UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): August 16, 2024

 

ALPHAVEST ACQUISITION CORP

(Exact name of registrant as specified in its charter)

 

Cayman Islands   001-41574   N/A
(State or other jurisdiction
of incorporation)		   (Commission
File Number)		   (IRS Employer
Identification No.)

 

420 Lexington Ave, Suite 2446

New York, NY 10170

(Address of principal executive offices, including zip code)

 

Registrant’s telephone number, including area code 203-998-5540

 

Not Applicable

(Former name or former address, if changed since last report)

 

Securities registered pursuant to Section 12(b) of the Act:

 

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
Units, each consisting of one ordinary share and one right   ATMVU   The Nasdaq Stock Market LLC
Ordinary Shares, par value $0.0001 per share   ATMV   The Nasdaq Stock Market LLC
Rights, each right entitling the holder thereof to one-tenth of one ordinary share   ATMVR   The Nasdaq Stock Market LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§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 1.01Entry Into a Material Definitive Agreement

 

Business Combination Agreement

 

On August 16, 2024, AlphaVest Acquisition Corp, a Cayman Islands exempted company (“SPAC”), entered into a Business Combination Agreement (the “BCA”) by and among (i) SPAC, (ii) AV Merger Sub, a Washington corporation and wholly-owned subsidiary of SPAC (“Merger Sub”), and (iii) AMC Corporation, a Washington corporation (the “Company,” and collectively with SPAC and Merger Sub, the “Parties”).

 

The Company creates and distributes innovative, and smart security and consumer electronics solutions. It makes high quality internet connected smart home products and augmented reality wearable products that are accessible, affordable, and easy-to-use.

 

Pursuant to the BCA, subject to the satisfaction or waiver of certain conditions set forth therein, (i) prior to the Closing Date (defined below), SPAC shall transfer by way of continuation from the Cayman Islands to the State of Delaware and domesticate as a Delaware corporation in accordance with Section 388 of the General Corporation Law of the State of Delaware and Part XII of the Cayman Islands Companies Act (as Revised) (the “Domestication”), and (ii) immediately following the consummation of the Domestication, Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity and a wholly owned subsidiary of SPAC (the “Merger”) (the transactions contemplated by the BCA, including, but not limited to, the Domestication and the Merger, the “Business Combination”). The board of directors of SPAC (the “SPAC Board”) unanimously approved the BCA and the Business Combination and resolved to recommend the approval and adoption of the BCA and the Business Combination by the shareholders of SPAC. The Business Combination is expected to be consummated after obtaining the required approvals of the shareholders of SPAC and the Company and the satisfaction of certain other customary closing conditions. The closing of the Merger is referred to as the “Closing,” and the date on which the Closing actually occurs is the “Closing Date.”

 

Merger Consideration / Treatment of Securities

 

In connection with, and as part of, the Domestication, SPAC will cause its units (the “SPAC Units”) to separate into SPAC Shares (as defined below) and SPAC Rights (as defined), each of which will remain outstanding as equivalent securities of the re-domesticated entity. As used in this report, “SPAC Shares” means (a) prior to the consummation of the Domestication, ordinary shares, par value $0.0001 per share, of SPAC, and (b) from and after the consummation of the Domestication, shares of common stock, par value $0.00001 per share, of SPAC as contemplated pursuant to the SPAC Certificate of Incorporation (as defined in the BCA). “SPAC Rights” means the rights of SPAC, each entitling the holder thereof to one-tenth of one SPAC Share upon consummation of an initial business combination.

 

By virtue of the Merger and without any action on the part of any Party or any other person:

 

(i) each Company Share (as defined the BCA) (other than Company Shares held as treasury stock and any Company Dissenting shares (as defined in the BCA)) issued and outstanding as of immediately prior to the Effective Time (as defined in the BCA) shall be automatically cancelled and extinguished and converted into the right to receive a number of SPAC Shares equal to the Exchange Ratio (as defined in the BCA), multiplied by the number of shares of Company Common Stock issuable upon such conversion (for an aggregate enterprise value of $175,000,000);
(ii) each Company Share held immediately prior to the Effective Time by the Company as treasury stock shall be automatically canceled and extinguished, and no consideration shall be paid with respect thereto; and
(iii) each share of capital stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be automatically cancelled and extinguished and converted into one share of common stock, par value $0.0001 per share, of the Company;

 

 
 

 

Each SPAC Right that is outstanding immediately prior to the Merger shall convert into one-tenth of one SPAC Share at the Effective Time. In addition, in connection with the Business Combination, SPAC will adopt a new incentive plan to be used by the combined company following the Closing.

 

As a result of the foregoing, SPAC will become a Delaware corporation, the shareholders of the Company will become shareholders of SPAC, and the Company will become a wholly owned subsidiary of SPAC.

 

Representations and Warranties; Covenants

 

The BCA contains representations, warranties and covenants of the Parties that are customary for transactions of this size and type. The representations and warranties, and each of the agreements and covenants (to the extent such agreements or covenants contemplate or require performance at or prior to the Effective Time) in the BCA shall terminate at the Effective Time. The assertions embodied in those representations, warranties and applicable agreements and covenants were made for purposes of the contract among the Parties and are subject to important qualifications and limitations agreed to by the Parties in connection with negotiating the BCA. The representations, warranties and applicable agreements and covenants in the BCA are also modified in important part by the underlying disclosure schedules which are not filed publicly, and which are subject to a contractual standard of materiality different from that generally applicable to stockholders and were used for the purpose of allocating risk among the Parties rather than establishing matters as facts. SPAC does not believe that these schedules contain information that is material to an investment decision. Investors are not third-party beneficiaries under the BCA and should not rely on the representations, warranties and applicable agreements and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates.

 

Conditions to Each Party’s Obligations

 

The BCA is subject to the satisfaction or waiver of certain customary closing conditions by the Parties thereto, including, among others and subject to the terms and conditions set forth in the BCA:

 

(i) if applicable, the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or any applicable antitrust law, or the receipt of any required approval or consent under any such law;
(ii) the absence of any governmental order, statute, rule or regulation enjoining or prohibiting the consummation of the Business Combination;
(iii) the effectiveness of the registration statement to be filed with the Securities and Exchange Commission (the “SEC”) and the absence of a stop order or proceedings seeking such stop order;
(iv) the approval and adoption of the BCA and the Business Combination by holders of a majority of the voting power of the outstanding Company Common Stock and Company Preferred Stock (the “Company Required Stockholder Approvals”);
(v) the approval by the stockholders of SPAC of certain proposals relating to the BCA and the Business Combination, as detailed in the BCA (the “SPAC Required Stockholder Approvals”);
(vi) the consummation of the Domestication;
(vii) solely with respect to the obligations of SPAC, among others conditions: (a) certain representation and warranties of the Company being true and correct, subject to applicable bringdown standards; (b) each of the agreements and covenants of the Company having been performed or complied with in all material respects; (c) the execution and delivery of certain Ancillary Agreements (as defined in the BCA); and (d) the delivery by the Company to SPAC of (1) a closing certificate, (2) certain documents relating to compliance and notice in connection with certain Treasury Regulations, and (3) the certain closing financial information; and
(viii) solely with respect to the obligations of the Company, among others conditions: (a) certain representation and warranties of SPAC being true and correct, subject to applicable bringdown standards; (b) each of the agreements and covenants of SPAC having been performed or complied with in all material respects; (c) the receipt of conditional approval of the listing application in connection with the Business Combination, for listing on the NYSE, NASDAQ Capital Market or Nasdaq Global Market; (d) the absence of any action, suit or proceeding before any governmental entity that would prevent or rescind any transaction contemplated by the Business Combination, or that would affect materially and adversely or otherwise encumber the title of the SPAC Shares to be issued in connection with the Merger; (e) the execution and delivery of certain Ancillary Agreements (as defined in the BCA); (f) the delivery by SPAC to the Company of (1) a closing certificate and (2) written resignations of the SPAC Board, other than as provided by the BCA.

 

 
 

 

Termination

 

The BCA may be terminated at any time prior to the Closing,

 

(i) by mutual written consent of the Company and SPAC;
(ii) by either SPAC or the Company, if there shall be in effect any (a) Law (as defined in the BCA) or (b) Order (as defined in the BCA) (other than, for the avoidance of doubt, a temporary restraining order), that (1) in the case of each of clauses (a) and (b), permanently restrains, enjoins, makes illegal or otherwise prohibits the consummation of the Merger, and (2) in the case of clause (b) such Order shall have become final and non-appealable;
(iii) by either SPAC or the Company, if the Effective Time has not occurred by 11:59 p.m., New York City time, on December 22, 2024 (the “Termination Date”); provided, however, that if the SEC has not declared the applicable registration statement effective on or prior to December 22, 2024, the Termination Date shall be automatically extended to June 30, 2025; and provided, further, that the Party seeking to terminate is not in material breach of any provision of the BCA which caused or resulted in the failure of the Merger to be consummated by such time;
(iv) by either SPAC or the Company if SPAC fails to obtain the SPAC Required Stockholder Approvals upon vote taken thereon;
(v) by SPAC, if the Company has breached or failed to perform any of its representations, warranties, covenants or other agreements contained in the BCA, subject to certain limitations set forth in the BCA, including with respect to the availability of applicable cure periods;
(vi) by the Company, if SPAC has breached or failed to perform any of its representations, warranties, covenants or other agreements contained in the BCA, subject to certain limitations set forth in the BCA, including with respect to the availability of applicable cure periods; and
(vii) by SPAC, by written notice to the Company, if the Company fails to deliver the written consents from a sufficient number of Company stockholders to effect the Company Required Stockholder Approval by the applicable deadline.

 

If the BCA is validly terminated, other than certain surviving provisions and as otherwise expressly set forth in the BCA, no party thereto will have any liability or any further obligation to any other party under the BCA, except for certain claims for fraud.

 

Ancillary Agreements

 

Support Agreements

 

Concurrently with the execution and delivery of the BCA, (i) AlphaVest Holding, LP, a Delaware limited partnership and sponsor to SPAC (the “Sponsor”), SPAC and the Company entered into a support agreement (the “Sponsor Support Agreement”), pursuant to which, among other things, the Sponsor agreed to vote its shares in favor of the BCA and the Business Combination, waive any anti-dilution rights with respect to any SPAC Shares held by the Sponsor and pay or reimburse SPAC for certain expenses; and (ii) certain holders of Company Shares, SPAC and the Company entered into support agreements (the “Transaction Support Agreements”), pursuant to which, among other things, such holders agreed to support and vote in favor of the BCA, the Ancillary Agreements to which the Company is or will be a party and the Business Combination.

 

Lock-Up Agreement

 

Prior to the Closing Date, SPAC will enter into a lock-up agreement in the form attached to the BCA as Exhibit C (a “Lock-Up Agreement”) with each of Sponsor, certain directors and officers of SPAC and certain Company stockholders (to be agreed by the Parties), pursuant to which, among other things, each of Sponsor, such directors and officers of SPAC and such Company stockholders will agree not to effect any sale or distribution of any equity securities of SPAC held by any of them during the lock-up period described therein, on the terms and subject to the conditions set forth therein.

 

 
 

 

Registration Rights Agreement

 

On or prior to the Closing Date, each of SPAC, Sponsor, certain directors and officers of SPAC and certain Company stockholders will enter into a registration rights agreement, in form and substance reasonably satisfactory to SPAC and the Company (the “New Registration Rights Agreement”), pursuant to which, among other things, SPAC will agree to file a registration statement for the resale of shares by Sponsor, such directors and officers of SPAC and such Company stockholders on a continuous or delayed basis and to have such registration statement declared effective no later than the end of the lock-up period described in the Lock-Up 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 BCA, Sponsor Support Agreement, Form of Transaction Support Agreement and Form of Lock Up Agreement, copies of which are filed with this Current Report on Form 8-K as Exhibits 2.1, 10.1, 10.2 and 10.3, respectively, and the terms of which are incorporated by reference herein.

 

Additional Information about the Business Combination and Where to Find It

 

In connection with the proposed Business Combination between SPAC and the Company, SPAC will file a registration statement on Form S-4 (as may be amended from time to time, the “Registration Statement”) that will include a preliminary proxy statement/prospectus of SPAC, and after the Registration Statement is declared effective, SPAC will mail a definitive proxy statement/prospectus relating to the Business Combination to its stockholders. The Registration Statement, including the proxy statement/prospectus contained therein, when declared effective by the SEC, will contain important information about the Business Combination and the other matters to be voted upon at a meeting of SPAC’s stockholders to be held to approve the Business Combination and related matters. This communication does not contain all of the information that should be considered concerning the Business Combination and other matters and is not intended to provide the basis for any investment decision or any other decision in respect to such matters. SPAC and the Company may also file other documents with the SEC regarding the Business Combination. SPAC stockholders and other interested persons are advised to read the preliminary proxy statement/prospectus and the amendments thereto and the definitive proxy statement/prospectus and other documents filed in connection with the Business Combination, when available, as these materials will contain important information about SPAC, the Company and the Business Combination.

 

When available, the definitive proxy statement/prospectus and other relevant materials for the Business Combination will be mailed to SPAC stockholders as of a record date to be established for voting on the Business Combination. Stockholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed with the SEC that will be incorporated by reference therein, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to SPAC at 420 Lexington Ave, Suite 2446, New York, NY 10170, Attention: Yong (David) Yan, Chief Executive Officer, (203) 998-5540.

 

Participants in the Solicitation / No Offer or Solicitation

 

The Company and SPAC and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from SPAC stockholders in connection with the proposed transaction. A list of the names of the directors and executive officers of SPAC and information regarding their interests in the business combination will be contained in the proxy statement/prospectus when available. You may obtain free copies of these documents as described in the preceding paragraph.

 

This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of any securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such other jurisdiction.

 

 
 

 

Forward-Looking Statements

 

This press release may contain statements that constitute “forward-looking statements” as defined in the Private Securities Litigation Reform Act of 1995. Forward-looking statements include information concerning SPAC’s and the Company’s possible or assumed future results of operations, business strategies, debt levels, competitive position, industry environment, potential growth opportunities, and the effects of regulation, including whether the Business Combination will generate returns for stockholders. These forward-looking statements are based on SPAC’s or the Company’s management’s current expectations, projections, and beliefs, as well as a number of assumptions concerning future events. When used in this communication, the words “estimates,” “projected,” “expects,” “anticipates,” “forecasts,” “plans,” “intends,” “believes,” “seeks,” “may,” “will,” “should,” “future,” “propose,” and variations of these words or similar expressions (or the negative versions of such words or expressions) are intended to identify forward-looking statements.

 

These forward-looking statements are not guarantees of future performance, conditions, or results, and involve a number of known and unknown risks, uncertainties, assumptions, and other important factors, many of which are outside of SPAC’s or the Company’s management’s control, that could cause actual results to differ materially from the results discussed in the forward-looking statements. These risks, uncertainties, assumptions, and other important factors include, but are not limited to: (a) the occurrence of any event, change, or other circumstances that could give rise to the termination of negotiations and any subsequent definitive agreements with respect to the Business Combination; (b) the outcome of any legal proceedings that may be instituted against SPAC, the Company, or others following the announcement of the Business Combination and any definitive agreements with respect thereto; (c) the inability to complete the Business Combination due to the failure to obtain the approval of the stockholders of SPAC, to obtain financing to complete the Business Combination or to satisfy other conditions to closing; (d) changes to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the Business Combination; (e) the ability to meeting the applicable stock exchange listing standards following the consummation of the Business Combination; (f) the risk that the Business Combination disrupts current plans and operations of the Company or its subsidiaries as a result of the announcement and consummation of the transactions described herein; (g) the ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, the ability of the Company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; (h) costs related to the Business Combination; (i) changes in applicable laws or regulations, including legal or regulatory developments (including, without limitation, accounting considerations) which could result in the need for SPAC to restate its historical financial statements and cause unforeseen delays in the timing of the Business Combination and negatively impact the trading price of SPAC’s securities and the attractiveness of the Business Combination to investors; (j) the possibility that SPAC and the Company may be adversely affected by other economic, business, and/or competitive factors; (k) the Company’s ability to execute its business plans and strategies; (l) the Company’s estimates of expenses and profitability; (m) the risk that the transaction may not be completed by SPAC’s business combination deadline and the potential failure to obtain extensions of the business deadline if sought by SPAC; (n) other risks and uncertainties indicated from time to time in the final prospectus of SPAC relating to its initial public offering filed with the SEC, including those under “Risk Factors” therein, and other documents filed or to be filed with the SEC by SPAC. Copies are available on the SEC’s website, www.sec.gov. You are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made.

 

SPAC and the Company assume no obligation and, except as required by law, do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither SPAC nor the Company gives any assurance that either SPAC or the Company will achieve its expectations.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

The following exhibit is attached to this Current Report on Form 8-K:

 

Exhibit No.   Exhibit Title or Description
2.1   Business Combination Agreement, dated as of August 16, 2024
10.1   Sponsor Support Agreement
10.2   Form of Transaction Support Agreement
10.3   Form of Lock-Up Agreement
104   Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 
 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  ALPHAVEST ACQUISITION CORP
   
  By: /s/ Yong (David) Yan
  Name: Yong (David) Yan
  Title: Chief Executive Officer

 

Dated: August 22, 2024

 

 

 

 

Exhibit 2.1

 

Execution Version

 

BUSINESS COMBINATION AGREEMENT

 

BY AND AMONG

 

ALPHAVEST ACQUISITION CORP.,

AV MERGER SUB

AND

AMC CORPORATION

 

DATED AS OF August 16, 2024

 

 

 

 

TABLE OF CONTENTS

 

      Page
ARTICLE 1 CERTAIN DEFINITIONS 2
  Section 1.1 Definitions 2
       
ARTICLE 2 MERGER 23
  Section 2.1 Closing Transactions 23
  Section 2.2 Closing of the Merger 25
  Section 2.3 Pre-Closing Deliveries; Sponsor Payment 25
  Section 2.4 Treatment of Company Equity Awards 27
  Section 2.5 Company Shareholder Deliverables 28
  Section 2.6 Withholding 29
  Section 2.7 Company Dissenting Shares 29
       
ARTICLE 3 REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES 30
  Section 3.1 Organization and Qualification 30
  Section 3.2 Capitalization of the Group Companies 31
  Section 3.3 Authority 32
  Section 3.4 Financial Statements; Undisclosed Liabilities 33
  Section 3.5 Consents and Requisite Governmental Approvals; No Violations 34
  Section 3.6 Permits 35
  Section 3.7 Material Contracts 35
  Section 3.8 Absence of Changes 37
  Section 3.9 Litigation 37
  Section 3.10 Compliance with Laws 38
  Section 3.11 Employee Plans 38
  Section 3.12 Environmental Matters 41
  Section 3.13 Technology and Intellectual Property 42
  Section 3.14 Labor Matters 46
  Section 3.15 Insurance 48
  Section 3.16 Tax Matters 48
  Section 3.17 Brokers 50
  Section 3.18 Real and Personal Property 51
  Section 3.19 Transactions with Affiliates 52
  Section 3.20 Data Privacy and Security 52
  Section 3.21 Anti-Money Laundering 53
  Section 3.22 International Trade and Anti-Corruption 54
  Section 3.23 Customers and Suppliers 55
  Section 3.24 Information Supplied 55
  Section 3.25 Corporate Records 56
  Section 3.26 Significant Subsidiaries 56
  Section 3.27 Investigation; Non-Reliance; No Other Representations 56

 

i

 

 

ARTICLE 4 REPRESENTATIONS AND WARRANTIES RELATING TO THE SPAC PARTIES 57
  Section 4.1 Organization and Qualification 57
  Section 4.2 Authority 57
  Section 4.3 Consents and Requisite Governmental Approvals; No Violations 58
  Section 4.4 Brokers 59
  Section 4.5 Information Supplied 59
  Section 4.6 Capitalization of the SPAC Parties 59
  Section 4.7 SEC Filings 61
  Section 4.8 Investment Company Act 61
  Section 4.9 Trust Account; Financial Ability 62
  Section 4.10 Transactions with Affiliates 62
  Section 4.11 Litigation 63
  Section 4.12 Compliance with Applicable Law 63
  Section 4.13 SPAC Party Activities 63
  Section 4.14 Internal Controls; Listing; Financial Statements 63
  Section 4.15 No Undisclosed Liabilities 65
  Section 4.16 Employee Benefit Plans 65
  Section 4.17 Tax Matters 66
  Section 4.18 Broker Dealer Matters 67
  Section 4.19 Payments; Anti-Money Laundering; Hedging 67
  Section 4.20 International Trade and Anti-Corruption 67
  Section 4.21 Investigation; Non-Reliance; No Other Representations 69
       
ARTICLE 5 COVENANTS 69
  Section 5.1 Conduct of Business of the Company 69
  Section 5.2 Efforts to Consummate; Transaction Litigation 72
  Section 5.3 Confidentiality and Access to Information 75
  Section 5.4 Public Announcements 75
  Section 5.5 Tax Matters 76
  Section 5.6 Company Exclusive Dealing 78
  Section 5.7 SPAC Exclusive Dealing 78
  Section 5.8 Preparation of Registration Statement / Proxy Statement 79
  Section 5.9 SPAC Shareholder Meeting 82
  Section 5.10 Conduct of Business of SPAC 84
  Section 5.11 Approved Stock Exchange Listing; SPAC Public Filings 86
  Section 5.12 Trust Account 86
  Section 5.13 Company Shareholder Approval 86
  Section 5.14 Indemnification; Directors’ and Officers’ Insurance 87
  Section 5.15 Post-Closing Directors and Officers 88
  Section 5.16 PCAOB Financials 89
  Section 5.17 Incentive Equity Actions 90
  Section 5.18 Bylaws 91
  Section 5.19 Company Change of Name 91
  Section 5.20 Extension of Time to Consummate a Business Combination 91
  Section 5.21 Financing 93

 

ii

 

 

ARTICLE 6 CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS 93
  Section 6.1 Conditions to the Obligations of the Parties 93
  Section 6.2 Other Conditions to the Obligations of the SPAC Parties 94
  Section 6.3 Other Conditions to the Obligations of the Company 95
  Section 6.4 Frustration of Closing Conditions 96
       
ARTICLE 7 TERMINATION 97
  Section 7.1 Termination 97
  Section 7.2 Effect of Termination 98
       
ARTICLE 8 MISCELLANEOUS 98
  Section 8.1 Non-Survival 98
  Section 8.2 Entire Agreement; Assignment 99
  Section 8.3 Amendment 99
  Section 8.4 Notices 99
  Section 8.5 Governing Law 100
  Section 8.6 Fees and Expenses 100
  Section 8.7 Construction; Interpretation 101
  Section 8.8 Exhibits and Schedules 101
  Section 8.9 Parties in Interest 101
  Section 8.10 Severability 102
  Section 8.11 Counterparts; Electronic Signatures 102
  Section 8.12 Knowledge of Company; Knowledge of SPAC 102
  Section 8.13 No Recourse 102
  Section 8.14 Extension; Waiver 103
  Section 8.15 Waiver of Jury Trial 103
  Section 8.16 Submission to Jurisdiction 104
  Section 8.17 Remedies 104
  Section 8.18 Trust Account Waiver 105
  Section 8.19 Conflicts and Privilege 106

 

ANNEXES AND EXHIBITS

 

Annex I Company Supporting Shareholders
Exhibit A Form of Sponsor Support Agreement
Exhibit B Form of Transaction Support Agreement
Exhibit C Form of Lock-Up Agreement

 

iii

 

 

BUSINESS COMBINATION AGREEMENT

 

This BUSINESS COMBINATION AGREEMENT (this “Agreement”), dated August 16 2024, is made by and among AlphaVest Acquisition Corp., an exempted company incorporated in the Cayman Islands with limited liability (“SPAC”), AV Merger Sub, a Washington corporation (“Merger Sub”), and AMC Corporation, a Washington corporation (the “Company” and collectively with SPAC and Merger Sub, the “Parties”). Capitalized terms used but not otherwise defined herein have the meanings set forth in Section 1.1.

 

WHEREAS, (a) SPAC is a blank check company incorporated as a Cayman Islands exempted company for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities and (b) Merger Sub is, as of the date of this Agreement, a wholly owned Subsidiary of SPAC that was formed for the purpose of consummating a business combination;

 

WHEREAS, prior to the Closing Date, SPAC shall transfer by way of continuation from the Cayman Islands to the State of Delaware and domesticate as a Delaware corporation in accordance with Section 388 of the General Corporation Law of the State of Delaware (the “DGCL”) and Part XII of the Cayman Islands Companies Act (as Revised), on the terms and subject to the conditions set forth in this Agreement (the “Domestication”);

 

WHEREAS, on the Closing Date, immediately following the consummation of the Domestication, Merger Sub will merge with and into the Company, with the Company as the surviving company in the Merger and, after giving effect to such Merger, the Company will be a wholly-owned Subsidiary of SPAC, and each Company Share will be automatically converted as of the Effective Time into the right to receive a portion of the Exchange Share Consideration, in each case, on the terms and subject to the conditions set forth in this Agreement;

 

WHEREAS, pursuant to the governing documents of SPAC, SPAC is required to provide an opportunity for its shareholders to have their outstanding SPAC Shares (other than the SPAC Shares that are part of the SPAC Sponsor Units) redeemed on the terms and subject to the conditions set forth therein in connection with obtaining the SPAC Shareholder Approvals;

 

WHEREAS, concurrently with the execution of this Agreement, the SPAC Sponsor, SPAC and the Company are entering into the sponsor support agreement in the form attached hereto as Exhibit A (the “Sponsor Support Agreement”), pursuant to which the SPAC Sponsor has agreed to (a) vote in favor of this Agreement and the Transactions (including the Merger), (b) waive any anti-dilution rights with respect to the SPAC Sponsor Shares, and (c) pay or reimburse the SPAC for certain expenses;

 

WHEREAS, concurrently with the execution of this Agreement, each Company Supporting Shareholder duly executed and delivered to SPAC a transaction support agreement, substantially in the form attached hereto as Exhibit B (collectively, the “Transaction Support Agreements”), pursuant to which such Company Supporting Shareholder has agreed to, among other things support and vote in favor of this Agreement, the Ancillary Documents to which the Company is or will be a party and the Transactions (including the Merger);

 

1
 

 

WHEREAS, prior to the Closing Date, SPAC will enter into a lock-up agreement in the form attached hereto as Exhibit C (a “Lock-Up Agreement”) with each of SPAC Sponsor, certain directors and officers of SPAC and certain Company Shareholders (to be agreed by the Parties), pursuant to which, among other things, each of SPAC Sponsor, such directors and officers of SPAC and such Company Shareholders will agree not to effect any sale or distribution of any Equity Securities of SPAC held by any of them during the lock-up period described therein, on the terms and subject to the conditions set forth therein;

 

WHEREAS, on or prior to the Closing Date, each of SPAC, SPAC Sponsor, certain directors and officers of SPAC and certain Company Shareholders will enter into a registration rights agreement, in form and substance reasonably satisfactory to SPAC and the Company (the “New Registration Rights Agreement”), pursuant to which, among other things, SPAC will agree to file a registration statement for the resale of shares by SPAC Sponsor, such directors and officers of SPAC and such Company Shareholders on a continuous or delayed basis and to have such registration statement declared effective no later than the end of the lock-up period described in the Lock-Up Agreement;

 

WHEREAS, the board of directors of SPAC (the “SPAC Board”) has (a) approved this Agreement, the Ancillary Documents to which SPAC is or will be a party and the Transactions (including the Domestication and the Merger) and (b) recommended, among other things, approval of this Agreement and the Transactions (including the Domestication and the Merger);

 

WHEREAS, the board of directors of Merger Sub has approved this Agreement, the Ancillary Documents to which Merger Sub is or will be a party and the Transactions (including the Merger);

 

WHEREAS, the board of directors of the Company (the “Company Board”) has (a) approved this Agreement, the Ancillary Documents to which the Company is or will be a party and the Transactions (including the Merger) and (b) recommended to the holders of Company Shares the adoption and approval of this Agreement and the Transactions (including the Merger) by the holders of Company Shares entitled to vote thereon; and

 

WHEREAS, each of the Parties intends for U.S. federal Income Tax purposes that (a) this Agreement constitutes a “plan of reorganization” within the meaning of Section 368 of the Code and Treasury Regulations promulgated thereunder, (b) the Domestication constitutes a transaction treated as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code, and (c) the Merger constitutes a transaction treated as a “reorganization” within the meaning of Section 368(a) of the Code (clauses (a)-(c), the “Intended Tax Treatment”).

 

NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows.

 

ARTICLE 1

CERTAIN DEFINITIONS

 

Section 1.1 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.

 

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“ACPA” means the Patient Protection and Affordable Care Act of 2010, as amended (including by the Health Care and Education Reconciliation Act of 2010, as amended).

 

“Additional SPAC SEC Reports” has the meaning set forth in Section 4.7(a).

 

“Affiliate” means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” 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, and the terms “controlled” and “controlling” have meanings correlative thereto.

 

“Aggregate Financing Proceeds” means the aggregate cash proceeds received by all SPAC Parties, collectively, in respect of a Financing.

 

“Aggregate Transaction Proceeds” means an amount equal to the sum of (a) the aggregate cash proceeds available for release to all SPAC Parties, collectively, from the Trust Account in connection with the Transactions after reduction for amounts payable to SPAC shareholders with respect to the SPAC Shareholder Redemption, and (b) the Aggregate Financing Proceeds, if any, less any amounts the Parties are obligated to pay to SPAC Equityholders in connection with their agreement to acquire or hold Equity Securities of SPAC.

 

“Aggregate Transaction Proceeds Schedule” has the meaning set forth in Section 2.3(b).

 

“Agreement” has the meaning set forth in the introductory paragraph to this Agreement.

 

“Allocation Schedule” has the meaning set forth in Section 2.3(a).

 

“Allocation Schedule Principles” has the meaning set forth in Section 2.3(a).

 

“AML Laws” has the meaning set forth in Section 3.21.

 

“Ancillary Documents” means the Lock-Up Agreements, Sponsor Support Agreement, the Transaction Support Agreements, the New Registration Rights Agreement, the Letters of Transmittal, and each other agreement, document, instrument or certificate executed, or contemplated to be executed, in connection with the transactions contemplated hereby, including the Merger and the Domestication.

 

“Anti-Corruption Laws” means, collectively, (a) the U.S. Foreign Corrupt Practices Act (FCPA), (b) the UK Bribery Act 2010 and (c) any other applicable anti-bribery or anti-corruption Laws or Orders related to combating bribery, corruption and money laundering.

 

“Antitrust Law” means the HSR Act, the Federal Trade Commission Act, the Sherman Act, the Clayton Act and any applicable foreign antitrust Laws and all other applicable Laws that are designed or intended 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.

 

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“Approved Stock Exchange” means any of the Nasdaq Global Market, the Nasdaq Capital Market and the New York Stock Exchange.

 

“ARPA” means the American Rescue Plan Act of 2021, (P. L. 117-2), as may be amended from time to time.

 

“Benefit Plan” means any retirement, pension, profit sharing, deferred compensation, pension fund, bonus (whether cash or equity), incentive (whether cash or equity), cafeteria, medical, dental, vision, hospitalization, life insurance, accidental death and dismemberment, medical expense reimbursement, dependent care assistance, tuition reimbursement, disability, welfare, sick pay, holiday, vacation, retention, severance, change of control, equity purchase, equity option, restricted equity, phantom equity, equity appreciation right, equity-based, fringe benefit, loan, employment, consulting, independent contractor or other compensation or benefit plan, fund, program, policy, practice, Contract or arrangement of any kind (including any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA or the ACPA, whether or not subject to ERISA)), whether written or oral and whether covering a single individual or a group of individuals.

