unpermitted Liens at or prior to the Closing Date (all such actions, the “IP Actions”). The applicable Target Company shall provide, at Purchaser’s reasonable request, copies of all documentation and written communications concerning such IP Actions to the Purchaser prior to or at Closing.
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(b) Following the Closing, to the extent that any Persons (including any past or current employees, contractors, vendors, or consultants of the Target Companies) who have contributed (or may in the future contribute) to the creation, authorship, conception, or development of any product, service or material Owned Intellectual Property (including any Company Software) and who have not previously executed a valid written agreement presently assigning to the applicable Target Company all right, title, and interest therein and thereto (and all such right, title, and interest therein and thereto has not vested in the applicable Target Company by operation of applicable Laws), the Target Companies shall use commercially reasonable efforts to obtain duly executed valid written agreements with each such Person, pursuant to which such Person (A) presently assigns to the applicable Target Company all right, title and interest therein and thereto; (B) waives all moral, economic, or similar rights therein or thereto; and (C) agrees to sufficiently protective confidentiality obligations with respect thereto.
Section 6.28 Section 16 Matters. Prior to the Closing Date, the Purchaser shall take all such steps (to the extent permitted under applicable Law) as are reasonably necessary to cause any acquisition or disposition of Domesticated Purchaser 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 become subject to Section 16 of the Exchange Act with respect to the Company, including by virtue of being deemed a director by deputization, to be exempt under Rule 16b-3 promulgated under the Exchange Act.
Section 6.29 Name Change. Prior to or concurrent with the Domestication, the Company shall effect a change of its corporate name to another name mutually agreed on by the Purchaser and the Company prior to the Domestication.
ARTICLE VII
CLOSING CONDITIONS
Section 7.01 Conditions to Each Party’s Obligations. The obligations of each Party to consummate the Transactions shall be subject to the satisfaction or written waiver (where permissible) by the Company and the Purchaser of the following conditions:
(a) Required Purchaser Shareholder Approval. The Purchaser Shareholder Approval shall have been obtained.
(b) Requisite Shareholder Approval. The Requisite Shareholder Approval shall have been obtained.
(c) No Adverse Law or Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) or Order that is then in effect and which has the effect of making the transactions or agreements contemplated by this Agreement illegal or which otherwise prevents or prohibits consummation of the transactions contemplated by this Agreement.
(d) Registration Statement. The Registration Statement shall have been declared effective under the Securities Act by the SEC and shall remain effective as of the Closing, and no stop order or similar order suspending the effectiveness of the Registration Statement shall have been issued and be in effect with respect to the Registration Statement and no proceedings for that purpose shall have been initiated or threatened by the SEC and not withdrawn.
(e) Listing. The Purchaser’s initial listing or quotation application with Nasdaq, or if agreed in writing between the Parties, another national securities exchange or OTC Markets, in connection with the Transactions shall have been conditionally approved and, immediately following the Closing, the Purchaser shall satisfy any applicable initial listing or quotation requirements of Nasdaq, such other national securities exchange or OTC Markets, as applicable, and the Purchaser shall not have received any notice of non-compliance therewith, and the Domesticated Purchaser Common Stock and the Domesticated Purchaser Warrants shall have been approved for listing or quotation on Nasdaq, such other national securities exchange or OTC Markets, as applicable.
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(f) Approvals. All applicable waiting periods (and any extensions thereof) under the HSR Act with respect to the Transactions shall have expired or been terminated, and all other consents, waivers and approvals from Governmental Authorities, if any, that are required to consummate the Transactions, shall have expired, been terminated, been made or been obtained.
Section 7.02 Conditions to Obligations of the Company. In addition to the conditions specified in Section 7.01, the obligations of the Company to consummate the Transactions shall be subject to the satisfaction or written waiver (where permissible) by the Company of the following conditions:
(a) Representations and Warranties.
(i) The Purchaser Fundamental Representations shall be true and correct in all respects, other than de minimis inaccuracies. as of the date of this Agreement and as of the Closing Date, as if made as of such date and time (except to the extent that any such representation and warranty is made expressly as of an earlier date or time, in which case such representation and warranty shall be true and correct in all respects as of such earlier date or time, as applicable); and
(ii) All of the representations and warranties of the Purchaser and Merger Sub (other than the Purchaser Fundamental Representations) set forth in this Agreement and in any certificate delivered by or on behalf of the Purchaser pursuant hereto shall be true and correct on and as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been accurate as of such date), and (ii) any failures to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Purchaser Material Adverse Effect), individually or in the aggregate, have not had and would not reasonably be expected to have a Purchaser Material Adverse Effect.
(b) Agreements and Covenants. The Purchaser and Merger Sub shall have performed in all material respects all of their respective obligations and complied in all material respects with all of their respective agreements and covenants under this Agreement to be performed or complied with by them on or prior to the Closing Date.
(c) No Purchaser Material Adverse Effect. No Purchaser Material Adverse Effect shall have occurred with respect to the Purchaser since the date of this Agreement that is continuing and uncured.
(d) Domestication. The Domestication shall have been completed as provided in Section 6.23 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company.
(e) Trust Account. Purchaser shall have made appropriate arrangements to have the net proceeds remaining in the Trust Account (after giving effect to the Redemption) available to Purchaser at the Closing.
(f) Closing Deliveries.
(i) Officer’s Certificate. The Purchaser shall have delivered to the Company a certificate, dated the Closing Date, signed by an executive officer of the Purchaser in such capacity, certifying as to the satisfaction of the conditions specified in Sections 7.02(a), 7.02(b) and 7.02(c).
(ii) Secretary Certificate. The Purchaser shall have delivered to the Company a certificate from its secretary or other executive officer certifying as to, and attaching, (A) copies of the Purchaser Charter upon Domestication and the Purchaser Bylaws upon Domestication as in effect as of the Closing Date (after giving effect to the Domestication) and (B) the resolutions of the Purchaser’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the transactions contemplated hereby and thereby.
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(iii) Ancillary Documents. The Purchaser shall have delivered to the Company:
(A) A copy of the A&R Registration Rights Agreement, duly executed by the Purchaser and the Sponsor; and
(B) A copy of the Lock-Up Agreements, duly executed by the Purchaser and the Sponsor, as applicable.
(g) Minimum Funding Commitments. Immediately prior to or at the Closing, the Purchaser shall have obtained Funding Commitments of at least $20,000,000 (the “Minimum Funding Commitment”).
Section 7.03 Conditions to Obligations of the Purchaser and Merger Sub. In addition to the conditions specified in Section 7.01, the obligations of the Purchaser and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction or written waiver (where available) of the following conditions:
(a) Representations and Warranties.
(i) The Company Fundamental Representations shall be true and correct in all respects, other than de minimis inaccuracies. as of the date of this Agreement and as of the Closing Date, as if made as of such date and time (except to the extent that any such representation and warranty is made expressly as of an earlier date or time, in which case such representation and warranty shall be true and correct in all respects as of such earlier date or time, as applicable); and
(ii) All of the representations and warranties of the Company (other than the Company Fundamental Representations) set forth in this Agreement and in any certificate delivered by or on behalf of the Company pursuant hereto shall be true and correct on and as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been accurate as of such date), and (ii) any failures to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Company Material Adverse Effect), individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(b) Agreements and Covenants. The Company shall have performed in all material respects all of its obligations and complied in all material respects with all of the agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) No Company Material Adverse Effect. No Company Material Adverse Effect shall have occurred with respect to the Target Companies, taken as a whole, since the date of this Agreement that is continuing and uncured.
(d) Closing Deliveries.
(i) Officer’s Certificate. The Purchaser shall have received a certificate from the Company, dated as the Closing Date, signed by an executive officer of the Company in such capacity, certifying as to the satisfaction of the conditions specified in Section 7.03(a), 7.03(b) and 7.03(c).
(ii) Secretary Certificate. The Company shall have delivered to the Purchaser a certificate executed by the Company’s secretary certifying as to the validity and effectiveness of, and attaching, (A) copies of the Company’s Organizational Documents as in effect as of the Closing Date (immediately prior to the Closing) and (B) the requisite resolutions of the Company’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each Ancillary Document to which the Company is or is required to be a party or bound, and the consummation of the transactions contemplated hereby and thereby.
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(iii) Ancillary Documents. The Company shall have delivered to the Purchaser:
(A) A copy of the A&R Registration Rights Agreement, duly executed by each Seller who will receive, or would receive upon exercise of the Purchaser Options or settlement of the Purchaser RSUs, at least 5.0% of the Aggregate Consideration;
(B) A copy of the Seller Lock-Up Agreement, duly executed by each Seller who will receive, or would receive upon exercise of the Purchaser Options or settlement of the Purchaser RSUs, at least 5.0% of the Aggregate Consideration; and
(C) A certificate on behalf of the Company, in form and substance reasonably satisfactory to Purchaser, dated no more than thirty (30) days prior to the Closing Date, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) (together, the “FIRPTA Certificate”).
(e) The holders of any Company Warrants that do not allow for automatic exercise on a cashless basis in full in accordance with their terms pursuant to Section 2.01(b) or Section 2.01(d) shall have provided Purchaser a written consent executed by each such holder agreeing that such Company Warrants shall otherwise be exercised in full pursuant to Section 2.01(b) or Section 2.01(d) (as applicable to such Company Warrants) or shall be cancelled for no consideration.
Section 7.04 Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article VII to be satisfied if such failure was caused by the failure of such Party or its Affiliates failure to comply with or perform any of its covenants or obligations set forth in this Agreement.
ARTICLE VIII
TERMINATION
Section 8.01 Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing as follows:
(a) by mutual written consent of the Purchaser and the Company;
(b) by written notice by the Purchaser or the Company if any of the conditions to the Closing set forth in Article VII have not been satisfied or waived by June 30, 2028 (the “Outside Date”); provided, however, the right to terminate this Agreement under this Section 8.01(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date; provided, further, that, solely with respect to the Company’s right to terminate this Agreement pursuant to this Section 8.01(b), the “Outside Date” shall automatically be extended by one (1) calendar day for every calendar day after November 30, 2026 that the Audited Financial Statements or the Updated 1H Financial Statements are not delivered pursuant to Section 6.04;
(c) by written notice by either the Purchaser or the Company if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.01(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply with any provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental Authority;
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(d) by written notice by the Company to Purchaser, if (i) there has been a breach by the Purchaser of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of the Purchaser shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.02(a) or Section 7.02(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided to the Purchaser or (B) the Outside Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.01(d) if at such time the Company is in material uncured breach of this Agreement;
(e) by written notice by the Purchaser to the Company, if (i) there has been a breach by the Company of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.03(a) or Section 7.03(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided to the Company or (B) the Outside Date; provided, that the Purchaser shall not have the right to terminate this Agreement pursuant to this Section 8.01(e) if at such time the Purchaser is in material uncured breach of this Agreement;
(f) by written notice by the Purchaser to the Company, if (i) all the conditions set forth in Section 7.01 and Section 7.02 have been, and continue to be, satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, each of which shall be capable of being satisfied if the Closing Date were the date of such termination), (ii) the Company fails to consummate the Transactions on or prior to the day when the Closing is required to occur pursuant to Section 3.01, (iii) the Purchaser shall have irrevocably confirmed in writing to the Company that it is ready, willing and able to consummate the Closing and (iv) the Company fails to effect the Closing within five (5) Business Days following delivery of such confirmation; or
(g) by written notice by the Company to the Purchaser, if (i) all the conditions set forth in Section 7.01 and Section 7.03 have been, and continue to be, satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, each of which shall be capable of being satisfied if the Closing Date were the date of such termination), (ii) the Purchaser fails to consummate the Transactions on or prior to the day when the Closing is required to occur pursuant to Section 3.01, (iii) the Company shall have irrevocably confirmed in writing to the Purchaser that it is ready, willing and able to consummate the Closing and (iv) the Purchaser fails to effect the Closing within five (5) Business Days following delivery of such confirmation;
(h) by the Company if any of the Purchaser Shareholder Approvals shall fail to receive approval at the Purchaser Shareholders Meeting (unless such Purchaser Shareholders Meeting has been adjourned or postponed, in which case at the final adjournment or postponement thereof); or
(i) by written notice by either the Purchaser or the Company, if (i) the Purchaser has not obtained an Extension prior to the date on which the Purchaser would otherwise be required to liquidate under its Organizational Documents and (ii) the Closing has not occurred on or prior to such date.
Section 8.02 Termination Fee; Expense Reimbursement.
(a) In the event this Agreement is terminated by the Purchaser pursuant to Section 8.01(e) or Section 8.01(f), then the Company shall pay or cause to be paid to Purchaser up to $500,000 of the amounts due and owing under the Convertible Promissory Note (the “Purchaser Expense Reimbursement”) and a termination fee in the amount of $1,000,000 (such amount, the “Termination Fee”), within two (2) Business Days after the date of such termination by wire transfer of same-day funds to one or more accounts designated by Purchaser.
(b) In the event this Agreement is terminated by the Company pursuant to Section 8.01(d) or Section 8.01(g), then the Purchaser shall pay or cause to be paid to the Company $500,000 as reimbursement for expenses of the Company (the “Company Expense Reimbursement”; together with the Purchaser Expense Reimbursement, the “Expense Reimbursement”) and the Termination Fee, within two (2) Business Days after the date of such termination by wire transfer of same-day funds to one or more accounts designated by the Company.
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(c) The parties acknowledge that the agreements contained in this Section 8.02 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties hereto would not enter into this Agreement.
Section 8.03 Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 8.01 and pursuant to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination, including the provision of Section 8.01 under which such termination is made. In the event of the valid termination of this Agreement pursuant to Section 8.01, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Section 6.16, Section 6.17, Article IX, and this Section 8.03 shall survive the termination of this Agreement, and (ii) nothing herein shall relieve any Party from Liability for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above, subject to the remainder of this Section 8.03 and Section 9.15). Notwithstanding the foregoing, each of the Parties agrees that the Termination Fee and the Expense Reimbursement are not intended to be a penalty, but rather are liquidated damages that will compensate in full the Purchaser or the Company, as applicable, in the circumstances in which the Termination Fee or Expense Reimbursement, as applicable, is due and payable.
ARTICLE IX
MISCELLANEOUS
Section 9.01 No Survival. Except in the case of a Fraud Claim against a Person, 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 there shall be no liability after the Closing in respect thereof), except for 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.
Section 9.02 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means (including email), with evidence of transmission, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
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If to the Purchaser:
Pioneer Acquisition I Corp. 131 Concord Street Brooklyn, NY 11201 Attn: Mitchell Creem Email: Creem@pioneeracquisition.com |
with a copy (which will not constitute notice) to:
Winston Taylor LLP 800 Capitol Street, Suite 2400 Houston, TX 77002 Attn: Michael J. Blankenship Email: mike.blankenship@winstontaylor.com |
|
If to the Company, to:
Hyper Green AI Cloud AB Grev Turegatan 30, 114 21 Stockholm, Sweden Attn: Jacob Bostrom Email: jacob.bostrom@greenai.cloud |
with a copy (which will not constitute notice) to:
Shartsis Friese LLP 425 Market Street, 11th Floor San Francisco, CA 94105 Attn: P. Rupert Russell, Esq. Email: RRussell@sflaw.com
and
Mannheimer Swartling Advokatbyrå AB Norrlandsgarant 21, 111 43 Stockholm, Sweden Attn: Maria Holme Email: maria.holme@msa.se |
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Section 9.03 Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the Parties, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning Party of its obligations hereunder.
Section 9.04 Third Parties. Except for the rights set forth in Section 6.11 and Section 6.20 which the Parties acknowledge and agree set forth express third party beneficiaries of this Agreement, nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party hereto or thereto or a successor or permitted assign of such a Party.
Section 9.05 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of 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, provided, that, for the avoidance of doubt, the laws of the Cayman Islands shall also apply to and, as applicable, govern the Domestication.
Section 9.06 Jurisdiction. Any proceeding or Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such proceeding or Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum in any claim or counterclaim, (iii) agrees that all claims and counterclaims in respect of the proceeding or Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any proceeding or Legal Proceeding arising out of or relating to this 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 Legal Proceeding, suit or proceeding brought pursuant to this Section 9.06.
Section 9.07 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.08 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and the non-breaching Parties may have not adequate remedy at law, and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
Section 9.09 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
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Section 9.10 Amendment; Waiver. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Purchaser and the Company. Any party to this Agreement may, at any time prior to the Closing, by action taken by its Board of Directors or other officers or Persons thereunto duly authorized, (a) extend the time for the performance of the obligations or acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties (of another party hereto) that are contained in this Agreement or (c) waive compliance by the other parties hereto with any of the agreements or conditions contained in this Agreement, but such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party granting such extension or waiver. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of such rights.
Section 9.11 Entire Agreement. This Agreement and the documents or instruments referred to herein, including any exhibits and schedules attached hereto, which exhibits and schedules are incorporated herein by reference, together with the Ancillary Documents, embody the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the Parties with respect to the subject matter contained herein.
Section 9.12 Interpretation. The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement, unless the context otherwise requires: (a) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise defined in this Agreement or any Ancillary Document has the meaning assigned to such term in accordance with GAAP; (d) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement; (f) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (g) the term “or” means “and/or”; (h) any agreement, instrument, insurance policy, Law or Order defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument, insurance policy, Law or Order as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes, regulations, rules or orders) by succession of comparable successor statutes, regulations, rules or orders and references to all attachments thereto and instruments incorporated therein; (i) except as otherwise indicated, all references in this Agreement to the words “Section,” “Article”, “Schedule” and “Exhibit” are intended to refer to Sections, Articles, Schedules and Exhibits to this Agreement; (j) the term “Dollars” or “$” means United States dollars. Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing body and any reference in this Agreement to a Person’s officers shall include any Person filling a substantially similar position for such Person; and (i) with respect to the Company, the term “in the ordinary course of business” and similar terms shall mean “in all material respects in the ordinary course business as conducted and as planned to be conducted; provided, that all actions taken in connection with, preparation for or in the furtherance of the transactions contemplated by this Agreement shall be deemed to be in the ordinary course”. Any reference in this Agreement or any Ancillary Document to a Person’s shareholders or stockholders shall include any applicable owners of the equity interests of such Person, in whatever form, including with respect to the Purchaser its shareholders under the Cayman Companies Act or DGCL, as then applicable, or its Organizational Documents. The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. To the extent that any Contract, document, certificate or instrument is represented and warranted to by the Company to be given, delivered, provided or made available by the Company, in order for such Contract, document, certificate or instrument to have been deemed to have been given, delivered, provided and made available to the Purchaser or its Representatives, such Contract, document, certificate or instrument shall have been posted to the electronic data site maintained on behalf of the Company for the benefit of the Purchaser and its Representatives and the Purchaser and its Representatives have been given access to the electronic folders containing such information.
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Section 9.13 Counterparts. This Agreement and each Ancillary Document may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 9.14 Legal Representation.
(a) The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the Sponsor, the stockholders, shareholders or holders of other equity interests of the Purchaser or the Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Group”), on the one hand, and (y) the Purchaser following the Closing, the Company and/or any member of the Company Group, on the other hand, any legal counsel, including Purchaser Counsel, that represented the Purchaser and/or the Sponsor prior to the Closing may represent the Sponsor and/or any other member of the SPAC Group, in such dispute even though the interests of such Persons may be directly adverse to the Purchaser and its Affiliates (following the Closing), and even though such counsel may have represented the Purchaser in a matter substantially related to such dispute, or may be handling ongoing matters for the Purchaser and/or the Sponsor. The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby) between or among the Purchaser, the Sponsor and/or any other member of the SPAC Group, on the one hand, and Purchaser Counsel, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the SPAC Group after the Closing, and shall not pass to or be claimed or controlled by the Purchaser and its Affiliates (following the Closing). Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with the Purchaser or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Purchaser.
(b) The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the stockholders, shareholders or holders of other equity interests of the Company and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Company Group”), on the one hand, and (y) the Company (following the Closing) and/or any member of the SPAC Group, on the other hand, any legal counsel, including Shartsis Friese LLP, BDO, and Mannheimer Swartling Advokatbyrå AB (collectively, “Company Counsel”) that represented the Company prior to the Closing may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to the Company (following the Closing), and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Company (following the Closing). The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby) between or among the Company and/or any member of the Company Group, on the one hand, and Company Counsel, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the Company after the Closing, and shall not pass to or be claimed or controlled by Company’s Affiliates (following the Closing). Notwithstanding the foregoing, any privileged communications or information shared by the Purchaser prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Company (following the Closing).
(c) Company Counsel has represented the Company Group and the Target Companies with respect to the Transactions. All Parties recognize the commonality of interest that exists and will continue to exist until the Closing, and the Parties agree that such commonality of interest should continue to be recognized after the Closing. Specifically, the SPAC Group and, following the Closing, the Company, agree that they shall not, and shall cause their Affiliates not to, seek to have Company Counsel be disqualified from representing (a) any member of the Company Group in connection with any dispute that may arise between such parties and the SPAC Group or the Target Companies or (b) the Purchaser or any of the Target Companies in connection with any dispute that may arise between such parties and the members of the Company Group.