 

“Business Combination Proposal” has the meaning set forth in Section 5.9(b)(i).

 

“Business Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York are open for the general transaction of business.

 

“CAA” means the Consolidated Appropriations Act, 2021, (P. L. 116-260), as may be amended from time to time.

 

“CARES Act” means (a) the Coronavirus Aid, Relief, and Economic Security Act, and any administrative or other guidance published with respect thereto by any Governmental Entity (including IRS Notice 2020-22), or any other Law or executive order or executive memorandum (including the Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, dated August 8, 2020, IRS Notices 2020-65 or 2021-11) intended to address the consequences of the COVID-19 pandemic and (b) any extension of, amendment, supplement, correction, revision or similar treatment to any provision of the Laws described in clause (a), including pursuant to the CAA or the ARPA, as applicable (in each case, including any comparable provisions of state, local or non-U.S. Law and including any related or similar orders or declarations from any Governmental Entity).

 

“Certificate of Merger” has the meaning set forth in Section 2.1(b)(ii).

 

“Certificates” has the meaning set forth in Section 2.1(b)(vii).

 

“Closing” has the meaning set forth in Section 2.2.

 

“Closing Company Financial Statements” has the meaning set forth in Section 5.16(a)(ii).

 

“Closing Date” has the meaning set forth in Section 2.2.

 

“Closing Filing” has the meaning set forth in Section 5.4(c).

 

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“Closing Press Release” has the meaning set forth in Section 5.4(c).

 

“COBRA” means the requirements of Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any similar state Law.

 

“Code” means the U.S. Internal Revenue Code of 1986, as amended, and all regulations, rulings and other guidance issued or in effect thereunder.

 

“Company” has the meaning set forth in the introductory paragraph to this Agreement.

 

“Company Affiliated Party” has the meaning set forth in Section 3.19(a)(i).

 

“Company Affiliated Party Transactions” has the meaning set forth in Section 3.19(d).

 

“Company Benefit Plan” means any Benefit Plan (a) that is sponsored, maintained, contributed to or required to be contributed to by any Group Company (or to which any Group Company is a party) and that covers or benefits any current or former employee, officer, director, manager, consultant, independent contractor or other service provider of or to any Group Company (or any spouse, domestic partner, dependent or beneficiary of any such individual) or (b) under or with respect to which any Group Company has (or would reasonably be expected to have) any current or future Liability (including any contingent Liability), other than any plan or program sponsored or maintained by a Governmental Entity (including social security authorities) to which the Group Companies contribute as a matter of Law.

 

“Company Board” has the meaning set forth in the recitals to this Agreement.

 

“Company Bylaws” means the By-laws of the Company, dated January 30, 2023.

 

“Company Certificate of Incorporation” means the Articles of Incorporation of the Company, filed with the Washington Secretary of State on October 21, 2021.

 

“Company Competing Acquisition” means any direct or indirect acquisition, in one or a series of related transactions, (i) of the Equity Securities of the Company, in each case, that, if consummated, would result in a Person acquiring beneficial ownership of 50% or more of any class of outstanding voting Equity Securities of the Company or 50% or more of the outstanding voting Equity Securities of the Company (regardless of class) or (ii) of all or a portion of assets or businesses of the Group Companies which constitute 50% or more of the fair market value of the Group Companies, taken as a whole (in the case of each of clause (i) and (ii), whether by merger, consolidation, recapitalization, purchase or issuance of Equity Securities, tender offer or otherwise). Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the Transactions or any transaction with any SPAC Party shall constitute (in whole or in part) a Company Competing Acquisition.

 

“Company Designee” has the meaning set forth in Section 5.15(c).

 

“Company Disclosure Schedules” means the disclosure schedules to this Agreement delivered to SPAC by the Company on the date of this Agreement.

 

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“Company Dissenting Shareholders” has the meaning set forth in Section 2.7.

 

“Company Dissenting Shares” has the meaning set forth in Section 2.7.

 

“Company Equity Award” means, as of any determination time, each award to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company of rights of any kind to acquire or receive any Equity Security of any Group Company under any Company Equity Plan or otherwise that is outstanding.

 

“Company Equity Plans” means, each plan that provides for the award to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company of rights of any kind to acquire or receive Equity Securities of any Group Company or benefits measured in whole or in part by reference to Equity Securities of any Group Company.

 

“Company Equityholders” means, collectively, the Company Shareholders and the holders of Company Equity Awards as of any determination time prior to the Effective Time.

 

“Company Expenses” means, as of any determination time, the aggregate amount, without duplication, of all fees, expenses, costs, disbursements, commissions or other amounts incurred by or on behalf of any Group Company or that any Group Company is obligated to pay, whether or not such amounts are due and payable, in connection with, or as a result of, the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the Transactions, including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers, consultants, or other agents or service providers of any Group Company, and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to any Group Company pursuant to this Agreement or any Ancillary Document; provided, however, notwithstanding the foregoing or anything to the contrary herein, the Company Expenses shall not include any SPAC Liabilities or any fees, expenses, commissions or other amounts that are expressly contemplated to be allocated to and paid by the SPAC Parties pursuant to this Agreement or any Ancillary Document.

 

“Company Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Organization and Qualification), Section 3.2(a)-(f) (Capitalization of the Group Companies), Section 3.3 (Authority), and Section 3.17 (Brokers).

 

“Company Intellectual Property” means both Company Owned Intellectual Property and Company Licensed Intellectual Property.

 

“Company IT Systems” means all computer systems, Software and hardware, communication systems, servers, network equipment and related documentation, including any outsourced systems and processes, in each case, owned, licensed or leased by any Group Company or its Affiliates.

 

“Company Licensed Intellectual Property” means Intellectual Property owned by any Person (other than a Group Company) that is licensed to and used by any Group Company.

 

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“Company Material Adverse Effect” means any change, event, effect or occurrence that, individually or in the aggregate with any other change, event, effect or occurrence, has been or would reasonably be expected to be materially adverse to (a) the business, operations, employees, condition (financial or otherwise), properties, assets, liabilities, business relations, or results of operations of the Group Companies, taken as a whole, or (b) the ability of the Company to consummate the Merger or the other transactions contemplated to be consummated by the Company on the Closing Date in connection therewith, in each case, in accordance with the terms of this Agreement; provided, however, that, in the case of clause (a), none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur: any adverse change, event, effect or occurrence arising after the date of this Agreement from (i) general business or economic conditions in or affecting the United States, the world generally or the industries in which the Company Group operates, or changes therein, (ii) changes in applicable Laws, regulatory policies, accounting standards or principles (including GAAP) or any guidance relating thereto or interpretation thereof, after the date of this Agreement, (iii) any hurricane, tornado, flood, earthquake, tsunami, natural disaster, mudslide, wild fire, epidemic, pandemic (including COVID-19) or quarantine, act of God or other natural disaster in the United States or any other country or region in the world, (iv) any national or international political or social conditions in the United States, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism, (v) changes in conditions of the financial, banking, capital or securities markets generally in the United States, or changes therein, including changes in interest rates in the United States and changes in exchange rates for the U.S. dollar against currencies of any countries, (vi) the announcement or the execution of this Agreement, the pendency of the Transactions, or the performance of this Agreement, including losses or threatened losses of customers, suppliers, vendors, distributors or others having relationships with the Company Group resulting therefrom, (vii) any action taken or not taken by the SPAC, the Sponsor or any of their respective Affiliates, or at the written request or with the written consent of the SPAC, or (ix) any failure by the Company to meet, or changes to, any internal or published budgets, projections, forecasts, estimates or predictions (although the underlying facts and circumstances resulting in such failure or changes may be taken into account to the extent not otherwise excluded from this definition pursuant to clauses (i) through (v)); provided, however, that any change, event, effect or occurrence resulting from a matter described in any of the foregoing clauses (i) through (v) may be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur to the extent such change, event, effect, fact, factor, development, condition or occurrence has or has had a disproportionate adverse effect on the Group Companies, taken as a whole, or any business line of the Company, relative to other participants operating in the industries or markets in which the Group Companies operate (for the avoidance of doubt, only the incremental disproportionate adverse effect may be taken into account in determining whether a Company Material Adverse Effect has occurred).

 

“Company Owned Intellectual Property” means the Company Owned Intellectual Property Rights, together with the Company Owned Technology.

 

“Company Owned Intellectual Property Rights” means all Intellectual Property Rights in any Company Owned Technology, including all Company Registered Intellectual Property Rights, together with any unregistered Intellectual Property Rights owned or purported to be owned by any Group Company, including rights in Intellectual Property under development by any Group Company.

 

“Company Owned Technology” means all Technology for which the underlying Intellectual Property Rights are owned or purported to be owned by any Group Company.

 

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“Company Preferred Stock” means shares of the Company’s series seed preferred stock, par value $0.00001 per share, series A-1 preferred stock, par value $0.00001 per share, series AA preferred stock, $0.00001 per share and series A preferred stock, par value $0.00001 per share.

 

“Company Product” means any product or service designed, developed, manufactured, assembled, distributed, sold, licensed or otherwise made commercially available to third parties by the Group Companies, or any services hosted, provided or made accessible by any Group Company to third parties, including software as a service, professional services and maintenance and support.

 

“Company Registered Intellectual Property Rights” has the meaning specified in Section 3.13(a).

 

“Company Required Shareholder Approval” means the approval and adoption of this Agreement and the Transactions (including the Merger) by holders of a majority of the voting power of the outstanding (i) Company Common Stock and (ii) Company Preferred Stock.

 

“Company Shareholder Written Consent” has the meaning set sort in Section 5.13(a).

 

“Company Shareholder Written Consent Deadline” has the meaning set sort in Section 5.13(a).

 

“Company Shareholders” means, as of any determination time prior to the Effective Time, the holders of Company Shares.

 

“Company Shares” means, collectively, (i) shares of common stock, par value $0.00001 per share, of the Company designated as “Common Stock” pursuant to the Company Certificate of Incorporation (“Company Common Stock”) and (ii) shares of Company Preferred Stock.

 

“Company Supporting Shareholder” means each Company Shareholder that beneficially owns, together with its Affiliates, greater than 5% of the total outstanding Company Shares on the date of this Agreement calculated on a fully diluted basis taking into account the vesting and exercise of all Company Equity Awards and any other Company Shareholder who is an executive officer, director, Affiliate or founder of the Company.

 

“Company Technology” means collectively all Company Owned Technology and any Technology used by or licensed to any Group Company.

 

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“Company Transaction Payment” means any success, change of control, retention, transaction bonus or other similar payment or amount that any Group Company is required to pay to any current or former employee, officer, director, consultant, independent contractor, or other service provider of the Company or any other Company Affiliated Party (including any “double trigger” payments or similar amounts that may become due and payable based upon the occurrence of the Merger or the other transactions contemplated to occur on the Closing Date pursuant to this Agreement or the Ancillary Documents followed by or combined with one or more additional circumstances, matters or events) pursuant to the express terms of any Company Benefit Plan or other plan, policy, arrangement or Contract to which the Company or any of its Subsidiaries is a party or by which any of their respective assets are bound as of or prior to the Closing, in each case, as a result of the consummation of the Merger or the other transactions contemplated to occur on the Closing Date pursuant to this Agreement or the Ancillary Documents.

 

“Company Warrants” means any warrants to purchase Company Shares outstanding immediately prior to the Effective Time.

 

“Completion Date” means June 19, 2024, or such later date as may be established in the Amended and Restated Articles of Association of SPAC for the liquidation and winding up of SPAC in the event it has not consummated a business combination by that date.

 

“Confidentiality Agreement” means that certain Non-Disclosure Agreement, dated as of March 19, 2024, between the Company and SPAC.

 

“Consent” means any notice, authorization, qualification, registration, filing, notification, permit, waiver, order, consent or approval to be obtained from, filed with or delivered to, a Governmental Entity or other Person.

 

“Contract” or “Contracts” means any agreement, understanding, contract, license, lease, purchase order, warranty or guarantee, obligation, undertaking or other commitment or arrangement that is legally binding upon a Person or any of his, her or its properties or assets, in each case whether oral or written.

 

“Corporate Records” has the meaning set forth in Section 3.25.

 

“COVID-19” means SARS-CoV-2 or COVID-19 and any evolutions thereof or related or associated epidemics, pandemic or disease outbreaks.

 

“D&O Persons” has the meaning set forth in Section 5.14(a).

 

“Data Breach” means any (a) incident constituting a security breach of Personal Data under applicable Privacy Requirements or any unauthorized access, acquisition, use, disclosure, modification, deletion, or destruction of Personal Data; or (b) any successful phishing incident or ransomware attack.

 

“DGCL” has the meaning set forth in the recitals to this Agreement.

 

“Disqualifying Event” has the meaning set forth in Section 4.18(b).

 

“DNR” has the meaning set forth in Section 3.22(a)(ii).

 

“Domestication” has the meaning set forth in the recitals to this Agreement.

 

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“Domestication Proposal” has the meaning set forth in Section 5.9(b)(ii).

 

“Effective Time” has the meaning set forth in Section 2.1(b)(ii).

 

“Enterprise Value” means $175,000,000.

 

“Environmental Laws” means all Laws and Orders concerning pollution, protection of the environment, or human health or safety (as related to exposure to Hazardous Substances).

 

“Equity Securities” means any shares of capital or capital stock, partnership, membership or joint venture interests, or other similar ownership interests in any Person (including any stock appreciation, phantom stock, profit participation or similar rights), and any option, call, put, warrant, right or security convertible, exchangeable or exercisable therefor (including convertible debt securities, restricted stock units, warrants, subscription rights and purchase rights).

 

“ERISA” means the Employee Retirement Income Security Act of 1974, and all regulations, rulings and other guidance issued or in effect thereunder.

 

“ERISA Affiliate” means any Person, trade or business (whether or not incorporated) that, together with any Group Company, is or, at any relevant time, was treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.

 

“Exchange Act” means the Securities Exchange Act of 1934.

 

“Exchange Ratio” means the quotient obtained by dividing (a) the Exchange Share Consideration, by (b) the number of Fully Diluted Shares.

 

“Exchange Share Consideration” means an aggregate number of SPAC Shares equal to the quotient obtained by dividing (a) the Enterprise Value, by (b) $10.00.

 

“Excluded License” means any Open Source Software license that requires, as a condition of use, modification or distribution of Software subject to such license, that (a) such Software or other Software linked, combined or distributed with such Software (other than Open Source Software) be disclosed or distributed in source code form, or (b) such Software or other Software linked, combined or distributed with such Software or any associated Intellectual Property (other than Open Source Software) be made available by any Group Company without cost (including for the purpose of making additional copies or derivative works).

 

“Extension Deposit” has the meaning set forth in Section 5.20(g).

 

“Extension Proposal” has the meaning set forth in Section 5.20(a).

 

“Extension Proxy Statement” has the meaning set forth in Section 5.20(a).

 

“Extension Shareholders’ Meeting” has the meaning set forth in Section 5.20(c).

 

“Financial Statements” has the meaning set forth in Section 3.4(a).

 

“Financing” has the meaning set forth in Section 5.21(a).

 

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“FINRA” means the Financial Industry Regulatory Authority, Inc. and any successor thereto.

 

“Fraud” means with respect to a Party, actual common law fraud with respect to the making of the express representations and warranties by such Party in Article III or Article IV, as applicable; provided, however, that such fraud of a Party shall only be deemed to exist if such Party had actual knowledge (and not imputed or constructive knowledge) at the time of making the applicable representations or warranties of a material misrepresentation with respect to the representations and warranties made by such Party in Article III or Article IV, as applicable, as qualified by the Schedules, and such material misrepresentation was made with the actual intention of deceiving another Party who is relying on such representation or warranty.

 

“Fully Diluted Shares” means an amount equal to the sum of, without duplication, (a) the aggregate number of Company Shares that are issued and outstanding as of immediately prior to the Effective Time (in the case of the Company Preferred Stock, on an as-converted basis), and (b) the aggregate number of Company Shares issuable upon the full exercise, exchange, settlement or conversion of Equity Securities that are outstanding as of immediately prior to the Effective Time, including pursuant to any Company Equity Awards, in each case, other than any Equity Securities issued in connection with a Financing.

 

“GAAP” means United States generally accepted accounting principles.

 

“Governing Document Proposal” has the meaning set forth in Section 5.9(b)(iv).

 

“Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or that govern its internal affairs, including in the case of (a) a U.S. corporation, its certificate or articles of incorporation and by-laws, (b) a U.S. limited partnership, its limited partnership agreement and certificate of limited partnership, (c) a U.S. limited liability company, its operating or limited liability company agreement and certificate of formation or organization, and (d) a Cayman Islands exempted company, its memorandum and articles of association.

 

“Governmental Entity” means any United States or non-United States (a) federal, state, local, municipal or other government, (b) governmental or quasi-governmental entity of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal) or (c) body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or other power of any nature of any of the foregoing, including any arbitral tribunal of competent jurisdiction (public or private).

 

“Group Companies” means, collectively, the Company and its Subsidiaries, and “Group Company” means any of them.

 

“Hazardous Substance” means any hazardous, toxic, explosive or radioactive material, substance or waste or other pollutant that is regulated by, or may give rise to standards of conduct or Liability pursuant to, any Environmental Law, including any petroleum products or byproducts, asbestos, lead, polychlorinated biphenyls, per- and poly-fluoroakyl substances, or radon.

 

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“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

 

“In-Licenses” means collectively all licenses and other Contracts under which any Group Company has been granted a license to any Intellectual Property, including Off-the-Shelf Software Licenses.

 

“Incentive Equity Plan Proposal” has the meaning set forth in Section 5.9(b)(v).

 

“Income Tax” means any Tax that is, in whole or in part, based on or measured by income or gains and any business franchise tax or similar Tax.

 

“Indebtedness” means, as of any time, without duplication, with respect to any Person, all Liabilities arising under or in respect of (a) indebtedness for borrowed money, (b) other obligations evidenced by any note, bond, debenture or other debt security, (c) obligations for the deferred or unpaid purchase price of property, assets or services (but excluding any trade payables arising in the ordinary course of business any “earn-out” obligation until such earn-out obligation becomes a liability on the balance sheet of such Person in accordance with GAAP), (d) reimbursement and other obligations with respect to letters of credit, bank guarantees, bankers’ acceptances or other similar instruments, in each case, solely to the extent drawn, (e) leases required to be recorded as a capital lease in accordance with GAAP, (f) derivative, hedging, swap, foreign exchange or similar arrangements, including swaps, caps, collars, hedges or similar arrangements, and (f) any of the obligations of any other Person of the type referred to in clauses (a) through (h) above directly or indirectly guaranteed by such Person or secured by any assets of such Person, whether or not such Indebtedness has been assumed by such Person, and in each case including any related unpaid interest, fees, expenses, or prepayment, cancellation, termination or breakage penalties or costs; provided, that Indebtedness shall not include (i) accounts payable to trade creditors (other than such accounts payable owed and outstanding for more than 180 days from the respective dates such payables were due); and (ii) Indebtedness owing from one Group Company that is directly or indirectly wholly owned by the Company or any other Group Company.

 

“Initial Company Financial Statements” has the meaning set forth in Section 5.16(a)(ii).

 

“Intellectual Property” means Intellectual Property Rights and Technology, collectively.

 

“Intellectual Property Rights” means collectively any and all of the following and all rights in, arising out of, or associated therewith (including all applications or rights to apply for any of the following), and all registrations, renewals, extensions, future equivalents, and restoration thereof, now or hereafter in force or effect: all United States, international and foreign (a) patents (including any continuations and continuations in part, divisional, reissues, renewals and applications for any of the foregoing), inventions, invention disclosures, utility models or similar rights, designs, design rights, and equivalent or similar rights; (b) trademarks, service marks, trade names, trade dress, brand names, logos or other similar identifiers and all goodwill associated therewith throughout the world; (c) all copyrights, mask works, and all other rights corresponding thereto (including moral rights) throughout the world; (d) all rights in URLs, social media accounts, short codes, hash tags and domain names and any applications and registrations therefore, and contract rights therein; (e) rights of personality, publicity and privacy; (f) all trade secrets and other rights in know-how, data, confidential information or proprietary information; (g) rights of attribution and integrity and other moral rights; and (h) any similar, corresponding, or equivalent rights to any of the foregoing in items (a) through (g) above, anywhere in the world.

 

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“Intended Tax Treatment” has the meaning set forth in the recitals to this Agreement.

 

“Invention Assignment Agreement” has the meaning set forth in Section 3.13(h).

 

“Investment Company Act” means the Investment Company Act of 1940.

 

“IPO” has the meaning set forth in Section 8.18.

 

“IRS” means the U.S. Internal Revenue Service.

 

“JOBS Act” means the Jumpstart Our Business Startups Act of 2012.

 

“Latest Balance Sheet” means the unaudited, consolidated balance sheets of the Company and its Subsidiaries as of December 31, 2023.

 

“Latest SPAC Balance Sheet” has the meaning set forth in Section 4.15(e).

 

“Law” means any statute, law (including common law), act, statute, ordinance, treaty, rule, code, regulation or other legally binding directive issued, promulgated or enforced by a Governmental Entity.

 

“Letter of Transmittal” means the letter of transmittal, substantially in a form reasonably acceptable to the Company and SPAC (including a release of claims against the Group Companies and SPAC to the extent permissible under applicable Law), such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or SPAC, as applicable.

 

“Liability” or “liability” means any and all debts, liabilities and obligations, whether accrued or unaccrued, fixed, absolute or contingent, or matured or unmatured, including those arising under any Law (including any Environmental Law), Proceeding or Order and those arising under any Contract, agreement, arrangement, commitment or undertaking.

 

“Lien” means any mortgage, pledge, security interest, encumbrance, lien (including any mechanic’s lien, materialmen’s lien or Tax lien), license or sub-license, charge, or other similar encumbrance or interest (including, in the case of any Equity Securities, any voting, transfer or similar restrictions).

 

“LNR” has the meaning set forth in Section 3.22(a)(ii).

 

“Lock-Up Agreement” has the meaning set forth in the recitals to this Agreement.

 

“Material Contracts” has the meaning set forth in Section 3.7(a).

 

“Material Customer” has the meaning set forth in Section 3.23.

 

“Material Permits” has the meaning set forth in Section 3.6.

 

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“Material Supplier” has the meaning set forth in Section 3.23.

 

“Merger” has the meaning set forth in Section 2.1(b)(i).

 

“Merger Sub” has the meaning set forth in the introductory paragraph to this Agreement.

 

“Multiemployer Plan” has the meaning set forth in Section (3)37 of ERISA.

 

“Nasdaq” means the Nasdaq Global Market.

 

“Nasdaq Proposal” has the meaning set forth in Section 5.9(b)(iii).

 

“New Registration Rights Agreement” has the meaning set forth in the recitals to this Agreement.

 

“Non-U.S. Company Benefit Plan” means any Company Benefit Plan that is subject to the Laws of any jurisdiction outside of the United States (whether or not United States Law also applies) or is sponsored or maintained primarily for the benefit of current or former employee, officer, director, manager, consultant, independent contractor or other service provider of or to any Group Company who resides or works primarily outside of the United States.

 

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

 

“Off-the-Shelf Software Licenses” means any Software or other technology license agreements or Contracts that are made generally available on a commercial basis (including technology offered on a SaaS, PaaS, or IaaS or similar basis and Software available through retail stores, distribution networks or that is pre-installed as a standard part of hardware) and is licensed to or otherwise made available on a non-exclusive basis under standard terms and conditions for a one-time fee of less than $100,000 per license or an ongoing fee of less than $50,000 per year per license.

 

“Officers” has the meaning set forth in Section 5.15(a)(iv).

 

“Open Source Software” means any open source, public source or freeware software made available under or otherwise subject to any license that is considered an open source software license by the Open Source Initiative or a free Software license by the Free Software Foundation, or any license substantially similar to any of the foregoing, including any version of any Software licensed pursuant to any version of the GNU General Public License, GNU Lesser/Library General Public License, Apache Software License, Mozilla Public License, BSD License, MIT License, Common Public License, or any derivative of any of the foregoing licenses.

 

“Order” means any writ, order, judgment, injunction, settlement, decision, determination, award, ruling, subpoena, verdict or decree entered, issued or rendered by any Governmental Entity.

 

“Other Litigation” has the meaning set forth in Section 5.2(c).

 

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“Other SPAC Shareholder Approvals” means the approval of each Transaction Proposal, other than the Required SPAC Shareholder Approvals, by a resolution passed by the requisite number of votes of the holders of SPAC Shares, whether in person or by proxy, at the SPAC Shareholders Meeting (or any adjournment thereof), in accordance with the SPAC Governing Documents and applicable Law.

 

“Out-Licenses” means collectively all licenses and other Contracts under which any Group Company has granted to any Person a license to any Company Owned Intellectual Property Rights.

 

“Owned Real Property” has the meaning set forth in Section 3.18(a).

 

“Parties” has the meaning set forth in the introductory paragraph to this Agreement.

 

“PCAOB” means the Public Company Accounting Oversight Board.

 

“Per Share Merger Consideration” has the meaning set forth in Section 2.1(b)(vii).

 

“Permits” means any approvals, authorizations, clearances, business licenses, registrations, permits or certificates of a Governmental Entity.

 

“Permitted Liens” means (a) mechanic’s, materialmen’s, carriers’, repairers’ and other similar statutory Liens arising or incurred in the ordinary course of business for amounts that are not yet due or payable or that are being contested in good faith for which sufficient reserves have been established in accordance with GAAP, (b) Liens for Taxes, assessments or other governmental charges that are not yet due or payable or that are being contested in good faith for which sufficient reserves have been established in accordance with GAAP, (c) encumbrances and restrictions on Real Property (including easements, covenants, conditions, rights of way and similar restrictions) that do not prohibit or materially interfere with any of the Group Companies’ use or occupancy of such Real Property, (d) zoning, building codes and other land use Laws regulating the use or occupancy of Real Property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such Real Property and which are not violated by the use or occupancy of such Real Property or the operation of the businesses of the Group Company and do not prohibit or materially interfere with any of the Group Companies’ use or occupancy of such Real Property, (e) nonexclusive licenses granted to third parties in the ordinary course of business, (f) cash deposits or cash pledges to secure the payment of workers’ compensation, unemployment insurance, social security benefits or obligations arising under similar Laws or to secure the performance of public or statutory obligations, surety or appeal bonds, and other obligations of a like nature, in each case in the ordinary course of business and which are not yet due or payable, (g) easements, covenants, rights of way and similar restrictions that (A) are matters of record, and (B) do not materially interfere with the present uses, occupancy, or value of such real property affected thereby, (h) Liens that do not materially impair the value or the continued use and operation of the personal property to which they relate, (i) Liens that secure obligations that are reflected as liabilities on the Latest Balance Sheet, and (j) Liens described on Section 1.1 of the Company Disclosure Schedule.

 

“Person” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture or other similar entity, whether or not a legal entity.

 

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“Personal Data” means, to the extent regulated by contract, Law, or privacy policy applicable to any Group Company, any data that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, including any other data that constitutes personal information or personal data under any contract, Law, or privacy policy applicable to the Group Companies.

 

“Pre-Closing SPAC Shareholders” means the holders of SPAC Shares as of any determination time prior to the Effective Time.

 

“Privacy Requirements” means, to the extent applicable to any Group Company (a) any Laws regulating the privacy, security or Processing of Personal Data, (b) all contracts between any Group Company and any Person that are applicable to the Processing of Personal Data, and (c) all policies published or publicly displayed by and applicable to any Group Company relating to the Processing of Personal Data.

 

“Proceeding” means any lawsuit, litigation, action, audit, examination, investigation, claim, complaint, charge, proceeding, suit or arbitration (in each case, whether civil, criminal or administrative and whether public or private) pending by or before or otherwise involving any Governmental Entity.

 

“Process” (or “Processing” or “Processes”) means the collection, use, storage, processing, recording, distribution, transfer, import, export, protection (including security measures), disposal or disclosure or other activity regarding data (whether electronically or in any other form or medium).

 

“Prospectus” has the meaning set forth in Section 8.18.

 

“Protected Data” shall mean all (a) Personal Data, (b) and all data for which any Group Company is required by Law, contract, or privacy policy to safeguard or keep confidential or private, including the Group Companies’ confidential or proprietary information and (c) information related to protected classifications under state or federal Law.

 

“Public Shareholders” has the meaning set forth in Section 8.18.

 

“RCW” means the Revised Code of Washington.

 

“Real Property” means, collectively, the Owned Real Property, the real property leased pursuant to the Real Property Leases and any other real property otherwise occupied, possessed or used by any Group Company.

 

“Real Property Leases” has the meaning set forth in Section 3.18(b).

 

“Registration Statement / Proxy Statement” means a registration statement on Form S-4 relating to the Transactions and the Ancillary Documents and containing a prospectus and proxy statement of SPAC.

 

“Released Claims” has the meaning set forth in Section 8.18.

 

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“Representatives” means, with respect to any Person, such Person’s and such Person’s Affiliates’ respective directors, managers, general partners, officers, employees, accountants, consultants, advisors, attorneys, agents and other representatives.

 

“Required Merger Sub Approval” means the approval and adoption of this Agreement and the Transactions (including the Merger) by SPAC, as the sole stockholder of Merger Sub.

 

“Required SPAC Shareholder Approvals” means (a) the approval of the Domestication Proposal and the Governing Document Proposal by a special resolution, being a resolution passed by holders of at least two-thirds of SPAC Shares entitled to vote and that do so vote thereon at the SPAC Shareholders Meeting (or any adjournment thereof), whether in person or by proxy, in accordance with the Governing Documents of SPAC and applicable Law, and (b) the approval of the Business Combination Proposal, the Nasdaq Proposal, the Incentive Equity Plan Proposal by an ordinary resolution, being a resolution passed by a majority of the holders of SPAC Shares entitled to vote and that do so vote thereon at the SPAC Shareholders Meeting (or any adjournment thereof), whether in person or by proxy, in accordance with the Governing Documents of SPAC and applicable Law.

 

“Rollover Equity Award” has the meaning set forth in Section 2.4(a).

 

“Sanctions and Export Control Laws” means any Law or Order related to (a) import and export controls, including the U.S. Export Administration Regulations administered by the U.S. Department of Commerce’s Bureau of Industry and Security, the International Traffic in Arms Regulations administered by the U.S. Department of State’s Directorate of Defense Trade Controls and such other controls administered by the U.S. Customs and Border Protection, the United Kingdom, European Union, any European Member State and any other relevant import and export control authority, (b) economic sanctions, including those administered by OFAC, the U.S. Department of State, the European Union, any European Union Member State, the United Nations, His Majesty’s Treasury of the United Kingdom and any other relevant sanctions authority or (c) anti-boycott measures.

 

“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.

 

“Schedules” means, collectively, the Company Disclosure Schedules and the SPAC Disclosure Schedules.

 

“SEC” means the U.S. Securities and Exchange Commission.

 

“Securities Act” means the U.S. Securities Act of 1933.

 

“Securities Laws” means the securities Laws of any state, federal or foreign entity and the rules and regulations promulgated thereunder.

 

“Signing Filing” has the meaning set forth in Section 5.4(c).

 

“Signing Press Release” has the meaning set forth in Section 5.4(c).

 

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“Software” means any and all (a) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (c) descriptions, flowcharts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (d) all documentation, including user manuals and other training documentation, related to any of the foregoing.

 

“SPAC” means (a) prior to the consummation of the Domestication, AlphaVest Acquisition Corp., an exempted company incorporated in the Cayman Islands with limited liability, and (b) from and after the consummation of the Domestication, shall mean SPAC as domesticated in Delaware in accordance with Section 2.1(a).

 

“SPAC Affiliated Party” has the meaning set forth in Section 4.10.

 

“SPAC Affiliated Party Transactions” has the meaning set forth in Section 4.10.

 

“SPAC Board” has the meaning set forth in the recitals to this Agreement.

 

“SPAC Board Recommendation” has the meaning set forth in Section 5.9.

 

“SPAC Bylaws” means (i) from and after the Domestication and until the Effective Time, the bylaws contemplated by Section 2.1(a)(iv) and (ii) from and after the Effective Time, the bylaws contemplated by Section 2.1(c)(i).

 

“SPAC Certificate of Incorporation” means (i) from and after the Domestication and until the Effective Time, the certificate of incorporation contemplated by Section 2.1(a)(iv) and (ii) from and after the Effective Time, the certificate of incorporation contemplated by Section 2.1(c)(i).

 

“SPAC Competing Acquisition” means (a) any direct or indirect acquisition (or other business combination), in one or a series of related transactions under which SPAC, directly or indirectly, (i) acquires or otherwise purchases any other Person(s), (ii) engages in a business combination with any other Person(s) or (iii) acquires or otherwise purchases all or a material portion of the assets, Equity Securities or businesses of any other Persons(s) (in the case of each of clause (i), (ii) and (iii), whether by merger, consolidation, recapitalization, purchase or issuance of Equity Securities, tender offer or otherwise), or (b) any other “Business Combination” as defined in the Prospectus. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the Transactions shall constitute a SPAC Competing Acquisition.

 

“SPAC Designee” has the meaning set forth in Section 5.15(c).

 

“SPAC Disclosure Schedules” means the disclosure schedules to this Agreement delivered to the Company by SPAC on the date of this Agreement in connection with the execution of this Agreement.

 

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“SPAC Expenses” means, as of any determination time, the aggregate amount, without duplication, of all fees, expenses, costs, disbursements, commissions or other amounts incurred by or on behalf of any SPAC Party or the Sponsor, or that any SPAC Party or the Sponsor is obligated to pay, whether or not such amounts are due and payable, in connection with, or as a result of, the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the Transactions, including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, placement agents, investment bankers, consultants, or other agents or service providers of any SPAC Party (including with respect to this Agreement), (b) any other fees, expenses, commissions or other amounts that are expressly allocated to any SPAC Party pursuant to this Agreement or any Ancillary Document, and (c) the deferred underwriter commission, any SPAC deadline extension loans and working capital loans, and fees and expenses incurred in connection with other proposed business combinations with other third parties; provided, however, notwithstanding the foregoing or anything to the contrary herein, the SPAC Expenses shall not include the Company Expenses, any fees, expenses, commissions or other amounts that are expressly contemplated to be allocated to and paid by Company or any Company Equityholder pursuant to this Agreement or any Ancillary Document, or any fees, expenses, commissions or other amounts that are related to the Financing, which shall be paid out of the proceeds of such offering (or by the Company in the event this Agreement is terminated).

 

“SPAC Extension” means any amendment to the SPAC Governing Documents to extend the period of time SPAC is afforded under its Governing Documents to consummate its initial business combination.

 

“SPAC Financial Statements” means all of the financial statements of SPAC included in the SPAC SEC Reports.

 

“SPAC Fundamental Representations” means the representations and warranties set forth in Section 4.1 (Organization and Qualification), Section 4.2 (Authority), Section 4.4 (Brokers), Section 4.6 (Capitalization of the SPAC Parties) and Section 4.11 (Litigation).

 

“SPAC Governing Documents” means the Amended and Restated Memorandum and Articles of Association of SPAC, dated as of December 14, 2023.

 

“SPAC Incentive Equity Plan” has the meaning set forth in Section 5.17.

 

“SPAC Liabilities” means, as of any determination time, the aggregate amount of Liabilities of SPAC, including unpaid SPAC Expenses, whether or not such Liabilities are due and payable as of such time.

 

“SPAC Material Adverse Effect” means any change, event, effect, fact, factor, development, condition or occurrence that, individually or in the aggregate with any other change, event, effect, fact, factor, development, condition or occurrence, (a) has prevented, materially delayed or materially impaired, or would reasonably be expected to prevent or materially delay or materially impair, the ability of any SPAC Party to consummate the Domestication, the Merger or the other transactions contemplated to be consummated by the SPAC Parties on the Closing Date in connection therewith, or (b) otherwise have a material adverse effect on the Transactions or on the Company Group, taken as a whole, after the Closing. Notwithstanding the foregoing, none of (a) the amount of SPAC Shares redeemed pursuant to the SPAC Shareholder Redemption, (b) the failure to obtain the Required SPAC Shareholder Approvals or (c) the occurrence or pendency of the Completion Date shall be deemed to be a SPAC Material Adverse Effect. For the avoidance of doubt, any breach or other violation of the SPAC Governing Documents resulting from the consummation of the Domestication, the Merger or the other transactions contemplated to be consummated by the SPAC Parties on the Closing Date in connection therewith shall be a SPAC Material Adverse Effect notwithstanding anything else to the contrary contained herein.

 

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“SPAC Parties” means, collectively, SPAC and Merger Sub.

 

“SPAC Rights” means, collectively, the rights of SPAC entitling each holder thereto to one-tenth of one SPAC Share.

 

“SPAC SEC Reports” has the meaning set forth in Section 4.7(a).

 

“SPAC Shareholder Approvals” means, collectively, the Required SPAC Shareholder Approvals and the Other SPAC Shareholder Approvals.

 

“SPAC Shareholder Redemption” means the valid redemption by the holders of SPAC Shares (other than the SPAC Sponsor Shares) of all or a portion of their respective SPAC Shares (in connection with the Transactions or otherwise) in accordance with (and subject to the limitations set forth in) the SPAC Governing Documents.

 

“SPAC Shareholders Meeting” has the meaning set forth in Section 5.9.

 

“SPAC Shares” means (a) prior to the consummation of the Domestication ordinary shares, par value $0.0001 per share, of SPAC, and (b) from and after the consummation of the Domestication, shares of common stock, par value $0.00001 per share, of SPAC as contemplated pursuant to the SPAC Certificate of Incorporation.

 

“SPAC Sponsor” means AlphaVest Holding, LP, a Delaware limited partnership.

 

“SPAC Sponsor Shares” means: (a) prior to the Domestication, any outstanding SPAC Shares held by the SPAC Sponsor and (b) after the Domestication, SPAC Shares that were converted from any securities referred to in clause (a) as part of the Domestication.

 

“SPAC Sponsor Units” means the SPAC Units purchased by the SPAC Sponsor in a private placement simultaneously with the IPO.

 

“SPAC Sponsor Specified Provisions” has the meaning set forth in Section 8.9.

 

“SPAC Units” means the units of SPAC, with each such unit consisting of one SPAC Share and one SPAC Right.

 

“Sponsor Support Agreement” has the meaning set forth in the recitals to this Agreement.

 

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“Subsidiary” means, with respect to any Person, any corporation, exempted company, limited liability company, partnership or other legal entity of which (a) 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 such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (b) if an exempted company, limited liability company, partnership, association or other business entity (other than a corporation), a majority of the shares, partnership interests or other similar ownership interests thereof (as applicable) is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be a, or control any, managing director or general partner possessing a majority of the management rights of such business entity (other than a corporation). The term “Subsidiary” shall include all Subsidiaries of such Subsidiary.

 

“Suppliers” has the meaning set forth in Section 3.22(f).

 

“Surviving Company” has the meaning set forth in Section 2.1(b)(i).

 

“Surviving Company Share” has the meaning set forth in Section 2.1(b)(vi).

 

“Tax” means any federal, state, local or non-United States income, gross receipts, franchise, estimated, alternative minimum, sales, use, transfer, value added, excise, stamp, customs, duties, ad valorem, real property, personal property (tangible and intangible), capital stock, social security, unemployment, payroll, wage, employment, severance, occupation, registration, environmental, communication, mortgage, profits, license, lease, service, goods and services, withholding, premium, unclaimed property, escheat, turnover, windfall profits or other taxes of any kind whatever, whether computed on a separate or combined, unitary or consolidated basis or in any other manner, together with any interest, deficiencies, penalties, fees, additions to tax, or additional amounts imposed by any Governmental Entity with respect thereto, whether disputed or not.

 

“Tax Authority” means any Governmental Entity responsible for the collection or administration of Taxes or Tax Returns.

 

“Tax Opinion” has the meaning set forth in Section 5.5(a)(iii).

 

“Tax Proceeding” means a Proceeding with respect to Taxes or Tax Returns.

 

“Tax Return” means returns, information returns, statements, declarations, claims for refund, schedules, attachments and reports relating to Taxes filed or required to be filed with any Governmental Entity, including any amendment of any of the foregoing.

 

“Technology” means collectively any and all of the following: (a) Software, including software and firmware listings, assemblers, applets, applications, websites, content (including text, pictures, sounds, music, and video), compilers, source code (whether in a format to be compiled, interpreted, or otherwise), object code, net lists, design tools, user interfaces, “look and feel,” application programming interfaces, protocols, formats, documentation, annotations, comments, data, data structures, databases, data collections, system build Software and instructions, design documents, schematics, diagrams, products, product specifications, packaging, games, devices know-how, show-how, techniques, formulae, algorithms, routines, works of authorship (whether or not copyrightable), discoveries, concepts, processes, prototypes, test methodologies, test tools, supplier and customer lists, materials that document design or design processes, or that document research or testing (including design, processes, and results); (b) any media on which any of the foregoing is recorded; and (c) any other tangible embodiments of any of the foregoing or of any Intellectual Property Rights.

 

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“Termination Date” the date that SPAC is required to dissolve or liquidate pursuant to its organizational documents, as such date may be extended in accordance with the terms hereof.

 

“Trade Compliance Laws” means any requirement of applicable Law relating to the regulation of exports, re-exports, transfers, releases, shipments, transmissions or any other provision of goods, technology, Software or services including: the Arms Export Control Act, 22 U.S.C. § 2751 et seq.; Export Administration Act, 50 U.S.C. §§ 2401-2420 (2000); Export Administration Regulations, 15 C.F.R. Parts 730 et seq.; International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706 (2000); Trading with the Enemy Act, 50 U.S.C. § 4301 et seq., International Traffic in Arms Regulations, 22 C.F.R. Parts 120- 130; and including all Sanctions and Export Control Laws.

 

“Transaction Litigation” has the meaning set forth in Section 5.2(c).

 

“Transaction Proposals” has the meaning set forth in Section 5.9(b).

 

“Transaction Support Agreements” has the meaning set forth in the recitals to this Agreement.

 

“Transactions” means the transactions contemplated by this Agreement and the Ancillary Documents.

 

“Trust Account” has the meaning set forth in Section 8.18.

 

“Trust Agreement” has the meaning set forth in Section 4.9.

 

“Trustee” has the meaning set forth in Section 4.9.

 

“Unpaid Company Expenses” means the Company Expenses calculated as of immediately prior to the Closing, in each case, to the extent unpaid as of such time.

 

“Unpaid SPAC Liabilities” means, as of any determination time, the SPAC Liabilities as of such determination time and through, and including, the Closing, in each case, to the extent unpaid as of such time.

 

“Unpaid SPAC Liabilities Schedule” the meaning set forth in Section 2.3(c).

 

“WARN” means the Worker Adjustment Retraining and Notification Act of 1988, as well as similar foreign, state or local Laws.

 

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ARTICLE 2
MERGER

 

Section 2.1 Closing Transactions. On the terms and subject to the conditions set forth in this Agreement, the following transactions shall occur in the order set forth in this Section 2.1.

 

(a) Domestication. At least one Business Day prior to the Closing Date, SPAC shall cause the Domestication to occur in accordance with Section 388 of the DGCL and Part XII of the Cayman Islands Companies Act (As Revised), including by filing with the Delaware Secretary of State a Certificate of Domestication with respect to the Domestication, in form and substance reasonably acceptable to SPAC and the Company, together with the SPAC Certificate of Incorporation, and completing and making all filings required to be made with the Cayman Islands Registrar of Companies to effect the Domestication. In connection with (and as part of) the Domestication, SPAC shall cause:

 

(i) each SPAC Unit that is issued and outstanding immediately prior to the Domestication to be separated into one SPAC Share and one SPAC Right;

 

(ii) each SPAC Share (of SPAC as organized under the laws of the Cayman Islands) that is issued and outstanding immediately prior to the Domestication to be converted into one SPAC Share (of SPAC as incorporated under the laws of Delaware);

 

(iii) each SPAC Right that is outstanding immediately prior to the Domestication to receive the treatment set forth in Section 2.1(d); and

 

(iv) SPAC to have a certificate of incorporation and bylaws substantially in form and substance reasonably satisfactory to the Company.

 

SPAC shall cause the Domestication to be consummated in accordance with applicable Law.

 

(b) The Merger.

 

(i) On the terms and subject to the conditions set forth in this Agreement and in accordance with the RCW, on the Closing Date, and at least one Business Day following the consummation of the Domestication, Merger Sub shall merge with and into the Company (the “Merger”). As a result of the Merger, the separate existence of Merger Sub shall cease, and the Company shall continue as the surviving company of the Merger (the “Surviving Company”).

 

(ii) At the Closing, the Parties shall cause the Merger to be consummated by filing with the Secretary of State of the State of Washington a certificate of merger, in a form reasonably satisfactory to the Company and SPAC (the “Certificate of Merger”), to be executed and filed in accordance with the relevant provisions of the RCW. The Merger shall become effective on the date and time at which the Certificate of Merger is accepted for filing by the Secretary of State of the State of Washington or at such later date or time as is agreed by SPAC and the Company and specified in the Certificate of Merger (the time the Merger becomes effective being referred to herein as the “Effective Time”).

 

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(iii) The Merger shall have the effects set forth in Section 23B.11.010 of the RCW. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the assets, properties, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company and all debts, liabilities, obligations, restrictions, disabilities and duties of each of the Company and Merger Sub shall become the debts, liabilities, obligations and duties of the Surviving Company, in each case, in accordance with the RCW.

 

(iv) At the Effective Time, the Governing Documents of Merger Sub shall be the Governing Documents of the Surviving Company, in each case, until thereafter changed or amended as provided therein or by applicable Law.

 

(v) At the Effective Time, the Officers, and except as provided in Section 5.15, the directors of the Company immediately prior to the Effective Time shall be the initial directors and officers of the Surviving Company, each to hold office in accordance with the Governing Documents of the Surviving Company until such director’s or officer’s successor is duly elected or appointed and qualified, or until the earlier of their death, resignation or removal.

 

(vi) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each share of capital stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be automatically cancelled and extinguished and converted into one share of common stock, par value $0.0001 per share, of the Surviving Company (a “Surviving Company Share”).

 

(vii) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each Company Share (other than the Company Shares cancelled and extinguished pursuant to Section 2.1(b)(x) and any Company Dissenting Shares) issued and outstanding as of immediately prior to the Effective Time shall be automatically canceled and extinguished and converted into the right to receive a number of SPAC Shares equal to the Exchange Ratio (the “Per Share Merger Consideration”) (in the case of shares of Company Preferred Stock convertible into Company Common Stock, multiplied by the number of shares of Company Common Stock issuable upon such conversion). From and after the Effective Time, each Company Shareholder’s certificates (the “Certificates”), if any, evidencing ownership of the Company Shares and the Company Shares held in book-entry form issued and outstanding immediately prior to the Effective Time shall each cease to have any rights with respect to such Company Shares except as otherwise expressly provided for herein or under applicable Law.

 

(viii) For purposes of calculating the aggregate number of SPAC Shares issuable to each holder of Company Shares pursuant to the terms of Section 2.1(b)(vii), all Company Shares held by such holder shall be aggregated, and the Exchange Ratio shall be applied to that aggregate number of shares held by such holder, and not on a share-by-share basis and the number of SPAC Shares to be issued shall be rounded to the nearest whole share.

 

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(ix) If, between the date of this Agreement and the Closing, the outstanding SPAC Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, then any number, value (including dollar value) or amount contained herein which is based upon the number of SPAC Shares will be appropriately adjusted to provide to the holders of Company Shares the same economic effect as contemplated by this Agreement; provided, however, that this Section 2.1(b)(ix) shall not (A) be construed to permit SPAC, Merger Sub or the Company to take any action with respect to their respective securities that is prohibited by the terms and conditions of this Agreement, or (B) apply to the Domestication or any other transactions expressly contemplated by this Agreement or any Ancillary Document to the extent consummated in accordance with the terms contemplated by this Agreement or such Ancillary Document, as applicable.

 

(x) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each Company Share held immediately prior to the Effective Time by the Company as treasury stock shall be automatically canceled and extinguished, and no consideration shall be paid with respect thereto.

 

(c) SPAC Governing Documents. At the Effective Time, SPAC shall file such documents with the Secretary of State of the State of Delaware as are necessary for:

 

(i) a certificate of incorporation and bylaws, each in form and substance reasonably satisfactory to SPAC and the Company, to become the certificate of incorporation and bylaws of SPAC; and

 

(ii) SPAC’s name to be changed to a name determined in the sole discretion of the Company.

 

(d) Treatment of SPAC Rights. Each SPAC Right that is outstanding immediately prior to the Merger shall convert into one-tenth of one SPAC Share at the Effective Time.

 

Section 2.2 Closing of the Merger. The closing of the Merger (the “Closing”) shall take place electronically by exchange of the requisite documents, duly executed where required, delivered upon actual confirmed receipt, as promptly as reasonably practicable, but in no event later than the third Business Day following the satisfaction (or, to the extent permitted by applicable Law, waiver) of the conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions) or at such other place, date or time as SPAC and the Company may agree in writing. The date upon which the Closing actually occurs is referred to herein as the “Closing Date.”

 

Section 2.3 Pre-Closing Deliveries; Sponsor Payment.

 

(a) Allocation Schedule. At least five Business Days prior to the Closing Date, the Company shall deliver to SPAC an allocation schedule (the “Allocation Schedule”) setting forth:

 

(i) the number of outstanding Company Shares held by each Company Equityholder and the number of SPAC Shares to be issued to each Company Equityholder pursuant to Section 2.1;

 

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(ii) the number of Company Shares issuable pursuant to any other class of outstanding Equity Securities of the Company, including pursuant to Company Equity Awards;

 

(iii) its good faith calculation of the Exchange Share Consideration and the Exchange Ratio; and

 

(iv) a certification, duly executed by an authorized officer of the Company, that, to his or her knowledge and solely in his or her capacity as an officer of the Company (and without any personal liability), the information and calculations delivered pursuant to clauses (i) through (v) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects and (B) in accordance with the Allocation Schedule Principles.

 

The Allocation Schedule (and the calculations and determinations contained therein) will be prepared in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company, and applicable Laws and, in the case of the Company Equity Awards, in accordance with the applicable Company Equity Plan and any applicable grant or similar agreement with respect to each Company Equity Award, in each case, as in effect immediately prior to the Effective Time (collectively, the “Allocation Schedule Principles”). The Company will review any comments to the Allocation Schedule provided by SPAC or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by SPAC or any of its Representatives. Notwithstanding the foregoing or anything to the contrary herein, (x) in no event shall the aggregate number of SPAC Shares set forth on the Allocation Schedule that are allocated in respect of the Equity Securities of the Company (or, for the avoidance of doubt, to the Company Equityholders) exceed the Exchange Share Consideration and (y) the SPAC Parties will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement.

 

(b) Aggregate Transaction Proceeds Schedule. At least two Business Days prior to the Closing Date, SPAC shall deliver to the Company a reasonably detailed calculation of the Aggregate Transaction Proceeds (the “Aggregate Transaction Proceeds Schedule”), including each subcomponent thereof, and reasonably detailed supporting documentation and a certification, duly executed by an authorized officer of SPAC, that, to his or her knowledge and solely in his or her capacity as an officer of SPAC (and without any personal liability), the information and calculations in the Aggregate Transaction Proceeds Schedule is, and will be as of immediately prior to the Effective Time, (i) to his or her knowledge, true and correct in all respects, and (ii) in accordance with the applicable provisions of this Agreement. SPAC will review any comments to the Aggregate Transaction Proceeds Schedule provided by the Company or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by the Company or any of its Representatives. SPAC may update the Aggregate Transaction Proceeds Schedule if any of the calculations or amounts shown therein are incorrect as a result of changes in the number of SPAC shareholders participating in the SPAC Shareholder Redemption, not later than one Business Day prior to the Closing Date.

 

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(c) Unpaid SPAC Liabilities Schedule. At least two Business Days prior to the Closing Date, SPAC shall deliver to the Company a reasonably detailed calculation of each Unpaid SPAC Liability as of the Closing Date, together with invoices and wire payment instructions for the parties to which each such liability is owed (the “Unpaid SPAC Liabilities Schedule”).

 

Section 2.4 Treatment of Company Equity Awards.

 

(a) At the Effective Time, by virtue of the Merger and without any action of any Party or any other Person (but subject to, in the case of the Company, Section 2.4(c)), each Company Equity Award that is outstanding and not forfeited immediately prior to the Effective Time shall be converted into the same type of equity award with respect to SPAC Shares (each such equity award, a “Rollover Equity Award”) equal to the product (rounded down to the nearest whole number) of (i) the number of shares subject to such Company Equity Award immediately prior to the Effective Time and (ii) the Exchange Ratio, rounded down to the nearest full share, with any Rollover Equity Award that is a stock option converting into a stock option having an exercise price per SPAC Share subject to such Rollover Equity Award equal to (x) the exercise price per share of such option in effect immediately prior to the Effective Time, divided by (y) the Exchange Ratio (the exercise price per share, rounded up to the nearest full cent). Each Rollover Equity Award shall be subject to the same terms and conditions (including applicable vesting, form of payment, expiration and forfeiture provisions) that applied to the corresponding Company Equity Award immediately prior to the Effective Time, except as to terms (i) rendered inoperative by reason of the transactions contemplated by this Agreement (including any anti-dilution or other similar provisions that adjust the number of underlying shares that are subject to any such award), or (ii) such other immaterial administrative or ministerial changes as the SPAC Board (or the compensation committee of the SPAC Board) may determine in good faith are appropriate to effect the administration of the Rollover Equity Awards. The assumption of Rollover Equity Awards that are stock options pursuant to this Section 2.4 shall be made in accordance with Sections 424 and 409A of the Code.

 

(b) As of immediately prior to the Effective Time, all Company Equity Plans with no awards outstanding shall terminate and all Company Equity Plans with awards outstanding shall be amended so that no further awards may be granted thereunder. At the Effective Time, SPAC shall assume all Company Equity Plans that are not terminated as of immediately prior to the Effective Time.

 

(c) At or prior to the Effective Time, the Parties and their respective boards of directors, as applicable, shall adopt any resolutions and take any actions that are reasonably necessary to effect the treatment of the Company Equity Awards pursuant to this Section 2.4. Prior to the Closing, the Company shall take, or cause to be taken, all other reasonably necessary or appropriate actions under the Company Equity Plans, under the underlying grant, award or similar agreement and otherwise to give effect to the provisions of this Section 2.4.

 

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Section 2.5 Company Shareholder Deliverables.

 

(a) Each holder of Company Shares shall, at or prior to the Closing, (i) deliver the certificates evidencing their right to Company Shares (the “Company Certificates”), if any, to SPAC for cancellation, or in the case of a lost, stolen or destroyed Company Certificate, will deliver to Parent an affidavit (and indemnity if required) in the manner provided in Section 2.5(d), and (ii) deliver a duly completed and executed letter of transmittal to Parent, in a form to be mutually agreed upon between Parent and the Company (“Letter of Transmittal”). To the extent that a holder has not delivered the Company Certificates, if any, and a duly completed and executed Letter of Transmittal at or prior to the Closing, such holder shall deliver such items to SPAC promptly following the Closing. At the Effective Time (or promptly after delivery of the Company Certificates, if any, and a duly completed and executed Letter of Transmittal, if later), each holder of Company Shares shall receive in exchange therefor the Exchange Share Consideration to which such holder is entitled pursuant to Section 2.1 in book-entry form (unless certificates representing the Exchange Share Consideration are otherwise requested by such holder), and the Company Certificates, if any, shall forthwith be cancelled. The delivery to SPAC of the Company Certificates, if any, and a duly completed and executed Letter of Transmittal shall be a condition to the receipt by each holder of Company Shares of the Exchange Share Consideration to which such holder is entitled pursuant to Section 2.1. The Exchange Share Consideration shall be issued only in the name of the registered holder of the Company Shares exchanged therefor.

 

(b) No interest will be paid or accrued on the Exchange Share Consideration (or any portion thereof). From and after the Effective Time, until surrendered or transferred, as applicable, in accordance with this Section 2.5, each Company Share (other than, for the avoidance of doubt, the Company Shares cancelled and extinguished pursuant to Section 2.1(b)(x) or any Company Dissenting Shares) shall solely represent the right to receive a portion of the Exchange Share Consideration to which such Company Share is entitled to receive pursuant to Section 2.1(b)(vii), together with any dividends or distributions payable after the Effective Time.

 

(c) At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers of Company Shares that were outstanding immediately prior to the Effective Time.

 

(d) In the event that any Company Certificates shall have been lost, stolen or destroyed, Parent shall issue in exchange for such lost, stolen or destroyed Company Certificates, upon the making of an affidavit of that fact by the holder thereof, the applicable Exchange Share Consideration into which the Company Shares formerly represented by such Company Certificates was converted into and any dividends or distributions payable after the Effective Time; provided, however, that, as a condition precedent to the delivery of such Exchange Share Consideration, the owner of such lost, stolen or destroyed Company Certificates shall indemnify SPAC against any claim that may be made against SPAC or Surviving Company with respect to the Company Certificates alleged to have been lost, stolen or destroyed.

 

(e) Any portion of the Exchange Share Consideration that remains unclaimed by the Company Shareholders 12 months following the Closing Date shall be delivered to SPAC or as otherwise instructed by SPAC, and any Company Shareholder who has not exchanged his, her or its Company Shares for the applicable portion of the Exchange Share Consideration in accordance with this Section 2.5 prior to that time shall thereafter look only to SPAC for the issuance of the applicable portion of the Exchange Share Consideration, without any interest thereon. None of SPAC, the Surviving Company or any of their respective Affiliates shall be liable to any Person in respect of any consideration delivered to a public official pursuant to any applicable abandoned property, unclaimed property, escheat, or similar Law. Any portion of the Exchange Share Consideration remaining unclaimed by the Company Shareholders immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of SPAC free and clear of any claims or interest of any Person previously entitled thereto.

 

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Section 2.6 Withholding. Each of the Company, SPAC, Merger Sub, and their respective agents shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any consideration payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable Tax Law. To the extent that amounts are so withheld and remitted to the applicable Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Upon becoming aware of any such withholding obligation, the Company, SPAC or Merger Sub (as applicable) shall use commercially reasonable efforts to give reasonable advance notice of such withholding to the Person in respect of whom such amounts are intended to be deducted or withheld, and the Parties shall cooperate in good faith to eliminate or reduce any such deduction or withholding (including through the request and provision of any reasonable statements, forms or other documents to reduce or eliminate any such deduction or withholding).

 

Section 2.7 Company Dissenting Shares. Notwithstanding anything to the contrary herein, any Company Shares for which a Company Shareholder (a) has not voted in favor of the Merger or consented to it in writing and (b) has demanded the appraisal of such Company Shares in accordance with, and has complied in all respects with, Section 23B.13 of the RCW (collectively, such shareholders, the “Company Dissenting Shareholders”, and such shares, the “Company Dissenting Shares”) shall not be converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.1(b)(vii). From and after the Effective Time, (i) the Company Dissenting Shares shall be cancelled and extinguished and shall cease to exist and (ii) the Company Dissenting Shareholders shall be entitled only to such rights as may be granted to them under Section 23B.13 of the RCW and shall not be entitled to exercise any of the voting rights or other rights of a stockholder of SPAC, the Surviving Company or any of its Affiliates (including SPAC); provided, that if any Company Dissenting Shareholder effectively withdraws or loses such appraisal rights (whether through failure to perfect such appraisal rights or otherwise), then the Company Shares held by such Company Dissenting Shareholder (a) shall no longer be deemed to be Company Dissenting Shares and (b) shall be treated as if they had been converted automatically at the Effective Time into the right to receive the Per Share Merger Consideration pursuant to Section 2.1(b)(vii) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables set forth in Section 2.5(a) and, if applicable, Section 2.5(d). Each Company Dissenting Shareholder who becomes entitled to payment for his, her or its Company Dissenting Shares pursuant to the RCW shall receive payment thereof from the Company in accordance with the RCW. The Company shall give SPAC prompt notice of any written demands for appraisal of any Company Shares, attempted withdrawals of such demands and any other documents or instruments served pursuant to the RCW and received by the Company relating to stockholders’ rights of appraisal in accordance with the provisions of Section 23B.13 of the RCW, and SPAC shall, at its sole cost and expense, have the right to, and the Company shall provide SPAC the opportunity to, participate in all negotiations and proceedings with respect to all such demands. The Company shall not, except with the prior written consent of SPAC (which consent shall not be unreasonably withheld, conditioned, or delayed), settle, or make any payment, or deliver any consideration, with respect to, any such demand.

 

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ARTICLE 3
REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES

 

Except as set forth in the Company Disclosure Schedules (which shall only qualify the representations and warranties in this Article 3 in the manner set forth in Section 8.8), the Company hereby represents and warrants to the SPAC Parties, in each case, as of the date of this Agreement and as of the Closing, as follows.

 

Section 3.1 Organization and Qualification.

 

(a) The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the state of Washington. Each Subsidiary of the Company is a corporation, limited liability company, joint stock company or other applicable business entity duly organized, incorporated or formed, as applicable, validly existing and, except as set forth in Section 3.1(a) of the Company Disclosure Schedules, in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of organization, incorporation or formation (as applicable). Section 3.1(a) of the Company Disclosure Schedules sets forth the jurisdiction of formation or organization (as applicable) for each Group Company. Each Group Company has the requisite corporate, limited liability company or other applicable business entity power and authority to own, lease and operate its properties and to carry on its businesses as presently conducted.

 

(b) True and complete copies of the governing or constitutional documents of each Group Company have been made available to SPAC, in each case, as amended and in effect as of the date of this Agreement. The governing or constitutional documents of the Company and each other Group Company, including the Company Certificate of Incorporation and the Company Bylaws, are in full force and effect, and no Group Company is in breach or violation of any provision set forth in its governing or constitutional documents.

 

(c) Each Group Company is duly qualified, licensed or registered to transact business and is in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) in each jurisdiction in which the property and assets owned, leased or operated by it, or the nature of the business conducted by it, makes such qualification or licensing necessary, except where the lack of such qualification, license or registration has not caused and would not reasonably be expected to cause, individually or in the aggregate, a Company Material Adverse Effect.

 

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Section 3.2 Capitalization of the Group Companies.