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Section 9.15 Waiver of Claims Against Trust. The Company acknowledges that the Purchaser is a special purpose company with the powers and privileges to effect a Business Combination. The Company further acknowledges that, as described in the IPO Prospectus available at www.sec.gov, substantially all of the Purchaser assets consist of the cash proceeds of the Purchaser’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the Trust Account for the benefit of the Purchaser, its public shareholders and the underwriters of the Purchaser’s initial public offering. The Company acknowledges that it has been advised by the Purchaser that, except with respect to interest earned on the funds held in the Trust Account that may be released to the Purchaser to pay its franchise Tax, income Tax and similar obligations, the Trust Agreement provides that cash in the Trust Account may be disbursed only (i) if the Purchaser completes the transactions which constitute a Business Combination, then to those Persons and in such amounts as described in the IPO Prospectus; (ii) if the Purchaser fails to complete a Business Combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement, to the Purchaser in limited amounts to permit the Purchaser to pay the costs and expenses of its liquidation and dissolution, and then to the Purchaser Shareholders; and (iii) if the Purchaser holds a shareholder vote to amend the Purchaser’s Organizational Documents to modify the substance or timing of the obligation to redeem 100% of the Purchaser Class A Ordinary Shares if the Purchaser fails to complete a Business Combination within the allotted time period or to otherwise modify any other material provision of the Purchaser’s Organizational Documents relating to its shareholders’ rights or its pre-initial Business Combination activity, then for the redemption of any Purchaser Ordinary Shares properly tendered in connection with such vote. For and in consideration of the Purchaser entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Company, on behalf of itself, its Affiliates and its and their respective Representatives, hereby irrevocably waives any right, title, interest or claim of any kind they have or may have in the future in or to any monies in the Trust Account and agrees not to seek recourse against the Trust Account or any funds distributed therefrom to the Purchaser’s public shareholders for any reason whatsoever; provided, that (x) nothing herein shall serve to limit or prohibit the Company’s right to pursue a claim against the Purchaser for legal relief against monies or other assets held outside the Trust Account, for specific performance or other equitable relief in connection with the consummation of the transactions (including a claim for the Purchaser to specifically perform its obligations under this Agreement and cause the disbursement of the balance of the cash remaining in the Trust Account (after giving effect to the Redemption) to the Company in accordance with the terms of this Agreement and the Trust Agreement) so long as such claim would not affect the Purchaser’s ability to fulfill its obligation to effectuate the redemptions and (y) nothing herein shall serve to limit or prohibit any claims that the Company may have in the future against the Purchaser’s assets or funds that are not held in the Trust Account (including any funds that have been released from the Trust Account other than to the Purchaser’s public shareholders and any assets that have been purchased or acquired with any such funds).
Section 9.16 Company and Purchaser Disclosure Letters. The Company Disclosure Letter and the Purchaser Disclosure Letter (including, in each case, any section thereof) referenced herein are a part of this Agreement as if fully set forth herein. All references herein to the Company Disclosure Letter and/or the Purchaser Disclosure Letter (including, in each case, any section thereof) shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a party in the applicable Disclosure Letter, or any section thereof, with reference to any section of this Agreement or section of the applicable Disclosure Letter shall be deemed to be a disclosure with respect to such other applicable sections of this Agreement or sections of applicable Disclosure Letter if it is reasonably apparent on the face of such disclosure that such disclosure is responsive to such other section of this Agreement or section of the applicable Disclosure Letter. Certain information set forth in the Company Disclosure Letter and/or the Purchaser Disclosure Letter is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made in this Agreement, nor shall such information be deemed to establish a standard of materiality.
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ARTICLE X
DEFINITIONS
Section 10.01 Certain Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“A&R Registration Rights Agreement” has the meaning specified in the Recitals.
“Acquisition Proposal” has the meaning specified in Section 6.06.
“Additional Purchaser SEC Reports” has the meaning specified in Section 5.06(a).
“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, whether through one or more intermediaries or otherwise. The term “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.
“Aggregate Consideration” means the number of shares of Domesticated Purchaser Common Stock equal to the quotient of: (a) the Purchase Price, divided by (b) the Per Share Price.
“Agreement” has the meaning specified in the Preamble.
“Alternative Transaction” has the meaning specified in Section 6.06.
“Ancillary Documents” means each of the agreements and instruments contemplated by this Agreement or otherwise related to the transactions contemplated in this Agreement, in each case to be executed and delivered on the date hereof or on or prior to the Closing Date, including this Agreement (together with the Company Disclosure Letter and the Purchaser Disclosure Letter).
“Anti-Bribery Law” means the anti-bribery provisions of the Foreign Corrupt Practices Act of 1977, as amended, and all other applicable anti-corruption and bribery Laws of any jurisdiction (including the U.K. Bribery Act 2010, and any rules or regulations promulgated thereunder or other Laws of other countries implementing the OECD Convention on Combating Bribery of Foreign Officials) that prohibit the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any official or representative of a Governmental or Regulatory Authority or commercial entity to obtain a business advantage.
“Anti-Money Laundering Laws” means, with respect to any Person, the applicable anti-money laundering statutes of jurisdictions where such Person conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency in such jurisdiction, including, without limitation, (i) the Bank Secrecy Act, (ii) the U.S. Currency and Foreign Transaction Reporting Act of 1970, (iii) the Money Laundering Control Act of 1986, and (iv) the USA PATRIOT Act, in each case, including the rules, regulations and applicable financial recordkeeping and reporting requirements promulgated thereunder and as amended from time to time.
“Antitrust Laws” has the meaning specified in Section 6.09(b).
“Audited Financial Statements” has the meaning specified in Section 6.04(a).
“Business Combination” has the meaning specified in Article 1.1 of the Purchaser’s Organizational Documents as in effect on the date hereof.
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“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or Stockholm, Sweden, or, for so long as the Purchaser remains domiciled in Cayman Islands, Governmental Authorities in the Cayman Islands that are authorized or required by Law to close.
“Cantor Deferred Underwriting Fee” has the meaning specified in Section 3.03(c).
“CARES Act” means the Coronavirus, Aid, Relief and Economic Security Act, Pub. L. 116–136 (116th Cong.) (Mar. 27, 2020), and any amendment thereof, successor law, or executive order, executive memo, administrative or other guidance or legislation published with respect thereto by any Governmental Authority.
“Cayman Companies Act” has the meaning specified in the Recitals.
“Cayman Purchaser Units” has the meaning specified in the Recitals.
“Cayman Purchaser Warrants” has the meaning specified in the Recitals.
“Cayman Registrar” means the Registrar of Companies of the Cayman Islands.
“Certificate of Merger” has the meaning specified in the Recitals.
“Closing” has the meaning specified in Section 3.01.
“Closing Date” has the meaning specified in Section 3.01.
“Closing Filing” has the meaning specified in Section 6.16.
“Closing Press Release” has the meaning specified in Section 6.16.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Company” has the meaning specified in the Preamble.
“Company Benefit Plans” means any and all deferred compensation, executive compensation, incentive compensation, equity purchase or other equity-based compensation plan, employment or consulting, severance or termination pay, holiday, holiday pay and allowance, vacation or other bonus plan or practice, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, or retirement plan, program, agreement, commitment or arrangement, including related premiums and contributions, and each other employee benefit plan, program, agreement or arrangement, including each “employee benefit plan” as such term is defined under Section 3(3) of ERISA, maintained or contributed to or required to be contributed to by the Company or any Subsidiary of the Company for the benefit of any Employee or former employee or other individual service provider of the Company or any Subsidiary of the Company, or with respect to which the Company or any Subsidiary of the Company has any Liability, whether direct or indirect, whether actual or contingent, whether formal or informal, and whether legally binding or not (other than a multiemployer plan within the meaning of Section 3(37) of ERISA or any plan or program that is sponsored solely by a Governmental Authority and to which the Company or any Subsidiary of the Company is required to contribute pursuant to applicable Law).
“Company Closing Certificate” has the meaning specified in Section 3.02(b).
“Company Common Stock” means common stock of the Company, par value $0.0001 per share.
“Company Confidential Information” means all confidential or proprietary documents and information concerning the Target Companies or any of their respective Representatives, furnished in connection with this Agreement or the transactions contemplated hereby; provided, however, that Company Confidential Information shall not include any information which, (i) at the time of disclosure by the Purchaser or its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure by the Company or its Representatives to the Purchaser or its Representatives was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such Company Confidential Information.
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“Company Convertible Security” means each convertible promissory note, simple agreement for future equity or similar instrument or Contract issued by the Company or entered into by the Company pursuant to which any Person has the right to convert or exchange such instrument or Contract into equity securities of the Company (for the avoidance of doubt, excluding Company Warrants, Company Options and Company RSUs).
“Company Counsel” has the meaning specified in Section 9.14(b).
“Company Disclosure Letter” has the meaning specified in the Preamble to Article IV.
“Company Equity Incentive Plan” means the Company’s Equity Incentive Plan, as amended from time to time.
“Company Expense Reimbursement” has the meaning specified in Section 8.02(b).
“Company Financials” has the meaning specified in Section 4.06(a).
“Company Financing” means any financing of the Company sought in connection with funding of capital expenditures and other working capital needs in the ordinary course of business of the Company and its Affiliates.
“Company Fully Diluted Capital” means the aggregate number of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time.
“Company Fundamental Representations” means the representations and warranties of the Company set forth in Sections 4.01 (Organization and Standing), 4.02 (Authorization; Binding Agreement), 4.03 (Capitalization), 4.04 (Subsidiaries), 4.05(a) (No Conflict) (excluding Section 4.05(a)(i), Section 4.05(a)(iii), and Section 4.05(a)(iv)), and 4.26 (Finders and Brokers).
“Company Group” has the meaning specified in Section 9.14(b).
“Company IP” means any and all Intellectual Property currently owned, licensed, used or held for use by the Target Companies.
“Company IP Licenses” means Intellectual Property licenses, sublicenses and other agreements or permissions.
“Company Material Adverse Effect” means any event, state of facts, condition, change, development, circumstance, occurrence or effect (collectively, “Events”), that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, results of operations or financial condition of the Target Companies, taken as a whole, or (ii) does or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the ability of the Target Companies to consummate the Transactions; provided, however, that in no event would any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Company Material Adverse Effect”: (a) any change in applicable Laws or GAAP or any enforcement, implementation, or interpretation thereof following the date of this Agreement, (b) any change in interest rates or economic, political, business or financial market conditions generally, including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest rates, (c) the taking of any action required by this Agreement, (d) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions, wildfires or similar occurrences), pandemic (including COVID-19, or any COVID-19 Measures or any change in such COVID-19 Measures or interpretations following the date of this Agreement) or change in climate, (e) any acts of terrorism or war, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions, (f) any failure of the Target Companies to meet any projections or forecasts (provided that clause (f) shall not prevent a determination that any Event not otherwise excluded from this definition of Company Material Adverse Effect underlying such failure to meet projections or forecasts has resulted in a Company Material Adverse Effect), (g) any Events generally applicable to the industries or markets in which the Company and its Subsidiaries operate (including increases in the cost of products, supplies, materials or other goods
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purchased from third party suppliers), (h) the announcement of this Agreement and consummation of the transactions contemplated hereby, including any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees of the Target Companies, (i) any matter set forth on the Company Disclosure Letter, or (j) any action taken by, or at the request of, the Purchaser; provided, further, that any Event referred to in clauses (a), (b), (d), (e) or (g) above may be taken into account in determining if a Company Material Adverse Effect has occurred to the extent it has a disproportionate and adverse effect on the business, assets, results of operations or condition (financial or otherwise) of the Target Companies, taken as a whole, relative to similarly situated companies in the industry in which the Target Companies conduct their respective operations, but only to the extent of the incremental disproportionate effect on the Target Companies, taken as a whole, relative to similarly situated companies in the industry in which the Target Companies conduct their respective operations.
“Company Material Contract” has the meaning specified in Section 4.13(a).
“Company Options” means each option to purchase equity securities of the Company, in each case, granted pursuant to the Company Equity Incentive Plan.
“Company Permits” has the meaning specified in Section 4.11.
“Company Preferred Stock” means preferred stock of the Company, par value $0.0001 per share.
“Company Real Property Leases” has the meaning specified in Section 4.16(b).
“Company Registered IP” has the meaning specified in Section 4.14(a).
“Company RSU” means each restricted stock unit to acquire equity securities of the Company, in each case, granted pursuant to the Company Equity Incentive Plan after the date hereof and prior to the Effective Time.
“Company Securities” means all equity securities of the Company, including, without limitation, Company Common Stock, Company Convertible Securities, Company Preferred Stock, Company Options, Company RSUs and Company Warrants.
“Company Shareholders” means the holders of Company Common Stock immediately prior to the Effective Time.
“Company Software” means any and all Software which any of the Target Companies owns or purports to own, in whole or in part.
“Company Transaction Costs” means all fees, costs and expenses of the Target Companies, in each case, incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Ancillary Documents and the consummation of the Transactions, including: (a) all change of control bonus payments, retention or similar payments payable solely as a result of the consummation of the Transactions pursuant to arrangements (whether written or oral) entered into prior to the Closing Date whether payable before (to the extent unpaid), on or following the Closing Date (excluding any “double-trigger” payments), and the employer portion of payroll Taxes payable as a result of the foregoing amounts; (b) all severance payments, retirement payments or similar payments or success fees payable pursuant to arrangements (whether written or oral) entered into prior to the Closing Date and which are payable in connection with the consummation of the Transactions, whether payable before (to the extent unpaid), on or following the Closing Date (excluding any “double-trigger payments”), and the employer portion of payroll Taxes payable as a result of the foregoing amounts; (c) all professional or transaction, deal, brokerage, legal, accounting, financial advisory or any similar fees payable in connection with the consummation of the Transactions; (d) all costs, fees and expenses related to the D&O Tail; (e) any and all costs and expenses incurred in connection with the preparation and filing of the Registration Statement (and any registration statement filed with the SEC in connection therewith) and the review and/or approval thereof by the SEC, (f) any and all costs, fees and expenses incurred in connection with the listing or quotation on Nasdaq, another national securities exchange or OTC Markets of the shares of Domesticated Purchaser Common Stock issued in connection with the Transactions; (g) any Extension Fees; (h) any and all costs, fees and expenses incurred in connection with organizing or obtaining the requisite number of round lot holders as required by Nasdaq Listing Standards or the applicable listing or quotation standards of any other national securities exchange or OTC Markets; but excluding (i) Transfer Taxes, and (ii) any other amounts payable by the Purchaser hereunder.
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“Company Warrants” means all warrants to purchase any stock or other equity interests of the Company.
“Consent” means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority or any other Person.
“Continental” means the Continental Stock Transfer & Trust Company.
“Contracts” means all legally binding contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses (and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments or obligations of any kind, written or oral (including any amendments and other modifications thereto), to which a Person or its assets are bound.
“Convertible Promissory Note” means a convertible promissory note, issued by the Purchaser to the Sponsor or an Affiliate of the Sponsor, pursuant to which the Purchaser may borrow up to $1,500,000 from the Sponsor, a related to ongoing expenses reasonably related to the business of the Purchaser and the consummation of a business combination.
“Copyleft Action” has the meaning specified in Section 4.14(f).
“Copyrights” has the meaning specified in the definition of “Intellectual Property”.
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemic or disease outbreaks.
“COVID-19 Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester, safety or other Law, directive, guidelines or recommendations promulgated by any industry group or any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19, including the CARES Act, Families First Act, the Payroll Tax Executive Order and IRS Notices 2020-22, 2020-65 and 2021-11.
“Designated Directors” has the meaning specified in Section 6.19(a).
“D&O Indemnified Party” has the meaning specified in Section 6.20(a).
“D&O Tail” has the meaning specified in Section 6.20(b).
“DGCL” has the meaning specified in the Recitals.
“Domesticated Purchaser Common Stock” means, following the Domestication, common stock of the Purchaser, par value $0.0001 per share.
“Domesticated Purchaser Unit” means, following the Domestication, a unit of the Purchaser (consisting of one share of Domesticated Purchaser Common Stock and one-half of one Domesticated Purchaser Warrant).
“Domesticated Purchaser Warrant” means, following the Domestication, a warrant of the Purchaser, each whole warrant entitling the holder thereof to purchase one share of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement.
“Domestication” has the meaning specified in the Recitals.
“Draft Company Financials” has the meaning specified in Section 4.06(a).
“Earn-Out Period” has the meaning specified in Section 2.06(b).
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“Earn-Out Shares” has the meaning specified in Section 2.06(a).
“Earn-Out Statement” has the meaning specified in Section 2.06(d).
“EBITDA” means, for any period, the consolidated net income of the Purchaser and its Subsidiaries for such period, determined in accordance with GAAP, before interest expense, income Tax expense, depreciation and amortization, in each case determined on a basis consistent with the Purchaser’s audited consolidated financial statements.
“EBITDA Targets” has the meaning specified in Section 2.06(c)(iii).
“Effective Time” has the meaning specified in Section 1.02(a).
“Employees” means all employees employed by the Company and Target Companies at the date of this Agreement.
“Enforceability Exceptions” has the meaning specified in Section 5.02.
“Environmental Law” means any Law in any way relating to (a) the protection of human health and safety, (b) the protection, preservation or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials, including, to the extent applicable to a Person, the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC. Section 9601 et. seq., the Resource Conservation and Recovery Act, 42 USC. Section 6901 et. seq., the Toxic Substances Control Act, 15 USC. Section 2601 et. seq., the Federal Water Pollution Control Act, 33 USC. Section 1151 et seq., the Clean Air Act, 42 USC. Section 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC. Section 111 et. seq., Occupational Safety and Health Act, 29 USC. Section 651 et. seq. (to the extent it relates to exposure to Hazardous Materials), the Asbestos Hazard Emergency Response Act, 15 USC. Section 2601 et. seq., the Safe Drinking Water Act, 42 USC. Section 300f et. seq., the Oil Pollution Act of 1990 and analogous state acts as well as any equivalent in any other jurisdiction, including without limitation the Swedish Environmental Code (Sw. miljöbalken (1998:808)) and all regulations, ordinances and permits issued thereunder, as well as any other applicable Swedish environmental Laws.
“Environmental Liabilities” means, in respect of any Person, all Liabilities, obligations, responsibilities, Remedial Legal Proceedings, losses, damages, costs, and expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand by any other Person or in response to any violation of Environmental Law, whether known or unknown, accrued or contingent, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, to the extent based upon, related to, or arising under or pursuant to any Environmental Law, environmental Permit, Order, or Contract with any Governmental Authority or other Person, that relates to any environmental, health or safety condition, violation of Environmental Law, or a Release or threatened Release of Hazardous Materials.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means each “person” (as defined in Section 3(9) of ERISA) which together with a Target Company would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“Estimated Purchaser Transaction Costs” has the meaning specified in Section 3.03(b).
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Ratio” means the Aggregate Consideration divided by the Company Fully Diluted Capital.
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“Excluded Share” has the meaning specified in Section 2.03(a)(i).
“Expense Reimbursement” has the meaning specified in Section 8.02(b).
“Extension” has the meaning specified in Section 6.03(a).
“Extension Fees” has the meaning specified in Section 6.03(a).
“Federal Securities Law” has the meaning specified in Section 6.07.
“First EBITDA Target” has the meaning specified in Section 2.06(c)(i).
“First Stock Price Target” has the meaning specified in Section 2.06(c)(i).
“Fraud Claim” means any claim based on intentional fraud (which means, with respect to any Person, the making of a statement of fact in the express representations and warranties set forth in this Agreement or any certificate delivered pursuant hereto, with the intent to deceive another Person and which requires the elements of fraud as defined by Delaware common law) against the Person who committed such fraud, which such claim can only be brought by the Person alleged to have suffered from such alleged fraud. In no event shall fraud hereunder or a Fraud Claim include any claim for equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including a claim for fraud) based on negligence or recklessness.
“Funding Commitments” has the meaning specified in Section 6.21.
“GAAP” means generally accepted accounting principles as in effect in the United States of America; provided, that, with respect to the standalone books and records of any Target Company incorporated outside the United States of America, “GAAP” means the generally accepted accounting principles or applicable financial reporting standards in effect in the jurisdiction of incorporation of such Target Company.
“Generative AI” means any type of AI/ML that can be used to create, produce or generate outputs (including text, images, video, audio, code or synthetic data), including from or based on prompts or inputs.
“Governmental Authority” means any federal, state, local, foreign government or other governmental, quasi-governmental, regulatory or administrative authority, body, instrumentality, department, board, bureau or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body (private or public).
“Hazardous Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous substance”, “pollutant”, “contaminant”, “hazardous waste”, “regulated substance”, “hazardous chemical”, or “toxic chemical” (or by any similar term) under any Environmental Law, including petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation.
“Income Taxes” means income, capital gains, franchise, and similar Taxes.
“Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business), (c) any other indebtedness of such Person that is evidenced by a note, bond, debenture, credit agreement or similar instrument, (d) all obligations of such Person under leases that should be classified as capital leases in accordance with GAAP (other than real estate leases and any other leases that would be required to be capitalized only upon adoption of ASC 842), (e) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (f) all obligations of such Person in respect of acceptances issued or created, (g) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (h) all obligations secured by an Lien on any property of such Person, (i) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person and (j) all obligation described in clauses (a) through (i) above of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
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“Initial Grants” has the meaning specified in Section 6.15(a).
“Intellectual Property” means any and all intellectual or proprietary property and all rights, title, and interest therein or thereto arising anywhere in the world, including: (i) all United States and foreign patents and patent applications, patent disclosures and inventions, (whether patentable or unpatentable and whether or not reduced to practice), including any continuations, divisions, continuations in part, renewals, divisionals, extensions, reissues or foreign counterparts of any of the foregoing; (ii) all United States, international and foreign trade names, trade dress, trademarks, service marks, logos or internet domain name registrations, social media usernames, handles, and similar identifiers, including all goodwill associated therewith, together with all registrations and applications relating thereto (“Trademarks”); (iii) all United States, international, and foreign copyrights (whether registered or unregistered), original works of authorship (including Software and all rights therein), copyrightable works, together with all registrations and applications relating thereto (“Copyright”); (iv) all proprietary databases and data; (v) all industrial designs and any registrations and applications therefor throughout the world; (vi) Trade Secrets, (vii) Software and data, databases, compilations, and any other electronic data files, including any and all collections of data, whether machine readable or otherwise; (viii) rights to sue or recover and retain damages and costs and attorneys’ fees for the past, present or future infringement, dilution, misappropriation, or other violation of any of the foregoing anywhere in the world; (ix) any and all other intellectual or industrial property rights protectable by applicable law in any jurisdiction; and (x) all issuances, renewals, registrations and applications of or for any of the foregoing.
“Intended Tax Treatment(s)” has the meaning specified in the Recitals hereto.
“Interim Company Financials” has the meaning specified in Section 4.06(a).
“Interim Period” has the meaning specified in Section 6.01(a).
“IP Actions” has the meaning specified in Section 6.27(a).