 

(a) Section 3.2(a) of the Company Disclosure Schedules sets forth a true and complete statement, as of the date hereof, for each Group Company, of (i) the number, percentage and class or series (as applicable) of all of the Equity Securities of such Group Company authorized as of the date hereof, (ii) the number, percentage and class or series (as applicable) of all of the Equity Securities of such Group Company issued and outstanding as of the date hereof, and (iii) the full names of the Persons that are the record or registered owners thereof. All of the outstanding Equity Securities of the Group Companies, including the Company Shares, have been duly authorized and validly issued and, in the case of Equity Securities of Group Companies that are corporations, are fully paid and non-assessable.

 

(b) The Equity Securities of each Group Company (i) were not issued or otherwise acquired in violation of the governing or constitutional documents of such Group Company or any Contract to which such Group Company is party or bound, (ii) were not issued or otherwise acquired in violation of any preemptive rights, call option, right of first refusal or first offer, subscription rights, or similar rights of any Person, and (iii) have been offered, sold, transferred and issued in compliance with applicable Law, including Securities Laws. Except as set forth on Section 3.2(b) of the Company Disclosure Schedules, no Group Company has any outstanding (x) equity appreciation, phantom equity or profit participation rights, (y) options, restricted stock units, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require such Group Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of such Group Company from or to an unrelated Person, or (z) to the Company’s Knowledge, condition or circumstance that would reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any Equity Securities or securities convertible into or exchangeable for Equity Securities of any Group Company. Section 3.2(b) of the Company Disclosure Schedules accurately identifies each Contract relating to any Equity Securities of any Group Company that contains any information rights, rights of first refusal, registration rights, financial statement requirements or other terms that would survive the Closing unless terminated or amended prior to the Closing.

 

(c) There are no outstanding bonds, debentures, notes or other Indebtedness of any Group Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which holders of Company Shares may vote.

 

(d) Except as set forth on Section 3.2(d) of the Company Disclosure Schedules, there are no voting trusts, proxies or other Contracts with respect to the voting or transfer of any Equity Securities of the Group Companies to which any Group Company is party or bound.

 

(e) None of the Group Companies owns or holds (of record, beneficially, legally or otherwise), directly or indirectly, any Equity Securities in any other Person (other than any Group Company) or the right to acquire any such Equity Security, and none of the Group Companies is a partner or member of any partnership, limited liability company or joint venture (other than any other Group Company).

 

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(f) Section 3.2(f) of the Company Disclosure Schedules sets forth a true and complete statement, as of the date hereof, of the holder, the date of grant and any applicable vesting schedule (including acceleration provisions) of each Company Equity Award.

 

(g) Section 3.2(g) of the Company Disclosure Schedules sets forth a list of all material Company Transaction Payments as of the date of this Agreement.

 

(h) Section 3.2(h) of the Company Disclosure Schedules sets forth a true and complete list of all Indebtedness of the Group Companies as of the date of this Agreement of the type described in clause (a) or (b) of the definition of Indebtedness, including the principal amount of such Indebtedness, the outstanding balance as of the date of this Agreement, and the debtor and the creditor thereof. None of the Group Companies are in default or otherwise in breach with respect to any such Indebtedness. The Company has provided to SPAC true, correct and complete copies of all documents (including all amendments, supplements, waivers, notices and consents) with respect to any such Indebtedness outstanding as of the date of this Agreement.

 

(i) All Equity Securities of any Group Company ever repurchased, redeemed, converted or cancelled by such Group Company were repurchased, redeemed, converted or cancelled in compliance in all material respects with (i) all applicable Law, including applicable Securities Law, and (ii) all requirements set forth in all applicable Contracts.

 

(j) The Company Shareholders set forth on Annex I hereto constitute all of the Company Supporting Shareholders as of the date of this Agreement.

 

Section 3.3 Authority. The Company has the requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is (or, in the case of any Ancillary Document contemplated hereby to be entered into after the date of this Agreement, will be) a party and (subject to receipt of the Company Required Shareholder Approval) to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery of this Agreement, the Ancillary Documents to which the Company is or will be a party, the performance of the Company’s obligations hereby and thereby and the consummation of the Transactions, have been duly and validly authorized and approved by the Company Board and upon receipt of the Company Required Shareholder Approval, no other corporate or equivalent action or other Proceeding on the part of the Company or the Company Equityholders is necessary to authorize this Agreement or such Ancillary Documents, the Company’s performance of its obligations hereunder or thereunder or the consummation of the Transactions. This Agreement and each Ancillary Document to which the Company is contemplated hereby to be a party as of the date hereof has been (and each Ancillary Document to which the Company is contemplated hereby to be a party following the execution of this Agreement, will be upon execution thereof), duly and validly executed and delivered by the Company and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Company (assuming that this Agreement and the Ancillary Documents to which the Company is or is contemplated to be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party thereto), enforceable against the Company in accordance with their respective terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). The Company Required Shareholder Approval is the only vote of the holders of any class or series of capital stock of the Company required to approve and adopt this Agreement, the Ancillary Documents to which the Company is or is contemplated to be a party, the performance of the Company’s obligations hereunder and thereunder and the consummation of the Transactions (including the Merger).

 

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Section 3.4 Financial Statements; Undisclosed Liabilities.

 

(a) The Company has made available to SPAC a true and complete copy of the unaudited, consolidated balance sheets of the Company and its Subsidiaries as of December 31, 2022 and 2023, and the related unaudited, consolidated statements of operations and comprehensive loss and cash flows of the Company and its Subsidiaries for the 12 months ended December 31, 2022 and 2023 (collectively, the “Financial Statements”). The Financial Statements are attached as Section 3.4(a) of the Company Disclosure Schedules. The Financial Statements (including the notes thereto, if applicable) (a) were derived from the books and records of the Group Companies, and (b) fairly present, in all material respects, the financial position, results of operations, and cash flows of the Company for the periods indicated therein.

 

(b) The Initial Company Financial Statements and any Closing Company Financial Statements will be derived from the books and records of the Group Companies. The Closing Company Financial Statements will (i) be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments and the absence of notes thereto), (ii) in the case of any audited financial statements, be audited in accordance with the standards of the PCAOB and to contain a report of the Company’s auditor and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable). No financial statements other than those consolidated financial statements of the Group Companies are required by GAAP to be included in the Initial Company Financial Statements.

 

(c) The Group Companies have no Liabilities of a nature required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet (excluding any Liabilities for a breach of Contract, breach of warranty, tort (including infringement of Intellectual Property Rights) or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the Transactions (including, for the avoidance of doubt, the Company Expenses), (iv) executory obligations under Contracts (excluding any Liabilities for a breach of Contract), (v) for Liabilities that are not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (vi) Liabilities that are disclosed in Section 3.4(c) of the Company Disclosure Schedules and (vii) Liabilities that are first incurred after the date hereof and are expressly permitted pursuant to the terms Section 5.1 (including as set forth in Section 5.1(b) of the Company Disclosure Schedules).

 

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(d) The Group Companies have established and maintained, individually or at a group level, systems of internal accounting controls designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained, in all material respects in the ordinary course of business, books and records of the Group Companies that are accurate and complete in all material respects.

 

(e) The Company has not received any complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of the Group Companies as of the date of this Agreement, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies as of the date of this Agreement or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.

 

Section 3.5 Consents and Requisite Governmental Approvals; No Violations.

 

(a) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of the Company with respect to the Company’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which the Company is or will be party or the consummation of the Transactions, except for (i) applicable requirements of the HSR Act (including the expiration of the required waiting period thereunder) and any other applicable Antitrust Law, (ii) the filing with the SEC of the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC, (iii) the appropriate filings and approvals under the rules of an Approved Stock Exchange, (iv) the filing of the Certificate of Merger, (v) filing with the Delaware Secretary of State a Certificate of Domestication with respect to the Domestication together with the SPAC Certificate of Incorporation and completing and making all filings required to be made with the Cayman Islands Registrar of Companies to effect the Domestication and (v) any other consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have a Company Material Adverse Effect.

 

(b) None of the execution or delivery by the Company of this Agreement or any Ancillary Documents to which it is or will be a party, the performance by the Company of its obligations hereunder or thereunder or the consummation of the Transactions will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of any provision of the Company’s Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of (A) any Material Contract or (B) any Material Permits, (iii) violate, or constitute a breach or default under, any Order, Law or other restriction of any Governmental Entity to which any Group Company or any of its properties or assets are subject or bound or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities of any Group Company, except in the case of any of the foregoing clauses (ii) through (iv), as would not have or be reasonably be expected to have a Company Material Adverse Effect.

 

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Section 3.6 Permits. Section 3.6 of the Company Disclosure Schedules sets forth a true and complete list of all Permits any Group Company holds that is required by any Group Company to own, lease or operate its properties or assets or to conduct its business as currently conducted, except for such Permits where the failure to so hold has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (the Permits required to be listed on Section 3.6 of the Company Disclosure Schedules, collectively, the “Material Permits”). Except as is not and would not reasonably be expected to have a Company Material Adverse Effect, (a) each Material Permit is in full force and effect in accordance with its respective terms and (b) there is no pending or, to the Company’s Knowledge, threatened (in writing) termination, suspension, withdrawal or revocation with respect to any Material Permit.

 

Section 3.7 Material Contracts.

 

(a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of the following Contracts, other than Company Benefit Plans, to which a Group Company is, as of the date of this Agreement, a party or by which any of their respective assets are, as of the date of this Agreement, bound (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, a “Material Contract”):

 

(i) any Contract relating to Indebtedness for borrowed money of any Group Company or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of any Group Company, in either case for an amount equal to or higher than $100,000;

 

(ii) any Contract under which any Group Company is lessee of or holds or operates, in each case, any tangible property (other than Real Property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $125,000;

 

(iii) any Contract under which any Group Company is lessor of or permits any third party to hold or operate, in each case, any material tangible property (other than real property), owned or controlled by any Group Company;

 

(iv) any Real Property Lease;

 

(v) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from any Group Company in excess of $100,000 over the life of the Contract;

 

(vi) any Contract required to be disclosed on Section 3.13(c) of the Company Disclosure Schedules;

 

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(vii) any Contract that (a) limits or purports to limit, in any material respect, the freedom of any Group Company to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of SPAC or any of its Affiliates after the Closing, (b) contains any exclusivity, “most favored nation”, rights of first negotiation or similar provisions, obligations or restrictions with respect to material assets, properties or business of the Group Companies (including exclusive license rights granted by any Group Company to any Person in Company Intellectual Property), (c) contains any covenants not to sue or not to assert any claim, or any technology or source code escrow obligations (in each case, other than in the ordinary course of business), or (d) contains any other provisions restricting, in any material respect, the ability of any Group Company to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential customer (other than standard non-solicitation provisions in Contracts);

 

(viii) any Contract (or group of related Contracts) requiring any future capital commitment or capital expenditure (or series of capital expenditures) by any Group Company in an amount in excess of (A) $100,000 annually, or (B) $250,000 over the life of such Contract (or group of related Contracts);

 

(ix) any Contract requiring any Group Company to guarantee the Liabilities of any Person (other than any other Group Company) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a Group Company, in each case in excess of $100,000;

 

(x) any Contract under which any Group Company has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person individually or in the aggregate, in an amount in excess of $100,000 or made any capital contribution to, or other investment in, any Person;

 

(xi) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedules;

 

(xii) any Contract with any Person pursuant to which any Group Company (or SPAC or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other similar contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events;

 

(xiii) any Contract providing for any Company Transaction Payment;

 

(xiv) any Contract for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets or business of any other Person (other than acquisitions or dispositions made in the ordinary course of business), under which any Group Company has any continuing material obligation with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation;

 

(xv) any settlement, conciliation or similar Contract (A) requiring material monetary payments by any Group Company after the date of this Agreement, (B) with a Governmental Entity, (C) involving any Intellectual Property Rights, or (D) that imposes any material, non-monetary obligations on any Group Company (or SPAC or any of its Affiliates after the Closing);

 

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(xvi) any Contract with any (A) Material Customer or (B) Material Supplier; and

 

(xvii) any other Contract (or group of related Contracts) the performance of which requires either (A) annual payments to or from any Group Company in excess of $100,000 or (B) aggregate payments to or from any Group Company in excess of $250,000 over the life of such Contract (or group of related Contracts).

 

(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against such Group Company and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the applicable Group Company and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract, and (iii) to the Company’s Knowledge, no party has repudiated in writing any provision of any Material Contract or threatened (in writing) to terminate any Material Contract, in each case, except as would not have a Company Material Adverse Effect. The Company has made available to SPAC true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).

 

Section 3.8 Absence of Changes. During the period beginning on January 1, 2024 and ending on the date of this Agreement, (a) no Company Material Adverse Effect has occurred and (b) except as expressly contemplated by this Agreement or any Ancillary Document or except as set forth on Section 3.8 of the Company Disclosure Schedules, (i) the Group Companies have conducted their businesses in the ordinary course of business in all material respects, and (ii) no Group Company has taken any action that would require the consent of SPAC if taken during the period from the date of this Agreement until the Closing pursuant to Section 5.1(b).

 

Section 3.9 Litigation. There is no Proceeding pending or, to the Company’s Knowledge, threatened (in writing) against or involving any Group Company or concerning any of the Group Companies’ assets, properties or business that, if adversely decided or resolved, had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There is no pending or, to the Company’s Knowledge, threatened (in writing) Proceeding against or involving any Group Company’s managers, officers, directors or employees (in their capacity as such), that, if adversely decided or resolved, had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Group Companies nor any of their respective properties or assets is subject to any Order, except as would not have, or would not reasonably be expected to have, a Company Material Adverse Effect. There are no Proceedings by any Group Company pending against any other Person.

 

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Section 3.10 Compliance with Laws. Each Group Company (i) conducts, and at all times since January 1, 2023 has conducted, its business in compliance in all material respects with all Laws and Orders applicable to such Group Company and is not, and has never been, in violation of any such Law or Order, except as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole, (ii) has not received or been subject to any material written regulatory consent orders, or enforcement actions from a Governmental Entity, and (iii) has not received any written communications from a Governmental Entity that alleges that such Group Company is not in compliance with any of the foregoing, except for any failure to comply as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole.

 

Section 3.11 Employee Plans.

 

(a) None of the Group Companies have any agreement, arrangement, commitment or obligation, whether formal or informal, whether written or unwritten and whether legally binding or not, to continue, modify or amend any existing Company Benefit Plan, except for amendments required by applicable Law with respect to which the amendment deadline has not yet lapsed.

 

(b) With respect to each Company Benefit Plan, the Company has provided SPAC with a current, true and complete copy (or, if such Company Benefit Plan is not in writing, an accurate summary of the material terms) thereof (including all amendments thereto) and, to the extent applicable: (i) the most recent summary plan description, and all summaries of material modifications related thereto, distributed with respect to such Company Benefit Plan; (ii) all Contracts related to such Company Benefit Plan, including all trust agreements, insurance Contracts, annuity Contracts and service provider agreements; (iii) the most recent Form 5500 (including all schedules and other attachments thereto); (iv) all nonroutine notices and correspondence since December 31, 2018 to or from any Governmental Entity (including social security authorities) relating to such Company Benefit Plan; and (v) all nondiscrimination, top-heavy and Code Section 415 and other year-end compliance tests performed with respect to such Company Benefit Plan for the three most recently completed plan years.

 

(c) With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been established, maintained, administered, operated and funded in all material respects in accordance with its terms and in compliance with all applicable requirements of all applicable Laws, including ERISA, the Code (and the regulations and rulings issued thereunder) and the ACPA, and each Group Company has properly performed in all material respects all of its duties and obligations under or with respect to such Company Benefit Plan; (ii) no Group Company, no ERISA Affiliate and no other Person has breached any fiduciary duty imposed upon it by ERISA or any other Law (including the ACPA); (iii) except as could not result, individually or in the aggregate, in a material liability to any Group Company, no prohibited transaction within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code (and not otherwise exempt under Section 408 of ERISA and Section 4975(c)(2) or 4975(d) of the Code) has occurred; (iv) except as could not result, individually or in the aggregate, in a material Liability to any Group Company all contributions, premiums and other payments due or required to have been paid to (or with respect to) such Company Benefit Plan on or before the Closing have been timely paid in accordance with the terms of such Company Benefit Plan and applicable Law or, if not due until after the Closing Date, have been properly accrued to the extent required in connection with the preparation of the Company’s financial statements; and (v) no Group Company has incurred (whether or not assessed), any material penalty, Tax, fine, Lien or Liability under ERISA, the Code or any other Law. No Group Company has incurred (whether or not assessed) any assessable payment, penalty, Tax or Liability under Section 4980B, 4980D, 4980H, 5000, 6721 or 6721 of the Code or any other Law. With respect to each plan or arrangement that would be a Company Benefit Plan but for the fact that such plan or arrangement is maintained or sponsored by a Governmental Entity, except as could not result, individually or in the aggregate, in a material Liability to any Group Company, all contributions required to have been made by or on behalf of the Group Companies with respect to such plan or arrangement on or before the Closing have been timely made or, if not due until after the Closing Date, have been properly accrued to the extent required in connection with the preparation of the Company’s financial statements.

 

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(d) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and its related trust is exempt from taxation under Section 501(a) of the Code. Each such Company Benefit Plan is the subject of a current, unrevoked favorable determination letter from the IRS (or, in the case of a prototype, volume submitter or other pre-approved plan, is the subject of a current, unrevoked favorable opinion or advisory letter issued by the IRS to the sponsor of such prototype or volume submitter plan and upon which the Group Companies and such Company Benefit Plan are entitled, under applicable IRS guidance, to rely) as to such Company Benefit Plan’s qualified status under the Code. To the Company’s knowledge, nothing has occurred (or failed to occur), and no facts or circumstances exist, that could adversely affect the qualified status of any such Company Benefit Plan or the exempt status of its related trust.

 

(e) No Group Company or ERISA Affiliate has ever maintained, sponsored, participated in or contributed to (or been obligated to maintain, sponsor, participate in or contribute to), or has (or could have) any current or future Liability (including any contingent Liability) under or with respect to: (i) any “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is or, at any time, was subject to Section 302 or 303 of ERISA, Title IV of ERISA or Section 412 or 430 of the Code; (ii) any “multiemployer plan” as defined in Section 3(37) of ERISA; (iii) any multiple employer plan within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code; or (iv) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.

 

(f) No Group Company or Company Benefit Plan provides (or contributes toward the cost of) or has any obligation or agreement to provide (or contribute toward the cost of), life insurance, medical or other welfare benefits (within the meaning of Section 3(1) of ERISA) to any current or former owner, director, manager, officer, employee, consultant, independent contractor or service provider of or to the Group Companies or any ERISA Affiliate (or the spouse, domestic partner, dependent or beneficiary of any such individual) after their retirement or other termination of ownership, employment or service, except to the extent required by COBRA or the ACPA or any other Law (at the sole expense of the covered individual or for a limited period of time following a termination of employment pursuant to the terms of an existing employment, severance or similar agreement in effect as of the date hereof).

 

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(g) Each Company Benefit Plan that provides, in any part, nonqualified deferred compensation that is subject to Section 409A of the Code in all material respects satisfies the documentary and operational requirements of Section 409A(a)(2), 409(A)(a)(3), and 409A(a)(4) of the Code and all applicable guidance issued thereunder (and has satisfied such requirements for the entire period during which Section 409A of the Code has applied to such Company Benefit Plan), and no additional Tax under Section 409A(a)(1)(b) of the Code has been or could reasonably be expected to be incurred by any participant or beneficiary in any such Company Benefit Plan. No Group Company has any obligation or agreement (whether under a Company Benefit Plan or otherwise) to reimburse, “gross up,” indemnify or otherwise compensate any individual for any Taxes or interest imposed under Section 4999 or 409A of the Code.

 

(h) Each Non-U.S. Company Benefit Plan that is intended to qualify for any preferential Tax treatment meets all of the requirements for such treatment and has obtained all approvals of all relevant Governmental Entities that are necessary to qualify for such Tax treatment. Each Non-U.S. Company Benefit Plan is registered where required by, and has been maintained in good standing under, all applicable Laws and with all relevant Governmental Entities. No Non-U.S. Company Benefit Plan would be considered a “defined benefit plan” within the meaning of Section 3(35) of ERISA if such plan were subject to ERISA. To the extent any Non-U.S. Company Benefit Plan is not fully funded or fully offset by insurance coverage, any unfunded or underfunded liabilities in respect of such plan have been properly accrued to the extent required under applicable accounting standards.

 

(i) There are no claims or Proceedings (other than routine claims for benefits) pending or, to the Company’s Knowledge, threatened with respect to (or against the assets of) any Company Benefit Plan. No investigation, audit or other Proceeding by any Governmental Entity (including social security authorities) is pending or in progress with respect to any Company Benefit Plan.

 

(j) There has been no amendment, interpretation or other announcement (written or oral) by the Group Companies, any ERISA Affiliate or any other Person relating to, or change in participation or coverage under, any Company Benefit Plan that, either alone or together with other such items or events, could materially increase the expense to the Group Companies of maintaining such Company Benefit Plan (or the Company Benefit Plans taken as a whole) above the level of expense incurred by the Group Companies with respect thereto for the most recent fiscal year included in the Financial Statements.

 

(k) Each Company Benefit Plan can be terminated by the applicable Group Company in accordance with its written terms without the consent of any Person and without any penalty, cost, expense or Liability to the Company, SPAC, Merger Sub, any of their respective Subsidiaries or Affiliates or such Company Benefit Plan, other than routine, immaterial administrative expenses of the type typically incurred in connection with the termination of similar employee benefit plans termination.

 

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(l) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will or could (either alone or in combination with any other event) (i) entitle any current or former employee, director, manager, officer, consultant, independent contractor or other service provider of or to any Group Company to any severance, retention or change of control payments or benefits or to any other payment (whether under a Company Benefit Plan or otherwise and whether in cash or equity); (ii) result in any payment or benefit becoming due to or result in the forgiveness of any Indebtedness of any current or former employee, director, manager, officer, consultant, independent contractor or other service provider of or to any Group Company (whether under an Company Benefit Plan or otherwise), (iii) increase the amount or value of any compensation or benefits due or payable to any current or former employee, director, manager, officer, consultant, individual independent contractor or other service provider of or to any Group Company, (iv) result in the acceleration of the time of payment or vesting, or trigger any payment or funding of any compensation or benefits to any current or former employee, director, manager, officer, consultant, individual independent contractor or other service provider of or to any the Group Company (whether under a Company Benefit Plan or otherwise); or (v) impair any of the rights of the Company, SPAC, or any of their respective Subsidiaries or Affiliates with respect to any Company Benefit Plan, including the right to amend, terminate, merge or transfer the asset of any Company Benefit Plan.

 

(m) No amount that could be received (whether in cash or property or the vesting of property) by any “disqualified individual” of any Group Company under any Company Benefit Plan or otherwise as a result of the consummation of the Transactions could, separately or in the aggregate, be nondeductible under Section 280G of the Code or subjected to an excise Tax under Section 4999 of the Code.

 

Section 3.12 Environmental Matters.

 

(a) The Group Companies are, and at all times since January 1, 2023 have been, in compliance with all Environmental Laws (including all Environmental Laws affecting the Real Property), except as would not, individually or in the aggregate, have or be reasonably be expected to have a Company Material Adverse Effect. The Group Companies have not received any written communication from any Governmental Entity or any other Person regarding any actual, alleged, or potential violation of, or Liability under, any Environmental Laws, except as relates to any such violation or Liability which would not, individually or in the aggregate, have or be reasonably be expected to have a Company Material Adverse Effect.

 

(b) There is no, and at all times since January 1, 2023 has not been, any Proceeding pending or, to the Company’s Knowledge, threatened (in writing) against or involving any Group Company in respect to any Environmental Laws.

 

(c) To the Knowledge of the Company, the Company has not manufactured, released, treated, stored, disposed of, arranged for disposal of, transported or handled, or exposed any Person to, any Hazardous Substances, and no current or former property or facility is or has been contaminated by any Hazardous Substances, except, in each case, as has not given or would not give rise to any liability under any Environmental Laws that would reasonably be expected to be materially adverse to the Company or its Subsidiaries, taken as a whole. To the Company’s Knowledge, there are no underground storage tanks that are now present at, or have heretofore been removed from, the Real Property.

 

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(d) The Group Companies have made available to SPAC copies of all environmental assessments (including Phase I or Phase II environmental assessments), audits and reports and all other material environmental, health and safety documents that are in any Group Company’s possession or reasonable control relating to the current or former operations, properties or facilities of any Group Company or the compliance (or noncompliance) by any Group Company with any Environmental Laws.

 

Section 3.13 Technology and Intellectual Property.

 

(a) Section 3.13(a) of the Company Disclosure Schedules contains a true and complete list of the following with respect to the Company Owned Intellectual Property Rights (collectively, “Company Registered Intellectual Property Rights”): (i) all issued patents and patent applications, including the owner, the patent number or application number for each jurisdiction in which filed, and the date issued (or date filed); (ii) all registered trademarks, service marks, trade names, trade dress, and applications for registration of any of the foregoing, including the owner, the registration number or application number for each jurisdiction in which filed, and the date of such registration or application; (iii) all registered copyrights and applications for registration of copyrights, including the owner, the registration number or application number for each jurisdiction in which filed, and the date of such registration or application; and (iv) all domain name registrations, including the owner, the registration date, any next renewal deadline and name of registry or issuer. Section 3.13(a) of the Company Disclosure Schedules also contains a true and complete list of all unregistered trademarks, service marks, trade names that are material to the business of the Group Companies.

 

(b) All Company Registered Intellectual Property Rights are subsisting, and to the Company’s Knowledge, valid and enforceable (or in the case of applications for Company Registered Intellectual Property Rights, applied for and pending), except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Group Companies solely own all right, title and interest, free and clear of any Liens (other than Permitted Liens), in and to the Company Registered Intellectual Property Rights. The Group Companies have not conducted their business, and have not used or enforced (or failed to use or enforce) any Company Registered Intellectual Property material to the conduct of the Group Companies’ business, taken as a whole, in a manner that would result in the abandonment, cancellation or unenforceability of any such item of Company Registered Intellectual Property Rights, and the Group Companies have not taken (or failed to take) any action that would result in the forfeiture or relinquishment of any such Company Registered Intellectual Property Rights (other than through the expiration of such Company Registered Intellectual Property Rights at the end of their maximum statutory term or pursuant to a good faith business decision). As of the date of this Agreement, there have been no interferences, re-examinations, concurrent use proceedings, oppositions or cancellations brought or threatened to be brought involving any of the Company Registered Intellectual Property Rights material to the conduct of the Group Companies’ business, taken as a whole. The Group Companies have the sole right to file, prosecute, and maintain all applications and registrations with respect to the Company Registered Intellectual Property Rights material to the conduct of the Group Companies’ business, taken as a whole.

 

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(c) Section 3.13(c) of the Company Disclosure Schedules contains a true and complete list of: (i) all Out-Licenses, including any Out-License that grants any rights to modify or create derivative works of any Company Owned Intellectual Property, or grants sublicenses under any Company Owned Intellectual Property Rights (other than (1) any non-exclusive licenses granted to Group Company customers in the ordinary course of business, (2) non-disclosure agreements entered into in the ordinary course, (3) standard agreements entered into in the ordinary course with the Company’s or any Subsidiary’s vendors, suppliers, manufacturing partners, contractors, consultants, and other service providers to use Company Intellectual Property solely for the benefit of the Group Companies, and (4) nonexclusive licenses to use feedback or trademarks that are incidental to the subject matter of the applicable Out-License in which they are incorporated); and (ii) all In-Licenses (other than (1) Off-the-Shelf Software Licenses, (2) Invention Assignment Agreements entered into in the ordinary course of business; (3) non-disclosure agreements entered into in the ordinary course, (4) Open Source Software licenses, (5) nonexclusive feedback licenses and nonexclusive licenses to use trademarks, in each case that are incidental to the subject matter of the applicable agreement in which they are incorporated; and (6) licenses to the Group Companies solely for the purpose of enabling the Group Companies to provide services to the applicable counterparty).

 

(d) Section 3.13(d) of the Company Disclosure Schedules lists all material Company Owned Technology, and all Company Products, made commercially available by any Group Company.

 

(e) The Group Companies (i) exclusively own all right, title and interest in and to all material Company Owned Intellectual Property, free and clear of any Liens (other than Permitted Liens), and (ii) possess adequate and enforceable rights or an exclusive license to use all material Company Licensed Intellectual Property; provided, that the representation in this clause (ii) is made to the Company’s Knowledge with respect to the licensor’s Intellectual Property Rights in such Intellectual Property. No Group Company has exclusively licensed any material Company Owned Intellectual Property. All Company Owned Intellectual Property owned or used by the Group Companies immediately prior to the Closing and material to the conduct of the Group Companies’ business, taken as a whole, will continue to be owned or available for use (as applicable) by the Group Companies on identical terms and conditions immediately after the Closing.

 

(f) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither (i) the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale, offering for sale, import, or any other exercise of rights in Company Owned Intellectual Property Rights; nor (ii) the operation of any Group Company’s business, including such Group Company’s provision of any Company Products; nor (iii) the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, sale, offering for sale, import, or other exploitation by any Group Company of any Company Product, (A) directly or indirectly infringes, violates, interferes with, or misappropriates any Intellectual Property Rights of any Person (other than any patents (including any continuations and continuations in part, divisional, reissues, renewals and applications for any of the foregoing) of any Person), (B) to the Company’s Knowledge, directly or indirectly infringes, violates, interferes with, or misappropriates any patents (including any continuations a continuations in part, divisional, reissues, renewals and applications for any of the foregoing) of any Person; or (C) constitutes unfair competition or unfair trade practice. To the Company’s Knowledge, no Person, including any current or former employee, consultant, or contractor of any Group Company, has infringed, violated, interfered with or misappropriated, or is infringing, violating, interfering with or misappropriating, any Company Owned Intellectual Property Rights.

 

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(g) As of the date hereof, no Group Company has received written notice of any claims or actions: (i) challenging the validity, effectiveness, use of, or ownership by any Group Company of any Company Owned Technology, (ii) challenging the validity, effectiveness, use or ownership of any Group Company’s rights in Company Licensed Intellectual Property, or (iii) alleging that any of the activities of any Group Company specified in clauses (i), (ii), or (iii) of Section 3.13(f), infringes, violates, interferes with or misappropriates, or will infringe, violate, interfere with or misappropriate, any other Person’s Intellectual Property Rights or constitutes unfair competition or unfair trade practices under the Laws of the applicable jurisdiction.

 

(h) All current and former Group Company employees, consultants, contractors and any other Persons who have contributed to or created any portion of, or otherwise have any rights in or to, any Company Owned Intellectual Property or any Company Products, have executed and delivered, and, to the Company’s Knowledge, are in compliance with, written Contracts that, to the extent permitted under applicable Law, validly and effectively assign to the Company all Intellectual Property conceived, created, developed, written, invented, discovered, or reduced to practice by such employees, consultants, contractors, or other Persons in the course of their employment or engagement with the Group Company, or through which ownership of all such Intellectual Property otherwise vests in the Company, or where such transfer of ownership is not admissible by operation of law, has granted the Company the perpetual, geographically unlimited, exclusive and transferable right of use with respect to all currently known and future exploitation methods as well as the right to amend or adapt (“Invention Assignment Agreements”). The Company has provided true, correct and complete copies of all forms of Invention Assignment Agreements to SPAC.

 

(i) Each Group Company has taken commercially reasonable steps to protect rights in trade secrets and other confidential information (both of such Group Company and that of third parties that such Group Company has received under an obligation of confidentiality). Each Group Company has taken commercially reasonable steps to maintain confidentiality of such trade secrets and other confidential information from all (i) employees, (ii) consultants and contractors (including terms that bind the employees of any consultants or contractors), and (iii) any other Persons with whom such Group Company has shared such trade secrets and other confidential information. Each Group Company is in compliance in all material respects with the provisions of any agreements related to the foregoing.

 

(j) No Software used or distributed in connection with any Company Technology, or any Company Product is, or, when delivered to SPAC, will be, in whole or in part, subject to an Excluded License. No Group Company has distributed or published to any Person any Software used in any Company Owned Technology, or any Company Product, that is, in whole or in part, subject to an Excluded License. Each Group Company, including applicable employees, consultants and contractors, has followed in all material respects the industry standard principles regarding the use of Open Source Software, including principles regarding integration of Open Source Software with Company Technology and to ensure compliance with Open Source Software licenses. Each Group Company has taken commercially reasonable steps to ensure that no Group Company employee, consultant or contractor uses any Open Source Software in any manner not permitted by such principles.

 

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(k) No Group Company is a member of any standards-setting organization (including any group or organization, such as special interest groups, forums, consortia, committees, working groups or associations) that develops (or attempts to develop), adopts or publishes technical standards or specifications for a product, platform or process in furtherance of common design or interoperability among products employing such standards or specifications. No Group Company has participated (nor authorized any consultant or employee of any Group Company to participate) in any standards-setting that would affect the proprietary nature of any Company Owned Intellectual Property or restrict the ability of any Group Company to enforce, license or exclude others from using or licensing any Company Owned Intellectual Property on any terms proposed by any Group Company. There is no existing obligation imposed by any standards-setting organization on any Group Company, or attached to or imposed on any Company Owned Intellectual Property, to license or agree to license, covenant not to sue or withhold enforcement on Company Owned Intellectual Property.

 

(l) Neither the execution, delivery, or performance of this Agreement (or any exhibit or schedule thereto), nor the consummation of the Transactions or any of the other agreements contemplated by this Agreement will, as a result of any Contract entered into by any Group Company prior to the Closing Date: (i) result in the breach of, or create on behalf of any third party the right to terminate or modify, any Contract relating to any material Company Intellectual Property; (ii) result in or require the grant, assignment or transfer to any other Person (other than the Company) of any license or other right or interest under, to or in any material Company Intellectual Property; or (iii) cause a material loss or impairment of any material Company Intellectual Property.

 

(m) Each of the Group Companies has obtained and possesses valid licenses to use all of the Software present on the computers and other Software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the business of the Group Companies, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the Group Companies is in compliance with all of its Software licenses, including its Off-the-Shelf Software Licenses, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Group Companies own all material Company IT Systems free and clear of all conditions, adverse claims, security interests, pledges, Liens, or encumbrances (other than Permitted Liens), or have obtained and possess valid leases or licenses, or otherwise have legally enforceable and sufficient rights, to use to use all material Company IT Systems. All the Company IT Systems owned or used by the Group Companies immediately prior to the Closing will continue to be owned or available for use (as applicable) by the Group Companies on identical terms and conditions immediately after the Closing, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

 

(n) The Company IT Systems are in satisfactory working order, are reasonably sufficient for the current and currently intended future needs of the business and, to the Company’s Knowledge, are free from any malicious or disabling code or instructions, “viruses,” “worms,” “ransomware,” “spyware,” or similar Software, or other Software or hardware components that are designed to permit unauthorized access to or disablement of any of the Company IT Systems. There have been no failures or other adverse events affecting any of the Company IT Systems that have caused any material disruption in or to the use of such Company IT Systems or the business of the Group Companies. The Group Companies have adequate business continuity and disaster recovery plans in place.

 

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Section 3.14 Labor Matters.

 

(a) The Company has made available to SPAC a true and complete list of the following information: (i) each Group Company that employs any employees and the number of employees employed by such Group Company; (ii) each U.S. state and non-U.S. country in which any employee of any Group Company resides, and the number of such employees in such U.S. state or non-U.S. country (as applicable); and (iii) each employee of any Group Company that receives annual compensation in excess of $100,000.

 

(b) Except as has not and would not reasonably be expected to result in, individually or in the aggregate, material Liability to the Group Companies, (i) none of the Group Companies (A) has or has had any Liability, threatened or pending litigation or agency/social security authorities/labor authorities investigation matters for any arrears of wages or other compensation for services (including salaries, wage premiums, commissions, fees or bonuses), or any penalties, fines, interest, or other sums for failure to pay or delinquency in paying such compensation, and (B) has or has had any Liability, threatened or pending litigation or agency/social security authorities/labor authorities investigation matters for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Entity (including social security authorities) with respect to unemployment compensation benefits, social security, social insurances, health and pension insurances or other benefits (whether or not pursuant to a Company Benefit Plan) or obligations for any employees of any Group Company (other than routine payments to be made in the normal course of business and consistent with past practice); and (ii) the Group Companies have withheld all amounts required by applicable Law or by agreement to be withheld from wages, salaries and other payments to employees or independent contractors or other service providers of each Group Company.

 

(c) There has been no “mass layoff” or “plant closing” as defined by WARN related to any Group Company, and the Group Companies have not incurred any material Liability under WARN nor are they reasonably expected to incur any Liability under WARN as a result of the Transactions.

 

(d) No Group Company is a party to or bound by any collective bargaining agreement or other Contract with any labor union, labor organization or works council, and no employees of the Group Companies are represented by any labor union, labor organization, works council, employee delegate, representative or other employee collective group with respect to their employment. There is no duty on the part of any Group Company to bargain with any labor union, labor organization, works council, employee delegate, representative or other employee collective group, including in connection with the execution and delivery of this Agreement, the Ancillary Documents or the consummation of the Transactions. There has been no actual or, to the Company’s Knowledge, threatened (in writing) material unfair labor practice charges, material grievances, arbitrations, strikes, lockouts, work stoppages, slowdowns, picketing, handbilling or other material labor disputes against or affecting any Group Company. To the Company’s Knowledge, there have never been any labor organizing activities with respect to any employees of any Group Company.

 

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(e) No employee layoff, facility closure or shutdown (whether voluntary or by Order), reduction-in-force, furlough, temporary layoff, work schedule change or reduction in hours, or reduction in salary or wages, or other material workforce changes affecting employees of the Group Companies has occurred or, as of the date of this Agreement, is currently contemplated, planned or announced, including as a result of COVID-19 or any Law, Order, directive, guideline or recommendation by any Governmental Entity in connection with or in response to COVID-19, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date of this Agreement, the Group Companies have not otherwise experienced any material employment-related liability, threatened or pending litigation or agency investigation matters with respect to or arising out of COVID-19 or any Law, Order, directive, guideline or recommendation by any Governmental Entity in connection with or in response to COVID-19.

 

(f) To the Company’s Knowledge, no current employee is in violation of any material term of any employment agreement, nondisclosure agreement, noncompetition agreement, non-solicitation agreement, or other restrictive covenant obligation: (i) owed to any Group Company; or (ii) owed to any third party with respect to such Person’s right to be employed or engaged by any Group Company, except (other than in the case of the executive officers of the Company) where any such violation, individually or in the aggregate, could not reasonably be expected to result in a Company Material Adverse Effect.

 

(g) Each Group Company (i) has at all times been in compliance in all material respects with all applicable Laws and regulations respecting employment and employment practices, including hiring, termination of employment, nondiscrimination in employment, disability, civil rights, immigration, pay equity, terms and conditions of employment, the Fair Labor Standards Act and its state Law equivalents, and occupational safety and health, worker classification, (ii) except as would not reasonably be expected to have a Company Material Adverse Effect, has not engaged in any unfair labor practices, and (iii) except as would not reasonably be expected to have a Company Material Adverse Effect, has not incurred any Liability for breach of any employment Contract or other Contract of service or for fees-for service with any employee or independent contractor, for redundancy payments, protective awards or for compensation for wrongful dismissal, unfair dismissal or for failure to comply with any Order for the reinstatement or re-engagement of any employee or for any other liability accruing from the termination of any Contract of employment or for services. Each Group Company is in compliance in all material respects with the United States Immigration Reform and Control Act to the extent applicable.

 

(h) There are no material litigations or agency/social security authorities/labor authorities investigation matters currently pending or, to the Company’s Knowledge, threatened (in writing) between any Group Company and any of its current or former employees, or independent contractors, or any trade or labor union, works council, or similar body. To the Company’s Knowledge, there is not any claim, action, suit, charge, grievance, arbitration, or investigation pending before any Governmental Entity, court, or tribunal, foreign or domestic, for compensation, severance, benefits, vacation time or pay, pension benefits, or any other claim for damages from any current or former employee or any other Person arising out of any Group Company’s status as employer or purported employer of such Person or based on any workplace practices or policies of any Group Company, whether in the form of claims for discrimination, sexual or other harassment, equal pay, unfair labor practices, grievances, wage and hour violations, wrongful discharge, public policy violations, as a whistleblower, or otherwise.

 

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(i) There are no pending claims or threatened or pending litigation or agency/social security authorities/labor authorities investigation matters against any Group Company under any workers’ compensation plan or policy or for long-term disability, nor, to Company’s Knowledge, has any employee suffered any injury that would give rise to Liability under any workers’ compensation plan or policy or Law, except as would not reasonably be expected to have a Company Material Adverse Effect. To the Company’s Knowledge, no employee is presently on a workers’ compensation leave of absence or a disability leave of absence.

 

(j) Except as included in Section 3.14(j) of the Company Disclosure Schedules, the employment of each employee of each Group Company is terminable at will without any Liability to such Group Company, except for (i) statutory severance entitlements, (ii) severance entitlements pursuant to any collective bargaining agreements, and (iii) severance entitlements made available to the Company’s employees generally. To the Company’s Knowledge, no officer, director, or authorized agent of any Group Company has made any written or oral statements or representations or distributed any written material to any employees of such Group Company inconsistent with at-will employment or regarding terms of employment of such Group Company’s employees subsequent to the date of this Agreement or the Closing Date.

 

Section 3.15 Insurance. Section 3.15 of the Company Disclosure Schedules sets forth a true, correct and complete list of all insurance policies (other than Company Benefit Plans) owned, held or maintained by any Group Company or for the benefit of any of its current or former employees, officers, directors or managers (in each such individual’s capacity as such) as of the date of this Agreement, including the following information for each policy: (a) the title of such policy; (b) the policy number; (c) the period of coverage; (d) the name of the insurer; (e) the name of the policyholder; and (f) the name of each covered insured. Except as would not, individually or in the aggregate, have or be reasonably expected to have a Company Material Adverse Effect: (i) all such policies are in full force and effect, all premiums due and payable thereon as of the date of this Agreement have been paid in full as of the date of this Agreement, and true and complete copies of all such policies have been made available to SPAC; (ii) no claim by any Group Company is pending under any such policies as to which coverage has been denied or disputed, or rights reserved to do so, by the underwriters thereof; and (iii) no Group Company is, and, to the Company’s Knowledge, no other party to such policies is, in default or otherwise in breach thereof.

 

Section 3.16 Tax Matters.

 

(a) Each Group Company has prepared and timely filed or caused to be filed all Income Tax and other material Tax Returns required to have been filed by it, all such Tax Returns are true and complete in all material respects and prepared in compliance with all applicable Laws and Orders, and each Group Company has paid all material Taxes required to have been paid by it regardless of whether or not shown on a Tax Return.

 

(b) The unpaid Taxes of the Group Companies did not, as of the date of the Latest Balance Sheet, exceed the amount accrued for current Taxes payable (for clarity, excluding any deferred Tax Liabilities established to reflect timing differences between book and Tax income) set forth on the Latest Balance Sheet included in the Financial Statements. Since the date of the Financial Statements, no Group Company has incurred any Liability for Taxes, except in the ordinary course of business consistent with past practice. Each Group Company has timely withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service providers, equity interest holder or other third-party.

 

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(c) The Company has made available to SPAC true, correct and complete copies of all Income Tax Returns filed by any Group Company for all periods beginning after December 31, 2022.

 

(d) No Group Company is currently the subject of a Tax Proceeding or has been informed in writing of the commencement or anticipated commencement of any Tax Proceeding that has not been resolved or completed, in each case with respect to such Group Company. There are no claimed, proposed, or asserted Tax deficiencies or assessments of Tax with respect to any Group Company that have not been fully paid.

 

(e) No Group Company has consented to extend or waive the time in which any Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business.

 

(f) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Income Tax Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Tax Authority with respect to any Group Company which agreement or ruling would be effective after the Closing Date.

 

(g) No Group Company is or has participated in any “reportable transaction” as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. Income Tax Law).

 

(h) There are no Liens for Taxes on any assets of any of the Group Companies other than Liens for Taxes not yet due and payable.

 

(i) No Group Company has been either a “distributing corporation” or a “controlled corporation” within the respective meanings of such terms under Section 355(a)(1)(a) of the Code in a transaction purported or intended to be governed by Section 355 of the Code (i) in the two years before the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the Transactions.

 

(j) No Group Company (i) has been a member of an affiliated group filing a consolidated federal Income Tax Return (other than the group, the common parent of which is the Company) or (ii) has Liability for the Taxes of any Person under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by operation of Law, by Contract (other than Contracts entered into in the ordinary course of business the primary purpose of which does not relate to Taxes).

 

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(k) No written claims have ever been made by any Tax Authority in a jurisdiction where a Group Company does not file Tax Returns that such Group Company is or may be subject to Taxation by that jurisdiction.

 

(l) No Group Company is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than agreements entered into in the ordinary course of business the primary purpose of which does not relate to Taxes) and no Group Company is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal, state and local Income Tax purposes.

 

(m) No Group Company has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized.

 

(n) No Group Company will be required to include any material item of income in, or exclude any material item of deduction from, Taxable income for any Taxable period (or portion thereof) ending after the Closing as a result of: (i) a change in its method of accounting or use of an improper method of accounting, in each case, prior to the Closing; (ii) any installment sale or open transaction disposition arising in a Taxable period (or portion thereof) ending on or prior to the Closing; or (iii) a prepaid amount received or deferred revenue realized on or prior to the Closing outside the ordinary course of business. Each Group Company has always used the accrual method of accounting for Tax purposes since its formation. No elections pursuant to Section 965 of the Code related to any Group Company have been made.

 

(o) No Group Company has extended, deferred or delayed the withholding or payment of any Taxes under the CARES Act, the CAA or otherwise as a result of the effects of COVID-19 (including pursuant to IRS Notice 2020-65 or IRS Notice 2021-11).

 

(p) The prices for any property or services (or the use of any property) provided by or to each Group Company to any related party are arm’s-length prices for purposes of all applicable transfer pricing Laws.

 

(q) No Group Company has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

 

(r) As of the date of this Agreement, no Group Company has taken or agreed to take any action not contemplated by this Agreement or any Ancillary Document that could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment. To the knowledge of the Company, no facts or circumstances exist as of the date of this Agreement that could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment.

 

Section 3.17 Brokers. Except as set forth on Section 3.17 of the Company Disclosure Schedules, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by or on behalf of the Company or any of its Affiliates for which any Group Company has any obligation.

 

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Section 3.18 Real and Personal Property.

 

(a) Owned Real Property. Except as set forth on Section 3.18(a) of the Company Disclosure Schedules, the Group Companies do not own and have never owned any Real Property (including any ownership interest in any buildings or structures and improvements located thereon). The Group Companies are not bound by any options, obligations or rights of first refusal or contractual rights to sell, lease or acquire any Real Property. All Real Property owned or purported to be owned by any Group Company (“Owned Real Property”) is owned free and clear of all Liens other than Permitted Liens, and the applicable Group Company has fee simple title (or its non-U.S. equivalent) thereto.

 

(b) Leased Real Property. The Group Companies have a lease, sub-lease, license, concession or other agreement, whether written, oral or otherwise, with respect to each Real Property occupied or used by any Group Company other than the Real Property set forth on Section 3.18(a) of the Company Disclosure Schedules (collectively, the “Real Property Leases”). Each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the applicable Group Company party thereto, enforceable in accordance with its terms against such Group Company and, to the Company’s Knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), except as would not reasonably be expected to have a Company Material Adverse Effect. There is no breach or default by any Group Company or, to the Company’s Knowledge, any counterparty under any Real Property Lease, and, to the Company’s Knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a material breach or default under any Real Property Lease or would permit termination of, or a modification or acceleration thereof, by any counterparty to any Real Property Lease, except as would not reasonably be expected to have a Company Material Adverse Effect.

 

(c) Adverse Conditions. The Group Companies’ possession and quiet enjoyment of the Real Property has not been disturbed, and there are no material disputes with respect to any Real Property Lease or any Real Property. The Group Companies have not received any written notice of any violation of Laws with respect to any Real Property Lease or any Real Property. There are no pending or, to the Company’s Knowledge, threatened (in writing) Proceedings regarding condemnation or other eminent domain Proceedings affecting any Real Property. Except as would not have a material adverse effect on the Group Companies, taken as a whole, there are no leases, subleases, licenses or other agreements granting to any Person other than the Group Companies any right of use or occupancy of any portion of any Real Property. All of the land, buildings, structures and other improvements used by the Group Companies are included in the Real Property.

 

(d) Personal Property. Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the material tangible assets and properties of the Group Companies reflected in the Financial Statements or thereafter acquired by the Group Companies, free and clear of all Liens other than Permitted Liens, except for assets disposed of in the ordinary course of business and except as would not have a material adverse effect on the Group Companies, taken as a whole.

 

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(e) Condition of Assets. Each asset of the Group Companies that is tangible personal property is in good operating condition and repair, subject to normal wear and tear, and is suitable and sufficient for the purposes for which it is used or held for use. To the Company’s Knowledge, there are no facts or conditions that would reasonably be expected to interfere with the current use or operation of such properties and assets.

 

Section 3.19 Transactions with Affiliates.

 

(a) Section 3.19 of the Company Disclosure Schedules sets forth all Contracts between (i) any Group Company, on the one hand, and (ii) any officer, director, Affiliate of any Group Company or any spouse, child or member of the same household of any officer, director or Affiliate of any Group Company, on the other hand (each Person identified in this clause (b), a “Company Affiliated Party”), other than:

 

(i) Contracts with respect to a Company Affiliated Party’s status as an employee (including Company Benefit Plans and other ordinary course compensation) entered into in the ordinary course of business that have been made available to SPAC,

 

(ii) Contracts in connection with a Company Affiliated Party’s status as a holder of Equity Securities of the Company, and

 

(iii) customary director and officer indemnification agreements that have been made available to SPAC.

 

(b) No Company Affiliated Party:

 

(i) owns any material interest in any material asset or property used in any Group Company’s business, including Company Owned Intellectual Property, or

 

(ii) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a competitor, supplier, vendor, partner, customer, lessor or other business relation of any Group Company.

 

(c) No Group Company is indebted to any Company Affiliated Party (except for current amounts due as normal salaries and bonuses and in reimbursement of ordinary expenses, in each case in the ordinary course of business), and no such Person is indebted to any Group Company.

 

(d) All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 3.19 (including, for the avoidance of doubt, pursuant to Section 3.19(b)) are referred to herein as “Company Affiliated Party Transactions”.

 

Section 3.20 Data Privacy and Security.

 

(a) The Company has not received any written notice of any pending or threatened Proceeding against or involving any Group Company or, to the Company’s Knowledge, any Group Company’s Affiliates initiated by any Person, including any Governmental Entity, alleging that any Processing of Personal Data by or on behalf of any Group Company or its Affiliates is or was in violation of any Privacy Requirements.

 

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(b) The Group Companies take, in the reasonable determination of the Company’s management team, commercially reasonable measures designed to protect and maintain (i) the ownership and confidentiality of their material proprietary Company Intellectual Property and (ii) the security, confidentiality, continuous operation and integrity of their Company IT Systems (and all confidential data and Protected Data stored therein or transmitted thereby). The Group Companies have back-up and disaster recovery arrangements for the continued operation of their business in the event of a failure of its Company IT Systems that are, in the reasonable determination of the Company’s management team, commercially reasonable and in accordance with standard industry practice.

 

(c) To the Company’s Knowledge, there have been no unauthorized intrusions or breaches of security that has resulted in unauthorized use of, or access to, the Company IT Systems or Protected Data that, pursuant to any applicable Law, would require the Company or a Subsidiary to notify customers or employees of such breach or intrusion.

 

(d) Except as would not, individually or in the aggregate, have, or be reasonably expected to result in, a Company Material Adverse Effect, (i) there has not been any Data Breach with respect to any Protected Data in the possession or control of any Group Company or its Affiliates, or any of its contractors with regard to any Protected Data obtained from or on behalf of any Group Company or its Affiliates, (ii) there have been no unauthorized intrusions or breaches of security into any Company IT Systems or Protected Data, and (iii) none of the Group Companies nor their Affiliates have been notified or been required to notify any Person of any (a) loss, theft or damage of, or (b) Data Breach.

 

(e) The Company’s and its Subsidiaries’ collection, use, disclosure, storage and transfer of Personal Data complies in all material respects with all Privacy Requirements. The execution, delivery and performance of the transactions contemplated by this Agreement do not materially violate the Company’s privacy policy as it currently exists or, to the extent any previous privacy policy of the Company remains applicable to Personal Data maintained by the Company or its Subsidiaries, as such previous privacy policy existed before.

 

Section 3.21 Anti-Money Laundering. Each Group Company has at all times during the past three years complied in all material respects with (i) all applicable financial recordkeeping, reporting and other requirements of all anti-money laundering, anti-terrorist financing and anti-proliferation financing Laws administered or enforced by any Governmental Entity (“AML Laws”), (ii) the Bank Secrecy Act of 1970 and its implementing regulations, and (iii) any other applicable Law relating to bank secrecy, discriminatory lending, financing or leasing practices, consumer protection, money laundering prevention, terrorist financing prevention, proliferation financing prevention, or foreign assets control. The Group Companies have established and maintained at all times during the past three years a system of internal controls designed to ensure compliance by the Group Companies with applicable financial recordkeeping, reporting and other requirements of all AML Laws and Sanctions and Export Control Laws.

 

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Section 3.22 International Trade and Anti-Corruption.

 

(a) None of the Group Companies, nor to the Company’s Knowledge, any of their respective officers, directors or employees, or Representatives, or any other Persons acting for or on behalf of any of the foregoing, is:

 

(i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity;

 

(ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions and Export Control Laws that bar a U.S. person generally from transacting with such Person (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) areas of Ukraine);

 

(iii) an entity owned or controlled, directly or indirectly, by one or more Persons described in clause (i) or (ii); or

 

(iv) otherwise engaging in unlawful dealings with or for the benefit of any Person described in clauses (i) through (iii) or any country or territory which is the subject of or target of any Sanctions and Export Control Laws.

 

(b) None of the Group Companies, nor to the Company’s Knowledge, any of their respective officers, directors or employees or Representatives or any other Persons acting for or on behalf of any of the foregoing, has during the past three years, directly or indirectly, (i) made, offered, promised, paid or received any unlawful bribes, kickbacks or anything of value to or from any Person with corrupt intent to obtain or retain an improper business advantage, (ii) made or paid any contributions to a domestic or foreign political party or candidate or (iii) otherwise made, offered, received, authorized, promised or paid any improper payment or anything of value, in each case in violation of any Anti-Corruption Laws.

 

(c) During the past three years, no Group Company has, directly or indirectly, unlawfully exported, re-exported, transferred, released, shipped, transmitted or otherwise provided money, monetary value, goods, Technology, Software, or services to:

 

(i) any individual, entity, country or region prohibited by Sanctions and Export Control Laws, including the prohibition against such exports (A) into, or to a national or resident of, any country or region subject to Sanctions and Export Control Laws (e.g., Cuba, Iran, North Korea, Syria, or the Crimea, DNR, and LNR areas of Ukraine), or (B) to anyone on OFAC’s Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions Identifications List or Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Bureau of Industry and Security Denied Persons List, Unverified List, Entity List, or Military End User List or otherwise subject to U.S. economic sanctions or export restrictions; or

 

(ii) for any purpose prohibited by Sanctions and Export Control Laws, including nuclear, chemical or biological weapons proliferation or development of missile technology.

 

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(d) There is no Proceeding with respect to a violation of any applicable Trade Compliance Laws or Sanctions and Export Control Laws that is now pending or, to the Company’s Knowledge, as of the date of this Agreement has been threatened (in writing) with respect to any Group Company or its Affiliates. During the past three years, no Group Company nor any of their Affiliates have made any voluntary disclosure with respect to a possible violation of Trade Compliance Laws or Sanctions and Export Control Laws to any Governmental Entity. During the past three years, the Group Companies, including their respective officers, directors or employees or any of their other Representatives, have not violated any Trade Compliance Laws or Sanctions and Export Control Laws.

 

(e) The Group Companies, any of their respective officers, directors or employees or any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing will not directly or indirectly use any part of the Aggregate Transaction Proceeds or any other proceeds related to the Agreement in violation of any Sanctions and Export Control Laws or Anti-Corruption Laws.

 

(f) Each Group Company has implemented all reasonable or necessary policies and procedures applicable to all Persons manufacturing or sourcing any products for any Group Company, and all Persons supplying raw materials, work in progress and other suppliers to such Persons (collectively “Suppliers”), required to ensure compliance with applicable Laws, including all applicable Trade Compliance Laws, Sanctions and Export Control Laws, and Anti-Corruption Laws, and any standards marketed by any Group Company to customers or the public. The Company has no Knowledge of any violation of such policies and procedures by any Suppliers.

 

Section 3.23 Customers and Suppliers. Section 3.23 of the Company Disclosure Schedules sets forth a list of (a) the Group Companies’ top ten customers for each of its material business lines, based on amounts paid for goods or services to the relevant Group Companies on a consolidated basis for the period from January 1, 2023 through December 31, 2023 (each such customer, a “Material Customer”) and (b) the top ten suppliers and vendors of goods and services with respect to each material business line of the Group Companies based on amounts paid to the relevant Group Companies on a consolidated basis for goods or services for the period from January 1, 2023 through December 31, 2023 (each such supplier, a “Material Supplier”). No Material Customer or Material Supplier has (i) terminated or threatened in writing to terminate its relationship with any of the Group Companies, (ii) as of the date hereof, materially reduced its business with any of the Group Companies, or (iii) as of the date hereof, notified in writing any of the Group Companies of its intention to materially reduce its business with any of the Group Companies.

 

Section 3.24 Information Supplied. None of the information supplied or to be supplied by or on behalf of the Group Companies expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to the Pre-Closing SPAC Shareholders or at the time of the SPAC Shareholders Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, notwithstanding the foregoing provisions of this Section 3.24, no representation or warranty is made by either the Group Companies with respect to information or statements made or incorporated by reference in the Registration Statement / Proxy Statement that were not supplied by or on behalf of the Group Companies for use therein.

 

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Section 3.25 Corporate Records. The corporate records of the Group Companies, including such Group Companies’ governing or constitutional documents, minute books, registers, share certificate books and all other similar documents and records (“Corporate Records”) are complete and accurate and all corporate proceedings and actions (including all meetings, passing of resolutions, transfers, elections and appointments) are reflected in the Corporate Records and have been conducted or taken in compliance with all applicable Laws and in accordance with the governing or constitutional documents of such Group Companies, except in each case as would not have or reasonably be expected to have a Company Material Adverse Effect. A true and complete in all material respects copy of the Corporate Records has been made available to SPAC.

 

Section 3.26 Significant Subsidiaries. Section 3.26 of the Company Disclosure Schedules sets forth a true and complete list of all Subsidiaries of the Company that would qualify as “significant subsidiary” pursuant to Rule 1-02(w) of Regulation S-X.

 

Section 3.27 Investigation; Non-Reliance; No Other Representations.

 

(a) The Company, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of, the SPAC Parties.

 

(b) In entering into this Agreement, the Company has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 4 and no other representations or warranties of any SPAC Party or any other Person, either express or implied, and the Company, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 4, none of the SPAC Parties or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement or the Transactions. Neither the Company nor any of its Affiliates is relying on any representations and warranties in connection with the Transactions except the representations and warranties set forth in Article 4. Notwithstanding anything to the contrary in this Agreement, claims against the SPAC Parties shall not be limited in any respect in the event of Fraud.

 

(c) Except as provided in this Article 3 (as modified by the Schedules), neither the Group Companies, nor any Company Shareholder, nor their respective Representatives, nor any other Person has made, or is making, any representation or warranty whatsoever in respect of the Group Companies or any Company Shareholder. Without limiting the generality of the foregoing, except as expressly set forth in this Agreement, neither the Group Companies, nor any Company Shareholder, nor any of their respective Representatives, nor any other Person has made or makes, any representation or warranty, whether express or implied, with respect to any projections, forecasts or estimates or budgets made available to SPAC, its Affiliates or any of their respective Representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of the Group Companies, whether or not included in any management presentation or in any other information made available to SPAC, its Affiliates or any of their respective Representatives, and that any such representations or warranties are expressly disclaimed.

 

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ARTICLE 4

REPRESENTATIONS AND WARRANTIES RELATING TO THE SPAC PARTIES

 

Except (a) as set forth on the SPAC Disclosure Schedules (which will only qualify the representations and warranties set forth in this Article 4 in the manner set forth in Section 8.8), or (b) as set forth in any SPAC SEC Reports publicly filed with the SEC prior to the date of this Agreement (excluding (x) any disclosures in any “risk factors” section, disclosures in any forward-looking statements disclaimers, or (y) any information incorporated by reference into the SPAC SEC Reports (other than from other SPAC SEC Reports)), each SPAC Party hereby represents and warrants to the Company, in each case, as of the date of this Agreement and as of the Closing, as follows.

 

Section 4.1 Organization and Qualification. Each SPAC Party is an exempted company, corporation, limited liability company or other applicable business entity duly organized, incorporated or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of organization, incorporation or formation (as applicable). The Governing Documents of each SPAC Party are in full force and effect, and no SPAC Party is in breach or violation of any provision set forth in its Governing Documents.

 

Section 4.2 Authority. Each SPAC Party has the requisite exempted company, corporate, limited liability company or other similar power and authority to execute and deliver this Agreement and each Ancillary Document to which it is (or, in the case of any Ancillary Document contemplated hereby to be entered into after the date of this Agreement, will be) a party and, subject to (a) the receipt of the SPAC Shareholder Approvals, and (b) the Required Merger Sub Approval, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery of this Agreement, the Ancillary Documents to which any SPAC Party is or will be a party, the performance of any SPAC Party’s obligations hereunder and thereunder and the consummation of the Transactions have been duly and validly authorized and unanimously approved by the SPAC Board (including that, as of the date hereof, the SPAC Board has unanimously made, and has not revoked, the SPAC Board Recommendation) and upon receipt of the Required SPAC Shareholder Approvals, and the Required Merger Sub Approval, no other corporate or equivalent action or proceeding on the part of any holder of SPAC capital stock, SPAC or Merger Sub is necessary to authorize this Agreement or such Ancillary Documents, the performance of any SPAC Party’s obligations hereunder or thereunder or the consummation of the Transactions (including the Domestication). This Agreement and each Ancillary Document to which any SPAC Party is contemplated hereby to be a party as of the date hereof has been (and each Ancillary Document to which any SPAC Party is contemplated hereby to be a party following the execution of this Agreement, will be upon execution thereof), duly and validly executed and delivered by such SPAC Party and constitutes (or, with respect to each Ancillary Document contemplated to be executed after the execution of this Agreement, will constitute upon execution thereof), a valid, legal and binding agreement of such SPAC Party (assuming this Agreement has been and the Ancillary Documents to which such SPAC Party is or is contemplated to be a party are or will be, upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto), enforceable against such SPAC Party in accordance with their respective terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). The Required SPAC Shareholder Approvals, and the Required Merger Sub Approval are the only votes or consents of the holders of any class or series of capital stock of SPAC or Merger Sub required to approve and adopt this Agreement, the Ancillary Documents to which any SPAC Party is or is contemplated to be a party, the performance of the SPAC Parties’ obligations hereunder and thereunder and the consummation of the Transactions (including the Domestication and the Merger).