“IPO” means the initial public offering of Cayman Purchaser Units pursuant to the IPO Prospectus.
“IPO Prospectus” means the final prospectus of the Purchaser, dated as of June 20, 2025 (File No. 333-287656).
“IRS” means the U.S. Internal Revenue Service (or any successor Governmental Authority).
“IT Assets” technology, devices, computers, hardware, Software (including firmware and middleware), systems, sites, servers, networks, workstations, routers, hubs, circuits, switches, interfaces, websites, platforms, data communications lines, and all other information or operational technology, telecommunications, or data processing assets, facilities, systems services, or equipment, and all data stored therein or processed thereby, and all associated documentation.
“Knowledge” means, with respect to (i) the Company, the actual knowledge of the individuals set forth on Section 10.01-C of the Company Disclosure Letter and (ii) the Purchaser, the actual knowledge of the individuals set forth on Section 10.01-D of the Purchaser Disclosure Letter.
“Law” means, in each case as applicable to a Person, any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority. For the avoidance of doubt, “Law” includes any applicable Swedish law and any applicable law of the European Union, including any directly applicable EU regulation or directive.
“Legal Proceeding” means any claim, demand, charge, action, suit, litigation, audit, settlement, complaint, assessment or arbitration, or any inquiry, hearing, proceeding or investigation, by or before any Governmental Authority.
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“Liabilities” means any and all liabilities, Indebtedness, Legal Proceedings or obligations of any nature (whether absolute, accrued, contingent or otherwise, whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards).
“Lien” means any mortgage, pledge, security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Lock-Up Agreements” has the meaning specified in the Recitals hereto.
“Lock-Up Period” has the meaning specified in the Recitals hereto.
“Merger” has the meaning specified in the Recitals hereto.
“Merger Sub” has the meaning specified in the Preamble.
“Merger Sub Common Shares” has the meaning specified in Section 5.05(f).
“Minimum Funding Commitment” has the meaning specified in Section 7.02(g).
“Modification in Recommendation” has the meaning specified in Section 6.14(b)(i).
“Nasdaq” has the meaning specified in Section 5.06(a).
“OFAC” has the meaning specified in Section 5.16(c).
“Off-the-Shelf Software” means “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for Software commercially available to the public on standard terms and conditions, generally with license, maintenance, support and other fees of less than $200,000 per year.
“Offer Documents” has the meaning specified in Section 6.14(a)(i).
“Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational Documents” means, with respect to any Person that is an entity, its certificate of incorporation or formation, bylaws, operating agreement, memorandum and articles of association or similar organizational documents, in each case, as amended.
“OTC Markets” means any of the OTCQX, OTCQB or OTC Pink markets operated by OTC Markets Group Inc.
“Outbound IP License” has the meaning specified in Section 4.14(c).
“Outside Date” has the meaning specified in Section 8.01(b).
“Owned Intellectual Property” means any and all Intellectual Property which any of the Target Companies owns (or purports to own), in whole or in part, and includes the Company Software, all Company Registered IP and all other Intellectual Property required to be set forth in Section 4.14(a)(i) of the Company Disclosure Letter.
“Party(ies)” has the meaning specified in the Preamble.
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“Patents” means any patents, patent applications and the inventions, designs and improvements described and claimed therein, patentable inventions, and other patent rights (including any divisionals, provisionals, continuations, continuations-in-part, substitutions, or reissues thereof, whether or not patents are issued on any such applications and whether or not any such applications are amended, modified, withdrawn, or refiled).
“PCAOB” means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“Per Share Price” means $10.00.
“Permits” means all federal, state, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions, licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations, ratings, registrations, qualifications or orders of any Governmental Authority or any other Person.
“Permitted Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not yet due and payable or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto in accordance with GAAP, (b) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due and payable and as would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property subject thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection with social security, (d) Liens on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business, (e) Liens arising under this Agreement or any Ancillary Document or (f) non-exclusive licenses of Owned Intellectual Property granted in the ordinary course of business.
“Permitted Transferee” means, with respect to any holder of Earn-Out Shares, (a) any Affiliate of such holder, (b) any direct or indirect partner, member or equityholder of such holder in connection with a distribution by such holder, and (c) in the case of an individual, any member of such individual’s immediate family or any trust or estate planning vehicle for the benefit of such individual or such family members.
“Person” means an individual, corporation, company, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Personal Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible personal property.
“Post-Closing Purchaser Board” has the meaning specified in Section 6.19.
“Premium Cap” has the meaning specified in Section 6.20(b).
“Proxy Statement” has the meaning specified in Section 6.14(a)(i).
“Proxy Statement/Registration Statement” has the meaning specified in Section 6.14(a)(i).
“Public Certifications” has the meaning specified in Section 5.06(a).
“Purchase Price” means $300,000,000.
“Purchaser” has the meaning specified in the Preamble.
“Purchaser Bylaws upon Domestication” has the meaning specified in the Recitals.
“Purchaser Charter upon Domestication” has the meaning specified in the Recitals.
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“Purchaser Class A Ordinary Shares” means prior to the Domestication, Class A ordinary shares of the Purchaser, par value $0.0001 per share.
“Purchaser Class B Ordinary Shares” means prior to the Domestication, Class B ordinary shares of the Purchaser, par value $0.0001 per share.
“Purchaser Confidential Information” means all confidential or proprietary documents and information concerning the Purchaser or any of its Representatives; provided, however, that Purchaser Confidential Information shall not include any information which, (i) at the time of disclosure by the Company or any of its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure by the Purchaser or its Representatives to the Company or any of its Representatives, was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such Purchaser Confidential Information. For the avoidance of doubt, from and after the Closing, Purchaser Confidential Information will include the confidential or proprietary information of the Target Companies.
“Purchaser Counsel” means Winston Taylor LLP, counsel to the Purchaser.
“Purchaser Disclosure Letter” has the meaning specified in the Preamble to Article V.
“Purchaser ESPP” has the meaning specified in Section 6.15(a).
“Purchaser Expense Reimbursement” has the meaning specified in Section 8.02(a).
“Purchaser Fundamental Representations” means the representations and warranties of the Purchaser and Merger Sub set forth in Sections 5.01 (Organization and Standing), 5.02 (Authorization; Binding Agreement), 5.04 (Non-Contravention) (excluding 5.04(b) and 5.04(c)), 5.05 (Capitalization) 5.14 (Trust Account), and 5.15 (Finders and Brokers).
“Purchaser Incentive Award Plan” has the meaning specified in Section 6.15(a).
“Purchaser Material Adverse Effect” means any Events, that, (a) individually or when aggregated with other changes, events, or occurrences has had a materially adverse effect on the business, assets, financial condition or results of operations of the Purchaser, and (b) do or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the ability of Purchaser to consummate the Transactions; provided, however, that no change or effect related to any of the following, alone or in combination, shall be taken into account in determining whether a Purchaser Material Adverse Effect has occurred under the foregoing clause (a): (i) the announcement of this Agreement and consummation of the transactions contemplated hereby; (ii) the taking of any action required by this Agreement or any Ancillary Document; (iii) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions, wildfires or similar occurrences), pandemic or change in climate, (iv) any acts of terrorism or war, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions; (v) the Redemption; (vi) changes or proposed changes in applicable Law, regulations or interpretations thereof or decisions by courts or any Governmental Authority after the date of this Agreement; (vii) changes or proposed changes in GAAP (or any interpretation thereof) after the date of this Agreement; or (viii) any downturn in general economic conditions, including changes in the credit, debt, securities, financial, capital or reinsurance markets (including changes in interest or exchange rates, prices of any security or market index or commodity or any disruption of such markets), in each case, in the United States or anywhere else in the world; provided, further, that any Event referred to in clauses (iii), (iv), (vi), (vii) and (viii) above may be taken into account in determining if a Purchaser Material Adverse Effect has occurred to the extent it has a disproportionate and adverse effect on the business, assets, results of operations or condition (financial or otherwise) of Purchaser, taken as a whole, relative to similarly situated companies in the industry in which Purchaser conducts its business, but only to the extent of the incremental disproportionate effect on Purchaser relative to similarly situated companies in the industry in which Purchaser conducts its business.
“Purchaser Option” has the meaning specified in Section 2.03(a)(iii).
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“Purchaser Ordinary Shares” means the Purchaser Class A Ordinary Shares and the Purchaser Class B Ordinary Shares.
“Purchaser Preference Shares” means prior to the Domestication, preference shares of the Purchaser, par value $0.0001 per share.
“Purchaser Private Placement Warrants” means the 6,400,000 warrants of the Purchaser sold to the Sponsor and to the underwriters of the IPO in private placements consummated simultaneously with the IPO.
“Purchaser Public Warrants” means the Cayman Purchaser Warrants included in the Cayman Purchaser Units sold in the IPO.
“Purchaser RSU” has the meaning specified in Section 2.03(a)(iv).
“Purchaser SEC Reports” has the meaning specified in Section 5.06(a).
“Purchaser Shareholder Approval” means the approval of (i) those Transaction Proposals identified in clauses (B) and (C) of Section 6.14(b)(i), in each case, by special resolution under Cayman Islands Law, being a resolution passed by a majority of not less than two-thirds of the outstanding Purchaser Ordinary Shares (or the Purchaser Class B Ordinary Shares as the case may be) entitled to vote in person or by proxy, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents) at the Purchaser Shareholders’ Meeting, (ii) those Transaction Proposals identified in clauses (A), (D), (E), (F), (G), and (H) of Section 6.14(b)(i), in each case, by an ordinary resolution under Cayman Islands Law, being a resolution passed by a simple majority of the outstanding Purchaser Ordinary Shares entitled to vote in person or by proxy, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents), (or if required by applicable Law, or the Purchaser Organizational Documents as a special resolution, being a resolution passed by a majority of not less than two-thirds of the outstanding Purchaser Ordinary Shares entitled to vote in person or by proxy, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents) at the Purchaser Shareholders’ Meeting), and (iii) with respect to any other proposal proposed to the Purchaser Shareholders, the requisite approval required under the Purchaser’s Organizational Documents, the Cayman Companies Act or any other applicable Law, in each case, at a Purchaser Shareholders’ Meeting.
“Purchaser Shareholders” has the meaning specified in Section 9.15.
“Purchaser Shareholders’ Meeting” has the meaning specified in Section 6.14(b)(i).
“Purchaser Transaction Costs” means: (a) all fees, costs and expenses of the Purchaser incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Ancillary Documents and the consummation of the Transactions, whether paid or unpaid prior to the Closing, including any and all professional or transaction related costs, fees and expenses of legal, accounting and financial advisors, consultants, auditors, accountants and brokers; and (b) any Indebtedness of the Purchaser owed to its Affiliates or shareholders; but excluding, in each case, the Cantor Deferred Underwriting Fee, which shall be borne and paid by the Company in accordance with Section 3.03(c).
“Redemption” has the meaning specified in Section 6.14(b)(i).
“Registration Statement” means the Registration Statement on Form S-4, or other appropriate form, including any pre-effective or post-effective amendments or supplements thereto, to be filed with the SEC by Purchaser under the Securities Act with respect to the Registration Statement Securities.
“Registration Statement Securities” has the meaning specified in Section 6.14(a)(i).
“Related Person” means with respect to any Person, any officer, director, manager, employee, trustee or beneficiary of such Person or any of its Affiliates and any immediate family member of any of the foregoing.
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“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor or outdoor environment, or into or out of any property.
“Remedial Legal Proceeding” means all actions to (i) clean up, remove, treat, or in any other way address any Hazardous Material, (ii) prevent the Release of any Hazardous Material so it does not endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) correct a condition of noncompliance with Environmental Laws.
“Representatives” means, as to any Person, such Person’s Affiliates and the respective managers, directors, officers, employees, independent contractors, consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person or its Affiliates.
“Requisite Shareholder Approval” means the approval of this Agreement and the Transactions, including the Merger, by the affirmative vote or written consent of the stockholders of the Company, pursuant to the terms and in accordance with and satisfaction of the conditions of the Company’s Organizational Documents and applicable Law.
“Sanctioned Jurisdiction” has the meaning specified in Section 5.16(c).
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
“SDN List” has the meaning specified in Section 5.16(c).
“SEC” means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Second EBITDA Target” has the meaning specified in Section 2.06(c)(ii).
“Second Merger” has the meaning specified in Section 6.11(a).
“Second Stock Price Target” has the meaning specified in Section 2.06(c)(ii).
“Securities Act” means the Securities Act of 1933, as amended.
“Seller Lock-Up Agreement” has the meaning specified in the Recitals.
“Seller Voting and Support Agreement” means that certain Seller Voting and Support Agreement, dated as the date hereof (as it may be amended or supplemented from time to time), by and between the Purchaser, the Company and the Sellers.
“Sellers” shall mean the holders of equity securities of the Company, collectively.
“Signing Filing” has the meaning specified in Section 6.16(b).
“Signing Press Release” has the meaning specified in Section 6.16(b).
“Software” means any and all (i) computer software, firmware and computer programs and applications, including all source code, object code, middleware, utilities, computer programs, application programming interfaces, algorithms, plugins, libraries, subroutines, tools, drivers, microcode, scripts, batch files, instruction sets and macros, models, and methodologies, in each case of the foregoing whether in source code, executable or object code form, documentation related thereto including user manuals, related to any of the foregoing and all software modules, tools and databases; and (ii) deep learning, machine learning, and other artificial intelligence technologies (collectively, “AI/ML”).
“SPAC Group” has the meaning specified in Section 9.14(a).
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“Sponsor” means Pioneer Acquisition 1 Sponsor Holdco LLC, a Delaware limited liability company.
“Sponsor Lock-Up Agreement” has the meaning specified in the Recitals hereto.
“Sponsor Share Conversion” has the meaning specified in the Recitals hereto.
“Sponsor Support Agreement” means that certain Sponsor Support Agreement, dated as of the date hereof, 2026 (as it may be amended or supplemented from time to time), by and between the Sponsor, the Company, the Purchaser and the other parties thereto.
“Stock Price Targets” has the meaning specified in Section 2.06(c)(ii).
“Straddle Period” means any taxable period that begins on or before and ends after the Closing Date.
“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority of partnership, association or other business entity gains or losses or will be or control the managing director, managing member, general partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person will also include any variable interest entity which is consolidated with such Person under applicable accounting rules.
“Surviving Corporation” has the meaning specified in the Recitals hereto.
“Target Companies” means, collectively, the Company and its direct and indirect Subsidiaries.
“Tax Return” means any return, form, declaration, election, disclosure, report, claim for refund, information return or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
“Taxes” means all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property, windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges in the nature of a tax, together with any interest and any penalties, additions to tax or additional amounts with respect thereto imposed by a Governmental Authority.
“Tax Sharing Agreement” means any agreement, the principal purpose of which is the sharing or allocation of or indemnification for Taxes.
“Termination Fee” has the meaning specified in Section 8.02(a).
“Third EBITDA Target” has the meaning specified in Section 2.06(c)(iii).
“Third-Party Datasets” has the meaning specified in Section 4.14(i).
“Third Stock Price Target” has the meaning specified in Section 2.06(c)(ii).
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“Top Customers” has the meaning specified in Section 4.23(a).
“Top Suppliers” has the meaning specified in Section 4.23(b).
“Trade Secrets” means any trade secrets, confidential business information, concepts, ideas, designs, research or development information, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods, know-how, data, mask works, discoveries, inventions, modifications, extensions, improvements, and other proprietary rights (whether or not patentable or subject to Copyright, Trademark, or trade secret protection).
“Trademarks” has the meaning specified in the definition of “Intellectual Property”.
“Trading Day” means any day on which the Domesticated Purchaser Common Stock is traded on Nasdaq (or, if the Domesticated Purchaser Common Stock is then listed or quoted on another national securities exchange or OTC Markets, on such exchange or OTC Markets, as applicable).
“Transaction Proposals” has the meaning specified in Section 6.14(b)(i).
“Transactions” has the meaning specified in the Recitals.
“Transfer Taxes” has the meaning specified in Section 6.11(c).
“Treasury Regulations” means the regulations (including temporary regulations) promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Code. All references herein to sections of the Treasury Regulations shall include any corresponding provisions or provisions of succeeding, similar or substitute, temporary or final Treasury Regulations.
“Trust Account” means the trust account established pursuant to that certain Investment Management Trust Agreement, dated June 17, 2025, by and between the Purchaser and Continental, as trustee.
“Trust Agreement” has the meaning specified in Section 5.14.
“Trustee” has the meaning specified in Section 5.14.
“Updated 1H Financial Statements” has the meaning specified in Section 6.04.
“Vested Earn-Out Shares” has the meaning specified in Section 2.06(g).
“VWAP” means, for the Domesticated Purchaser Common Stock as of any date(s), the dollar volume-weighted average price for such security on Nasdaq (or, if the Domesticated Purchaser Common Stock is then listed on another national securities exchange, on such exchange) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported by OTC Markets Group Inc. If the VWAP cannot be calculated for the Domesticated Purchaser Common Stock on such date(s) on any of the foregoing bases, the VWAP of the Domesticated Purchaser Common Stock on such date(s) shall be the fair market value as determined reasonably and in good faith by a majority of the disinterested independent directors of the Post-Closing Purchaser Board. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
“Warrant Agreement” means that certain Warrant Agreement, dated as of June 17, 2025, by and between the Purchaser and Continental, as warrant agent.
“Written Consent” has the meaning specified in Section 6.14(c)(i).
[Signature page follows]
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IN WITNESS WHEREOF, each Party hereto has caused this Business Combination Agreement to be signed and delivered as of the date first written above.
| The Purchaser: | ||
| PIONEER ACQUISITION I CORP | ||
| By: | /s/ Mitchell Creem | |
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
| Merger Sub: | ||
| PIONEER MERGER SUB, INC. | ||
| By: | /s/ Mitchell Creem | |
| Name: | Mitchell Creem | |
| Title: | Director | |
| The Company: | ||
| GREEN AI CLOUD, INC. | ||
| By: | /s/ Jacob Bostrom | |
| Name: | Jacob Bostrom | |
| Title: | Chief Executive Officer | |
[Signature Page to Business Combination Agreement]
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Exhibit 10.1
VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (this “Agreement”) is dated as of October 6, 2026, by and among Pioneer Acquisition I Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), the Persons set forth on Schedule I hereto (each, a “Seller” and collectively, the “Sellers”) and Green AI Cloud, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
WHEREAS, as of the date hereof, the Sellers, as the Company Shareholders, are the holders of such number of shares of Company Common Stock as are indicated opposite each of their names on Schedule I attached hereto (collectively, the “Subject Securities”);
WHEREAS, contemporaneously with the execution and delivery of this Agreement, the Purchaser, Pioneer Merger Sub, Inc. (the “Merger Sub”) and the Company have entered into the Business Combination Agreement (as it may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”), dated as of October 6, 2026, pursuant to which, among other transactions, the Purchaser shall transfer by way of continuation and domesticate as a Delaware corporation (the “Domestication”), the Merger Sub shall merge with and into the Company, with the Company surviving as the Surviving Corporation (the “Merger”), and the other transactions contemplated by the Business Combination Agreement and the Ancillary Documents (collectively, the “Transactions”) shall be consummated;
WHEREAS, the Business Combination Agreement provides for the Aggregate Consideration, calculated based on a Purchase Price of $300,000,000 and a Per Share Price of $10.00, to be issued to the Company Shareholders pro rata in accordance with their respective holdings of Company Common Stock immediately prior to the Effective Time, and for the issuance at Closing of an aggregate of 5,000,000 Earn-Out Shares to the Company Shareholders pro rata in accordance with their respective holdings of Company Common Stock immediately prior to the Effective Time, subject to the vesting and forfeiture provisions of Section 2.06 thereof, including the EBITDA Targets and Stock Price Targets, Funding Commitments in an aggregate amount of $20,000,000, a Lock-Up Period of six (6) months following the consummation of the Merger, and no minimum cash or minimum net cash condition to the Closing;
WHEREAS, as an inducement to the Purchaser and the Company to enter into the Business Combination Agreement and to consummate the Transactions, the parties hereto desire to agree to certain matters as set forth herein, including commitments to obtain the Requisite Shareholder Approval.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
ARTICLE
I
VOTING AND SUPPORT AGREEMENT; COVENANTS
Section 1.01 Binding Effect of Business Combination Agreement. Each Seller hereby acknowledges that such Seller has read the Business Combination Agreement and this Agreement and has had the opportunity to consult with such Seller’s tax and legal advisors. Each Seller shall be bound by and comply with Section 6.06 (No Solicitation), Section 6.16 (Public Announcements) and Section 6.17 (Confidential Information) of the Business Combination Agreement (and any relevant definitions contained in any such Sections) as if such Seller were an original signatory to the Business Combination Agreement with respect to such provisions.
Section 1.02 No Transfer.
(a) Unless otherwise deemed a Permitted Transfer (as defined below), during the period commencing on the date hereof and ending on the earliest of (a) the Closing, (b) the date and time at which the Business Combination Agreement is terminated in accordance with Section 8.01 (Termination) thereof (the earlier of (a) and (b), the “Expiration Time”) and (c) the liquidation of the Company, the Sellers shall not, without the prior written consent of the Purchaser and the Company, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Subject Securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Securities or (iii) take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (each, a “Transfer”).
(b) “Permitted Transfer” means any Transfer of Subject Securities (i) to any Affiliates or family members of such Seller, (ii) to any investment funds or vehicles controlled or managed by such Seller or its Affiliates, (iii) by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted under clause (i), or to a charitable organization, (iv) in the case of an individual, by virtue of laws of descent and distribution upon death of such individual, (v) in the case of an individual, pursuant to a qualified domestic relations order, (vi) to a nominee or custodian of a Person to whom a Transfer would be permitted under clause (i), (vii) in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust, (viii) to a third party in connection with any of the Funding Commitments, any non-redemption or backstop arrangement, or any other similar arrangement contemplated by or permitted under the Business Combination Agreement, (ix) in connection with any legal, regulatory or other Order; or (x) as otherwise mutually agreed upon between such Seller, the Purchaser and the Company; provided, however, that in the case of clauses (i) through (vii) and clause (x), as a precondition to such Transfer, such transferee must enter into a written agreement with the Company and the Purchaser agreeing to assume all of the obligations under this Agreement with respect to such Subject Securities and to be bound by the transfer restrictions set forth in this Agreement (to the extent applicable); provided, further, that no Transfer permitted under this Section 1.02 shall relieve such Seller of its obligations under this Agreement.