 

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Section 4.3 Consents and Requisite Governmental Approvals; No Violations.

 

(a) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of any SPAC Party with respect to such SPAC Party’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which it is or will be party or the consummation of the Transactions, except for:

 

(i) applicable requirements of the HSR Act (including the expiration of the required waiting period thereunder) and any other applicable Antitrust Law,

 

(ii) the filing with the SEC of (A) the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the Transactions,

 

(iii) such filings with and approvals of Approved Stock Exchange to permit the SPAC Shares to be issued in connection with the Transactions and the other Ancillary Documents to be listed on such Approved Stock Exchange,

 

(iv) such filings required in connection with the Domestication,

 

(v) the filing of the Certificate of Merger, or

 

(vi) any other consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have a SPAC Material Adverse Effect.

 

(b) None of the execution or delivery by any SPAC Party of this Agreement or any Ancillary Document to which it is or will be a party, the performance by any SPAC Party of its obligations hereunder or thereunder or the consummation by any SPAC Party of the Transactions will, directly or indirectly (with or without due notice or lapse of time or both)

 

(i) result in a violation or breach of any provision of the Governing Documents of any SPAC Party,

 

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(ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which a SPAC Party is a party,

 

(iii) violate, or constitute a breach or default under, any Order, Law, or other restriction of any Governmental Entity to which any such SPAC Party or any of its properties or assets are subject or bound, or

 

(iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities of any SPAC Party,

 

except in the case of any of clauses (ii) through (iv) above, as would not have a SPAC Material Adverse Effect.

 

Section 4.4 Brokers. Except as set forth on Section 4.4 of the SPAC Disclosure Schedules, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by or on behalf of any SPAC Party or any of its Affiliates for which any SPAC Party has any obligation.

 

Section 4.5 Information Supplied. None of the information supplied or to be supplied by or on behalf of either SPAC Party expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to the Pre-Closing SPAC Shareholders or at the time of the SPAC Shareholders Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, notwithstanding the foregoing provisions of this Section 4.5, no representation or warranty is made by either SPAC Party with respect to information or statements made or incorporated by reference in the Registration Statement / Proxy Statement that were not supplied by or on behalf of the SPAC Parties for use therein.

 

Section 4.6 Capitalization of the SPAC Parties.

 

(a) Section 4.6(a) of the SPAC Disclosure Schedules sets forth a true and complete statement of the number and class or series (as applicable) of the issued and outstanding SPAC Shares as of the date of this Agreement. All outstanding SPAC Shares (except to the extent such concepts are not applicable under the applicable Law of SPAC’s jurisdiction of organization, incorporation or formation, as applicable, or other applicable Law) have been duly authorized and validly issued and are fully paid and non-assessable. Such Equity Securities (x) were not issued in violation of the Governing Documents of SPAC or in violation of any other Contracts to which SPAC is a party or otherwise bound, in each case, in any material respect, (y) are not subject to any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person (other than transfer restrictions under applicable Securities Laws or under the Governing Documents of SPAC) and were not issued in violation of any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person and (z) have been offered, sold and issued in compliance with applicable Law, including Securities Laws, in each case under clauses (y) and (z), in all material respects. Except for the SPAC Shares set forth on Section 4.6(a) of the SPAC Disclosure Schedules (taking into account, for the avoidance of doubt, any changes or adjustments to the SPAC Shares as a result of, or to give effect to, the Domestication), immediately prior to Closing and before giving effect to any Financing and the SPAC Shareholder Redemption, there shall be no other Equity Securities of SPAC issued and outstanding.

 

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(b) Immediately after the Effective Time, all of the issued and outstanding SPAC Shares (i) will be duly authorized, validly issued, fully paid and nonassessable, (ii) will have been issued in compliance with applicable Law, including Securities Laws, and (iii) will not have been issued in breach or violation of any preemptive rights or Contract to which SPAC is a party or bound, in each case under clause (ii) and clause (iii), in any material respect.

 

(c) Except:

 

(i) as set forth on Section 4.6(a) of the SPAC Disclosure Schedules,

 

(ii) for the issuance of the SPAC Shares as expressly contemplated by this Agreement or any Financing or the entry into the applicable Ancillary Documents,

 

(iii) as permitted to be issued, granted or entered into, as applicable, pursuant to Section 5.10(g) (including as set forth in Section 5.10(g) of the SPAC Disclosure Schedules) in accordance with Section 5.10(g), or

 

(iv) for the capital stock of Merger Sub owned by SPAC,

 

there are no outstanding Equity Securities of any SPAC Party or any Equity Securities of which any SPAC Party has any obligations that could require any SPAC Party to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities. There are no outstanding bonds, debentures, notes or other Indebtedness of any SPAC Party having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which holders of SPAC Shares may vote. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of any SPAC Party’s Equity Securities between any SPAC Party and any other Person. The SPAC Parties are not a party to any shareholders agreement, or registration rights agreement relating to SPAC Shares or any other Equity Securities of SPAC, other than the Registration Rights Agreement, dated December 19, 2022.

 

(d) The Equity Securities of Merger Sub outstanding as of the date of this Agreement (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance with applicable Law, including Securities Laws, in each case under clause (ii), in all material respects and (iii) were not issued in breach or violation of any preemptive rights or Contract to which Merger Sub is a party or bound. All of the outstanding Equity Securities of Merger Sub are owned directly by SPAC free and clear of all Liens (other than transfer restrictions under applicable Securities Law or under the Governing Documents of Merger Sub). As of the date of this Agreement, SPAC has no Subsidiaries other than Merger Sub and does not own, directly or indirectly, any Equity Securities in any Person other than Merger Sub. Merger Sub was formed solely for the purpose of consummating the Transactions.

 

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(e) Except for the ownership of SPAC of the Equity Securities of Merger Sub, no SPAC Party owns or holds (of record, beneficially, legally or otherwise), directly or indirectly, any Equity Securities in any other Person or the right to acquire any such Equity Security, and no SPAC Party is a partner or member of any partnership, limited liability company or joint venture.

 

Section 4.7 SEC Filings.

 

(a) SPAC has timely filed or furnished all statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC pursuant to applicable Securities Laws since its initial public offering (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the “SPAC SEC Reports”), and, as of the Closing, will have filed or furnished all other statements, forms, reports and other documents required to be filed or furnished by it subsequent to the date of this Agreement with the SEC pursuant to applicable Securities Laws through the Closing (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, but excluding the Registration Statement / Proxy Statement, the “Additional SPAC SEC Reports”).

 

(b) Each of the SPAC SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, complied and each of the Additional SPAC SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, will comply, in all material respects, with the applicable requirements of the applicable Securities Laws (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder) applicable to the SPAC SEC Reports or the Additional SPAC SEC Reports (for purposes of the Additional SPAC SEC Reports, assuming that the representation and warranty set forth in Section 3.24 is true and correct in all respects with respect to all information supplied by or on behalf of the Group Companies expressly for inclusion or incorporation by reference therein).

 

(c) As of their respective dates of filing, the SPAC SEC Reports did not, and the Additional SPAC SEC Reports will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made or will be made, as applicable, not misleading (other than with respect to all information supplied by or on behalf of the Group Companies expressly for inclusion or incorporation by reference therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the SPAC SEC Reports.

 

Section 4.8 Investment Company Act. No SPAC Party is required to be registered as an “investment company” and is not a Person directly or indirectly “controlled” by or acting on behalf of a Person subject to registration and regulation as an “investment company”, in each case, within the meaning of the Investment Company Act of 1940.

 

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Section 4.9 Trust Account; Financial Ability. As of June 30, 2024, SPAC has an amount in cash in the Trust Account equal to at least $52,216,909. The funds held in the Trust Account are held in trust pursuant to that certain Investment Management Trust Agreement, dated December 19, 2022 (the “Trust Agreement”), between SPAC and Continental Stock Transfer & Trust Company, as trustee (the “Trustee”). There are no separate agreements, side letters or other agreements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the SPAC SEC Reports to be inaccurate or that would entitle any Person to any portion of the funds in the Trust Account (other than (i) in respect of deferred underwriting commissions or Taxes, (ii) the Pre-Closing SPAC Shareholders who shall have elected to redeem their SPAC Shares pursuant to the Governing Documents of SPAC or (iii) if SPAC fails to complete a business combination within the allotted time period set forth in the Governing Documents of SPAC and liquidates the Trust Account, subject to the terms of the Trust Agreement, SPAC (in limited amounts to permit SPAC to pay the expenses of the Trust Account’s liquidation, dissolution and winding up of SPAC) and then the Pre-Closing SPAC Shareholders). Prior to the Closing, none of the funds held in the Trust Account are permitted to be released, except in the circumstances described in the Governing Documents of SPAC and the Trust Agreement. As of the date hereof, SPAC has performed all material obligations required to be performed by it, and is not in material breach or default, or delinquent in performance in any material respect, under the Trust Agreement. As of the date of this Agreement, there are no Proceedings pending, or to SPAC’s knowledge, threatened with respect to the Trust Account. Upon the consummation of the Transactions (including the distribution of assets from the Trust Account (a) in respect of deferred underwriting commissions or Taxes or (b) to the Pre-Closing SPAC Shareholders who have elected to redeem their SPAC Shares pursuant to the Governing Documents of SPAC, each in accordance with the terms of and as set forth in the Trust Agreement), SPAC shall have no further obligation under either the Trust Agreement or the Governing Documents of SPAC to liquidate or distribute any assets held in the Trust Account, and the Trust Agreement shall terminate in accordance with its terms.

 

Section 4.10 Transactions with Affiliates. Section 4.10 of the SPAC Disclosure Schedules sets forth all Contracts (x) between (a) SPAC, on the one hand, and (b) SPAC Sponsor, any employee, officer, director, equityholder or Affiliate of SPAC or SPAC Sponsor, or any spouse, child or member of the same household of any officer, director or employee of SPAC, SPAC Sponsor or any of their respective Affiliates, on the other hand (each Person identified in this clause (b), a “SPAC Affiliated Party”), and (y) relating to the ownership, transfer or voting of securities of SPAC, other than (i) Contracts with respect to a SPAC Affiliated Party’s employment with, or the provision of services to, SPAC entered into in the ordinary course of business (including benefit plans, indemnification arrangements and other ordinary course compensation), (ii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.10 (including as set forth in Section 5.10 of the SPAC Disclosure Schedules) or entered into in accordance with Section 5.10, (iii) Contracts with respect to a Person’s status as a holder of SPAC Shares and (iv) customary director and officer indemnification agreements that have been made available to the Company or are in the form that is publicly filed with the SEC. No SPAC Affiliated Party (A) owns any material interest in any material asset or property used in the business of SPAC, or (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a Material Supplier, vendor, partner, customer, lessor or other material business relation of SPAC. All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 4.10 (including, for the avoidance of doubt, pursuant to the second sentence of this Section 4.10) are referred to herein as “SPAC Affiliated Party Transactions”.

 

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Section 4.11 Litigation. There is no Proceeding pending or, to SPAC’s knowledge, threatened against any SPAC Party or concerning any SPAC Party’s assets, properties or business, or, to SPAC’s knowledge, pending or threatened against any SPAC Party’s managers, officers, directors or employees (in their capacity as such), that, if adversely decided or resolved, has been or would reasonably be expected to have a SPAC Material Adverse Effect. To SPAC’s Knowledge, there are no facts or circumstances that could form the basis for such a Proceeding that would reasonably be expected to have a SPAC Material Adverse Effect. None of the SPAC Parties nor any of their respective properties or assets is subject to any Order. There are no Proceedings by any SPAC Party pending against any other Person.

 

Section 4.12 Compliance with Applicable Law. Each SPAC Party (a) is in compliance with all applicable Laws, and (b) as of the date of this Agreement, has not received any written communications or, to SPAC’s knowledge, any other communications from a Governmental Entity that alleges that any SPAC Party is not in compliance with any Law or Order, except in each case of except in the case of clauses (a) and (b) as is not and would not reasonably be expected, individually or in the aggregate, to have a SPAC Material Adverse Effect.

 

Section 4.13 SPAC Party Activities.

 

(a) Merger Sub was organized solely for the purpose of entering into a business combination, and has not engaged in any activities or business, other than (i) in connection with or incidental or related to its incorporation or continuing corporate (or similar) existence, (ii) directed toward the accomplishment of a business or similar combination, including those incident or related to or incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Documents or the consummation of the Transactions or (iii) those that are administrative, ministerial or otherwise immaterial in nature. SPAC owns 100% of the outstanding Equity Securities of Merger Sub.

 

(b) Since its incorporation, SPAC has not conducted any business activities other than activities (i) in connection with or incidental or related to its incorporation or continuing corporate (or similar) existence, (ii) directed toward the accomplishment of a business or similar combination, including those incident or related to or incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Documents or the consummation of the Transactions or (iii) those that are administrative, ministerial or otherwise immaterial in nature.

 

Section 4.14 Internal Controls; Listing; Financial Statements.

 

(a) Except as is not required in reliance on exemptions from various reporting requirements by virtue of SPAC’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act, or “smaller reporting company” within the meaning of the Exchange Act, since its initial public offering, (i) SPAC has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of SPAC’s financial reporting and the preparation of SPAC’s financial statements for external purposes in accordance with GAAP and (ii) SPAC has established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to ensure that material information relating to SPAC is made known to SPAC’s principal executive officer and principal financial officer by others within SPAC.

 

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(b) SPAC has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act. There are no outstanding loans or other extensions of credit made by SPAC to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of SPAC.

 

(c) Since its initial public offering SPAC has complied in all material respects with all applicable listing and corporate governance rules and regulations of Nasdaq. The SPAC Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq. As of the date of this Agreement, there is no Proceeding pending or, to SPAC’s knowledge, threatened against SPAC by Nasdaq or the SEC with respect to any intention by such entity to deregister SPAC Shares or prohibit or terminate the listing of SPAC Shares on Nasdaq. SPAC has not taken any action that is designed to terminate the registration of SPAC Shares under the Exchange Act.

 

(d) The SPAC SEC Reports contain true and complete copies of the applicable SPAC Financial Statements. The SPAC Financial Statements (i) fairly present in all material respects the financial position of SPAC as at the respective dates thereof, and the results of its operations, shareholders’ equity and cash flows for the respective periods then ended (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of notes thereto), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods indicated (except, in the case of any audited financial statements, as may be indicated in the notes thereto) and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of notes thereto, (iii) in the case of the audited SPAC Financial Statements, were audited in accordance with the standards of the PCAOB and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).

 

(e) SPAC has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for SPAC’s and its Subsidiaries’ assets. SPAC maintains and, for all periods covered by the SPAC Financial Statements, has maintained books and records of SPAC in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of SPAC in all material respects.

 

(f) Since its incorporation, SPAC has not received any written complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of SPAC, (ii) a “material weakness” in the internal controls over financial reporting of SPAC or (iii) fraud, whether or not material, that involves management or other employees of SPAC who have a significant role in the internal controls over financial reporting of SPAC.

 

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Section 4.15 No Undisclosed Liabilities. No SPAC Party has Liabilities, except for the Liabilities:

 

(a) set forth in Section 4.15(a) of the SPAC Disclosure Schedules;

 

(b) SPAC Expenses reasonably incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Document, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the Transactions, including Liabilities incurred in connection with the payment of such reasonable SPAC Expenses;

 

(c) incurred in connection with or incident or related to a SPAC Party’s organization, incorporation or formation, as applicable, or continuing corporate (or similar) existence of either SPAC Party, in each case, which are immaterial in nature;

 

(d) that are immaterial and incurred in connection with activities that are administrative or ministerial in nature;

 

(e) set forth on (or in the notes to) the balance sheet of SPAC contained in the Quarterly Report on Form 10-Q, filed with the SEC on May 20, 2024 (the “Latest SPAC Balance Sheet”);

 

(f) that have arisen since the date of the Latest SPAC Balance Sheet in the ordinary course of business (excluding any Liabilities directly or indirectly related to a breach of Contract, breach of warranty, tort, Proceeding or violation of, or non-compliance with, Law); or

 

(g) that are first incurred after the date hereof, expressly permitted pursuant to the terms Section 5.10 (including as set forth in Section 5.10 of the SPAC Disclosure Schedules) or incurred in connection with the activities contemplated by Section 5.21.

 

Section 4.16 Employee Benefit Plans. SPAC and Merger Sub have never maintained, sponsored, contributed to or had any direct liability under, and do not currently maintain, sponsor, contribute to or have any direct liability under, any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA), nonqualified deferred compensation plan subject to Section 409A of the Code, bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control compensation, fringe benefit, sick pay and vacation plans or arrangements or other employee benefit plans, programs or arrangements. Neither the execution and delivery of this Agreement and any Ancillary Document nor the consummation of the Transactions will (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any director, officer or employee of SPAC, or (ii) result in the acceleration of the time of payment or vesting of any such benefits.

 

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Section 4.17 Tax Matters.

 

(a) SPAC has prepared and filed all material Tax Returns required to have been filed by it, all such Tax Returns are true and complete in all material respects and prepared in compliance in all material respects with all applicable Laws and Orders, and SPAC has paid all material Taxes required to have been paid or deposited by it regardless of whether shown on a Tax Return.

 

(b) SPAC has timely withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service providers, equity interest holder or other third-party.

 

(c) As of the Domestication, SPAC does not have any current or accumulated sub-chapter C earnings and profits.

 

(d) SPAC is not currently the subject of a Tax Proceeding and has not been informed in writing of the commencement or anticipated commencement of any Tax Proceeding that has not been resolved or completed, in each case with respect to material Taxes. SPAC has never been delinquent in the payment of any Tax, and there are no claimed, proposed, or asserted Tax deficiencies or assessments of Tax that have not been fully paid.

 

(e) SPAC has not consented to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business.

 

(f) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Income Tax Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Tax Authority with respect to any SPAC Party which agreement or ruling would be effective after the Closing Date.

 

(g) None of the SPAC Parties is or has participated in any “reportable transaction” as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. Income Tax Law).

 

(h) None of the SPAC Parties are or have been a “passive foreign investment company” within the meaning of Section 1297(a) of the Code or a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.

 

(i) Each SPAC Party is a Tax resident only in its jurisdiction of organization, incorporation or formation, as applicable.

 

(j) As of the date of this Agreement, none of the SPAC Parties has taken or agreed to take any action not contemplated by this Agreement or any Ancillary Documents that could reasonably be expected to prevent the Merger or the Domestication from qualifying for the Intended Tax Treatment. To the knowledge of SPAC, no facts or circumstances exist as of the date of this Agreement that could reasonably be expected to prevent the Merger or the Domestication from qualifying for the Intended Tax Treatment.

 

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Section 4.18 Broker Dealer Matters.

 

(a) Neither SPAC nor any of its Affiliates, nor any person that is so “associated” with SPAC or its Affiliates, as that term is defined in section 3(a)(18) of the Exchange Act is subject to a “statutory disqualification” as defined in Section 3(a)(39) of the Exchange Act, or is subject to a disqualification that would be a basis for censure, limitations on the activities, functions or operations of the SPAC or any Affiliate.

 

(b) Neither SPAC nor any of its controlled Affiliates, nor, to the knowledge of the SPAC, any person that must be taken into account for purposes of Rule 506(d) of Regulation D under the Securities Act, is subject to any event listed in Rule 506(d)(1)(i) through (viii) (each, a “Disqualifying Event”), or a Disqualifying Event that must be disclosed pursuant to Rule 506(e) under the Securities Act in order to comply with the exemption from registration with the SEC provided by Regulation D (other than, in the case of (b), such event that would not prevent reliance on such exemption from registration in accordance with Rule 506(e) under the Securities Act).

 

(c) Neither SPAC nor any of its controlled Affiliates has committed any “Reportable Event,” as defined in 808-10:460 of the Kentucky Administrative Regulations, as amended, within the past 10 years.

 

(d) Neither SPAC nor any of its controlled Affiliates has committed any “Reportable Act,” as defined in Rule 69W-200.001 of the Florida Administrative Code, as amended, within the past 10 years.

 

Section 4.19 Payments; Anti-Money Laundering; Hedging.

 

(a) Each SPAC Party has at all times since January 1, 2021 complied in all material respects with (i) all AML Laws, (ii) the Bank Secrecy Act of 1970 and its implementing regulations, and (iii) any other applicable Law relating to bank secrecy, discriminatory lending, financing or leasing practices, consumer protection, money laundering prevention, terrorist financing prevention, proliferation financing prevention, foreign assets control, or other Sanctions and Export Control Laws.

 

(b) No SPAC Party nor any of its Affiliates is: (i) a registered entity, swap dealer, major swap participant or other type of entity (as such terms are defined in the U.S. Commodity Exchange Act or the rules and regulations thereunder) required to register with the Commodity Futures Trading Commission; (ii) a broker, dealer, security-based swap dealer, major security-based swap participant or national securities exchange (as such terms are defined in the Exchange Act or the rules and regulations thereunder) required to register with the SEC; or (iii) any similar type of entity required to register with any similar type of Governmental Entity in any jurisdiction other than the United States.

 

Section 4.20 International Trade and Anti-Corruption.

 

(a) None of the SPAC Parties, any of their respective officers, directors or employees or any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing, is:

 

(i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity;

 

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(ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions and Export Control Laws that bar a U.S. person generally from transacting with such Person (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, DNR and LNR) areas of Ukraine);

 

(iii) an entity owned or controlled, directly or indirectly, by one or more Persons described in clause (i) or (ii); or

 

(iv) otherwise engaging in unlawful dealings with or for the benefit of any Person described in clauses (i) through (iii) or any country or territory which is the subject of or target of any Sanctions and Export Control Laws.

 

(b) None of the SPAC Parties, nor any of their respective officers, directors or employees or any of their other Representatives or any other Persons while acting for or on behalf of any of the foregoing, has directly or indirectly (i) made, offered, promised, paid or received any unlawful bribes, kickbacks or anything of value to or from any Person with corrupt intent to obtain or retain an improper business advantage, (ii) made or paid any contributions to a domestic or foreign political party or candidate or (iii) otherwise made, offered, received, authorized, promised or paid any improper payment or anything of value, in each case in violation of any Anti-Corruption Laws.

 

(c) No SPAC Party has, directly or indirectly, unlawfully exported, re-exported, transferred, released, shipped, transmitted or otherwise provided money, monetary value, goods, Technology, Software, or services to:

 

(i) any individual, entity, country or region prohibited by Sanctions and Export Control Laws, including the prohibition against such exports (A) into, or to a national or resident of, any country or region subject to Sanctions and Export Control Laws (e.g., Cuba, Iran, North Korea, Syria, or the Crimea, DNR, and LNR areas of Ukraine), or (B) to anyone on OFAC’s Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions Identifications List or Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Bureau of Industry and Security Denied Persons List, Unverified List, Entity List, or Military End User List or otherwise subject to U.S. economic sanctions or export restrictions; or

 

(ii) for any purpose prohibited by Sanctions and Export Control Laws, including nuclear, chemical or biological weapons proliferation or development of missile technology.

 

(d) There is no Proceeding with respect to a violation of any applicable Trade Compliance Laws or Sanctions and Export Control Laws that is now pending or, to the Company’s Knowledge, as of the date of this Agreement has been threatened with respect to any SPAC Party or its Affiliates. No SPAC Party nor any of their Affiliates have made any voluntary disclosure with respect to a possible violation of Trade Compliance Laws or Sanctions and Export Control Laws to any Governmental Entity. During the past five years, the SPAC Parties, including their respective officers, directors or employees or any of their other Representatives, have not violated any Trade Compliance Laws or Sanctions and Export Control Laws.

 

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(e) The SPAC Parties, any of their respective officers, directors or employees or any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing will not directly or indirectly use any proceeds related to the Agreement in violation of any Sanctions and Export Control Laws or Anti-Corruption Laws.

 

(f) To the SPAC Parties’ knowledge, all Suppliers to any SPAC Party are and have at all times conducted business in accordance with, and have acted in compliance with, all applicable Trade Compliance Laws, Sanctions and Export Control Laws and Anti- Corruption Laws. Each SPAC Party has implemented all reasonable or necessary policies and procedures applicable to the foregoing Persons required to ensure compliance with applicable Laws, including all applicable Trade Compliance Laws, Sanctions and Export Control Laws, and Anti-Corruption Laws, and any standards marketed by any SPAC Party to customers or the public.

 

Section 4.21 Investigation; Non-Reliance; No Other Representations.

 

(a) Each SPAC Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects, of the Group Companies.

 

(b) In entering into this Agreement, each SPAC Party has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 3 and no other representations or warranties of the Company or any other Person, either express or implied, and each SPAC Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 3, neither the Company nor any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement or the Transactions. Neither the SPAC Parties nor any of their Affiliates is relying on any representations and warranties in connection with the Transactions except the representations and warranties set forth in Article 3. Notwithstanding anything to the contrary in this Agreement, claims against the Group Companies shall not be limited in any respect in the event of Fraud.

 

(c) Except as provided in this Article 4 (as modified by the Schedules), neither the SPAC Parties, nor their respective Representatives, nor any other Person has made, or is making, any representation or warranty whatsoever in respect of the SPAC Parties.

 

ARTICLE 5

COVENANTS

 

Section 5.1 Conduct of Business of the Company.

 

(a) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.1(a) of the Company Disclosure Schedules, or as consented to in writing by SPAC, (i) operate the business of the Group Companies in the ordinary course of business and (ii) maintain and preserve intact the business organization, assets, properties and business relations of the Group Companies consistent with past practices.

 

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(b) Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall and shall cause the other Group Companies to, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.1(b) of the Company Disclosure Schedules or as consented to in writing by SPAC (which shall not be unreasonably conditioned, withheld or delayed), not do, or agree to do, any of the following:

 

(i) declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any Equity Securities of any Group Company or repurchase or redeem any outstanding Equity Securities of any Group Company, in each case, other than repurchases of Equity Securities of the Company in connection with the termination of services and other than dividends or distributions, declared, set aside or paid by any of the Group Companies to the Company or any other Group Company;

 

(ii) (A) merge, consolidate, combine or amalgamate any Group Company with any Person (other than any Group Company) or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof (other than any Group Company);

 

(iii) adopt any amendments, supplements, restatements or modifications to any Group Company’s Governing Documents;

 

(iv) (A) sell, assign, allow to go abandoned, lease, exclusively license, grant non-exclusive licenses outside the ordinary course of business, or otherwise dispose of any material assets or properties of the Group Companies (including any Company Owned Intellectual Property), other than (x) obsolete equipment in the ordinary course of business, or (y) patents that expire in accordance with their statutory term, or (B) subject any material assets or properties of the Group Companies to any Lien (other than any Permitted Liens); in each case of (A) and (B), other than as deemed no longer necessary for the operation of the business of the Group Companies as determined in the Group Companies’ reasonable discretion;

 

(v) transfer, issue, sell, grant or otherwise dispose of, or subject to a Lien, (A) any Equity Securities of any Group Company or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating any Group Company to issue, deliver or sell any Equity Securities of any Group Company, other than the issuance of equity incentive awards and Company Shares upon the exercise or settlement of any Company Equity Awards outstanding as of the date of this Agreement in accordance with the terms of the Company Equity Plan and the underlying grant, award or similar agreement and other than the issuance of Company Equity Awards;

 

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(vi) (A) incur, create or assume any Indebtedness, other than (x) ordinary course trade payables or (y) any Indebtedness in an amount not to exceed $100,000 in the aggregate or (B) guarantee any Liability of any Person other than another Group Company;

 

(vii) make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person, other than reimbursements of expenses of directors, officers, employees, consultants and representatives, or advancements of such expenses, extensions of trade credits to customers, and prepayments to and deposits with vendors, in each case, in the ordinary course of business;

 

(viii) (A) amend or modify, in either case in a manner materially adverse to the Company, or terminate any Material Contract, (B) waive any material benefit or right under any Material Contract or (C) enter into any Contract that would, if in effect as of the date hereof, have constituted a Material Contract or take any of the actions described in clause (A) or (B) with respect to any Contract entered into after the date hereof that would, if in effect as of the date hereof, have constituted a Material Contract;

 

(ix) except as required under the terms of any Company Benefit Plan set forth in Section 3.11(a) of the Company Disclosure Schedules, (A) amend, modify, adopt or enter into any Company Benefit Plan or any benefit or compensation plan, fund, policy, program, practice, Contract or arrangement that would be a Company Benefit Plan if in effect as of the date of this Agreement (excluding any employment or consulting agreements entered into in the ordinary course of business with any newly hired or newly engaged service providers of or to any Group Company each of whose compensation would not exceed, on an annualized basis $100,000 per year), (B) increase the compensation or benefits payable to any current or former director, manager, officer, or senior management-level employee, other than in the ordinary course of business, (C) take any action to accelerate any payments (whether individually or in the aggregate), right to payment or benefit, or the funding of any payment or benefit, right to payments (whether individually or in the aggregate), payable or to become payable to any current or former employee, director, manager, officer, consultant, individual independent contractor or other service provider of or to any Group Company other than any such acceleration in the ordinary course of business, or (D) waive or release any noncompetition, non-solicitation, no-hire, nondisclosure or other restrictive covenant obligation of any current or former employee, director, manager, officer, consultant, individual independent contractor or other service provider of or to any Group Company;

 

(x) make, change or revoke any material election concerning Taxes other than in the ordinary course of business consistent with past practice, enter into any Tax closing agreement, surrender any right to claim a Tax refund, offset or other reduction in Tax Liability, amend any Tax Return, settle any Tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to or relating to any Tax claim or assessment;

 

(xi) enter into any settlement, conciliation or similar Contract the performance of which would involve payment by the Group Companies in excess of $100,000, in the aggregate;

 

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(xii) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction (other than, for the avoidance of doubt, the transactions expressly contemplated by this Agreement) involving any Group Company;

 

(xiii) change any Group Company’s methods of accounting in any material respect, other than changes that are made in accordance with PCAOB standards or are required by a change in GAAP or applicable Law;

 

(xiv) enter into any 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 or any Ancillary Document; or

 

(xv) enter into any Contract to make a Company Transaction Payment that is not set forth on Section 3.2(g) of the Company Disclosure Schedules or to make any payment with respect to a Company Affiliated Party Transaction that is not set forth on Section 5.1(b)(xiv) of the Company Disclosure Schedules.

 

Notwithstanding anything in this Section 5.1 or this Agreement to the contrary, nothing set forth in this Agreement shall give SPAC, directly or indirectly, the right to control or direct the operations of the Group Companies prior to the Closing.

 

Section 5.2 Efforts to Consummate; Transaction Litigation.

 

(a) General Efforts and Consents. Subject to the terms and conditions set forth herein, each of the Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including by using reasonable best efforts to cause the satisfaction, but not waiver, of the closing conditions set forth in Article 6) and, in the case of any Ancillary Document to which such Party (or Affiliate of such Party) is contemplated hereby to be a party after the date of this Agreement, to execute and deliver (or to obtain the execution and delivery from an Affiliate of) such Ancillary Document when required pursuant to this Agreement. In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts to, and each of the Parties shall cause its controlled Affiliates to, obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the Transactions or the Ancillary Documents.