Section 1.03 New Securities. In the event that (a) any Company Securities are issued to a Seller after the date of this Agreement pursuant to any dividend, split, recapitalization, reclassification, combination or exchange of, on or affecting the Company Securities owned by such Seller or otherwise, (b) a Seller purchases or otherwise acquires beneficial ownership of any Company Securities after the date of this Agreement, or (c) a Seller acquires the right to vote or share in the voting of any Company Securities after the date of this Agreement (such Company Securities, collectively, the “New Securities”), then such New Securities acquired or purchased by such Seller shall be subject to the terms of this Agreement to the same extent as if they constituted the Subject Securities owned by such Seller as of the date hereof.
Section 1.04 Closing Date Deliverables. On the Closing Date, each of the Sellers shall deliver:
(a) a properly completed and duly executed IRS Form W-9 from such Seller;
(b) a duly executed copy of that certain A&R Registration Rights Agreement; and
(c) a duly executed copy of the Seller Lock-Up Agreement.
Section 1.05 Seller Agreements. At any meeting of the Company Shareholders, however called, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the Company Shareholders is sought, each of the Sellers shall (i) appear at each such meeting or otherwise cause all of such Seller’s Subject Securities that are entitled to vote to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a Written Consent (or cause a Written Consent to be executed and delivered) covering all of such Seller’s Subject Securities that are entitled to vote:
(a) to provide the Requisite Shareholder Approval and to approve and adopt the Business Combination Agreement and the consummation of the Transactions;
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(b) against any Alternative Transaction or any proposal relating to an Alternative Transaction;
(c) against any merger agreement or merger (other than the Business Combination Agreement and the Transactions), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company;
(d) against any proposal to change the business or board of directors of the Company (other than pursuant to the Business Combination Agreement or the Ancillary Documents);
(e) against any proposal, action or agreement that would (A) impede, interfere, frustrate, prevent or nullify any provision of this Agreement, the Business Combination Agreement or the Transactions, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of the Company under the Business Combination Agreement, (C) result in any of the conditions set forth in Article VII (Closing Conditions) of the Business Combination Agreement not being fulfilled, (D) result in a breach of any covenant, representation or warranty or other obligation or agreement of such Seller contained in this Agreement or (E) change in any manner the dividend policy or capitalization of the Company, including the voting rights of any class of capital stock of the Company;
Each Seller hereby agrees that such Seller shall not commit or agree to take any action inconsistent with the foregoing. Each Seller further agrees that, with respect to any Written Consent to be delivered pursuant to the obligations of such Seller under this Section 1.05, such Written Consent shall be delivered promptly following the time at which the Registration Statement has been declared effective under the Securities Act and delivered or otherwise made available to the Sellers (and, in any event, within three (3) Business Days thereafter).
Section 1.06 No Challenges. Each Seller agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Purchaser, the Company or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (b) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or entry into this Agreement, the Business Combination Agreement or the Transactions.
Section 1.07 Further Assurances. Each Seller shall take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary under applicable Laws, or as reasonably requested by Purchaser or the Company, to effect the actions set forth herein and to consummate the transactions contemplated hereby on the terms and subject to the conditions set forth herein and the Transactions on the terms and subject to the conditions set forth in the Business Combination Agreement.
Section 1.08 No Inconsistent Agreement. Each Seller hereby represents and covenants that such Seller has not entered into, and shall not enter into, any agreement that would restrict, limit, or interfere with the performance of such Seller’s obligations hereunder. Each Seller agrees to promptly notify the Purchaser in writing of any updates to Schedule I hereto after the date hereof and prior to Closing.
Section 1.09 Appraisal Rights. Each Seller hereby waives and agrees not to exercise any rights of appraisal or rights to dissent from the Transactions that such Seller may have with respect to the Subject Securities under applicable Law.
Section 1.10 Consent to Disclosure. Each Seller hereby consents to the publication and disclosure in the Proxy Statement/Registration Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any documents or communications provided by the Purchaser or the Company to any Governmental Authority and to Purchaser Shareholders) of such Seller’s identity and beneficial ownership of the Subject Securities and the nature of such Seller’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by the Purchaser and the Company, a copy of this Agreement. Each Seller will promptly provide any information reasonably requested by Purchaser or the Company that is reasonably necessary for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).
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ARTICLE
II
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties of the Sellers. Each Seller, severally and not jointly, represents and warrants as of the date hereof to the Purchaser and the Company, in each case, only with respect to such Seller, as follows:
(a) Organization; Due Authorization. (i) If the Seller is a natural person, such Seller has all the requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform such Seller’s obligations hereunder and to consummate the transactions contemplated hereby, and (ii) if the Seller is not a natural person, such Seller 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 Agreement and the consummation of the transactions contemplated hereby are within such Seller’s corporate, limited liability company or similar organizational powers and have been duly authorized by all necessary corporate, limited liability company, or similar organizational actions on the part of such Seller. This Agreement has been duly executed and delivered by such Seller and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes a legally valid and binding obligation of such Seller, enforceable against such Seller 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). If this Agreement is being executed in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of such Seller.
(b) Ownership. Such Seller is the record and beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of, and has good title to, all of its Subject Securities, and there exist no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Securities (other than transfer restrictions under the Securities Act)) affecting any such Subject Securities, other than Liens pursuant to (i) this Agreement, (ii) the Company’s Organizational Documents, (iii) the Business Combination Agreement, (iv) if the Seller is not a natural person, the Seller’s Organizational Documents or (v) any applicable securities Laws. Such Seller’s Subject Securities are the only equity securities of the Company owned of record or beneficially by such Seller on the date of this Agreement, and none of such Subject Securities are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Securities, except as provided hereunder. Other than the Subject Securities, such Seller does not hold or own any rights to acquire (directly or indirectly) any equity securities of the Company or any equity securities convertible into, or which can be exchanged for, equity securities of the Company.
(c) No Conflicts. The execution and delivery of this Agreement by such Seller does not, and the performance by such Seller of its obligations hereunder will not, (i) conflict with or result in a violation of the Organizational Documents of such Seller, or (ii) 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 Seller or such Seller’s Subject Securities), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by such Seller of its obligations under this Agreement.
(d) Adequate Information. Such Seller has been furnished with, or given access to, adequate information concerning the business and financial condition of the Purchaser and the Company to make an informed decision regarding this Agreement and the Transactions and has independently and without reliance upon Purchaser or the Company and based on such information as such Seller has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Seller acknowledges that Purchaser and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Seller acknowledges that the agreements contained herein with respect to the Subject Securities held by such Seller are irrevocable and result in the waiver of any right of such Seller to demand appraisal or exercise dissenters’ rights in connection with the Transactions under applicable Law.
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(e) Litigation. There are no Legal Proceedings pending against such Seller before any arbitrator or Governmental Authority or, to the knowledge of such Seller, threatened in writing to be brought against such Seller before any arbitrator or Governmental Authority that, in any manner, challenge or seek to prevent, enjoin or materially delay the performance by such Seller of its obligations under this Agreement.
(f) Brokerage Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finder’s fee or other commission in connection with the Transactions based upon arrangements made by such Seller in such Seller’s capacity as a shareholder of the Company, for which the Company or any of its Affiliates may become liable.
(g) Acknowledgement. Such Seller understands and acknowledges that each of the Purchaser and the Company is entering into the Business Combination Agreement in reliance upon such Seller’s execution and delivery of this Agreement.
ARTICLE
III
MISCELLANEOUS
Section 3.01 Termination. This Agreement and all of its provisions shall terminate and be of no further force or effect upon the earliest of (a) the Expiration Time, (b) the liquidation of the Company and (c) the written agreement of the Sellers, the Purchaser and the Company. Upon such termination of this Agreement, all obligations of the parties under this Agreement will terminate, without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the Transactions, and no party hereto shall have any claim against another (and no Person shall have any rights against such party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement shall not relieve any party hereto from liability arising in respect of any breach of this Agreement prior to such termination. This ARTICLE III shall survive the termination of this Agreement.
Section 3.02 Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of law) without the prior written consent of the parties hereto.
Section 3.03 Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the State of Delaware or any other state or federal court within the State of Delaware, this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any Legal Proceeding shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
Section 3.04 Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except by a written agreement executed and delivered by the Purchaser, the Company and each Seller.
Section 3.05 Miscellaneous. Sections 9.02 (Notices), 9.05 (Governing Law), 9.06 (Jurisdiction), 9.07 (Waiver of Jury Trial), 9.09 (Severability), 9.11 (Entire Agreement), 9.12 (Interpretation), 9.13 (Counterparts) and 9.15 (Waiver of Claims Against Trust) of the Business Combination Agreement are each hereby incorporated into this Agreement (including any relevant definitions contained in any such Sections), mutatis mutandis. For purposes of notices under this Agreement, notices to the Purchaser shall be sent to Pioneer Acquisition I Corp., 131 Concord Street, Brooklyn, NY 11201, Attn: Mitchell Creem, Email: Creem@pioneeracquisition.com, with a copy (which will not constitute notice) to Winston Taylor LLP, 800 Capitol Street, Suite 2400, Houston, TX 77002, Attn: Michael J. Blankenship, Email: mike.blankenship@winstontaylor.com.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed on its behalf as of the day and year first above written.
| Purchaser: | ||
| PIONEER ACQUISITION I CORP. | ||
| By: | /s/ Mitchell Creem | |
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
| Company: | ||
| GREEN AI CLOUD, INC. | ||
| By: | /s/ Jacob Bostrom | |
| Name: | Jacob Bostrom | |
| Title: | Chief Executive Officer | |
Signature Page to Voting and Support Agreement
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| Sellers: | ||
| Green AI Datacenter Assets AB | ||
| By: | /s/ Jacob Bostrom | |
| Name: | Jacob Bostrom | |
| Hofgaard Sekander holding AB | ||
| By: | /s/ Fredrik Hofgaard | |
| Name: | Fredrik Hofgaard | |
| By: | /s/ Henrik Sekander | |
| Name: | Henrik Sekander | |
Signature Page to Voting and Support Agreement
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Exhibit 10.2
SPONSOR SUPPORT AGREEMENT
THIS SPONSOR SUPPORT AGREEMENT (this “Agreement”) is made as of October 6, 2026 by and among (i) Pioneer Acquisition I Corp., a Cayman Islands exempted company incorporated with limited liability (together with its successors, including after the Domestication (as defined below), the “Purchaser”), (ii) Green AI Cloud, Inc., a Delaware corporation (the “Company”), (iii) Pioneer Acquisition 1 Sponsor Holdco LLC, a Delaware limited liability company (the “Sponsor”), and (iv) each other holder of Purchaser Class B Ordinary Shares (or any other equity securities of the Purchaser) who becomes a party to this Agreement by executing a joinder hereto (each such Person, together with the Sponsor, a “Holder” and, collectively, the “Holders”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement.
WHEREAS, on the date hereof, (i) the Purchaser, (ii) Pioneer Merger Sub, Inc., a Delaware corporation and a direct wholly-owned subsidiary of the Purchaser (“Merger Sub”), and (iii) the Company have entered into that certain Business Combination Agreement (as amended from time to time in accordance with the terms thereof, the “Business Combination Agreement”), pursuant to which, (a) prior to the closing of the transactions contemplated by the Business Combination Agreement (the “Closing”), the Purchaser shall de-register from the Cayman Islands and domesticate as a corporation incorporated under the laws of the State of Delaware pursuant to the Cayman Companies Act and Section 388 of the Delaware General Corporation Law (“DGCL”) (the “Domestication”), and, immediately prior to the Domestication, each issued and outstanding Purchaser Class B Ordinary Share shall be converted into one Purchaser Class A Ordinary Share on a one-for-one basis (the “Sponsor Share Conversion”), and (b) at the Closing, Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity and a wholly-owned subsidiary of the Purchaser (the “Merger”), with the Company Shareholders receiving shares of Domesticated Purchaser Common Stock, all upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with the applicable provisions of the DGCL (the Domestication, the Sponsor Share Conversion, the Merger and the other transactions contemplated by the Business Combination Agreement and the Ancillary Documents, collectively, the “Transactions”); and
WHEREAS, as a condition to the willingness of the Company to enter into the Business Combination Agreement, and as an inducement and in consideration therefor, and in view of the valuable consideration to be received by the Company and the Company Shareholders thereunder, and the expenses and efforts to be undertaken by the Purchaser and the Company to consummate the Merger and the other Transactions contemplated by the Business Combination Agreement and the Ancillary Documents, the Purchaser, the Company and each Holder desire to enter into this Agreement in order for each Holder to provide certain assurances to the Company regarding the manner in which such Holder is bound hereunder to vote any Purchaser Class B Ordinary Shares, Purchaser Class A Ordinary Shares, or other equity interests of the Purchaser which such Holder beneficially owns, holds or otherwise has voting power over (collectively, the “Subject Securities”) during the period from and including the date hereof through and including the date on which this Agreement is terminated in accordance with its terms (the “Voting Period”) with respect to the Business Combination Agreement, the Merger, the Ancillary Documents and the Transactions.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Covenant to Vote in Favor of Transactions and Other Actions in Connection with the Transactions.
Each Holder agrees, with respect to all of the Subject Securities:
(i) during the Voting Period, at each meeting of the shareholders of the Purchaser (the “Purchaser Shareholders”) or any class or series thereof, and in each written consent or resolutions of any of the Purchaser Shareholders in which such Holder is entitled to vote or consent as a shareholder of the Purchaser, such Holder hereby unconditionally and irrevocably agrees to be present for such meeting or otherwise be counted as present thereat for the purpose of establishing a quorum and vote (in person or by proxy), or consent to any action by written consent or resolution, as applicable, the Subject Securities (A) in favor of, and adopt, the Transaction Proposals (as defined in Section 6.14(b)(i) of the Business Combination Agreement), including, without limitation, approval of the Domestication, the Sponsor Share Conversion, the Merger, the issuance of the Aggregate Consideration and Earn-Out Shares, the Purchaser Charter upon Domestication and the Purchaser Bylaws upon Domestication, the Purchaser Incentive Award Plan and Purchaser ESPP, the appointment of director nominees set forth in the Proxy Statement, and any other proposals necessary for the consummation of the Transactions, (B) in favor of the other matters set forth in the Business Combination Agreement as requiring the approval of the Purchaser Shareholders, and (C) to vote the Subject Securities in opposition to: (1) any Acquisition Proposal or Alternative Transaction and any and all other proposals (x) for the acquisition of the Purchaser, (y) that could reasonably be expected to delay or impair the ability of the Purchaser to consummate the Merger or any of the Transactions, or (z) which are in competition with or materially inconsistent with the Business Combination Agreement or the Ancillary Documents; (2) other than as contemplated by the Business Combination Agreement or the Ancillary Documents, any material change in (x) the present capitalization of the Purchaser or any amendment of the Purchaser’s Organizational Documents or (y) the Purchaser’s corporate structure or business; or (3) any other action or proposal involving the Purchaser that is intended, or would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect in any material respect the Transactions or would reasonably be expected to result in any of the conditions to the Closing under the Business Combination Agreement not being fulfilled;
(ii) to promptly execute and deliver all related documentation and take such other action in support of the Merger, the Business Combination Agreement, any Ancillary Documents and any of the Transactions as may reasonably be requested by the Purchaser or the Company in order to carry out the terms and provisions of this Section 1, including, without limitation, (A) any actions by written consent of the Purchaser Shareholders presented to such Holder, (B) the Sponsor Lock-Up Agreement substantially in the form attached as Exhibit F-1 to the Business Combination Agreement, (C) the A&R Registration Rights Agreement substantially in the form attached as Exhibit E to the Business Combination Agreement, and (D) customary instruments of conveyance and transfer, and any consents, waivers, governmental filings and similar or related documents;
(iii) not to deposit, and to cause its Affiliates not to deposit, except as provided in this Agreement, any Subject Securities owned by such Holder or its Affiliates in a voting trust or subject any Subject Securities to any arrangement or agreement with respect to the voting of such Subject Securities, unless specifically requested to do so by the Company and the Purchaser in connection with the Business Combination Agreement, the Ancillary Documents or the Transactions;
(iv) except as contemplated by the Business Combination Agreement or the Ancillary Documents, not make or, in any manner, participate in, directly or indirectly, any “solicitation” of “proxies” or consents (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any Subject Securities in connection with any vote or other action with respect to the Transactions, other than to recommend that the Purchaser Shareholders vote in favor of the Transaction Proposals and any other proposal the approval of which is a condition to the obligations of the parties under the Business Combination Agreement (and any actions required in furtherance thereof and otherwise as expressly provided by Section 1 of this Agreement);
(v) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable Law at any time with respect to the Merger, the Business Combination Agreement, the Ancillary Documents and any of the Transactions, including pursuant to the DGCL;
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(vi) to take all actions necessary to effect the Sponsor Share Conversion immediately prior to the Domestication in accordance with the terms of the Business Combination Agreement, including, without limitation, surrendering such Holder’s Purchaser Class B Ordinary Shares for conversion into Purchaser Class A Ordinary Shares on a one-for-one basis; and
(vii) not to exercise any redemption rights with respect to any Subject Securities in connection with the Purchaser Shareholders’ Meeting or in connection with the Transactions, and to waive, and hereby waives, any such rights to the fullest extent permitted by the Purchaser’s Organizational Documents and applicable Law.
2. Grant of Proxy.
Each Holder, with respect to all of such Holder’s Subject Securities, hereby irrevocably grants to, and appoints, the Company and any designee of the Company (determined in the Company’s sole discretion) as such Holder’s attorney-in-fact and proxy, with full power of substitution and resubstitution, for and in such Holder’s name, to vote, or cause to be voted (including by proxy or written consent, if applicable) any Subject Securities owned (whether beneficially or of record) by such Holder as of the date hereof and as of immediately prior to the Effective Time, with respect to any vote related to the Business Combination Agreement and the Transactions. The proxy granted by such Holder pursuant to this Section 2 is irrevocable and is granted in consideration of the Company entering into this Agreement and the Business Combination Agreement and incurring certain related fees and expenses. Each Holder hereby affirms that such irrevocable proxy is coupled with an interest by reason of the Business Combination Agreement and, except upon the termination of this Agreement in accordance with Section 6(i), is intended to be irrevocable. Each Holder agrees, until this Agreement is terminated in accordance with Section 6(i), to vote its Subject Securities in accordance with Section 1 above.
3. Other Covenants.
(i) No Transfers. Each Holder agrees that during the Voting Period it shall not, and shall cause its Affiliates not to, without the prior written consent of the Company and the Purchaser, (A) offer for sale, sell (including short sales), transfer, tender, pledge, encumber, assign or otherwise dispose of (including by gift) (collectively, a “Transfer”), (B) enter into any Contract, option, derivative, hedging or other agreement or arrangement or understanding (including any profit-sharing arrangement) with respect to, or consent to, a Transfer of, any or all of the Subject Securities; (C) grant any proxies or powers of attorney with respect to any or all of the Subject Securities; (D) permit to exist any Lien of any nature whatsoever (other than those imposed by this Agreement, applicable securities Laws or the Purchaser’s Organizational Documents, as in effect on the date hereof) with respect to any or all of the Subject Securities; or (E) take any action that would have the effect of preventing, impeding, interfering with or adversely affecting such Holder’s ability to perform its obligations under this Agreement. The Purchaser hereby agrees that it shall not permit any Transfer of the Subject Securities in violation of this Agreement. Each Holder agrees with, and covenants to, the Company and the Purchaser that such Holder shall not request that the Purchaser register the Transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any Subject Securities during the term of this Agreement without the prior written consent of the Company, and the Purchaser hereby agrees that it shall not effect any such Transfer.
(ii) Changes to Subject Securities. In the event of any equity distribution or any change in the equity interests of the Purchaser by reason of any equity distribution, equity split, recapitalization, combination, conversion, exchange of equity interests or the like, the term “Subject Securities” shall be deemed to refer to and include the Subject Securities as well as all such equity distributions and any securities into which or for which any or all of the Subject Securities may be changed or exchanged or which are received in such transaction. Each Holder agrees during the Voting Period to notify the Company and the Purchaser promptly in writing of any change in the number or type of Subject Securities owned by such Holder or in such Holder’s voting rights with respect to the Subject Securities, upon such Holder’s acquisition of or commitment to acquire any additional Subject Securities or upon any other change involving such Holder relating to the equity interests or securities convertible or exercisable for equity interests of the Purchaser.
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(iii) Compliance with Business Combination Agreement. Each Holder agrees during the Voting Period not to take, agree to take, or commit to take any action that would make any representation or warranty of such Holder contained in this Agreement inaccurate in any material respect. Each Holder further agrees that it shall use its commercially reasonable efforts to cooperate with the Company and the Purchaser to effect the Merger and all other Transactions and carry out the terms and provisions of the Business Combination Agreement, the Ancillary Documents and this Agreement. During the Voting Period, each Holder shall not authorize or permit any of its Representatives to, directly or indirectly, take any action that the Purchaser is prohibited from taking pursuant to Section 6.03 of the Business Combination Agreement (unless the Company shall have consented thereto).
(iv) Registration Statement. During the Voting Period, each Holder agrees to provide to the Purchaser, the Company and their respective Representatives any information regarding such Holder or the Subject Securities that is reasonably requested by the Purchaser, the Company or their respective Representatives for inclusion in the Registration Statement.
(v) Publicity. No Holder shall issue any press release or otherwise make any public statements with respect to the Transactions or the transactions contemplated herein without the prior written approval of the Company and the Purchaser, in each case in accordance with Section 6.16 of the Business Combination Agreement. Each Holder hereby authorizes the Company and the Purchaser to publish and disclose in any announcement or disclosure required by the SEC, Nasdaq or the Registration Statement (including all documents and schedules filed with the SEC in connection with the foregoing), such Holder’s identity and ownership of the Subject Securities and the nature of such Holder’s commitments and agreements under this Agreement, the Business Combination Agreement and any other Ancillary Documents.
(vi) Confidential Information. Each Holder shall, and shall cause its Affiliates and Representatives to, keep confidential any confidential or non-public information regarding the Company, the Purchaser or the Transactions, in each case in accordance with Section 6.17 of the Business Combination Agreement.
(vii) Waiver of Claims Against Trust. Each Holder acknowledges that the Purchaser has established a trust account (the “Trust Account”) pursuant to the Trust Agreement, containing the proceeds of its initial public offering and certain private placements for the benefit of the Purchaser, its public shareholders and the underwriters of the Purchaser’s initial public offering, and that the Purchaser may disburse monies from the Trust Account only in the circumstances described in the Purchaser’s Organizational Documents and the Trust Agreement. Each Holder hereby agrees that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, and shall not make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with, or relating in any way to, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Released Claims”). Each Holder hereby irrevocably waives any Released Claims that such Holder may have against the Trust Account (including any distributions therefrom) now or in the future and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever, in each case in accordance with Section 9.15 of the Business Combination Agreement.
4. Representations and Warranties of Holders.
Each Holder hereby represents and warrants to the Company and the Purchaser as follows:
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(i) Binding Agreement. Such Holder (A) if a natural person, is of legal age to execute this Agreement and is legally competent to do so and (B) if not a natural person, is (i) a corporation, limited liability company, company or partnership duly organized and validly existing under the laws of the jurisdiction of its organization and (ii) has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. If such Holder is not a natural person, the execution and delivery of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby by such Holder have been duly authorized by all necessary corporate, limited liability or partnership action on the part of such Holder, as applicable. This Agreement, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of such Holder, enforceable against such Holder in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditor’s rights, and to general equitable principles). Such Holder understands and acknowledges that the Company is entering into the Business Combination Agreement in reliance upon the execution and delivery of this Agreement by such Holder.
(ii) Ownership of Subject Securities. As of the date hereof, such Holder has beneficial ownership of the Subject Securities set forth under such Holder’s name on the signature page hereto, is the lawful owner of such Subject Securities, has the sole power to vote or cause to be voted such Subject Securities (to the extent the Subject Securities have associated voting rights), and has good and valid title to such Subject Securities, free and clear of any and all pledges, mortgages, encumbrances, charges, proxies, voting agreements, Liens, adverse claims, options, security interests and demands of any nature or kind whatsoever, other than those imposed by this Agreement, applicable securities Laws or the Purchaser’s Organizational Documents, as in effect on the date hereof. There are no claims for finder’s fees or brokerage commissions or other like payments in connection with this Agreement or the transactions contemplated hereby payable by such Holder pursuant to arrangements made by such Holder. Except for the Subject Securities set forth under such Holder’s name on the signature page hereto and, in the case of the Sponsor, any Purchaser Private Placement Warrants and any Convertible Promissory Note held by the Sponsor or any of its Affiliates, as of the date of this Agreement, such Holder is not a beneficial owner or record holder of any: (A) equity securities of the Purchaser, (B) securities of the Purchaser having the right to vote on any matters on which the holders of equity securities of the Purchaser may vote or which are convertible into or exchangeable for, at any time, equity securities of the Purchaser or (C) options, warrants or other rights to acquire from the Purchaser any equity securities or securities convertible into or exchangeable for equity securities of the Purchaser.
(iii) No Conflicts. No filing with, or notification to, any Governmental Authority, and no consent, approval, authorization or Permit of any other Person is necessary for the execution of this Agreement by such Holder, the performance of its obligations hereunder or the consummation by it of the transactions contemplated hereby. None of the execution and delivery of this Agreement by such Holder, the performance of its obligations hereunder or the consummation by it of the transactions contemplated hereby shall (A) conflict with or result in any breach of the certificate of incorporation, bylaws or other comparable organizational documents of such Holder, if applicable, (B) result in, or give rise to, a violation or breach of or a default under any of the terms of any Contract or obligation to which such Holder is a party or by which such Holder or any of the Subject Securities or its other assets may be bound, or (C) violate any applicable Law or Order, except for any of the foregoing in clauses (A) through (C) as would not reasonably be expected to impair such Holder’s ability to perform its obligations under this Agreement in any material respect.
(iv) No Inconsistent Agreements. Such Holder hereby covenants and agrees that, except for this Agreement, such Holder (A) has not entered into, nor will enter into at any time while this Agreement remains in effect, any voting agreement or voting trust with respect to the Subject Securities, (B) has not granted, nor will grant at any time while this Agreement remains in effect, a proxy, a consent or power of attorney with respect to the Subject Securities and (C) has not entered into any agreement or knowingly taken any action (nor will enter into any agreement or knowingly take any action) that would make any representation or warranty of such Holder contained herein untrue or incorrect in any material respect or have the effect of preventing such Holder from performing any of its material obligations under this Agreement.
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5. Waiver and Release of Claims.
Each Holder covenants and agrees as follows:
(i) Subject to and conditioned upon the Closing, effective as of the Closing (and subject to the limitations set forth in clause (iv) below), each Holder, on behalf of itself and its Affiliates and its and their respective successors, assigns, Representatives, administrators, executors and agents, and any other Person or entity claiming by, through, or under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties”; provided, for the avoidance of doubt, that neither the Company nor the Purchaser shall be deemed a Releasing Party hereunder), does hereby unconditionally and irrevocably release, waive and forever discharge the Purchaser, the Company and each of their respective past and present directors, officers, employees, agents, predecessors, successors, assigns and Subsidiaries, from any and all past or present claims, demands, damages, judgments, causes of action and liabilities of any nature whatsoever, whether or not known, suspected or claimed, arising directly or indirectly from any act, omission, event or transaction occurring (or any circumstances existing) at or prior to the Closing, in each case to the extent arising out of or relating to such Holder’s capacity as a current or former shareholder of the Purchaser or holder of any other equity securities of the Purchaser (or securities convertible into equity securities of the Purchaser) (each a “Claim” and, collectively, the “Claims”).
(ii) Each Holder acknowledges that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to the subject matter of this Agreement, and that it may hereafter come to have a different understanding of the law that may apply to potential claims which it is releasing hereunder, but it affirms that, except as is otherwise specifically provided herein, it is its intention to fully, finally and forever settle and release any and all Claims. In furtherance of this intention, each Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases with respect to the specified subject matter notwithstanding the discovery or existence of any such additional facts or different understandings of law.
(iii) Each Holder understands that such Holder has the right not to release existing Claims of which such Holder is not aware, unless such Holder voluntarily chooses to waive this right. Having been so apprised, each Holder elects to assume all risks for Claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 5, in each case, effective as of the Closing. Each Holder acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 5 and that, without such waiver, the Company and the Purchaser would not have agreed to the terms of this Agreement.
(iv) Notwithstanding the foregoing provisions of this Section 5 or anything to the contrary set forth herein, the Releasing Parties do not release or discharge, and each Releasing Party expressly does not release or discharge: (A) any Claims that arise under or are based upon the terms of the Business Combination Agreement, this Agreement, any of the Ancillary Documents, or any other document, certificate or Contract executed or delivered in connection with the Business Combination Agreement, as each such agreement or instrument may be amended in accordance with its terms; (B) any rights with respect to the Subject Securities, any Purchaser Private Placement Warrants held by such Releasing Party or any Convertible Promissory Note held by such Releasing Party, or any shares of Domesticated Purchaser Common Stock issued in connection with the Sponsor Share Conversion or otherwise owned by such Releasing Party; (C) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any Organizational Document of the Purchaser or any indemnity or similar agreements by the Purchaser with or for the benefit of a Releasing Party solely to the extent (in each case) contemplated by Section 6.20 of the Business Combination Agreement; (D) any Claims for compensation, reimbursement of expenses or benefits payable to such Holder in his, her or its capacity as an officer, director, employee, consultant or contractor of the Purchaser or any of its Subsidiaries; or (E) any Claims for obligations pursuant to, or other rights set forth in, any employment or similar agreement between such Holder, on the one hand, and the Purchaser or any Subsidiary of the Purchaser, on the other hand, together with any other agreements, documents, instruments or certificates contemplated by the foregoing, as well as any other employment-related rights that such Holder has by Contract or pursuant to applicable Law.
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6. Miscellaneous.
(i) Termination. Notwithstanding anything to the contrary contained herein, this Agreement shall automatically terminate, and none of the Purchaser, the Company or any Holder shall have any rights or obligations hereunder, upon the earliest to occur of (A) the mutual written consent of the Company and the Purchaser, (B) the Effective Time (following the performance of the obligations of the parties hereunder required to be performed at or prior to the Effective Time), and (C) the date of termination of the Business Combination Agreement in accordance with its terms. The termination of this Agreement shall not prevent any party hereunder from seeking any remedies (at law or in equity) against another party hereto or relieve such party from liability for such party’s breach of any terms of this Agreement. Notwithstanding anything to the contrary herein, the provisions of this Section 6 shall survive the termination of this Agreement.
(ii) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of each Holder are personal to such Holder and may not be assigned, transferred or delegated by operation of Law or otherwise without the prior written consent of the Company and the Purchaser, and any purported assignment, transfer or delegation without such consent shall be null and void; provided that no such assignment shall relieve the assigning party of its obligations hereunder. Each of the Company and the Purchaser may freely assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of any Holder.
(iii) Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a party hereto or thereto or a successor or permitted assign of such a party.
(iv) Governing Law; Jurisdiction. This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to the conflict of laws principles thereof. All Legal Proceedings arising out of or relating to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction, any state or federal court located in Wilmington, Delaware) (or in any appellate court thereof) (the “Specified Courts”). Each party hereto hereby (A) submits to the exclusive jurisdiction of the Specified Courts for the purpose of any Legal Proceeding arising out of or relating to this Agreement brought by any party hereto and (B) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Legal Proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Legal Proceeding is brought in an inconvenient forum, that the venue of the Legal Proceeding is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by the Specified Courts. Each party agrees that a final judgment in any Legal Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to the service of the summons and complaint and any other process in any other Legal Proceeding relating to the transactions contemplated by this Agreement, on behalf of itself or its property, by personal delivery of copies of such process to such party at the applicable address set forth in Section 6(vii) (and in the case of a Holder, the address set forth on such Holder’s signature page). Nothing in this Section 6(iv) shall affect the right of any party to serve legal process in any other manner permitted by applicable Law.
(v) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY LEGAL PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6(v).
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(vi) Interpretation. The titles and subtitles contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement, unless the context otherwise requires: (A) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs, including any defined terms, includes the plural and vice versa; (B) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (C) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; (D) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; and (E) the term “or” means “and/or.” The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(vii) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (A) in person, (B) by electronic means (including email), with affirmative confirmation of receipt, (C) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (D) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
If to the Purchaser, to:
Pioneer Acquisition I Corp.
131 Concord Street
Brooklyn, NY 11201
Attn: Mitchell Creem
Email: creem@pioneeracquisition.com
with a copy (which will not constitute notice) to:
Winston Taylor LLP
800 Capitol Street, Suite 2400
Houston, TX 77002
Attn: Michael J. Blankenship
Email:
mike.blankenship@winstontaylor.com
If to the Company, to:
Hyper Green AI Cloud AB
Grev Turegatan 30, 114 21 Stockholm, Sweden
Attn:
Jacob Bostrom
Email: jacob.bostrom@greenai.cloud
with a copy (which will not constitute notice) to:
Shartsis Friese LLP
425 Market Street, 11th Floor
San Francisco, CA 94105
Attn: P. Rupert Russell,
Esq.
Email: RRussell@sflaw.com
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If to the Sponsor, to:
Pioneer
Acquisition 1 Sponsor Holdco LLC
131 Concord Street
Brooklyn, NY 11201
Attn:
Mitchell Creem
Email: creem@pioneeracquisition.com
If to a Holder, to: the address set forth under such Holder’s name on the signature page hereto, with a copy (which will not constitute notice) to, if not the party sending the notice, each of the Company and the Purchaser (and each of their respective counsel for notices hereunder).
(viii) Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Purchaser, the Company and each Holder. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
(ix) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(x) Specific Performance. Each Holder acknowledges that its obligations under this Agreement are unique, recognizes and affirms that in the event of a breach of this Agreement by such Holder, money damages will be inadequate and the Company and the Purchaser will not have an adequate remedy at law, and agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by such Holder in accordance with their specific terms or were otherwise breached. Accordingly, the Company and the Purchaser shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement by any such Holder and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.
(xi) Expenses. Each party shall be responsible for its own fees and expenses (including the fees and expenses of investment bankers, accountants and counsel) in connection with entering into this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby; provided, that in the event of any Legal Proceeding arising out of or relating to this Agreement, the non-prevailing party in any such Legal Proceeding will pay its own expenses and the reasonable documented out-of-pocket expenses, including reasonable attorneys’ fees and costs, reasonably incurred by the prevailing party.
(xii) No Partnership, Agency or Joint Venture. This Agreement is intended to create a contractual relationship among the Holders, the Company and the Purchaser, and is not intended to create, and does not create, any agency, partnership, joint venture or any like relationship among the parties hereto or among any other Purchaser Shareholders entering into voting agreements with the Company or the Purchaser. No Holder is affiliated with any other Holder entering into a voting or support agreement with the Company or the Purchaser in connection with the Business Combination Agreement, and such Holder has acted independently regarding its decision to enter into this Agreement. Nothing contained in this Agreement shall be deemed to vest in the Company or the Purchaser any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities.
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(xiii) Further Assurances. From time to time, at another party’s request and without further consideration, each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or desirable to consummate the transactions contemplated by this Agreement.
(xiv) Entire Agreement. This Agreement (together with the Business Combination Agreement to the extent referred to herein) constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of the Company or the Purchaser or any of the obligations of any Holder under any other agreement between such Holder and the Company or the Purchaser or any certificate or instrument executed by such Holder in favor of the Company or the Purchaser, and nothing in any other agreement, certificate or instrument shall limit any of the rights or remedies of the Company or the Purchaser or any of the obligations of such Holder under this Agreement.
(xv) Counterparts. This Agreement may be executed and delivered (including by electronic signature or by email in portable document format) in two or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
(xvi) Joinder. Any holder of Purchaser Class B Ordinary Shares (or any other equity securities of the Purchaser) may become a party to this Agreement as a “Holder” by executing and delivering to the Purchaser and the Company a joinder to this Agreement in a form reasonably acceptable to the Purchaser and the Company, whereupon such Person shall be deemed a “Holder” for all purposes hereunder and shall be bound by, and subject to, all of the covenants, terms and conditions of this Agreement that are applicable to a Holder, with the same force and effect as if such Person had originally executed this Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Sponsor Support Agreement as of the date first written above.
| The Purchaser: | ||
| PIONEER ACQUISITION I CORP. | ||
| By: | /s/ Mitchell Creem | |
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
[Signature Page to Sponsor Support Agreement]
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IN WITNESS WHEREOF, the parties have executed this Sponsor Support Agreement as of the date first written above.
| The Company: | ||
| GREEN AI CLOUD, INC. | ||
| By: | /s/ Jacob Bostrom | |
| Name: | Jacob Bostrom | |
| Title: | Chief Executive Officer | |
| PIONEER ACQUISITION 1 SPONSOR HOLDCO LLC | ||
| By: | /s/ Mitchell Creem | |
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
| Total Subject Securities: | ||
| Number and class of shares of the Purchaser: 6,325,000 Purchaser Class B Ordinary Shares | ||
| Address for Notice: | ||
| 131 Concord Street | ||
| Brooklyn, NY 11201 | ||
| Attn: Mitchell Creem | ||
| Email: creem@pioneeracquisition.com | ||
[Signature Page to Sponsor Support Agreement]
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IN WITNESS WHEREOF, the parties have executed this Sponsor Support Agreement as of the date first written above.
| Company: | ||
| PIONEER ACQUISITION I CORP. | ||
| By: | /s/ Mitchell Creem | |
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
| GREEN AI CLOUD, INC. | ||
| By: | /s/ Jacob Bostrom | |
| Name: | Jacob Bostrom | |
| Title: | Chief Executive Officer | |
[Signature Page to Sponsor Support Agreement]
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Exhibit 10.3
FORM OF SPONSOR LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”), dated as of [●], is made and entered into by and between Pioneer Acquisition I Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), and Pioneer Acquisition 1 Sponsor Holdco LLC, a Delaware limited liability company (the “Sponsor” and, together with any Person who hereafter becomes a party to this Agreement pursuant to Section 2, the “Securityholders” and each, a “Securityholder”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined herein).
WHEREAS, the parties hereto are entering into this Agreement in connection with that certain Business Combination Agreement, dated as of October 6, 2026 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among Pioneer Acquisition I Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), Pioneer Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Purchaser (the “Merger Sub”), and Green AI Cloud, Inc., a Delaware corporation (the “Company”), pursuant to which the parties thereto intend to consummate a business combination (the “Business Combination”);
WHEREAS, at least one (1) day prior to the Closing, the Purchaser shall de-register from the Register of Companies in the Cayman Islands by way of continuation out of the Cayman Islands and into the State of Delaware so as to re-domicile and become a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law, as amended (the “DGCL”), and the Companies Act (Revised) of the Cayman Islands (the “Cayman Companies Act”) (the “Domestication”);
WHEREAS, prior to the Domestication the Sponsor owned, in the aggregate, (i) 6,325,000 Purchaser Class B Ordinary Shares and (ii) 6,400,000 Cayman Purchaser Warrants;
WHEREAS, (i) immediately prior to the Domestication, each then issued and outstanding Purchaser Class B Ordinary Share held by the Sponsor was converted on a one-for-one basis into a Purchaser Class A Ordinary Share and (ii) in connection with the Domestication, (x) each then issued and outstanding Purchaser Class A Ordinary Share was converted automatically, on a one-for-one basis, into a share of Domesticated Purchaser Common Stock, par value $0.0001 per share; (y) each then issued and outstanding Cayman Purchaser Warrant was converted automatically, on a one-for-one basis, into a Domesticated Purchaser Warrant, each whole Domesticated Purchaser Warrant entitling the holder thereof to purchase one share of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement, dated as of June 17, 2025, by and between the Purchaser and Continental, as warrant agent; and (z) each then issued and outstanding Cayman Purchaser Unit was converted automatically, on a one-for-one basis, into a Domesticated Purchaser Unit, each consisting of one share of Domesticated Purchaser Common Stock and one-half of one Domesticated Purchaser Warrant, following which the Sponsor owns 6,325,000 shares of Domesticated Purchaser Common Stock (the “Lock-Up Shares”), including 6,325,000 shares issued upon conversion of the Purchaser Class B Ordinary Shares;
WHEREAS, in connection with the Business Combination, the parties hereto wish to set forth herein certain understandings between such parties with respect to restrictions on transfer of securities of the Purchaser.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
1. Transfer Restrictions. Subject to the exceptions set forth herein, each Securityholder agrees not to, without the prior written consent of the board of directors of the Purchaser, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Lock-Up Shares, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Lock-Up Shares or (iii) take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (the actions specified in clauses (i)-(iii), collectively, “Transfer”) prior to the date that is six (6) months following the consummation of the Merger (the “Lock-Up Period”).
2. Permitted Transfers. The restrictions set forth in Section 1 shall not apply to:
(i) Transfers of any securities other than the Lock-Up Shares or any other equity security of the Purchaser issued or issuable with respect to the Lock-Up Shares by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction;
(ii) Transfers to the Purchaser’s officers or directors, any Affiliate or member of the immediate family of any of the Purchaser’s officers or directors, any members or partners of the Sponsor or their Affiliates, any Affiliates of the Sponsor, or any employees of such Affiliates;
(iii) In the case of an individual, Transfers to any Affiliate or member of the immediate family of the Securityholder;
(iv) Transfers to any investment funds or vehicles controlled or managed by the Securityholder or any of its Affiliates;
(v) Transfers by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted under Section 2(iii), or to a charitable organization;
(vi) in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of such individual;
(vii) in the case of an individual, Transfers pursuant to a qualified domestic relations order;
(viii) in the case of an individual, Transfers to a partnership, limited liability company or other entity of which the Securityholder and/or its Affiliates or members of its immediate family are the legal and beneficial owner of all of the outstanding equity securities or similar interests;
(ix) Transfers to a nominee or custodian of a Person to whom a Transfer would be permitted under Section 2(iii);
(x) by private sales or transfers made in connection with any Funding Commitments (including any forward purchase agreement or similar arrangement) at prices no greater than the price at which the Lock-Up Shares were originally purchased;
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(xi) Transfers in connection with any legal, regulatory or other order;
(xii) in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust;
(xiii) in the case of an entity, Transfers as part of a distribution to members, partners, shareholders or equityholders of the Securityholder;
(xiv) in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity;
(xv) the exercise of Purchaser Options or Domesticated Purchaser Warrants to purchase shares of Domesticated Purchaser Common Stock or the vesting of Purchaser RSUs relating to shares of Domesticated Purchaser Common Stock and any related Transfer of shares of Domesticated Purchaser Common Stock in connection therewith (x) deemed to occur upon the “cashless” or “net” exercise of such Purchaser Options or Domesticated Purchaser Warrants or (y) for the purpose of paying the exercise price of such Purchaser Options or Domesticated Purchaser Warrants or for paying taxes due as a result of the exercise of such Purchaser Options or Domesticated Purchaser Warrants, the vesting of such Purchaser Options or Purchaser RSUs, or as a result of the vesting of such shares of Domesticated Purchaser Common Stock, it being understood that all shares of Domesticated Purchaser Common Stock received upon such exercise, vesting or transfer will remain subject to the restrictions of this Agreement during the Lock-Up Period;
(xvi) Transfers to the Purchaser pursuant to any contractual arrangement in effect upon the consummation of the Merger that provides for the repurchase by the Purchaser or forfeiture of Domesticated Purchaser Common Stock or other securities convertible into, or exercisable, redeemable or exchangeable for, Domesticated Purchaser Common Stock in connection with the termination of the Securityholder’s service to the Purchaser;
(xvii) the entry, by the Securityholder, at any time after the consummation of the Merger, of any trading plan providing for the sale of shares of Domesticated Purchaser Common Stock by the Securityholder, which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act; provided, however, that such plan does not provide for, or permit, the sale of any shares of Domesticated Purchaser Common Stock during the Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period;
(xviii) Transfers in the event of the completion of a liquidation, merger, stock exchange, reorganization or other similar transaction that results in all of the Purchaser’s securityholders having the right to exchange their shares of Domesticated Purchaser Common Stock for cash, securities or other property; and
provided, however, that (A) in the case of clauses (ii) through (xiv), as a prerequisite to such Transfer, such permitted transferee(s) must enter into a joinder to this Agreement, substantially in the form of Exhibit A hereto, in order to become a “Securityholder” for purposes of this Agreement. For purposes of this Section 2, “immediate family” shall mean a spouse, domestic partner, child (including by adoption), father, mother, brother or sister of the Securityholder, and lineal descendant (including by adoption) of the Securityholder or of any of the foregoing persons.