 

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(b) Antitrust and other Governmental Filings and Consents. Each Party shall (i) make any appropriate filings pursuant to the HSR Act and any other applicable Antitrust Law with respect to the Transactions promptly (and in any event within 15 Business Days of the date hereof in connection with any filings pursuant to the HSR Act) following the date of this Agreement, and (ii) respond as promptly as reasonably practicable to any requests by any Governmental Entity for additional information and documentary material that may be requested pursuant to the HSR Act or any other applicable Antitrust Law. Without limiting the foregoing, the Parties agree to request early termination of the applicable waiting period under the HSR Act. Further, each Party and their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or any other Antitrust Law or enter into any agreement with any Governmental Entity not to consummate any of the Transactions, except with the prior written consent of SPAC and the Company. From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, each of SPAC and Merger Sub, on the one hand, and the Company, on the other hand shall cooperate with the other Party or Parties (as applicable) in connection with any filing with or submission to any Governmental Entity and in connection with any investigation or other inquiry by any Governmental Entity, including by (1) promptly furnishing to the other Party or Parties (as applicable) such necessary information and reasonable assistance as the other party may request in connection with the foregoing, (2) promptly informing the other Party or Parties (as applicable) of any communication from any Governmental Entity regarding any of the Transactions and (3) providing the other Party or Parties (as applicable) with copies of all filings made by such Party, and all substantive correspondence (or summaries of any substantive verbal communications) between such Party (and its advisors) with any Governmental Entity and any other information supplied by such Party and such Party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the Transactions. Each Party shall, subject to applicable Law, permit the other Party or Parties (as applicable) to review in advance, and consider in good faith the views of the other Party or Parties (as applicable) in connection with, any proposed substantive communication to any Governmental Entity in connection with the Transactions. To the extent practicable, each Party agrees not to participate, or to permit their respective Affiliates or advisors to participate, in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the Transactions unless it consults with the other Party or Parties (as applicable) in advance and, to the extent not prohibited by such Governmental Entity, gives the other Party or Parties (as applicable) the opportunity to attend and participate. Notwithstanding anything in this Agreement to the contrary, any materials required to be provided pursuant to this Section 5.2(b) may be provided on an outside-antitrust-counsel-only basis and redacted (x) to remove references concerning the valuation of any Party or any of its respective Affiliates, Subsidiaries or assets, (y) as necessary to comply with contractual arrangements and (z) as necessary to address reasonable privilege or confidentiality concerns; provided, however, that each Party shall use reasonable best efforts to otherwise address any such privilege or confidentiality concerns (including using reasonable best efforts to obtain the consent of a third party to provide such materials) prior to redaction of such materials. SPAC will, in reasonable and good faith consultation with the Company, determine strategy, lead all Proceedings and coordinate all activities with respect to seeking any actions, consents, approvals or waivers of any Governmental Entity as contemplated hereby.

 

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(c) Transaction Litigation. From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, SPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder Proceedings (including derivative claims) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of SPAC, any of the SPAC Parties or any of their respective Representatives (in their capacity as a Representative of a SPAC Party) or, in the case of the Company, any other Group Company or any of their respective Representatives (in their capacity as a Representative of a Group Company). From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, SPAC shall notify the Company in writing promptly after learning of any other Proceedings, including derivative claims, that are not Transaction Litigation (collectively, the “Other Litigation”) commenced against, or otherwise involving, any of the SPAC Parties or any of their respective Representatives (in their capacity as a Representative of a SPAC Party). SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation and (iv) reasonably cooperate with each other. The Company may, upon written notice to SPAC, assume and control the defense, settlement and compromise of any Transaction Litigation commenced against, or otherwise involving, any of the SPAC Parties or any of their respective Representatives (in their capacity as a Representative of a SPAC Party); provided, that for any Transaction Litigation for which the Company provides such written notice, the Company shall be solely responsible for the payment of, and does fully indemnify the SPAC Parties in respect of, all costs and expenses in connection with the defense, settlement, and compromise of such Transaction Litigation, including all fees of legal counsel to the Company and the SPAC Parties (including any counsel reasonably necessary for the Representatives of the SPAC Parties), and the payment of any amounts in settlement or compromise of or imposed by any court in respect of such Transaction Litigation; provided, further, that the Company may not agree to any non-monetary penalties or restrictions on any SPAC Party or their Representatives in settlement or compromise of any Transaction Litigation. In no event shall any of the SPAC Parties or any of their respective Representatives settle or compromise any Transaction Litigation without the Company’s prior written consent (not to be unreasonably withheld).

 

(d) Cooperation. If a suit or other Action is threatened or instituted by any Governmental Entity or any other entity challenging the validity or legality or seeking to restrain the consummation of the transactions contemplated by this Agreement, SPAC shall use its reasonable best efforts to avoid, resist, resolve or, if necessary, defend such suit or Action and shall afford the Company a reasonable opportunity to participate therein.

 

(e) Lock-Ups. With a view to establishing an orderly trading market for the SPAC Shares following the Closing, the Company and SPAC will use commercially reasonable efforts to cause the Company Shareholders to enter into the Lock-Up Agreements.

 

(f) Other Public Disclosure and Filings. Except for the Signing Press Release, Signing Filing, Closing Press Release and Closing Filing (which are governed by Section 5.4), any filings or submissions to a Governmental Entity under the HSR Act or other Antitrust Laws (which are governed by Section 5.2(b)), and the Registration Statement / Proxy Statement (which is governed by Section 5.8):

 

(i) SPAC and the Company will, in consultation with each other, prepare and timely file, issue or submit or publicly disclose any other filings, notices, statements, reports or other documents required under, and in accordance with, the Exchange Act, the Securities Act, applicable securities exchange listing rules and any other Laws relating to the Transactions (collectively, the “Other Filings”).

 

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(ii) At a reasonable time prior to the filing, issuance or other submission or public disclosure of any Other Filing or of any press release or other document containing information about the Transactions, SPAC and/or the Company, as applicable, shall be given an opportunity to review and comment upon drafts of such Other Filing or such press release or other document, with all reasonable comments to be accepted and incorporated by the Party of whom such Other Filing is required, and no Other Filing or press release or other document shall be filed, issued or submitted or publicly disclosed without the prior written consent of SPAC and/or Company to the form thereof, such consent not to be unreasonably withheld, conditioned or delayed.

 

Section 5.3 Confidentiality and Access to Information.

 

(a) The Parties hereby acknowledge and agree that the information being provided in connection with this Agreement and the consummation of the Transactions is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference, and that the Confidentiality Agreement will continue in full force and effect. Notwithstanding the foregoing or anything to the contrary in this Agreement, in the event that this Section 5.3(a) or the Confidentiality Agreement conflicts with any other covenant or agreement contained in this Agreement or any Ancillary Document that contemplates the disclosure, use or provision of information or otherwise, then such other covenant or agreement contained in this Agreement or such Ancillary Document, as applicable, shall govern and control to the extent of such conflict.

 

(b) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, the Company and SPAC shall (i) continue to provide, or cause to be provided, to the other Party and its Representatives access to its directors, officers, offices, properties, books and records, (ii) furnish to the other Party and its Representatives such information relating to the business of the Company or SPAC and (iii) cause its respective Representatives to cooperate with the other party in such other Party’s investigation of its business, in each case as the other Party may reasonably request in connection with the Transactions; provided, that any request or investigation pursuant to this Section 5.3(b) shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Group Company or SPAC. Notwithstanding anything to the contrary in this Agreement, neither Party shall be required to provide the access described above or disclose any information if doing so is reasonably likely in the opinion of the disclosing party to (A) result in a waiver of attorney client privilege, work product doctrine or similar privilege or (B) violate any Contract to which it is a party or to which it is subject or applicable Law.

 

Section 5.4 Public Announcements. Subject to Section 5.2 and Section 5.8, none of the Parties or any of their respective Representatives shall issue any press releases or make any public announcements with respect to this Agreement or the Transactions without the prior written consent of the Company and SPAC; provided, however, that each Party, the SPAC Sponsor and their respective Representatives may make any such announcement or other communication:

 

(a) if such press release, announcement or other communication is required by applicable Law, in which case the disclosing Person shall, to the extent permitted by such applicable Law, use reasonable best efforts to consult with the other Party (that is, if the disclosing Person is any SPAC Party, the SPAC Sponsor or any of their respective Representatives, the Company, and if the disclosing Person is the Company or any of its Representatives, SPAC) and give the other Party the opportunity to review such announcement or communication and comment thereon and then consider such comments in good faith;

 

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(b) to the extent such press release, announcement or other communication contains only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 5.4; or

 

(c) to Governmental Entities in connection with any Consents required to be made under this Agreement, the Ancillary Documents or the Transactions; provided, such communication is made in accordance with Section 5.2.

 

The initial press release concerning this Agreement and the transactions contemplated hereby shall be a joint press release in the form agreed by the Company and SPAC (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or SPAC, as applicable) and such initial press release (the “Signing Press Release”) shall be released as promptly as reasonably practicable after the execution of this Agreement. Promptly after the execution of this Agreement, SPAC shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by, and in compliance with, the Securities Laws, which the Company shall have the opportunity to review and comment upon prior to filing and SPAC shall consider such comments in good faith. The Company, on the one hand, and SPAC, on the other hand, shall mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or SPAC, as applicable) a press release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”) prior to the Closing, and, on the Closing Date, the Parties shall cause the Closing Press Release to be released. Promptly after the Closing (but in any event within four Business Days after the Closing), SPAC shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Securities Laws. In connection with the preparation of each of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing, each Party shall, upon written request by any other Party, furnish such other Party with all information concerning itself, its directors, officers and equityholders, and such other matters as may be reasonably necessary for such press release or filing.

 

Section 5.5 Tax Matters.

 

(a) Tax Treatment.

 

(i) The Parties intend that the Domestication shall constitute a transaction treated as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code and SPAC shall, and shall cause its respective Affiliates to, use reasonable best efforts to cause it to so qualify. The Parties intend that the Merger shall constitute a transaction treated as a “reorganization” within the meaning of Section 368(a) of the Code, and each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to cause the Merger to so qualify. The Parties shall file all Tax Returns and other required information consistent with and take no position inconsistent with (whether in any Tax Proceeding, Tax Returns or otherwise), the Intended Tax Treatment unless required to do so pursuant to a “determination” that is final within the meaning of Section 1313(a) of the Code. Notwithstanding the forgoing and anything else in this Agreement, the Parties hereto acknowledge and agree that, depending upon certain facts to be in existence at the time of the Closing, the Merger may qualify as a transaction governed by Section 351 of the Code. If the Merger so qualifies, the Parties agree that it may be reported as such in accordance with applicable Law.

 

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(ii) SPAC and the Company hereby adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). The Parties shall not, and shall not permit or cause their respective Affiliates to, take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or would reasonably be expected to prevent or impede, (a) the Merger qualifying for the Intended Tax Treatment, and (b) in the case of SPAC, the Domestication qualifying for the Intended Tax Treatment.

 

(iii) If, in connection with the preparation and filing of the Registration Statement / Proxy Statement, the SEC requests or requires that tax opinions be prepared and submitted in such connection (each, a “Tax Opinion”), each Party shall each use commercially reasonable efforts to execute and deliver customary Tax representation letters as the applicable Tax advisor may reasonably request in form and substance reasonably satisfactory to such advisor to enable such advisor to deliver any tax opinions requested or required by the SEC to be submitted in connection therewith.

 

(b) Tax Matters Cooperation. Each of the Parties shall (and shall cause their respective Affiliates to) cooperate fully, as and to the extent reasonably requested by another Party, in connection with the filing of relevant Tax Returns, and any Tax Proceeding. Such cooperation shall include the retention and (upon the other Party’s request) the provision (with the right to make copies) of records and information reasonably relevant to any Tax Proceeding, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and using commercially reasonable efforts to make available to the Pre-Closing SPAC Shareholders information reasonably necessary to compute any income of any such holder (or its direct or indirect owners) arising (i) if applicable, as a result of SPAC’s status as a “passive foreign investment company” within the meaning of Section 1297(a) of the Code or a “controlled foreign corporation” within the meaning of Section 957(a) of the Code for any Taxable period ending on or prior to the Closing Date, including timely providing (a) a PFIC Annual Information Statement to enable such holders to make a “Qualified Electing Fund” election under Section 1295 of the Code for such Taxable period, and (b) information to enable applicable holders to report their allocable share of “subpart F” income under Section 951 of the Code for such Taxable period and (ii) under Section 367(b) of the Code and the Treasury Regulations promulgated thereunder as a result of the Domestication.

 

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Section 5.6 Company Exclusive Dealing.

 

(a) The Company shall, and shall cause its Subsidiaries, controlled Affiliates and their respective Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted on or prior to the date hereof with respect to any proposal that constitutes or may be reasonably expected to constitute or lead to a Company Competing Acquisition. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause its controlled Affiliates and their respective Representatives not to, directly or indirectly:

 

(i) solicit, initiate, knowingly induce, knowingly encourage, facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or would reasonably be expected to lead to, a Company Competing Acquisition;

 

(ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, a Company Competing Acquisition;

 

(iii) enter into any Contract or other arrangement or understanding (whether or not binding) regarding a Company Competing Acquisition or publicly announce an intention to do so;

 

(iv) make any filings or submissions with the SEC in connection with a public offering of any Equity Securities, or other securities, of any Group Company;

 

(v) approve, endorse or recommend any Company Competing Acquisition; or

 

(vi) otherwise cooperate in any way with, or assist or participate in any negotiations or discussions with, any Person in connection any Company Competing Acquisition or a transaction of the type in clause (iv).

 

(b) The Company agrees to (i) notify SPAC promptly upon receipt by any Group Company of any inquiry, indication of interest, proposal or offer (written or oral) that constitutes, is related to, or would reasonably be expected to lead to, a Company Competing Acquisition, and to provide the material terms and conditions of any such inquiry, indication of interest, proposal or offer (including the identity of the Persons making such indication of interest, proposal or offer and a copy thereof) and (ii) keep SPAC reasonably informed on a current basis of the status with respect to and any material modifications to such inquiry, indication of interest, proposal or offer.

 

Section 5.7 SPAC Exclusive Dealing.

 

(a) SPAC shall, and shall cause its Subsidiaries, controlled Affiliates and their respective Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted on or prior to the date hereof with respect to any proposal that constitutes or may be reasonably expected to constitute or lead to a SPAC Competing Acquisition. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, each SPAC Party shall not, and shall use reasonable best efforts to cause its Affiliates, including the SPAC Sponsor, and their respective officers and directors to not, directly or indirectly:

 

(i) solicit, initiate, knowingly induce, knowingly encourage, facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, a SPAC Competing Acquisition;

 

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(ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, a SPAC Competing Acquisition;

 

(iii) enter into any Contract or other arrangement or understanding (whether or not binding) regarding a SPAC Competing Acquisition or publicly announce an intention to do so;

 

(iv) make any filings or submissions with the SEC in connection with a public offering of any Equity Securities, or other securities, of any SPAC Party, other than any such filings or submissions in connection with the Transactions or the Ancillary Documents;

 

(v) approve, endorse or recommend any SPAC Competing Acquisition; or

 

(vi) otherwise cooperate in any way with, or assist or participate in any negotiations or discussions with, any Person in connection any SPAC Competing Acquisition or a transaction of the type in clause (iv).

 

(b) SPAC agrees to (i) notify the Company promptly upon receipt by SPAC of any inquiry, indication of interest, proposal or offer that constitutes, is related to, or could reasonably be expected to lead to, a SPAC Competing Acquisition, and to describe the material terms and conditions of any such inquiry, indication of interest, proposal or offer in reasonable detail (including the identity of the Persons making such SPAC Competing Acquisition) and (ii) keep the Company reasonably informed on a current basis of the status with respect to and any material modifications to such inquiry, indication of interest, proposal or offer.

 

Section 5.8 Preparation of Registration Statement / Proxy Statement.

 

(a) As promptly as reasonably practicable following the date of this Agreement, SPAC and the Company shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either of SPAC or the Company, as applicable), and SPAC shall file with the SEC, the Registration Statement / Proxy Statement (it being understood that the Registration Statement / Proxy Statement shall include a proxy statement / prospectus of SPAC that will be used for the SPAC Shareholders Meeting to adopt and approve the Transaction Proposals, provide its applicable shareholders with the opportunity to elect to effect the SPAC Shareholder Redemption, and other matters reasonably related to the Transaction Proposals, all in accordance with and as required by SPAC’s Governing Documents, applicable Law, and any applicable rules and regulations of the SEC and Nasdaq). The Registration Statement / Proxy Statement shall register the issuance of the Exchange Share Consideration to the extent permitted by applicable law. No filing of, or amendment or supplement to the Registration Statement / Proxy Statement will be made by SPAC without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed).

 

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(b) Each of SPAC and the Company shall use its reasonable best efforts to:

 

(i) cause the Registration Statement / Proxy Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC, including, with respect to the Group Companies, the provision of financial statements of, and any other information with respect to, the Group Companies for all periods, and in the form required to be included in the Registration Statement / Proxy Statement under Securities Laws (after giving effect to any waivers received) or in response to any comments from the SEC;

 

(ii) promptly notify the others of, reasonably cooperate with each other with respect to, mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either of SPAC or the Company, as applicable) and respond promptly to any comments of or other communications from the SEC or its staff;

 

(iii) have the Registration Statement / Proxy Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC; and

 

(iv) keep the Registration Statement / Proxy Statement effective through the Closing in order to permit the consummation of the Transactions.

 

(c) The Company and its legal counsel shall be given reasonable opportunity to review and comment on the Registration Statement / Proxy Statement, including all amendments and supplements thereto, prior to the filing thereof with the SEC, and on the response to any comments of or other communications from the SEC prior to the filing thereof with the SEC. SPAC, on the one hand, and the Company, on the other hand, shall use reasonable best efforts to promptly furnish, or cause to be furnished, to the other all information concerning such Party and its Representatives that may be required or reasonably requested or advisable in connection with any action contemplated by this Section 5.8 or for inclusion or incorporation by reference in any other statement, filing, notice or application made by or on behalf of SPAC to the SEC or any Approved Stock Exchange in connection with the Transactions or the Ancillary Documents. If any Party becomes aware of any information that should be disclosed in an amendment or supplement to the Registration Statement / Proxy Statement, then

 

(i) such Party shall promptly inform, in the case of any SPAC Party, the Company, or, in the case of the Company, SPAC, thereof;

 

(ii) such Party shall prepare and mutually agree upon with, in the case of SPAC, the Company, or, in the case of the Company, SPAC (in either case, such agreement not to be unreasonably withheld, conditioned or delayed), an amendment or supplement to the Registration Statement / Proxy Statement;

 

(iii) SPAC shall file such mutually agreed upon amendment or supplement with the SEC; and

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(iv) the Parties shall reasonably cooperate, if appropriate, in mailing such amendment or supplement to the Pre-Closing SPAC Shareholders.

 

(d) SPAC shall as promptly as reasonably practicable advise the Company of the time of effectiveness of the Registration Statement / Proxy Statement or any supplement or amendment, the issuance of any stop order relating thereto or the suspension of the qualification of SPAC Shares for offering or sale in any jurisdiction, the initiation or written threat of any proceeding for any such purpose, and SPAC and the Company shall each use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Each of the Parties shall use reasonable best efforts to ensure that none of the information related to such Party or any of such Party’s Representatives, supplied by or on the Party’s behalf for inclusion or incorporation by reference in the Registration Statement / Proxy Statement will, at the time the Registration Statement / Proxy Statement is initially filed with the SEC, at each time at which it is amended, or 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, in light of the circumstances under which they are made, not misleading.

 

(e) If at any time prior to the Closing, SPAC or the Company becomes aware (i) that the Registration Statement / Proxy Statement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading or (ii) any other information that is required to be set forth in an amendment or supplement to the Registration Statement / Proxy Statement so that it would not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, the Company or SPAC (as applicable) shall promptly inform the other Party and each shall cooperate with the other in filing with the SEC or mailing to SPAC’s shareholders an amendment or supplement to the Registration Statement / Proxy Statement. Each of the Company and SPAC shall use its commercially reasonable efforts to cause their and their Subsidiaries’ managers, directors, officers and employees to be reasonably available to SPAC, the Company and their respective counsel in connection with the drafting of such filings and mailings and responding in a timely manner to comments from the SEC.

 

(f) SPAC will advise the Company, reasonably promptly (and in any event within one Business Day) after SPAC receives notice thereof, of any request by the SEC for the amendment or supplement of the Registration Statement / Proxy Statement or for additional information. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Registration Statement / Proxy Statement each time before any such document is filed with the SEC by SPAC and SPAC shall accept any reasonable comments made by the Company and its counsel. Each of SPAC and the Company shall provide each other and their counsel with (i) any comments or other communications, whether written or oral, that such party or its counsel may receive from time to time from the SEC or its staff with respect to the Registration Statement / Proxy Statement promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of such party 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 other parties or their counsel in any discussions or meetings with the SEC. Unless required by applicable Law, no amendment to the Registration Statement / Proxy Statement shall be filed with the SEC and no other written response to any comments from the SEC or the staff of the SEC relating to Registration Statement / Proxy Statement will be made by SPAC or the Company without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), and without providing the other Party a reasonable opportunity to review and comment thereon.

 

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Section 5.9 SPAC Shareholder Meeting.

 

(a) As promptly as reasonably practicable following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, SPAC shall:

 

(i) (x) duly give notice of an extraordinary general meeting of the SPAC shareholders (the “SPAC Shareholders Meeting”) to be held within 40 days following the date of effectiveness, unless adjourned for such reasos as the SPAC or the Board may reasonably determine, (y) cause the Registration Statement / Proxy Statement to be mailed to the SPAC shareholders, and (z) duly convene and hold the SPAC Shareholders Meeting, in each case, in accordance with the Governing Documents of SPAC and applicable Law, for the purposes of obtaining the SPAC Shareholder Approvals;

 

(ii) use reasonable best efforts to solicit proxies from the holders of SPAC Shares to vote in favor of each of the Transaction Proposals; and

 

(iii) in connection with the mailing of the Registration Statement / Proxy Statement and the SPAC Shareholders Meeting, provide the applicable SPAC shareholders with the opportunity to elect to participate in the SPAC Shareholder Redemption in accordance with the Governing Documents of SPAC.

 

(b) SPAC shall recommend to its shareholders, each of the following (the “SPAC Board Recommendation”):

 

(i) the adoption and approval of this Agreement and the Transactions (including the Merger) (the “Business Combination Proposal”);

 

(ii) the adoption and the approval of the Domestication in accordance with applicable Law (the “Domestication Proposal”);

 

(iii) the adoption and approval of the issuance of the SPAC Shares in connection with the Transactions as required by Nasdaq listing requirements (the “Nasdaq Proposal”);

 

(iv) the adoption and approval of the SPAC Certificate of Incorporation and the proposed SPAC Bylaws (the “Governing Document Proposal”);

 

(v) the adoption and approval of the SPAC Incentive Equity Plan (the “Incentive Equity Plan Proposal”);

 

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(vi) the adoption and approval of each other proposal that either the SEC or Nasdaq (or the respective staff members thereof) indicates is necessary in its comments to the Registration Statement / Proxy Statement or in correspondence related thereto;

 

(vii) the adoption and approval of each other proposal reasonably agreed to by SPAC and the Company as necessary or appropriate in connection with the consummation of the Transactions; and

 

(viii) the adoption and approval of a proposal for the adjournment of the SPAC Shareholders Meeting, if necessary or convenient, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing;

 

(such proposals in (i) through (viii), collectively, the “Transaction Proposals”). Notwithstanding the foregoing or anything to the contrary herein, SPAC may adjourn or postpone the SPAC Shareholders Meeting (1) to solicit additional proxies because there are not sufficient votes to constitute the SPAC Shareholder Approvals, (2) for the absence of a quorum, (3) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosures that SPAC (or the Company) has reasonably determined in good faith, based on the advice of outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Pre-Closing SPAC Shareholders prior to the SPAC Shareholders Meeting, (4) if the holders of SPAC Shares have elected to redeem a number of SPAC Shares as of such time that would reasonably be expected to result in the condition set forth in Section 6.1(g) not being satisfied, or (5) with the prior written consent of the Company; provided, however, that, without the consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), in no event shall SPAC adjourn or postpone the SPAC Shareholders Meeting for more than 15 Business Days later than the most recently adjourned or postponed meeting and in no event later than the Termination Date.

 

(c) The Registration Statement / Proxy Statement shall include the SPAC Board Recommendation. Neither SPAC nor the SPAC Board nor any committee of the SPAC Board shall

 

(i) change, withdraw, withhold, qualify, amend or modify, or publicly propose to change, or by formal action of the SPAC Board, any committee of the SPAC Board or SPAC, withdraw, withhold, qualify, amend or modify, in a manner adverse to the Company, the SPAC Board Recommendation or any other recommendation by the SPAC Board or SPAC of the proposals set forth in the Registration Statement / Proxy Statement,

 

(ii) adopt, approve, recommend or declare advisable to the Pre-Closing SPAC Shareholders, or publicly propose to adopt, approve, recommend or declare advisable, any SPAC Competing Acquisition or

 

(iii) fail to include the SPAC Board Recommendation in the Registration Statement / Proxy Statement.

 

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Section 5.10 Conduct of Business of SPAC. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary Document (including, for the avoidance of doubt, in connection with the Domestication), as required by applicable Law, as set forth on Section 5.10 of the SPAC Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do or agree to do any of the following:

 

(a) adopt any material amendments, supplements, restatements or modifications to the Trust Agreement or the Governing Documents of any SPAC Party, other than to effect a SPAC Extension;

 

(b) acquire (including by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or enter into or complete any strategic joint ventures, partnerships or alliances with any other Person or any business combination, or make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person;

 

(c) (i) declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, its, or any of its Subsidiaries’, Equity Securities, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding of its, or any of its Subsidiaries’, Equity Securities, or (ii) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving any SPAC Party;

 

(d) split, combine or reclassify any of its, or any of its Subsidiaries’, capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its, or any of its Subsidiaries’, capital stock;

 

(e) incur, create or assume any Indebtedness or SPAC Liability, or guarantee any Indebtedness or other Liability of any Person, other than Indebtedness or SPAC Liabilities incurred (i) in the ordinary course of SPAC’s business as conducted to date, (ii) to maintain SPAC’s corporate existence, (iii) to maintain SPAC’s stock exchange listing, or (iv) in furtherance of consummation of the Transactions;

 

(f) make any loans or advances to, or capital contributions in, any other Person, other than to, or in, SPAC or any of its Subsidiaries;

 

(g) issue any Equity Securities, other than pursuant to any Financing or the Domestication, or amend, waive, supplement or otherwise modify the terms of any outstanding Equity Securities;

 

(h) enter into, or permit any of the assets owned or used by SPAC or any of its Subsidiaries to become bound by, or amend in any material respect, any Contract, other than Contracts (i) to maintain SPAC’s corporate existence, (ii) to maintain SPAC’s stock exchange listing, or (iii) in furtherance of consummation of the Transactions;

 

(i) (i) amend, modify or renew any SPAC Affiliated Party Transaction, or make any material payment to any SPAC Affiliated Party (other than pursuant to the Contracts set forth on Section 4.10 of the SPAC Disclosure Schedules), or (ii) enter into any Contract that would constitute a SPAC Affiliated Party Transaction if entered into prior to the execution of this Agreement;

 

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(j) make, change or revoke any election concerning Taxes or Tax accounting method other than in the ordinary course of business consistent with past practice (other than the Domestication), file any Tax Return in a manner inconsistent with past practices, amend any Tax Return, enter into any Tax closing agreement or any Tax sharing or similar agreement, surrender any right to claim a Tax refund, offset or other reduction in Tax Liability, settle any Tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to or relating to any Tax claim or assessment;

 

(k) change any SPAC Party’s methods of accounting in any material respect, other than changes that are made in accordance with PCAOB standards or are required by a change in GAAP or applicable Law;

 

(l) enter into any settlement, conciliation or similar Contract that by its terms will impose any obligations on SPAC or any of its Affiliates after the Closing, including any Group Company, or would require any payment from the Trust Account, other than obligations that constitute SPAC Expenses;

 

(m) engage in any activities or business, other than activities or business (i) in connection with or incident or related to such Person’s organization, incorporation or formation, as applicable, or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;

 

(n) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution;

 

(o) enter into any 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 contemplated by this Agreement or otherwise, other than amendments to existing agreements with any such parties; or

 

(p) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10.

 

Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, but without limiting the terms of this Section 5.10, nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of any SPAC Party.

 

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Section 5.11 Approved Stock Exchange Listing; SPAC Public Filings.

 

(a) Approved Stock Exchange Listing. SPAC shall use its reasonable best efforts to cause (i) SPAC’s initial listing application with an Approved Stock Exchange in connection with the Transactions to be approved, (ii) the SPAC Shares issuable in accordance with this Agreement, including the Domestication and the Merger, to be approved for listing on such Approved Stock Exchange, subject to official notice of issuance thereof, and (iii) to satisfy any of SPAC’s applicable initial and continuing listing requirements of such Approved Stock Exchange, in each case as promptly as reasonably practicable after the date of this Agreement, and in any event prior to the Effective Time. The Company shall use reasonable best efforts, and shall use reasonable best efforts to cause its Representatives, to cooperate with SPAC and its Representatives in connection with the foregoing provisions of this Section 5.11(a), as reasonably requested by SPAC.

 

(b) SPAC Public Filings. From the date hereof through the Closing, SPAC will file all annual and quarterly reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws, and SPAC will use commercially reasonable efforts to provide the Company and its counsel reasonable notice prior to any filing, which shall be no shorter than two Business Days, so that the Company and its counsel may review and comment upon any such document prior to its filing, and SPAC shall consider such comments in good faith.

 

Section 5.12 Trust Account. Upon satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article 6 and provision of notice thereof to the Trustee,

 

(a) at the Closing, SPAC shall

 

(i) cause the documents, certificates and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and

 

(ii) make all appropriate arrangements to cause the Trustee to (A) pay as and when due all amounts, if any, payable to the Public Shareholders of SPAC pursuant to the SPAC Shareholder Redemption, (B) pay the unpaid SPAC Expenses (other than those to be paid or reimbursed by the SPAC Sponsor), including the amounts due to the underwriters of SPAC’s initial public offering for their deferred underwriting commissions as set forth in the Trust Agreement, and the Unpaid Company Expenses and (C) immediately thereafter, pay all remaining amounts then available in the Trust Account to SPAC, or as designated by SPAC and agreed to by the Company, in accordance with the Trust Agreement, and

 

(b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

 

Section 5.13 Company Shareholder Approval.

 

(a) As promptly as reasonably practicable following the date on which the Registration Statement / Proxy Statement is declared effective under the Securities Act, and in any event, no later than the date of the SPAC Shareholders Meeting (the “Company Shareholder Written Consent Deadline”), the Company shall use reasonable best efforts to deliver a form of written consent, in form and substance reasonably acceptable to SPAC, together with a copy of the Registration Statement / Proxy Statement, to a sufficient number of Company Shareholders to effect the Company Required Shareholder Approval and to request that such Company Shareholders execute such written consent. Upon receipt of written consents from a sufficient number of Company Shareholders to effect the Company Required Shareholder Approval, the Company shall deliver to SPAC a true and correct copy of such duly executed and delivered written consents (collectively, the “Company Shareholder Written Consent”).