3. Termination. This Agreement shall terminate upon the earlier of (i) the expiration of the Lock-Up Period, (ii) the closing of a merger, liquidation, stock exchange, reorganization or other similar transaction after the date hereof that results in all of the public stockholders of the Purchaser having the right to exchange their shares of Domesticated Purchaser Common Stock for cash, securities or other property and (iii) the liquidation of the Purchaser.
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4. Prohibited Transfers. In furtherance of the foregoing, the Purchaser, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Agreement.
5. Amendment. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Purchaser and the Securityholders holding a majority of the aggregate number of shares of Domesticated Purchaser Common Stock then held by all Securityholders as to which this Agreement has not been terminated, executed in the same manner as this Agreement and which makes reference to this Agreement.
6. Entire Agreement. This Agreement and the documents or instruments referred to herein embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or in the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the parties hereto with respect to the subject matter contained herein.
7. Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the parties hereto, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning party of its obligations hereunder.
8. Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of 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.
9. Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this 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 Legal Proceeding, suit or proceeding brought pursuant to this Section 9.
10. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
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11. Counterparts. This Agreement (and any joinder to this Agreement) may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
12. Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
13. Liability. The liability of any Securityholder hereunder is several (and not joint). Notwithstanding any other provision of this Agreement, in no event will any Securityholder be liable for any other Securityholder’s breach of such other Securityholder’s obligations under this Agreement.
14. Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means (including email), with evidence of transmission, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, prepaid and return receipt requested, in each case to the applicable party at the following address (or at such other address for a party as shall be specified by like notice):
If to the Purchaser:
Pioneer Acquisition I Corp.
131 Concord Street
Brooklyn, NY 11201
Attn: Mitchell Creem
Email: Creem@pioneeracquisition.com
with a copy (which shall not constitute notice) to:
Winston Taylor LLP
800 Capitol Street, Suite 2400
Houston, TX 77002
Attn: Michael J. Blankenship
Email: mike.blankenship@winstontaylor.com
If to the Sponsor:
Pioneer Acquisition 1 Sponsor Holdco LLC
c/o Pioneer Acquisition I Corp.
131 Concord Street
Brooklyn, NY 11201
Attn: Mitchell Creem
Email: Creem@pioneeracquisition.com
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| Purchaser: | ||
| PIONEER ACQUISITION I CORP. | ||
| By: | ||
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
| Securityholder: | ||
| PIONEER ACQUISITION 1 SPONSOR HOLDCO LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Lock-Up Agreement]
6
EXHIBIT A
JOINDER TO LOCK-UP AGREEMENT
[●], 2026
Reference is made to the Lock-Up Agreement, dated as of [●], 2026, by and between Pioneer Acquisition I Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”) and the Securityholders (as defined therein) from time to time party thereto (as amended, supplemented or otherwise modified from time to time, the “Lock-Up Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Lock-Up Agreement.
Each of the Purchaser and the undersigned holder of securities of the Purchaser subject to the Lock-Up Agreement (the “New Securityholder”) agrees that this Joinder to the Lock-Up Agreement (this “Joinder”) is being executed and delivered for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
The New Securityholder hereby agrees to and does become a party to the Lock-Up Agreement as a Securityholder. This Joinder shall serve as a counterpart signature page to the Lock-Up Agreement and by executing below, the New Securityholder is deemed to have executed the Lock-Up Agreement with the same force and effect as if originally named a party thereto.
This Joinder may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank.]
Exh. A-1
IN WITNESS WHEREOF, the undersigned have duly executed this Joinder as of the date first set forth above.
| Purchaser: | ||
| PIONEER ACQUISITION I CORP. | ||
| By: | ||
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
| New Securityholder: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Joinder to Lock-Up Agreement]
Exh. A-2
Exhibit 10.4
FORM OF Seller LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”), dated as of [●], is made and entered into by and among Pioneer Acquisition I Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), Green AI Cloud, Inc., a Delaware corporation (the “Company”), and the Persons set forth on Schedule I hereto (such Persons, together with any Person who hereafter becomes a party to this Agreement pursuant to Section 2 of this Agreement, the “Sellers” and each, a “Seller”). For purposes of this Agreement, the Sellers are the holders of equity securities of the Company and any transferee who becomes a party pursuant to Section 2. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined herein).
WHEREAS, the Purchaser, the Company and Pioneer Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Purchaser (“Merger Sub”) are parties to that certain Business Combination Agreement, dated as of October 6, 2026 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among the Purchaser, Merger Sub, and the Company, pursuant to which the Purchaser, Merger Sub and the Company will consummate the Domestication and the Merger (the “Business Combination”);
WHEREAS, pursuant to the Business Combination Agreement, the holders of Company Common Stock immediately prior to the Effective Time (the “Company Shareholders”) are entitled to receive the Aggregate Consideration, which shall be issued to the Company Shareholders pro rata in accordance with their respective holdings of Company Common Stock immediately prior to the Effective Time, and, in addition to the Aggregate Consideration, the Earn-Out Shares, which shall be issued to the Company Shareholders pro rata in accordance with their respective holdings of Company Common Stock immediately prior to the Effective Time, subject to the vesting and forfeiture provisions of Section 2.06 of the Business Combination Agreement;
WHEREAS, following the consummation of the Merger, each Seller owns or is entitled to receive Lock-Up Shares; and
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
1. Transfer Restrictions. Subject to the exceptions set forth herein, each Seller agrees not to, without the prior written consent of the board of directors of the Purchaser, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, (a) any shares of common stock, par value $0.0001 per share, of the Purchaser following the Domestication (the “Domesticated Purchaser Common Stock”) issued to or received by such Seller in connection with the Merger or transferred to such Seller pursuant to Section 2 of this Agreement, (b) any Earn-Out Shares issued or issuable to such Seller pursuant to Section 2.06 of the Business Combination Agreement, or (c) any securities convertible into, or exercisable, redeemable or exchangeable for, Domesticated Purchaser Common Stock held by such Seller immediately following the Effective Time, issued to or received by such Seller in connection with the Merger or transferred to such Seller pursuant to Section 2 of this Agreement (including any Domesticated Purchaser Warrants issued upon conversion of Cayman Purchaser Warrants) (the shares and securities specified in clauses (a)-(c), collectively, the “Lock-Up Shares”), (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Lock-Up Shares or (iii) take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (the actions specified in clauses (i)-(iii), collectively, “Transfer”) prior to the date that is six (6) months following the consummation of the Merger (the “Lock-Up Period”). Notwithstanding the foregoing, any Transfer of Earn-Out Shares prior to vesting shall be subject to Section 2.06(h) of the Business Combination Agreement.
2. Permitted Transfers. The restrictions set forth in Section 1 shall not apply to:
(i) Transfers of any securities other than (a) the Lock-Up Shares and (b) any other equity security of the Purchaser issued or issuable with respect to the Lock-Up Shares by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction;
(ii) In the case of an individual, Transfers to any Affiliates or members of the immediate family of the Seller;
(iii) Transfers to any investment funds or vehicles controlled or managed by the Seller or any of its Affiliates;
(iv) Transfers by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted under clause (ii) of this Section 2, or to a charitable organization;
(v) In the case of an individual, Transfers by virtue of laws of descent and distribution upon death of such individual;
(vi) In the case of an individual, Transfers pursuant to a qualified domestic relations order;
(vii) In the case of an individual, Transfers to a partnership, limited liability company or other entity of which the Seller and/or any Affiliates or members of the immediate family of the Seller are the legal and beneficial owners of all of the outstanding equity securities or similar interests;
(viii) Transfers to a nominee or custodian of a Person to whom a Transfer would be permitted under clause (ii) of this Section 2;
(ix) Transfers in connection with any legal, regulatory or other Order;
(x) In the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust;
(xi) In the case of an entity, Transfers as part of a distribution to members, partners, shareholders or equityholders of the Seller;
(xii) In the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity;
(xiii) The exercise of warrants to purchase shares of Domesticated Purchaser Common Stock and any related Transfer of shares of Domesticated Purchaser Common Stock in connection therewith (x) deemed to occur upon the “cashless” or “net” exercise of such warrants or (y) for the purpose of paying the exercise price of such warrants or for paying taxes due as a result of the exercise of such warrants, it being understood that all shares of Domesticated Purchaser Common Stock received upon such exercise or transfer will remain subject to the restrictions of this Agreement during the Lock-Up Period;
(xiv) Transfers to the Purchaser pursuant to any contractual arrangement in effect upon the consummation of the Business Combination that provides for the repurchase by the Purchaser or forfeiture of Domesticated Purchaser Common Stock or other securities convertible into, or exercisable, redeemable or exchangeable for, Domesticated Purchaser Common Stock in connection with the termination of the Seller’s service to the Purchaser, the Company or any of their respective Affiliates;
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(xv) The entry, by the Seller, at any time after the consummation of the Merger, of any trading plan providing for the sale of shares of Domesticated Purchaser Common Stock by the Seller, which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act; provided, however, that such plan does not provide for, or permit, the sale of any shares of Domesticated Purchaser Common Stock during the Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period;
(xvi) Transfers in the event of the completion of a liquidation, merger, stock exchange, reorganization or other similar transaction that results in all of the Purchaser’s equityholders having the right to exchange their shares of Domesticated Purchaser Common Stock for cash, securities or other property.
provided, however, that, in the case of clauses (ii) through (xi) of this Section 2, as a prerequisite to such Transfer, such transferee(s) must enter into a joinder to this Agreement, substantially in the form of Exhibit A hereto, in order to become a “Seller” for purposes of this Agreement. For purposes of this Section 2, “immediate family” shall mean a spouse, domestic partner, child (including by adoption), father, mother, brother or sister of the Seller, and lineal descendant (including by adoption) of the Seller or of any of the foregoing persons.
3. Termination. This Agreement shall terminate upon the earlier of (i) the expiration of the Lock-Up Period, (ii) the closing of a merger, liquidation, stock exchange, reorganization or other similar transaction after the date hereof that results in all of the holders of Domesticated Purchaser Common Stock having the right to exchange their shares of Domesticated Purchaser Common Stock for cash, securities or other property and (iii) the liquidation of the Purchaser.
4. Prohibited Transfers. In furtherance of the foregoing, the Purchaser and any duly appointed transfer agent for the registration or transfer of the Lock-Up Shares are hereby authorized to decline to make any transfer of Lock-Up Shares if such transfer would constitute a violation or breach of this Agreement.
5. Amendment. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Purchaser, the Company and the Sellers holding a majority of the aggregate number of shares of Domesticated Purchaser Common Stock then held by all Sellers as to which this Agreement has not been terminated, executed in the same manner as this Agreement and which makes reference to this Agreement.
6. Entire Agreement. This Agreement and the documents or instruments referred to herein embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or in the documents or instruments referred to herein, which collectively supersede all prior agreements and understandings among the parties hereto with respect to the subject matter contained herein.
7. Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the parties hereto, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning party of its obligations hereunder.
8. Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of 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.
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9. Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or the inconvenience of forum, (iii) agrees that all claims in respect of such Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this 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 Legal Proceeding, suit or proceeding brought pursuant to this Section 9.
10. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
11. Counterparts. This Agreement (and any joinder to this Agreement) may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
12. Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
13. Liability. The liability of any Seller hereunder is several (and not joint). Notwithstanding any other provision of this Agreement, in no event will any Seller be liable for any other Seller’s breach of such other Seller’s obligations under this Agreement.
14. Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means (including email), with evidence of transmission, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, prepaid and return receipt requested, in each case to the applicable party at the following address (or at such other address for a party as shall be specified by like notice):
If to the Purchaser:
Pioneer Acquisition I Corp.
131 Concord Street
Brooklyn, NY 11201
Attn: Mitchell Creem
Email: Creem@pioneeracquisition.com
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with a copy (which will not constitute notice) to:
Winston Taylor LLP
800 Capitol Street, Suite 2400
Houston, TX 77002
Attn: Michael J. Blankenship
Email: mike.blankenship@winstontaylor.com
if to the Company:
Hyper Green AI Cloud AB,
Grev Turegatan 30, 114 21 Stockholm, Sweden
Attn: Jacob Bostrom
Email: jacob.bostrom@greenai.cloud
and if to any Seller, to the address or email address set forth on the applicable signature page or Schedule I hereto.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| Company: | ||
| PIONEER ACQUISITION I CORP. | ||
| By: | ||
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
| GREEN AI CLOUD, INC. | ||
| By: | ||
| Name: | Jacob Bostrom | |
| Title: | Chief Executive Officer | |
[Signature Page to Lock-Up Agreement]
6
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| Sellers: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Lock-Up Agreement]
7
EXHIBIT A
JOINDER
TO LOCK-UP AGREEMENT
[●], 2026
Reference is made to the Lock-Up Agreement, dated as of [●], by and among Pioneer Acquisition I Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), Green AI Cloud, Inc., a Delaware corporation (the “Company”), and the Sellers (as defined therein) from time to time party thereto (as amended, supplemented or otherwise modified from time to time, the “Lock-Up Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Lock-Up Agreement.
Each of the Purchaser, the Company and the undersigned transferee of Lock-Up Shares (the “New Seller”) agrees that this Joinder to the Lock-Up Agreement (this “Joinder”) is being executed and delivered for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
The New Seller hereby agrees to become, and does become, a party to the Lock-Up Agreement as a Seller. This Joinder shall serve as a counterpart signature page to the Lock-Up Agreement and by executing below, the New Seller is deemed to have executed the Lock-Up Agreement with the same force and effect as if originally named a party thereto.
This Joinder may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Remainder of page intentionally left blank]
Exh. A-1
IN WITNESS WHEREOF, the undersigned have duly executed this Joinder as of the date first set forth above.
| Company: | ||
| PIONEER ACQUISITION I CORP. | ||
| By: | ||
| Name: | Mitchell Creem | |
| Title: | Chief Executive Officer | |
| GREEN AI CLOUD, INC. | ||
| By: | ||
| Name: | Jacob Bostrom | |
| Title: | Chief Executive Officer | |
| New Seller: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Lock-Up Agreement]
Exh. A-2
Exhibit 10.5
FORM OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [●], is made and entered into by and among Green AI Cloud, Inc., a Delaware corporation (the “Company”), Pioneer Acquisition 1 Sponsor Holdco LLC, a Delaware limited liability company (the “Sponsor”), the members of the Sponsor identified on the signature pages hereto under “Other Sponsor Holders” (such members, together with the Sponsor, each a “Sponsor Holder” and collectively, the “Sponsor Holders”), each of the undersigned parties listed on the signature page hereto under “Seller Holders” (each, a “Seller Holder” and collectively, the “Seller Holders”), and each of the undersigned parties listed on the signature page hereto under “Other Holders” (each, an “Other Holder” and collectively, the “Other Holders,” and each such party, together with the Sponsor Holders, the Seller Holders and any Person who hereafter becomes a party to this Agreement pursuant to Section 5.02, a “Holder” and collectively the “Holders”).
RECITALS
WHEREAS, Pioneer Acquisition I Corp. and certain Sponsor Holders were parties to that certain Registration Rights Agreement, dated as of June 17, 2025 (the “Original RRA”);
WHEREAS, Pioneer Acquisition I Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), Pioneer Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Green AI Cloud, Inc., a Delaware corporation (the “Company”), are parties to that certain Business Combination Agreement, dated as of October 6, 2026 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”);
WHEREAS, prior to the Closing and subject to the conditions of the Business Combination Agreement, Pioneer Acquisition I Corp. transferred by way of continuation to and domesticated as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law, as amended, and the Companies Act (as revised) of the Cayman Islands (the “Domestication”);
WHEREAS, prior to the Domestication, the Sponsor owned, in the aggregate, (i) [●] Class B ordinary shares of Pioneer Acquisition I Corp. and (ii) [●] Cayman Purchaser Units, each consisting of one Class A ordinary share of Pioneer Acquisition I Corp. and one-half of one Cayman Purchaser Warrant, each whole Cayman Purchaser Warrant entitling the holder thereof to purchase one share of Common Stock at an exercise price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement;
WHEREAS, as of the date of the Business Combination Agreement, 6,400,000 private placement warrants of Pioneer Acquisition I Corp. were issued and outstanding;
WHEREAS, (i) immediately prior to the Domestication, each then issued and outstanding Class B ordinary share of Pioneer Acquisition I Corp. was converted on a one-for-one basis into a Class A ordinary share of Pioneer Acquisition I Corp. and (ii) in connection with the Domestication, (x) each then issued and outstanding Class A ordinary share of Pioneer Acquisition I Corp. was converted automatically, on a one-for-one basis, into a share of Domesticated Purchaser Common Stock, par value $0.0001 per share (the “Common Stock”); (y) each then issued and outstanding Cayman Purchaser Warrant converted automatically, on a one-for-one basis, into a Domesticated Purchaser Warrant, each whole Domesticated Purchaser Warrant entitling the holder thereof to purchase one share of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement; and (z) each then issued and outstanding Cayman Purchaser Unit was converted automatically, on a one-for-one basis, into a Domesticated Purchaser Unit, each consisting of one share of Domesticated Purchaser Common Stock and one-half of one Domesticated Purchaser Warrant;
WHEREAS, pursuant to the Business Combination Agreement, on the Closing Date, the Company and Merger Sub consummated the Merger, pursuant to which Merger Sub merged with and into the Company, with the Company continuing as the surviving corporation after the Merger and as a direct, wholly owned subsidiary of the Purchaser (the “Merger”);
WHEREAS, at the Closing, in connection with the consummation of the Merger, the Purchaser issued 30,000,000 shares of Common Stock to the Seller Holders as the aggregate consideration contemplated by the Business Combination Agreement, calculated using a purchase price of $300,000,000 and a per share price of $10.00;
WHEREAS, at the Closing, in addition to the aggregate consideration, the Purchaser issued to the Company Shareholders pro rata in accordance with their respective holdings of Company Common Stock immediately prior to the Effective Time an aggregate of 5,000,000 shares of Domesticated Purchaser Common Stock, subject to the vesting, transfer restriction and forfeiture provisions of Section 2.06 of the Business Combination Agreement;
WHEREAS, pursuant to Section 5.05 of the Original RRA, the provisions, covenants and conditions set forth therein may be amended or modified upon the written consent of the Company and the Holders (as defined in the Original RRA) (the “Original Holders”) of at least a majority in interest of the Registrable Securities (as defined in the Original RRA) (the “Original Registrable Securities”) at the time in question, and the Sponsor Holders party hereto are Original Holders of at least a majority in interest of the Original Registrable Securities as of the date hereof; and
WHEREAS, in connection with the consummation of the transactions described above and simultaneously with the Closing, the Company and the Original Holders desire to amend and restate the Original RRA in its entirety as set forth herein, and the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration rights with respect to the Registrable Securities (as defined below) on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Additional Holder” shall have the meaning given in Section 5.11.
“Additional Holder Common Stock” shall have the meaning given in Section 5.11.
“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or Chief Financial Officer of the Company or the Board, in each case, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii) the Company has a bona fide business purpose for not making such information public.
“Agreement” shall have the meaning given in the Preamble hereto.
“Board” shall mean the board of directors of the Company.
“Business Combination Agreement” shall have the meaning given in the Recitals hereto.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.
“Cayman Purchaser Unit” means, prior to the Domestication, a unit of Pioneer Acquisition I Corp. consisting of one Class A ordinary share of Pioneer Acquisition I Corp. and one-half of one Cayman Purchaser Warrant.
“Cayman Purchaser Warrant” means, prior to the Domestication, each warrant of Pioneer Acquisition I Corp. issued and outstanding immediately prior to the Domestication.
“Closing” shall have the meaning given in the Business Combination Agreement.
“Closing Date” shall have the meaning given in the Business Combination Agreement.
“Commission” shall mean the U.S. Securities and Exchange Commission.
“Common Stock” shall have the meaning given in the Recitals hereto.
“Company” shall have the meaning given in the Preamble hereto and includes the Company’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.
“Competing Registration Rights” shall have the meaning given in Section 5.08.
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“Domesticated Purchaser Common Stock” means, following the Domestication, common stock of the Purchaser, par value $0.0001 per share.
“Domesticated Purchaser Unit” means, following the Domestication, a unit of the Purchaser consisting of one share of Common Stock and one-half of one Domesticated Purchaser Warrant.
“Domesticated Purchaser Warrant” means, following the Domestication, a warrant of the Purchaser entitling the holder thereof to purchase one share of Common Stock at an exercise price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement.
“Demanding Holder” shall have the meaning given in Section 2.01(d).
“Demand Limit” shall have the meaning given in Section 2.01(d).
“Earn-Out Shares” shall have the meaning given in Section 2.06(a) of the Business Combination Agreement.
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as it may be amended from time to time.
“FINRA” shall mean the Financial Industry Regulatory Authority, Inc.
“Form S-1 Shelf” shall have the meaning given in Section 2.01(a).
“Form S-3 Shelf” shall have the meaning given in Section 2.01(a).
“Governmental Authority” means any federal, state, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality, department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body.
“Holder Information” shall have the meaning given in Section 4.01(b).
“Holders” shall have the meaning given in the Preamble hereto, for so long as such Person holds any Registrable Securities.
“Joinder” shall have the meaning given in Section 5.11.
“Law” shall mean any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, order or consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“Legal Proceeding” means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint, stipulation, assessment or arbitration, or any request (including any request for information), inquiry, hearing, proceeding or investigation, by or before any Governmental Authority.
“Lock-Up Agreements” means the Seller Lock-Up Agreement and the Sponsor Lock-Up Agreement, collectively.
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“Lock-Up Period” shall mean the six (6) months following the consummation of the Merger.
“Maximum Number of Securities” shall have the meaning given in Section 2.01(e).
“Seller Holders” shall have the meaning given in the Preamble hereto.
“Seller Majority Holders” shall mean the Seller Holders holding in the aggregate a majority of the Registrable Securities then held by the Seller Holders.
“Seller Lock-Up Agreement” means the lock-up agreement, dated [●], entered into by the Purchaser, the Seller Holders and the other parties thereto.
“Merger” shall have the meaning given in the Recitals hereto.
“Minimum Takedown Threshold” shall have the meaning given in Section 2.01(d).
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.
“Original Registrable Securities” shall have the meaning given in the Recitals hereto.
“Original RRA” shall have the meaning given in the Recitals hereto.
“Other Coordinated Offering” shall have the meaning given in Section 2.04(a).
“Permitted Transferees” means, with respect to any Holder, any Person to whom such Holder is permitted to transfer Registrable Securities under the applicable Lock-Up Agreement or other applicable agreement governing such Registrable Securities.
“Person” means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Piggyback Registration” shall have the meaning given in Section 2.02(a).
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable Security” shall mean (i) any outstanding shares of Common Stock held by any Sponsor Holder, Seller Holder or Other Holder immediately following the Closing, (ii) any Earn-Out Shares (as defined in Section 2.06(a) of the Business Combination Agreement), (iii) any shares of Common Stock that may be acquired by a Holder upon the exercise, conversion or redemption of any other security of the Purchaser (including any Domesticated Purchaser Warrant) or other right to acquire Common Stock held by a Holder immediately following the Closing and (iv) any other equity security of the Purchaser issued or issuable with respect to any securities referenced in clause (i), (ii) or (iii) above by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; provided, however,
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that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of the following events: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement by the applicable Holder to a Person that is not an “affiliate” (as defined in Rule 144) of the Company and new certificates for such securities not bearing (or book-entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (ii) such securities shall have been otherwise transferred, new certificates for such securities not bearing (or book-entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; (iv) such securities may be sold without registration pursuant to Rule 144 (but with no volume or other restrictions or limitations including as to manner or timing of sale or current public information requirements); and (v) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.
“Registration” shall mean a registration, including any related Shelf Takedown, effected by preparing and filing a Registration Statement, Prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such Registration Statement becoming effective.
“Registration Expenses” shall mean the documented, out-of-pocket expenses of a Registration, including, without limitation, the following:
(a) all registration, listing and filing fees (including fees with respect to filings required to be made with FINRA, Nasdaq, any other national securities exchange or OTC Markets on which the Common Stock is then listed or quoted);
(b) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);
(c) printing, messenger, telephone and delivery expenses;
(d) reasonable fees and disbursements of counsel for the Company;
(e) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and
(f) reasonable fees and expenses of one (1) legal counsel selected by the majority in interest of the Demanding Holders in an Underwritten Offering or Other Coordinated Offering.
“Registration Statement” shall mean any registration statement that covers Registrable Securities pursuant to the provisions of this Agreement, including any Shelf, and, in each case, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement and all exhibits to, and all material incorporated by reference in, such registration statement.
“Requesting Holders” shall have the meaning given in Section 2.01(e).
“Rule 144” shall mean Rule 144 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated by the Commission.
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“Securities Act” shall mean the U.S. Securities Act of 1933, as amended from time to time.
“Shelf” shall mean the Form S-1 Shelf, the Form S-3 Shelf, or any Subsequent Shelf Registration, as the case may be.
“Shelf Registration” shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated by the Commission.
“Shelf Takedown” shall mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.
“Sponsor” shall have the meaning given in the Preamble hereto.
“Sponsor Holders” shall have the meaning given in the Preamble hereto.
“Sponsor Lock-Up Agreement” means the lock-up agreement, dated [●], entered into by the Purchaser and the Sponsor.
“Sponsor Majority Holders” shall mean the Sponsor Holders holding in the aggregate a majority of the Registrable Securities then held by the Sponsor Holders.
“Subsequent Shelf Registration” shall have the meaning given in Section 2.01(b).
“Transfer” shall mean the (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecation, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act 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).
“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.
“Underwritten Lock-Up Period” shall have the meaning given in Section 2.03.
“Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
“Underwritten Shelf Takedown” shall have the meaning given in Section 2.01(d).
“Warrant Agreement” means that certain Warrant Agreement, dated as of June 17, 2025, by and between Pioneer Acquisition I Corp. and Continental Stock Transfer & Trust Company, as warrant agent.
“Withdrawal Notice” shall have the meaning given in Section 2.01(f).
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ARTICLE II
REGISTRATIONS AND OFFERINGS
Section 2.01 Shelf Registration.
(a) Filing. The Company shall, subject to Section 3.04, submit or file within 30 days of the Closing Date a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or, if the Company is eligible to use a Registration Statement on Form S-3, a Shelf Registration on Form S-3 (the “Form S-3 Shelf”), in each case, covering the resale of all Registrable Securities (determined as of two (2) Business Days prior to such submission or filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf declared effective as soon as reasonably practicable after the filing thereof, but no later than the earlier of (a) the 90th calendar day following the filing date thereof if the Commission notifies the Company that it will “review” the Registration Statement and (b) the tenth (10th) Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. Subject to Sections 2.01(c) and 3.04, the Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. In the event the Company files a Form S-1 Shelf, the Company shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf as soon as reasonably practicable after the Company is eligible to use Form S-3.
(b) Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.04, use its commercially reasonable efforts to, as promptly as is reasonably practicable, cause such Shelf to again become effective under the Securities Act (including using its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to, as promptly as is reasonably practicable, amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all Registrable Securities under such Shelf (determined as of two (2) Business Days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form.
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(c) New Registrable Securities. Subject to Section 3.04, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, the Company shall, upon the written request of such Holder, promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s option, any then-available Shelf (including by means of a post-effective amendment) or a Subsequent Shelf Registration and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration shall be subject to the terms hereof; provided, however, that the Company shall only be required to cause such Registrable Securities to be so covered twice per calendar year for each of (i) the Sponsor Holders, collectively, (ii) the Seller Holders, collectively, and (iii) the Other Holders, collectively.
(d) Requests for Underwritten Shelf Takedowns. Subject to Section 3.04 and following the expiration of the applicable Lock-Up Period, at any time and from time to time when an effective Shelf is on file with the Commission, any Holder (a “Demanding Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering or Other Coordinated Offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder, either individually or together with other Demanding Holders, with a total offering price reasonably expected to exceed, in the aggregate, $25 million (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Subject to Section 2.04(d), the Company shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the initial Demanding Holder’s prior approval (which approval shall not be unreasonably withheld, conditioned or delayed). Subject to Section 2.04(f), each of (i) the Sponsor Holders, collectively, (ii) the Seller Holders, collectively, and (iii) the Other Holders, collectively, may demand Underwritten Shelf Takedowns pursuant to this Section 2.01(d) not more than three (3) times in the aggregate following the expiration of the applicable Lock-Up Period (the “Demand Limit”). Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Offering pursuant to any then-effective Registration Statement, including a Form S-3, that is then available for such offering.
(e) Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith, advises the Company, the Demanding Holders and the Holders requesting piggyback rights pursuant to this Agreement with respect to such Underwritten Shelf Takedown (the “Requesting Holders”) (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other shares of Common Stock or other equity securities that the Company desires to sell and all other shares of Common Stock or other equity securities, if any, that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggyback registration rights held by any other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, before including any shares of Common Stock or other equity securities proposed to be sold by Company or by other holders of Common Stock or other equity securities, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (pro rata, as nearly as practicable, based on the respective number of Registrable Securities that each Demanding Holder and Requesting Holder (if any) has requested be included in such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that the Demanding Holders and Requesting Holders (if any) have requested be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of Securities. To facilitate the allocation of Registrable Securities in accordance with the above provisions, the Company or the Underwriters may round the number of shares allocated to any Holder to the nearest 10 Registrable Securities.
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(f) Underwritten Shelf Takedown Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Shelf Takedown, a majority in interest of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Underwritten Shelf Takedown; provided that any other Demanding Holder(s) may elect to have the Company continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by the Demanding Holder(s). If withdrawn, a demand for an Underwritten Shelf Takedown shall constitute a demand for an Underwritten Shelf Takedown by the withdrawing Demanding Holder for purposes of Section 2.01(d) and shall count toward the Demand Limit, unless either (i) the Demanding Holder(s) making the withdrawal has not previously withdrawn any Underwritten Shelf Takedown or (ii) the Demanding Holder(s) making the withdrawal reimburses the Company for all Registration Expenses with respect to such Underwritten Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown); provided that, if any other Demanding Holder(s) elects to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by such Demanding Holder(s) for purposes of Section 2.01(d) and shall count toward the Demand Limit. Following the receipt of any Withdrawal Notice, the Company shall promptly forward such Withdrawal Notice to any other Requesting Holders. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to its withdrawal under this Section 2.01(f), other than if a Demanding Holder elects to pay such Registration Expenses pursuant to clause (ii) of the second sentence of this Section 2.01(f).
Section 2.02 Piggyback Registration.
(a) Piggyback Rights. If the Company or any Holder proposes to conduct a registered offering of, or if the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration of, equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of securityholders of the Company (or by the Company and by the securityholders of the Company including, without limitation, an Underwritten Shelf Takedown pursuant to Section 2.01), other than a Registration Statement (or any registered offering with respect thereto) (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iii) pursuant to a Registration Statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (iv) for an offering of debt that is convertible into equity securities of the Company, (v) for a dividend reinvestment plan, or (vi) for a Block Trade or an Other Coordinated Offering (which shall be subject to Section 2.04), then the Company shall give written notice of such proposed offering to all of the Holders of Registrable Securities as soon as practicable but not less than ten days before the anticipated filing date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring” prospectus or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to include in such registered offering such number of Registrable Securities as such Holders may request in writing within five (5) Business Days after receipt of such written notice (such Registration, a “Piggyback Registration”). Subject to Section 2.02(b), the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and, if applicable, shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit the Registrable Securities requested by the Holders pursuant to this Section 2.02(a) to be included therein on the same terms and conditions as any similar securities of the Company included in such registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Holder’s agreement to enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company.
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(b) Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock or other equity securities that the Company or the Demanding Holders desire to sell, taken together with (i) the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with Persons other than the Holders of Registrable Securities hereunder, (ii) the Registrable Securities as to which Registration has been requested pursuant to this Section 2.02 and (iii) the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggyback registration rights of Persons other than the Holders of Registrable Securities hereunder, exceeds the Maximum Number of Securities, then:
(i) if the Registration or registered offering is undertaken for the Company’s account, the Company shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.02(a), pro rata, as nearly as practicable, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggyback registration rights of Persons other than the Holders of Registrable Securities hereunder, which can be sold without exceeding the Maximum Number of Securities;
(ii) if the Registration or registered offering is pursuant to a request by Persons other than the Holders of Registrable Securities, then the Company shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities, if any, of such requesting Persons, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.02(a), pro rata, as nearly as practicable, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggyback registration rights of such Persons other than the Holders of Registrable Securities hereunder, which can be sold without exceeding the Maximum Number of Securities; and
(iii) if the Registration or registered offering is pursuant to a request by Holder(s) of Registrable Securities pursuant to Section 2.01, then the Company shall include in any such Registration or registered offering securities in the priority set forth in Section 2.01(e).
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(c) Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.01(f)) shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. The Company (whether on its own good faith determination or as the result of a request for withdrawal by Persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.01(f)), the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.02(c).
(d) Three (3) Piggyback Registration Rights. For purposes of clarity, subject to Section 2.01(f), each of (i) the Sponsor Holders, collectively, (ii) the Seller Holders, collectively, and (iii) the Other Holders, collectively, may exercise the Piggyback Registration rights under Section 2.02 no more than three (3) times in the aggregate. Any Piggyback Registration effected pursuant to Section 2.02 shall not be counted as a demand for an Underwritten Shelf Takedown under Section 2.01(d) and shall not count toward the Demand Limit.
Section 2.03 Market Stand-off. In connection with any Underwritten Offering of equity securities of the Company (other than a Block Trade or Other Coordinated Offering), if requested by the managing Underwriter, each Holder that is an executive officer or director of the Company or a Holder in excess of 5.0% of the then-outstanding Common Stock agrees that it shall not Transfer any shares of Common Stock or other equity securities of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent of the Company, during the 90-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing of such offering (the “Underwritten Lock-Up Period”), except (i) to Permitted Transferees, (ii) as expressly permitted by such lock-up agreement or (iii) in the event the Underwriters managing the offering otherwise consent in writing. Each Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the same terms and conditions as all other Holders). The Company will not be obligated to undertake an Underwritten Shelf Takedown during any Underwritten Lock-Up Period binding on the Holders, nor will the Company be obligated to include in any Piggyback Registration any Registrable Securities that are then subject to a “lock-up” agreement.
Section 2.04 Block Trades; Other Coordinated Offerings.
(a) Notwithstanding any other provision of this Article II, but subject to Section 3.04, at any time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block Trade”) or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal, (an “Other Coordinated Offering”), in each case, either (x) with an anticipated aggregate offering price reasonably expected to be at least $25 million or (y) with respect to all remaining Registrable Securities held by the Demanding Holder, then such Demanding Holder only needs to notify the Company of the Block Trade or Other Coordinated Offering at least five (5) Business Days prior to the day such offering is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the Company and any Underwriters, brokers, sales agents or placement agents prior to making such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering.
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(b) Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade or Other Coordinated Offering, a majority in interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering shall have the right to submit a Withdrawal Notice to the Company, the Underwriter or Underwriters (if any) and any brokers, sales agents or placement agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated Offering. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade or Other Coordinated Offering prior to its withdrawal under this Section 2.04(b).
(c) Notwithstanding anything to the contrary in this Agreement, Section 2.02 shall not apply to a Block Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement.
(d) The Demanding Holder in a Block Trade or Other Coordinated Offering shall have the right to select the Underwriters and any brokers, sales agents or placement agents (if any) for such Block Trade or Other Coordinated Offering (in each case, which shall consist of one or more reputable nationally recognized investment banks).
(e) Subject to Section 2.04(f), each of (i) the Sponsor Holders, collectively, (ii) the Seller Holders, collectively, and (iii) the Other Holders, collectively, may demand no more than three (3) Block Trades or Other Coordinated Offerings pursuant to this Section 2.04 following the expiration of the applicable Lock-Up Period. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this Section 2.04 shall not be counted as a demand for an Underwritten Shelf Takedown pursuant to Section 2.01(d).
(f) Notwithstanding anything to the contrary in this Agreement, with respect to (i) the Sponsor Holders, collectively, (ii) the Seller Holders, collectively, or (iii) the Other Holders, collectively, in no event may the number of Block Trades or Other Coordinated Offerings demanded pursuant to this Section 2.04 plus the number of Underwritten Shelf Takedowns demanded pursuant to Section 2.01(d) exceed a total of three (3) demands for such group following the expiration of the applicable Lock-Up Period.
Section 2.05 Legends. In connection with any sale or other disposition of the Registrable Securities by a Holder pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) and upon compliance by the Holder with the requirements of this Section 2.05, if requested by the Holder, the Company shall cause the transfer agent for the Registrable Securities (the “Transfer Agent”) to remove any restrictive legends related to the book entry account holding such Registrable Securities and make a new, unlegended entry for such book entry shares sold or disposed of without restrictive legends within one (1) trading day of any such request therefor from the Holder; provided that the Company and the Transfer Agent have timely received from the Holder customary representations and other documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith. Subject to receipt from the Holder by the Company and the Transfer Agent of customary representations and other documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith, the Holder may request that the Company remove any legend from the book entry position evidencing its Registrable Securities and the Company will, if required by the Transfer Agent, use its commercially reasonable efforts to cause an opinion of the Company’s counsel to be provided, in a form reasonably acceptable to the Transfer Agent, to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act, following the earliest of such time as such Registrable Securities (i) are subject to or have been or are about to be sold pursuant to an effective registration statement or (ii) have been or are about to be sold pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission). If restrictive legends are no longer required for such Registrable Securities pursuant to the foregoing, the Company shall, in accordance with the provisions of this Section 2.05 and within one (1) trading day of any request therefor from the Holder accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for such book entry shares. The Company shall be responsible for the fees of its Transfer Agent, its legal counsel and all fees charged by The Depository Trust Company associated with such issuance.
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ARTICLE III
COMPANY PROCEDURES
Section 3.01 General Procedures. In connection with any Shelf and/or Shelf Takedown, the Company shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission, as soon as reasonably practicable, a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities have ceased to be Registrable Securities;
(b) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c) prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
(d) prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such actions as may be necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(e) cause all such Registrable Securities to be listed or quoted on Nasdaq, another national securities exchange or OTC Markets, as applicable;
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(f) provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
(g) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose, and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(h) prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as (a) may be necessary in order to comply with the Securities Act, the Exchange Act and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable, or (b) may be advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.04), furnish a copy thereof to each seller of such Registrable Securities and its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
(i) notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.04;
(j) in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent that is registered pursuant to a Registration Statement, permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders collectively, Underwriters or other financial institutions to participate, at each such Person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representative, Underwriters or financial institutions agree to confidentiality arrangements, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
(k) obtain a “comfort” letter (including a bring-down letter dated as of the date the Registrable Securities are delivered for sale pursuant to such Registration) from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or a sale by a broker, placement agent or sales agent pursuant to a Registration Statement (subject to such Underwriter or other financial institution facilitating such offering providing such certification or representation as reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter or other similar type of sales agent or placement agent may reasonably request;
(l) in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to a Registration Statement, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, broker, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, provided, in each case, that such participating Holders provide such information to such counsel as is customarily required for, or is reasonably requested by such counsel for purposes of, such opinion or negative assurance letter;
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(m) in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to a Registration Statement, enter into and perform its obligations under an underwriting agreement, purchase agreement, sales agreement or placement agreement, in usual and customary form, with the managing Underwriter or broker, sales agent or placement agent of such offering or sale;
(n) make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
(o) with respect to an Underwritten Offering pursuant to Section 2.01(d), use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
(p) otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders participating in such Registration, consistent with the terms of this Agreement, in connection with such Registration.
Notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter or other sales agent or placement agent if such Underwriter or other sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter or broker, sales agent or placement agent, as applicable.
Section 3.02 Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ or agents’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
Section 3.03 Requirements for Participation in Underwritten Offerings. The Holders of Registrable Securities shall provide such information as may reasonably be requested by the Company, or the managing Underwriter or placement agent or sales agent, if any, in connection with the preparation of any Registration Statement or Prospectus, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Article II and in connection with the Company’s obligation to comply with federal and applicable state securities Laws. Notwithstanding anything in this Agreement to the contrary, if any Holder does not timely provide the Company with its requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such information. No Person may participate in any Underwritten Offering or Other Coordinated Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such Person (i) agrees to sell such Person’s securities on the basis provided in any arrangements approved by the Company and (ii) timely completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting or other agreements and other customary documents as may be reasonably required under the terms of such arrangements. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.03 shall not affect the registration of the other Registrable Securities to be included in such Registration.
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Section 3.04 Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights.
(a) Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised in writing by the Company that the use of the Prospectus may be resumed.
(b) If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (i) require the Company to make an Adverse Disclosure, (ii) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control or (iii) in the good faith judgment of the majority of the Board, be seriously detrimental to the Company, and the majority of the Board concludes as a result that it is essential to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving prompt written notice of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension), delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under this Section 3.04(b), the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities until such Holders receive written notice from the Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice and its contents.
(c) If (i) during the period starting with the date 60 days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date 120 days after the effective date of, a Company-initiated Registration, provided that the Company continues to actively employ, in good faith, all commercially reasonable efforts to maintain the effectiveness of the applicable Shelf Registration, or (ii) pursuant to Section 2.01(d), Holders have requested an Underwritten Shelf Takedown and the Company and such Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering, then, in each case, the Company may, upon giving prompt written notice of such action to the Holders, delay any other registered offering pursuant to Section 2.01(d).
(d) The right to delay or suspend any filing, initial effectiveness or continued use of a Registration Statement pursuant to Section 3.04(b) or a registered offering pursuant to Section 3.04(c) shall be exercised by the Company, in the aggregate, for not more than 90 consecutive calendar days or more than 120 total calendar days in each case, during any 12-month period.
Section 3.05 Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to use commercially reasonable efforts to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange Act. The Company further covenants that it shall take such further action as any Holder may reasonably request, to the extent required from time to time to enable such Holder to sell Registrable Securities held by such Holder without registration under the Securities Act within the limitations of the exemptions provided by Rule 144.
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ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.01 Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, agents and each Person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto filed pursuant to this Agreement or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
(b) In connection with any Registration Statement filed pursuant to this Agreement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors, officers and agents and each Person who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement is contained in (or not contained in, in the case of an omission) any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.
(c) Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (plus one local counsel if necessary in the reasonable judgment of the indemnified party) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
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(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agree to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.
(e) If the indemnification provided under Section 4.01 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 4.01(e) shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 4.01(a), 4.01(b) and 4.01(c), any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.01(e) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.01(e). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.01(e) from any Person who was not guilty of such fraudulent misrepresentation.
Section 4.02 Waiver of Medallion Signature Guarantee. The Company agrees to use commercially reasonable efforts to enter into that certain indemnification agreement, substantially in the form attached as Exhibit B to this Agreement, in favor of Continental Stock Transfer & Trust Company (or any successor transfer agent or warrant agent of the Company) in connection with waiving any requirement to provide a medallion signature guarantee for any Transfer of any shares of Common Stock or other equity securities of the Company by any Sponsor Holder or Seller Holder, or any of their Permitted Transferees; provided that, in each case, as a prerequisite to the Company’s entry into such indemnification agreement, such Sponsor Holder, Seller Holder or Permitted Transferee enters into an indemnification agreement in favor of the Company.
ARTICLE V
MISCELLANEOUS
Section 5.01 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means (including email), with evidence of transmission, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice). Any notice or communication under this Agreement must be addressed, if to the Company, to: [●] [●] [●], Attention: Jacob Bostrom, Email: [●], with a copy (which shall not constitute notice) to Shartsis Friese LLP, 425 Market Street, 11th Floor, San Francisco, CA 94105, Attention: P. Rupert Russell, Esq., Email: RRussell@sflaw.com; and, if to any Holder, at such Holder’s address or contact information as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.01.
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Section 5.02 Assignment; No Third-Party Beneficiaries.
(a) This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.
(b) This Agreement and the rights, duties and obligations of the Holders hereunder may not be assigned or delegated by the Holders in whole or in part; provided, however, that, subject to Section 5.02(e), a Holder may assign the rights and obligations of such Holder hereunder relating to particular Registrable Securities in connection with the transfer of such Registrable Securities to a Permitted Transferee of such Holder (it being understood that no such Transfer shall reduce any rights of the Holder with respect to Registrable Securities still held by such Holder). A Permitted Transferee receiving Registrable Securities from a Sponsor Holder shall become a Sponsor Holder, a Permitted Transferee receiving Registrable Securities from a Seller Holder shall become a Seller Holder, and a Permitted Transferee receiving Registrable Securities from an Other Holder shall become an Other Holder.
(c) This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.
(d) This Agreement shall not confer any rights or benefits on any Persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.02.
(e) No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless such assignment is permitted under Section 5.02(b) and unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.01 and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.02 shall be null and void.
Section 5.03 Counterparts. This Agreement may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 5.04 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of 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 5.05 Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this 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 Legal Proceeding, suit or proceeding brought pursuant to this Section 5.05.
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Section 5.06 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 5.07 Amendments and Modifications. Upon the written consent of the Company and the Holders of at least a majority in interest of the aggregate Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects the Sponsor Holders shall also require the written consent of the Sponsor Majority Holders so long as the Sponsor Holders and their respective affiliates hold, in the aggregate, at least one percent (1%) of the outstanding shares of Common Stock of the Company; provided, further, that any amendment hereto or waiver hereof that adversely affects the Seller Holders shall also require the written consent of the Seller Majority Holders so long as the Seller Holders and their respective affiliates hold, in the aggregate, at least one percent (1%) of the outstanding shares of Common Stock of the Company; and provided, further, that any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
Section 5.08 Other Registration Rights. Other than as provided in the Warrant Agreement, dated as of June 17, 2025, between Pioneer Acquisition I Corp. and Continental Stock Transfer & Trust Company, as warrant agent, the Company represents and warrants that no Person, other than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration Statement filed by the Company for the sale of securities for its own account or for the account of any other Person. For so long as the Sponsor Holders and their respective affiliates hold, in the aggregate, at least five percent (5%) of the outstanding shares of Common Stock of the Company, the Company hereby agrees and covenants that it will not grant rights to register any Common Stock (or securities convertible into or exchangeable for Common Stock) pursuant to the Securities Act that are more favorable or senior to those granted to the Holders hereunder (such rights “Competing Registration Rights”) without the prior written consent of the Sponsor Majority Holders, not to be unreasonably withheld, delayed or conditioned. For so long as the Seller Holders and their respective affiliates hold, in the aggregate, at least five percent (5%) of the outstanding shares of Common Stock of the Company, the Company hereby agrees and covenants that it will not grant Competing Registration Rights without the prior written consent of the Seller Majority Holders, not to be unreasonably withheld, delayed or conditioned. Further, the Company represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions, and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.
Section 5.09 Term. This Agreement shall terminate upon the earlier of (i) the tenth anniversary of the date of this Agreement and (ii) with respect to any Holder, the date that such Holder no longer holds any Registrable Securities. The provisions of Article IV shall survive any termination.
Section 5.10 Holder Information. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder.
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Section 5.11 Additional Holders; Joinder. In addition to Persons who may become Holders pursuant to Section 5.02, subject to the prior written consent of at least a majority in interest of the aggregate Registrable Securities at the time in question, the Company may make any Person who acquires Common Stock or rights to acquire Common Stock after the date hereof a party to this Agreement (each such Person, an “Additional Holder”) by obtaining an executed joinder to this Agreement from such Additional Holder in the form of Exhibit A attached hereto (a “Joinder”). Such Joinder shall specify the rights and obligations of the applicable Additional Holder under this Agreement. Upon the execution and delivery of a Joinder by such Additional Holder, and subject to the terms thereof, the Common Stock of the Company then owned, or underlying any rights then owned, by such Additional Holder (the “Additional Holder Common Stock”) shall be Registrable Securities to the extent provided herein and therein, and such Additional Holder shall be a Holder under this Agreement with respect to such Additional Holder Common Stock.
Section 5.12 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
Section 5.13 Entire Agreement; Restatement. This Agreement and the documents or instruments referred to herein, including any exhibits and schedules attached hereto, which exhibits and schedules are incorporated herein by reference, embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or in the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the parties with respect to the subject matter contained herein. Upon the Closing, the Original RRA shall no longer be of any force or effect.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Company: | ||
| GREEN AI CLOUD, INC. | ||
| By: | ||
| Name: | Jacob Bostrom | |
| Title: | Chief Executive Officer | |
[Signature Page to Amended and Restated Registration Rights Agreement]
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| Seller Holders: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
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| Sponsor: | ||
| PIONEER ACQUISITION 1 SPONSOR HOLDCO LLC, | ||
| By: | ||
| Name: | ||
| Title: | Managing Member | |
| By: | ||
| Name: | ||
| Title: | Managing Member | |
| Other Sponsor Holders: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
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| [●]: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
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| Other Holders: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
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EXHIBIT A
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT JOINDER
The undersigned is executing and delivering this joinder (this “Joinder”) pursuant to the Amended and Restated Registration Rights Agreement, dated as of [____], 2026 (as the same may hereafter be amended, the “Registration Rights Agreement”), among Green AI Cloud, Inc., a Delaware corporation (the “Company”), and the other Persons named as parties therein. Capitalized terms used but not otherwise defined herein shall have the meanings provided in the Registration Rights Agreement.
By executing and delivering this Joinder to the Company, and upon acceptance hereof by the Company upon the execution of a counterpart hereof, the undersigned hereby agrees to become a party to, to be bound by and to comply with the Registration Rights Agreement as a Holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement as [a Sponsor Holder / a Seller Holder / an Other Holder], and the undersigned’s [shares of Common Stock] shall be included as Registrable Securities under the Registration Rights Agreement to the extent provided therein; provided, however, that the undersigned and its permitted assigns (if any) shall not have any rights as Holders, and the undersigned’s (and its transferees’) [shares of Common Stock] shall not be included as Registrable Securities, for purposes of the Excluded Sections.
For purposes of this Joinder, “Excluded Sections” shall mean [ ].
Accordingly, the undersigned has executed and delivered this Joinder as of the __________ day of __________, 20__.
| Signature of Stockholder | |
| Print Name of Stockholder | |
| Its: | |
| Address: | |
Agreed and Accepted as of
____________, 20__
| [●] | ||
| By: | ||
| Name: | ||
| Its: | ||
Exh. A-1
EXHIBIT B
[●]
[●]
[●]
[ ], 2026
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
| Re: | Indemnification in lieu of Medallion Signature Guarantee |
To whom it may concern:
This letter relates to the transfer of [ ] shares of Common Stock of Green AI Cloud, Inc. (the “Company”) from [Pioneer Acquisition 1 Sponsor Holdco LLC / Name of Sponsor Holder] to [ ]. Please be advised that the Company authorizes Continental Stock Transfer & Trust Company to process such transfer, which involves securities that have been duly endorsed by the registered holder but do not bear a customary medallion signature guarantee. The Company agrees to indemnify Continental Stock Transfer & Trust Company against all losses, damages, costs, charges and expenses that it may sustain, incur, or become liable for as a result of or in connection with the above-referenced transaction.
I, Jacob Bostrom, a duly authorized officer of the Company, have the authority to execute this indemnification agreement on behalf of the Company.
| Very truly yours, | ||
| GREEN AI CLOUD, INC. | ||
| By: | ||
| Name: | Jacob Bostrom | |
| Title: | Chief Executive Officer | |
Exh. B-1
Exhibit 99.1
Pioneer Acquisition I Corp Enters Into
Business Combination Agreement with Green
AI Cloud, a Clean Energy Super Compute AI
Platform in Europe
Green AI Cloud, Inc. (the “Company”), a clean energy super compute AI platform in Europe, is positioned where accelerating AI data center demand meets a scarcity of power-secured capacity.
The Company is a pioneer in clean energy compute and its data centers are designed to run on renewable energy (solar, hydro and wind power). Excess heat from its operations can be converted into a heated liquid for industrial product manufacturing or into regional district-heating infrastructure, believed to result in a net-negative CO2 footprint.
The proposed business combination values the Company at a pre-money equity value of $300 million.
Brooklyn, NY and Stockholm, Sweden., October 8, 2026 (PRNewswire) – Green AI Cloud, Inc. (“Green AI Cloud” or the “Company”), an AI infrastructure company focused on designing, building, and operating high-performance AI data centers with a focus on environmental sustainability and data sovereignty, and Pioneer Acquisition I Corp (Nasdaq: PACH) (“Pioneer”), a publicly traded special purpose acquisition company, today announced that they have entered into a definitive agreement (the “Business Combination Agreement”) for a business combination (the “Transaction” or the “Business Combination”) that would result in Green AI Cloud becoming a publicly traded company expected to list on the Nasdaq Stock Market LLC (“Nasdaq”).
BACKGROUND
Green AI Cloud, based in Stockholm, Sweden, is building a differentiated digital infrastructure platform for the AI era through a vertically integrated approach to AI-ready data center development. The Company’s approach aims to combine adaptive reuse of existing real estate, sustainable super compute AI using only renewable energy (solar, hydro and wind power), and integrated power infrastructure to support large-scale compute deployments for enterprise AI customers. The Company’s data centers are designed to run on 100% renewable energy. They utilize tailored liquid-cooling systems, waste heat from the AI servers can be recovered into the regional district-heating infrastructure, believed to result in a net-negative carbon footprint. The Company’s platform provides access to top-tier NVIDIA AI hardware accelerators. Enterprise customers can now train Generative Transformer (GPT)-class models on the platform with the promise of equivalent carbon offsets through Green AI Cloud’s uniquely sustainable and “carbon-intelligent” cloud.
Currently, Green AI Cloud has operating and development activity in three strategic locations in Sweden. These sites have the potential to support a multi-gigawatt (“GW”) development pipeline over time while enabling environmental redevelopment and community partnership programs in legacy industrial markets and providing a foundation for expansion into additional markets as AI data center demand continues to grow and power availability, site readiness, and speed of deployment become increasingly important. The Company’s current portfolio comprises a mix of live, contracted and planned capacity across several sites. Each site is engineered to meet customer demand for a secure AI compute environment that cannot be met by large co-location data centers.
“This Transaction marks an important milestone for Green AI Cloud and we believe it reflects the strength of our strategy to build AI-ready infrastructure where power availability, speed, and execution matter most,” stated Jacob Bostrom, Founder and Chief Executive Officer of Green AI Cloud. “We believe the opportunity is being driven not only by rising AI demand, but also by the growing scarcity of power-secured capacity and the need for faster, more flexible deployment models. As a public company, we anticipate access to the public capital markets will enhance our ability to accelerate development across our existing portfolio, expand into additional strategic markets, and continue building a leading infrastructure platform for the global AI economy in partnership with the communities in which we operate.”
“We have been deeply impressed by both the ambition of the Green AI Cloud strategy and the progress the leadership team has already made in bringing that strategy to life. We believe the Company has built a platform that speaks directly to where the market is today, with a focus on power access, accelerated deployment, and AI-ready infrastructure. We believe the business is well positioned for its next chapter as a public company and look forward to supporting that next phase of growth and helping build long-term shareholder value,” stated Mitchell Creem, Chief Executive Officer of Pioneer Acquisition I Corp.
MARKET OPPORTUNITY & CATALYSTS
The U.S. data center market is experiencing a period of sustained expansion, with projected growth of more than 10% annually from $126 billion in 2025 to $277 billion by 2033. The global AI data center market size is projected to grow from USD 471.59 billion in 2026 to USD 2,023.52 billion by 2032, growing at a CAGR of 27.5% from 2026 to 2032. Industry growth is being driven by AI workloads rather than traditional enterprise demand. Supply of suitable AI data center capacity remains tight, leasing activity is expected to remain elevated, and power availability has become a primary bottleneck in site selection.
The European data center market alone was valued at $52.02 billion in 2025 and is forecasted to hit $139.90 billion by 2031, expanding at a compound annual growth rate (CAGR) of 17.93%. Cumulative structural data center investments in Europe are expected to total €176 billion between 2026 and 2031.
Green AI Cloud aims to deliver AI-ready capacity quickly in an environment where demand is accelerating and both power-secured and thermally capable capacity remain constrained. The business model aims to combine adaptive reuse of legacy industrial sites and 100% renewable energy, which the Company believes can compress deployment timelines from years to months and reduce reliance on constrained utility interconnection queues.
TRANSACTION SUMMARY
The Transaction values Green AI Cloud at a pre-money equity value of $300 million and implies a pro forma enterprise value of approximately $525 million, assuming no redemptions by existing Pioneer public shareholders.
Expected proceeds are intended to support development across existing and new data center sites, as well as potential acquisitions. The Transaction is expected to provide Green AI Cloud with additional access to the public capital markets to support site development, future expansion, and broader strategic flexibility as demand for AI-ready infrastructure continues to grow.
Following closing, Green AI Cloud’s existing management team is expected to continue leading the combined company following the Transaction (the “Combined Company”), and Pioneer shareholders are expected to roll over 100% of their equity into the public company, assuming no redemptions. The Transaction has been approved by the boards of directors of both Green AI Cloud and Pioneer and is anticipated to close during the second quarter of 2027, subject to customary closing conditions, including approval by Pioneer’s shareholders.
Prior to executing the Business Combination Agreement, the board of directors of Pioneer obtained a fairness opinion that the Business Combination was fair from a financial point of view to Pioneer’s shareholders.
A summary of the material terms of the Transaction, including a copy of the Business Combination Agreement and other related documents, will be included in a Current Report on Form 8-K to be filed by Pioneer with the U.S. Securities and Exchange Commission (the “SEC”). Additional information about the proposed Business Combination will be described in the registration statement on Form S-4, which Pioneer and Green AI Cloud will file with the SEC.
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ADVISORS
Mannheimer Swartling Advokatbyrå AB is serving as legal counsel to Green AI Cloud, and Winston Taylor LLP is serving as legal counsel to Pioneer.
About Green AI Cloud
Green AI Cloud is a European Cloud Service Provider (“CSP”) offering Super Compute AI for the largest AI models available. Green AI Cloud delivers superior cost efficiency while being among the most sustainable CSPs in Europe – fully capitalizing on its location in Sweden that gives access to green energy, carbon offset facilities and data center infrastructure.
About Pioneer Acquisition I Corp
Pioneer Acquisition I Corp. is a blank check company formed for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. Our team has broad sector knowledge and brings a combination of operating, investing, financial and transactional experience.
Additional Information and Where to Find It
Pioneer and Green AI Cloud intend to file relevant materials with the SEC, including a registration statement on Form S-4 (as may be amended, the “Registration Statement”), which will include a proxy statement of Pioneer and a prospectus in connection with the Business Combination, referred to as a proxy statement/prospectus. The definitive proxy statement and other relevant documents will be mailed to shareholders of Pioneer as of a record date to be established for voting on the Business Combination. SHAREHOLDERS OF PIONEER AND OTHER INTERESTED PARTIES ARE URGED TO READ, WHEN AVAILABLE, THE REGISTRATION STATEMENT, THE PRELIMINARY PROXY STATEMENT/PROSPECTUS AND ANY AMENDMENTS THERETO, THE DEFINITIVE PROXY STATEMENT/PROSPECTUS AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC IN CONNECTION WITH PIONEER’S SOLICITATION OF PROXIES FOR THE EXTRAORDINARY GENERAL MEETING OF ITS SHAREHOLDERS TO BE HELD TO APPROVE THE BUSINESS COMBINATION, BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT PIONEER, GREEN AI CLOUD AND THE BUSINESS COMBINATION. Shareholders will be able to obtain copies of the Registration Statement and the proxy statement/prospectus, without charge, once available, on the SEC’s website at www.sec.gov or by directing a request to: Pioneer Acquisition I Corp, 131 Concord Street, Brooklyn, NY 11201; or Green AI Cloud, Inc., Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
Participants in the Solicitation
Pioneer, Green AI Cloud and their respective directors and executive officers may be deemed under SEC rules to be participants in the solicitation of proxies from Pioneer’s shareholders in connection with the Business Combination. A list of the names of these directors and executive officers, along with information about their interests in the Business Combination and their ownership of Pioneer’s securities, is or will be included in filings with the SEC relating to the Business Combination. Additional information about the interests of the persons who may, under SEC rules, be deemed participants in the solicitation of proxies from Pioneer’s shareholders in connection with the Business Combination, including the names and interests of Green AI Cloud’s directors and executive officers, will be set forth in the proxy statement/prospectus included in the Registration Statement. You may obtain free copies of these documents from the sources described above.
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No Offer or Solicitation
This press release shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Business Combination. This press release shall not constitute an offer to sell or the solicitation of an offer to buy any securities pursuant to the Business Combination or otherwise, 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. No offering 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 an exemption therefrom.
NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE BUSINESS COMBINATION DESCRIBED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR ANY RELATED TRANSACTIONS, OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PRESS RELEASE. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
Forward-Looking Statements
The information in this press release includes “forward-looking statements” within the meaning of the U.S. federal securities laws. Forward-looking statements may be identified by words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “may,” “will,” “expect,” “continue,” “should,” “would,” “anticipate,” “believe,” “seek,” “target,” “predict,” “potential,” “seem,” “future,” “outlook” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include, but are not limited to, statements about: the anticipated benefits and timing of completion of the Business Combination, including the expected closing during the second quarter of 2027; the pre-money equity value of the Company and the anticipated pro forma enterprise value of the Combined Company; the expected use of proceeds to support development across existing and new data center sites and potential acquisitions; the Company’s market opportunity and the potential growth of the AI data center market in the United States and Europe; the Company’s strategy, development pipeline, outcomes and growth prospects, including its potential multi-GW development pipeline and expansion into additional markets; the Company’s ability to compress deployment timelines and reduce reliance on constrained utility interconnection queues; the company’s sustainability goals and environmental attributes, including its use of renewable energy and carbon footprint; trends in the Company’s industry and markets and the competitive environment in which it operates; the Company’s ability to access the public capital markets and raise funds to support its business; and the expected continuation of the Company’s management team in leading the Combined Company. These statements are based on various assumptions, whether or not identified in this press release, and on the current expectations of the management of Green AI Cloud and Pioneer, 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, and many are beyond the control of Green AI Cloud and Pioneer.
These forward-looking statements are subject to risks and uncertainties, including: the occurrence of any event, change or other circumstances that could give rise to the termination of the Business Combination Agreement; the risk that the Business Combination disrupts the Company’s current plans and operations; the inability of the parties to recognize the anticipated benefits of the Business Combination; the ability to maintain the listing of Pioneer’s securities on Nasdaq and to obtain or maintain the listing of the Combined Company’s securities on Nasdaq following the Business Combination; costs related to the Business Combination; changes in business, market, financial, political and legal conditions; the Company’s limited operating history and lack of history operating as a public company; the Company’s ability to develop its sites and convert legacy industrial
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sites into AI-ready, power-enabled data center infrastructure on anticipated timelines and budgets; the availability and cost of renewable power and of AI hardware accelerators, including GPUs; the Company’s ability to attract and retain enterprise customers; the risk that the Company’s technology and infrastructure, including its liquid-cooling and heat-recovery systems, may not operate as expected; the company’s ability to achieve its sustainability goals as expected; the methodologies, assumptions and third-party data underlying the Company’s environmental-related statements, which may change or differ from those used by others; capital market, interest rate and currency exchange risks; uncertainty or changes with respect to laws and regulations, including in Sweden and the European Union, and with respect to taxes, trade conditions and the macroeconomic and geopolitical environment; data protection or cybersecurity incidents and disruptions in the electrical power grid at or near the Company’s data centers; the Company’s dependence on its senior management; the risk that the Business Combination may not be completed in a timely manner or at all, including by Pioneer’s business combination deadline of June 20, 2027, and the potential failure to obtain an extension of such deadline if sought by Pioneer; the failure to satisfy the conditions to the consummation of the Business Combination, including approval by Pioneer’s shareholders; the outcome of any legal proceedings that may be instituted against Green AI Cloud, Pioneer or others following announcement of the Business Combination; the risk that Pioneer’s public shareholders could elect to have their shares redeemed, leaving the Combined Company with insufficient cash to execute its business plans; the risk that an active market for the securities of the Combined Company may not develop; and those risk factors discussed in documents of Pioneer and Green AI Cloud filed, or to be filed, with the SEC, including the Registration Statement. If any of these risks materialize or the assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements.
There may be additional risks that neither Pioneer nor Green AI Cloud presently knows or that Pioneer and Green AI Cloud 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 expectations, plans or forecasts of Pioneer and Green AI Cloud regarding future events and views as of the date of this press release. Pioneer and Green AI Cloud anticipate that subsequent events and developments will cause their assessments to change, and while they may elect to update these forward-looking statements at some point in the future, Pioneer and Green AI Cloud specifically disclaim any obligation to do so. Readers are referred to the most recent reports filed with the SEC by Pioneer. Readers are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date made, and Pioneer and Green AI Cloud undertake no obligation to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
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