 

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(b) As soon as practicable following the receipt of the Company Required Shareholder Approval, the Company shall prepare and deliver to each Company Shareholder who has not executed and delivered the Company Shareholder Written Consent an information statement, in form and substance required under the RCW and otherwise reasonably satisfactory to SPAC, which information statement shall include (i) copies of this Agreement and the Registration Statement / Proxy Statement, (ii) a description of any dissenters’ rights of the Company Shareholders available under Section 23B.13 of the RCW and any other disclosure with respect to dissenters’ rights required by applicable Law and (iii) in accordance with the requirements of Section RCW, notice to any Company Shareholder who has not executed and delivered the Company Shareholder Written Consent of the corporate action by those Company Shareholders who did execute the Company Shareholder Written Consent.

 

Section 5.14 Indemnification; Directors’ and Officers’ Insurance.

 

(a) Each Party agrees that (i) all rights to indemnification or exculpation existing as of the date of this Agreement and in effect immediately prior to the Effective Time (but, for the avoidance of doubt, following the Domestication) in favor of the directors and officers of each Party, as provided in the applicable Party’s Governing Documents or director and officer indemnification agreements in effect as of the date hereof, in either case, solely with respect to any matters occurring on or prior to the Effective Time, shall survive the Transactions and shall continue in full force and effect from and after the Effective Time for a period of six years and (ii) SPAC will perform and discharge, or cause to be performed and discharged, all obligations to provide such indemnity and exculpation during such six-year period. Without limiting the foregoing, to the maximum extent permitted by applicable Law, during such six-year period, SPAC shall advance, or cause to be advanced, expenses in connection with such indemnification as provided in the applicable Party’s Governing Documents or other applicable agreements as in effect immediately prior to the Effective Time. The indemnification and liability limitation or exculpation provisions of the Parties’ Governing Documents shall not, during such six-year period, be amended, repealed or otherwise modified following the Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, as of immediately prior to the Effective Time, or at any time prior to such time, were directors or officers of any Party (the “D&O Persons”) entitled to be so indemnified, have their liability limited or be exculpated with respect to any matters occurring on or prior to the Effective Time and relating to the fact that such D&O Person was a director or officer of any Party on or prior to the Effective Time, unless such amendment, repeal or other modification is required by applicable Law.

 

(b) None of SPAC or the Group Companies shall have any obligation under this Section 5.14 to any D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such D&O Person in the manner contemplated hereby is prohibited by applicable Law.

 

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(c) SPAC shall obtain, at or prior to the Closing, and SPAC shall maintain, or cause to be maintained, in effect for a period of six years following the Effective Time, without lapses in coverage, a “tail” policy providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of SPAC in effect as of the date of this Agreement with respect to matters occurring on or prior to the Effective Time, which may be satisfied by an existing D&O insurance policy of SPAC, providing the aforementioned coverage set forth in this Section 5.14(c) (including via a prepaid or previously acquired “tail” that automatically takes effect at the Closing). Such “tail” coverage shall provide coverage on terms (with respect to coverage and amount) that are no less favorable in the aggregate to the Persons covered thereby than the coverage provided under SPAC’s directors’ and officers’ liability insurance policies as of the date of this Agreement; provided, that none of the Company, SPAC or any their respective Affiliates shall pay a premium for any “tail” policy, if any, in excess of 250% of the most recent annual premium paid by SPAC prior to the date of this Agreement.

 

(d) The Company may purchase, at or prior to the Closing, and if purchased, SPAC shall maintain, or cause to be maintained, in effect for a period of six years following the Effective Time, without lapses in coverage, a “tail” policy providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of the Group Companies in effect as of the date of this Agreement with respect to matters occurring on or prior to the Effective Time, providing the aforementioned coverage set forth in this Section 5.14(d). Such “tail” coverage may provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the Persons covered thereby) the coverage provided under the Group Companies’ directors’ and officers’ liability insurance policies as of the date of this Agreement; provided, that none of the Company, SPAC or any their respective Affiliates shall pay a premium for any “tail” policy, if any, in excess of 250% of the most recent annual premium paid by the Group Companies prior to the date of this Agreement.

 

(e) The Persons entitled to the indemnification, liability limitation, exculpation or insurance coverage set forth in this Section 5.14 are intended to be third-party beneficiaries of this Section 5.14. This Section 5.14 shall survive the consummation of the Transactions and shall be binding on all successors and assigns of SPAC.

 

Section 5.15 Post-Closing Directors and Officers.

 

(a) The Parties shall take all such action as may be necessary or reasonably appropriate such that as of the Effective Time:

 

(i) the SPAC Board shall consist of a number of directors, not to exceed nine, as determined by the Company;

 

(ii) SPAC shall appoint one member of the SPAC Board pursuant to Section 5.15(b), who shall be independent as defined under the rules of the Approved Stock Exchange;

 

(iii) the Company shall appoint the remainder of the SPAC Board pursuant to Section 5.15(c); and

 

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(iv) the officers of SPAC (the “Officers”) shall be the individuals determined in accordance with Section 5.15(e).

 

(b) The individual identified on Section 5.15(b) of the SPAC Disclosure Schedules shall be a director on the SPAC Board immediately after the Effective Time (the “SPAC Designee”). Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the SPAC Sponsor may, by giving the Company and SPAC written notice, replace the SPAC Designee with any individual, subject to the written consent of the Company (which may not be unreasonably withheld, conditioned or delayed), and, upon the SPAC Sponsor so giving notice of the replacement of such SPAC Designee and the receipt of such consent, Section 5.15(b) of the SPAC Disclosure Schedules shall automatically be deemed amended to include such replacement individual in lieu of the individual so replaced.

 

(c) As promptly as practicable following the date of this Agreement, the Company shall appoint the remaining individuals (each, a “Company Designee”) to serve as directors on the SPAC Board immediately after the Effective Time. Notwithstanding the foregoing or anything to the contrary herein, there must be sufficient Company Designees that qualify as “independent directors” (as defined in Nasdaq rule 5605(a)(2)) to meet the number and qualifications to serve on all independent committees required by Nasdaq (whether as a result of the replacement of any Company Designee as contemplated by this Section 5.15(c) or otherwise).

 

(d) The SPAC Board shall be divided into three classes, with the SPAC Designee serving in Class I.

 

(e) The individuals identified on Section 5.15(e) of the Company Disclosure Schedules shall be Officers immediately after the Effective Time, with each such individual holding the title set forth opposite his or her name. In the event that any such individual identified on Section 5.15(e) of the Company Disclosure Schedules is unwilling or unable (whether due to death, disability, termination of service, or otherwise) to serve as an Officer, then, prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Company may replace such individual with another individual to serve as such Officer and, upon the Company so giving notice of such replacement, Section 5.15(e) of the Company Disclosure Schedules shall automatically be deemed amended to include such replacement individual as an Officer in lieu of, and to serve with the same title as, the individual so replaced.

 

Section 5.16 PCAOB Financials.

 

(a) The Company shall deliver to SPAC:

 

(i) as promptly as reasonably practicable following the date of this Agreement, (x) the audited consolidated balance sheets of the Company as of December 31, 2022 and 2023, and the related audited consolidated statements of operations, stockholders’ equity (deficit) and cash flows of the Company for each of the years then ended and (y) the unaudited consolidated balance sheets as of June 30, 2024 and 2023, and the related unaudited consolidated statements of operations, stockholders’ equity (deficit) and cash flows of the Company for each of the six months then ended (the “Initial Company Financial Statements”), and shall use reasonable best efforts to so deliver the Initial Company Financial Statements no later than November 30, 2024, and

 

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(ii) as promptly as reasonably practicable following the end of any fiscal quarter, unless not required to be included in any report, statement or other document to be filed or submitted with the Commission, (x) if the end of such fiscal quarter is the end of a fiscal year, the audited consolidated balance sheets of the Company as of such fiscal year end and the prior fiscal year end, and the related audited consolidated statements of operations, stockholders’ equity (deficit) and cash flows of the Company for each of the years then ended, and (y) otherwise, the unaudited consolidated balance sheets as of such fiscal quarter end and the same fiscal quarter end in the prior year, and the related unaudited consolidated statements of operations, stockholders’ equity (deficit) and cash flows of the Company for the year-to-date period through such fiscal quarter end and the same fiscal quarter end in the prior year (the financial statements described in this clause (ii) collectively with the Initial Company Financial Statements, the “Closing Company Financial Statements”), and shall use reasonable best efforts to so deliver such financial statements no later than later than three (3) months after the end of such fiscal year or two (2) months after the end of such other fiscal quarter.

 

The Company shall cause the Closing Company Financial Statements (A) to be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, subject to normal year-end audit adjustments and the absence of notes thereto), (B) in the case of any audited financial statements, to be audited in accordance with the standards of the PCAOB and to contain a report of the Company’s auditor and (C) to comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable).

 

(b) Each of SPAC and the Company shall use their respective reasonable best efforts (i) to assist, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of the Group Companies or SPAC, as applicable, SPAC and the Company, as applicable, in causing to be prepared in a timely manner any financial information or statements (including customary pro forma financial statements) that are required to be included in the Registration Statement / Proxy Statement and any other filings to be made by SPAC with the SEC in connection with the Transactions or any Ancillary Document and (ii) to obtain the consents of their respective auditors with respect thereto as may be required by applicable Law or requested by the SEC.

 

Section 5.17 Incentive Equity Actions. Prior to the SPAC Shareholders Meeting, the SPAC Board shall approve and adopt (a) an equity incentive plan, in form and substance reasonably satisfactory to SPAC and the Company (the “SPAC Incentive Equity Plan”), in the manner prescribed under applicable Laws, effective as of immediately prior to the Closing. The SPAC Incentive Equity Plan shall have an initial share reserve of 5% of the issued and outstanding equity of the SPAC and shall include a customary evergreen provision.

 

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Section 5.18 Bylaws. Prior to the occurrence of the Effective Time, SPAC shall adopt, or cause to be adopted, the SPAC Bylaws in accordance with applicable Law.

 

Section 5.19 Company Change of Name. On or prior to the Closing Date, the Company shall cause its name to be changed to a name designated by the Company in its sole discretion and provide evidence of the same to SPAC.

 

Section 5.20 Extension of Time to Consummate a Business Combination.

 

(a) Unless the Closing has occurred or the Company has consented in writing to the deferral or waiver of the obligations under this Section 5.20, not less than 45 days prior to the expiration of the period of time SPAC is afforded under its Governing Documents to consummate its initial business combination, SPAC shall file with the SEC a proxy statement reasonably acceptable in form and substance to the Company (such proxy statement, together with any amendments or supplements thereto, the “Extension Proxy Statement”) to amend the SPAC Governing Documents, on terms and conditions agreed by the Parties, to extend the period of time SPAC is afforded under its Governing Documents to consummate its initial business combination (such amendment, the “Extension Proposal”). SPAC shall cooperate and provide the Company (and its counsel) with a reasonable opportunity to review and comment on any amendments or supplements to the Extension Proxy Statement, and any responses to comments from the SEC or its staff or the provision of additional information in connection therewith, prior to filing or delivery of the same with or to the SEC. SPAC, with the assistance of the Company, will promptly respond to any SEC comments on the Extension Proxy Statement and will use all commercially reasonable efforts to cause the Extension Proxy Statement to be cleared by the SEC as promptly as practicable after such filing. SPAC will advise the Company promptly after: (i) the time when the Extension Proxy Statement has been filed; (ii) in the event the Extension Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Extension Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Extension Proxy Statement; (v) any request by the SEC for amendment of the Extension Proxy Statement; (vi) any comments from the SEC relating to the Extension Proxy Statement and responses thereto (and shall provide the Company with a copy or, in the case of oral communications, summary of such comments); (vii) requests by the SEC for additional information (and shall provide the Company with a copy or, in the case of oral communications, a summary of such request); and (viii) any other communication, whether written or oral, from the SEC in respect thereof (and shall provide the Company with a copy or, in the case of oral communications, a summary of such communication).

 

(b) Each Party shall promptly correct any information provided by it for use in the Extension Proxy Statement if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws.

 

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(c) As promptly as practicable after the Extension Proxy Statement is cleared by the SEC (or, if the SEC does not provide any comments thereon, not later than ten calendar days after the initial filing thereof with the SEC), SPAC shall distribute the Extension Proxy Statement to SPAC’s shareholders and (i) having, prior to the distribution of the Extension Proxy Statement, established the record date therefor, shall duly call and give notice of special meeting of its shareholders (each an “Extension Shareholders’ Meeting”) in accordance with its Governing Documents and the Cayman Islands Companies Act (As Revised)for a date no later than 30 days after such notice, subject to SPAC’s right to adjourn the Extension Shareholders’ Meeting as provided in this Agreement, (ii) shall solicit proxies from SPAC’s shareholders to vote in favor of the Extension Proposal, and shall duly convene and hold the Extension Shareholders’ Meeting, (iii) shall use its commercially reasonable efforts to obtain, from the holders of the SPAC Shares, the approval of the Extension Proposal, and (iv) shall provide its shareholders with the opportunity to elect to convert their SPAC Shares into a pro rata portion of the Trust Account in connection with the extension as provided for in the SPAC Governing Documents.

 

(d) SPAC may adjourn the Extension Shareholders’ Meeting, (i) to solicit additional proxies for the purpose of obtaining approval of the Extension Proposal or to allow reasonable time for the SPAC Board to accept reversals of elections from the holders that elect to convert their SPAC Shares into a pro rata portion of the Trust Account, (ii) if a quorum is not present (either in person or by proxy) at the Extension Shareholders’ Meeting, for the purpose of obtaining such a quorum, (iii) to amend the Extension Proposal, (iv) to allow reasonable time for the SPAC Board to accept reversals of elections to redeem SPAC Shares, (v) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that SPAC has determined, in good faith after consultation with outside legal counsel and the Company, is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by shareholders of SPAC prior to the Extension Shareholders’ Meeting, or (vi) otherwise with the prior written consent of the Company; provided, however, that, without the consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), in no event shall SPAC adjourn or postpone the SPAC Shareholders Meeting for more than 5 Business Days later than the most recently adjourned or postponed meeting and in no event later than the Termination Date.

 

(e) SPAC shall comply in all material respects with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the Cayman Islands Companies Act (As Revised) in the preparation, filing and distribution of the Extension Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Extension Shareholders’ Meeting. Without limiting the foregoing, SPAC and the Company shall each ensure that the Extension Proxy Statement does not, as of the date on which it is first distributed to SPAC shareholders, and as of the date of the Extension Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no Party shall be responsible for the accuracy or completeness of any information relating to another Party or any other information furnished by another Party for inclusion in the Extension Proxy Statement).

 

(f) SPAC, acting through the SPAC Board, shall include in the Extension Proxy Statement the recommendation of the SPAC Board that SPAC’s shareholders vote in favor of the Extension Proposal, and shall otherwise use commercially reasonable efforts to obtain approval thereof.

 

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(g) For the avoidance of doubt, all filing fees, fees and disbursements of SPAC legal counsel, fees of SPAC’s accountants, and other costs, and expenses of SPAC for and in relation to any extension of the period of time SPAC is afforded under its Governing Documents to consummate its initial business combination, including the Extension Proxy Statement and Extension Shareholders’ Meeting, including any cash deposited into the Trust Account by SPAC, the SPAC Sponsor or any of their respective Affiliates in connection with the Extension Shareholder Meeting or at any time after the Extension Shareholder Meeting until the Effective Time (each such cash deposit, an “Extension Deposit”) shall be a SPAC Expense.

 

Section 5.21 Financing.

 

(a) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, at the request of the Company, SPAC shall, and shall cause its Representatives to, use commercially reasonable efforts to provide such cooperation and assistance to the Company for the private placement of Equity Securities of SPAC and/or the Company, in each case, on terms and with counterparties and otherwise satisfactory to the Company in its sole discretion (collectively, the “Financing”); provided, that any such Financing involving Equity Securities of the SPAC shall not be consummated prior to the Closing Date.

 

(b) Other than as expressly permitted by this Agreement, none of the SPAC Parties shall enter into any Contract with respect to any Equity Security of any SPAC Party without the Company’s prior written consent, which may be granted or withheld in the Company’s sole discretion.

 

Section 5.22 Effect of Certain Delays. Notwithstanding any other terms in this Agreement to the contrary, in the event that: (a) the Initial Company Financial Statements are not delivered on or before November 30, 2024 (an “Audit Delay”), or (b) any other necessary financial or regulatory or governmental Consent set forth in Section 5.22 of the Company Disclosure Schedule is not completed or obtained prior to November 30, 2024 (“Regulatory Delay”), the Company shall be responsible for paying any extension fees and all other fees or expenses actually incurred by or on behalf of SPAC, the Company or any of their Affiliates in connection with such Audit Delay or Regulatory Delay, to the extent (i) such Audit Delay or Regulatory Delay is not primarily the result of any action or inaction by the SPAC Parties, and (ii) such extension fees and any other fees or expenses are actually incurred by or on behalf of SPAC, the Company or any of their Affiliates after the date of such Audit Delay or Regulatory Delay.

 

ARTICLE 6

CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS

 

Section 6.1 Conditions to the Obligations of the Parties. The obligations of the Parties to consummate the Transactions are subject to the satisfaction or, if permitted by applicable Law, written waiver by all of the Parties, of the following conditions:

 

(a) (i) each applicable waiting period (and any extension thereof) under the HSR Act or any applicable Antitrust Law shall have expired or been terminated and (ii) any approval or Consent under any applicable Antitrust Law shall have been obtained (or deemed, by applicable Law, to have been obtained), as applicable;

 

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(b) no Order, Law or other legal restraint or prohibition issued by any court of competent jurisdiction or other Governmental Entity of competent jurisdiction enjoining or prohibiting the consummation of the Domestication or the Merger shall be in effect;

 

(c) the Registration Statement / Proxy Statement shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC and shall remain in effect with respect to the Registration Statement / Proxy Statement, and no proceeding seeking such a stop order shall have been threatened or initiated by the SEC and remain pending;

 

(d) the Company Required Shareholder Approval shall have been obtained;

 

(e) the Required SPAC Shareholder Approvals shall have been obtained; and

 

(f) the Domestication shall have been consummated at least one Business Day prior to the Closing Date in accordance with Section 2.1(a) 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 SPAC.

 

Section 6.2 Other Conditions to the Obligations of the SPAC Parties. The obligations of the SPAC Parties to consummate the Transactions are subject to the satisfaction or, if permitted by applicable Law, written waiver by SPAC (on behalf of itself and the other SPAC Parties) of the following further conditions:

 

(a) (i) the Company Fundamental Representations shall be true and correct in all respects (other than Section 3.2 (Capitalization), which shall be true and correct in all but de minimis respects) as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), and

 

(ii) the representations and warranties of the Company set forth in Article 3 (other than the Company Fundamental Representations) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth herein) in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), in each case, except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a Company Material Adverse Effect;

 

(b) the Company shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the Company under this Agreement at or prior to the Closing; provided, that, for purposes of this Section 6.2(b), the Company shall only be deemed to have not performed or complied in all material respects with the covenants and agreements required to be performed or complied with by the Company under this Agreement at or prior to the Closing if the Company has materially breached such covenant or agreement and, after having received written notice of such breach, failed to cure by one Business Day prior to the Termination Date);

 

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(c) each of the Ancillary Documents required to be delivered by the Company at or prior to the Closing shall have been fully executed by each of the parties thereto, other than any SPAC Party or the SPAC Sponsor, and be in full force and effect, fully binding on each of the parties thereto, other than any SPAC Party or the SPAC Sponsor;

 

(d) at or prior to the Closing, the Company shall have delivered, or caused to be delivered, to SPAC the following documents:

 

(i) a certificate duly executed by an authorized officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in Section 6.2(a) and Section 6.2(b) are satisfied, in a form and substance reasonably satisfactory to SPAC;

 

(ii) a certificate, duly executed by the Company, complying with Treasury Regulations Section 1.1445-2(c)(3), together with (i) the required notice to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), in each case, in a form and substance reasonably acceptable to SPAC, and (ii) written authorization for SPAC to deliver such notice and a copy of such certificate to the Internal Revenue Service on behalf of the Company upon the Closing in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), in each case, in a form and substance reasonably acceptable to SPAC; and

 

(iii) the Closing Company Financial Statements.

 

Section 6.3 Other Conditions to the Obligations of the Company. The obligations of the Company to consummate the Transactions are subject to the satisfaction or, if permitted by applicable Law, written waiver by the Company of the following further conditions:

 

(a) (i) the SPAC Fundamental Representations shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), and

 

(ii) the representations and warranties of the SPAC Parties (other than the SPAC Fundamental Representations) contained in Article 4 of this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation set forth herein) in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a SPAC Material Adverse Effect;

 

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(b) each SPAC Party shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by it under this Agreement at or prior to the Closing; provided, that, for purposes of this Section 6.3(b), a SPAC Party shall only be deemed to have not performed or complied in all material respects with the covenants and agreements required to be performed or complied with by such SPAC Party under this Agreement at or prior to the Closing if such SPAC Party has materially breached such covenant or agreement and, after having received written notice of such breach, failed to cure by one Business Day prior to the Termination Date);

 

(c) SPAC’s initial listing application with an Approved Stock Exchange in connection with the Transactions shall have been conditionally approved and, immediately following the Effective Time, SPAC shall, after giving effect to the SPAC Shareholder Redemption, and the Domestication, satisfy any applicable initial and continuing listing requirements of such Approved Stock Exchange, and SPAC shall not have received any notice of non-compliance therewith that has not been cured prior to, or would not be cured at or immediately following, the Effective Time, and the SPAC Shares (including the SPAC Shares to be issued hereunder) shall have been approved for listing on such Approved Stock Exchange;

 

(d) no action, suit or proceeding shall be pending or threatened before any Governmental Entity which (i) would prevent consummation of any of the Transactions, (ii) would cause any of the Transactions to be rescinded following consummation or (iii) would affect materially and adversely or otherwise encumber the title of the SPAC Shares to be issued by SPAC in connection with the Merger, and no order, judgment, decree, stipulation or injunction to any such effect shall be in effect;

 

(e) each of the Ancillary Documents required to be delivered by any of the SPAC Parties at or prior to the Closing shall have been fully executed by each of the parties thereto, other than the Company or any Company Shareholder, and be in full force and effect, fully binding on each of the parties thereto, other than the Company or any Company Shareholder;

 

(f) at or prior to the Closing, SPAC shall have delivered, or caused to be delivered, to the Company:

 

(i) a certificate duly executed by an authorized officer of SPAC, dated as of the Closing Date, to the effect that the conditions specified in Section 6.3(a), Section 6.3(b), and Section 6.3(c) are satisfied, in a form and substance reasonably satisfactory to the Company; and

 

(ii) written resignations of all the officers of SPAC and members of the SPAC Board, other than the resignation as a director of the individual identified on Section 5.15(b) of the SPAC Disclosure Schedules, effective as of the Effective Time.

 

Section 6.4 Frustration of Closing Conditions. Neither the Company nor any SPAC Party may rely on the failure of any condition set forth in this Article 6 to be satisfied if such failure was proximately caused by such Party’s breach of its obligations under this Agreement, including a breach of its obligations to use reasonable best efforts to cause the Closing to occur as required by Section 5.2.

 

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ARTICLE 7

TERMINATION

 

Section 7.1 Termination. This Agreement may be validly terminated and the Transactions may be abandoned at any time prior to the Closing only as follows (it being understood and agreed that this Agreement may not be terminated for any other reason or on any other basis):

 

(a) by mutual written agreement of SPAC and the Company;

 

(b) by either SPAC or the Company, if there shall be in effect any (i) Law or (ii) Order (other than, for the avoidance of doubt, a temporary restraining order), that (x) in the case of each of clauses (i) and (ii), permanently restrains, enjoins, makes illegal or otherwise prohibits the consummation of the Merger, and (y) in the case of clause (ii) such Order shall have become final and non-appealable;

 

(c) by either SPAC or the Company, if the Effective Time has not occurred by 11:59 p.m., New York City time, on December 22, 2024 (the “Termination Date”); provided, however, that if the SEC has not declared the Registration Statement / Proxy Statement effective on or prior to December 22, 2024, the Termination Date shall be automatically extended to June 30, 2025; and provided, further, that the right to terminate this Agreement pursuant to this Section 7.1(c) will not be available to any Party whose material breach of any provision of this Agreement caused or resulted in the failure of the Merger to be consummated by such time;

 

(d) by either SPAC or the Company, if SPAC fails to obtain the Required SPAC Shareholder Approvals upon vote taken thereon at the SPAC Shareholders Meeting (including any adjournment or postponement thereof); provided that the right to terminate this Agreement under this Section 7.1(d) shall not be available to any Party if such Party has materially breached Section Section 5.8 or Section 5.9;

 

(e) by SPAC, if the Company has breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) to be satisfied at the Closing and (ii) is not capable of being cured by the Company by the Termination Date or, if capable of being cured by the Company by the Termination Date, is not cured by the Company before the earlier of (x) the third (3rd) Business Day immediately prior to the Termination Date and (y) the forty-fifth (45th) day following receipt of written notice from SPAC of such breach or failure to perform; provided that SPAC shall not have the right to terminate this Agreement pursuant to this Section 7.1(e) if it is then in material breach of any of its representations, warranties, covenants or other agreements contained in this Agreement;

 

(f) by the Company, if a SPAC Party has breached or failed to perform any of its respective representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in the failure of a condition set forth in Section 6.3(a) or Section 6.3(b) to be satisfied at the Closing and (ii) is not capable of being cured by the Termination Date or, if capable of being cured by the SPAC Party by the Termination Date, is not cured by the SPAC Party before the earlier of (x) the 3rd (third) Business Day immediately prior to the Termination Date and (y) the 45th (forty-fifth) day following receipt of written notice from the Company of such breach or failure to perform; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(f) if it is then in material breach of any of its representations, warranties, covenants or other agreements contained in this Agreement; or

 

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(g) by SPAC, by written notice to the Company, if the Company fails to deliver the Company Shareholder Written Consent by the Company Shareholder Written Consent Deadline; provided that SPAC shall have no right to terminate this Agreement pursuant to this Section 7.1(g) at any time following the delivery of the Company Shareholder Written Consent, even if the Company Shareholder Written Consent is delivered following the Company Shareholder Written Consent Deadline.

 

Section 7.2 Effect of Termination.

 

(a) Any termination of this Agreement pursuant to Section 7.1 will be effective immediately upon the delivery of written notice of the terminating Party to each of the other Parties hereto. In the event of the termination of this Agreement pursuant to Section 7.1, (i) this entire Agreement shall forthwith become void (and there shall be no Liability or obligation on the part of the Parties and their respective Representatives, other than as expressly set forth in this Agreement), with the exception of Article 1 (solely to the extent applicable to the following sections), Section 5.3(a), this Section 7.2 and Article 8, each of which shall survive such termination and remain valid and binding obligations of the Parties (the “Surviving Provisions”) and (ii) the Confidentiality Agreement, which shall survive such termination and remain valid and binding obligations of the parties thereto in accordance with their respective terms.

 

(b) Notwithstanding the foregoing or anything to the contrary herein, the termination of this Agreement pursuant to Section 7.1 shall not affect (i) any Liability on the part of any Party for Fraud or (ii) any Person’s Liability under any Confidentiality Agreement.

 

ARTICLE 8
MISCELLANEOUS

 

Section 8.1 Non-Survival. The representations and warranties, and each of the agreements and covenants (to the extent such agreement or covenant contemplates or requires performance at or prior to the Effective Time) in this Agreement shall terminate at the Effective Time, such that no claim for breach of any such representation, warranty, agreement or covenant, detrimental reliance, fraud or other right or remedy (whether in contract, in tort, at law, in equity or otherwise) may be brought with respect thereto after the Effective Time against any Party, any Company Affiliated Party or any SPAC Affiliated Party. Each covenant and agreement contained herein that, by its terms, expressly contemplates performance after the Effective Time shall so survive the Effective Time in accordance with its terms.

 

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Section 8.2 Entire Agreement; Assignment. This Agreement (together with the Ancillary Documents and the Confidentiality Agreement) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement may not be assigned by any Party (whether by operation of law or otherwise) without the prior written consent of SPAC and the Company; provided, however, that to the extent any such assignment following the Closing relates to the SPAC Sponsor Specified Provisions, the assigning Party shall continue to be bound by its obligations under such provisions. Any attempted assignment of this Agreement not in accordance with the terms of this Section 8.2 shall be void, ab initio.

 

Section 8.3 Amendment. This Agreement may be amended or modified only by a written agreement executed and delivered by SPAC and the Company; provided, however, that any such amendment or modification following the Closing with respect to the SPAC Sponsor Specified Provisions shall also require the written consent of the SPAC Sponsor. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 8.3 shall be void, ab initio.

 

Section 8.4 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given and shall be deemed to have been duly given when delivered (i) by delivery in person, (ii) by e-mail, without receipt of an “error” or a similar message that such e-mail was not deliverable or not received by such intended recipient, or (iii) by nationally recognized overnight delivery service to the other Parties as follows, or to such other address as the Party to whom notice is given may have furnished following the date of this Agreement and prior to such notice to the others in writing in the manner set forth herein.

 

(a) If to any SPAC Party, to:

 

AlphaVest Holding, LP

420 Lexington Ave, Suite 2446

New York, New York 10170

Attention: David Yan

Email: David.yan@alphavestacquisition.com

 

with a copy to:

 

Winston & Strawn LLP

800 Capitol Street, Suite 2400

Houston, Texas 77002

Attention: Michael J. Blankenship

Email: mblankenship@winston.com

 

(b) If to the Company, to:

 

AMC Corporation

4794 231st Place S.E.

Sammamish, WA 98075-7226

Attention: Min Ma

Email: minma@amcsec.com

 

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with a copy to:

 

Graubard Miller

405 Lexington Avenue, 44th Floor

New York, New York 10174

Attention: Jeffrey M. Gallant, David Alan Miller

Email: jgallant@graubard.com, dmiller@graubard.com

 

Section 8.5 Governing Law. This Agreement and the Ancillary Documents, and any rights or claims arising from or relating to this Agreement, the Ancillary Documents or the Transactions (including the Merger), shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of New York (except that the Laws of the Cayman Islands shall also apply to the Domestication and the laws of the State of Washington shall also apply to the Merger).

 

Section 8.6 Fees and Expenses. Except as otherwise set forth in this Agreement or as otherwise mutually agreed by the Company and SPAC, all fees and expenses incurred in connection with this Agreement, the Ancillary Documents and the Transactions, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses; provided that, if the Merger and the Closing occur, the Surviving Company shall be responsible for and shall pay, or cause to be paid, all Unpaid Company Expenses and all Unpaid SPAC Liabilities (other than those to be paid or reimbursed by the SPAC Sponsor, including those to be reimbursed by the SPAC Sponsor related to the contemplated transaction between SPAC and Wanshun Technology Industrial Group Ltd), in accordance with their terms and the terms of this Agreement. The Company shall advance to SPAC or pay on behalf of SPAC (the “Advances”) all SPAC Liabilities, including operating expenses, incurred after September 30, 2024 and prior to the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, as and when they become due. The Advances shall be forgiven by the Company, upon either the Closing or the termination by SPAC of this Agreement pursuant to Section 7.1(e). The Advances shall be repayable by SPAC on demand by the Company, without interest, upon any other termination of this Agreement.

 

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Section 8.7 Construction; Interpretation. The term “this Agreement” means this Business Combination Agreement together with the Schedules and Exhibits hereto, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) masculine gender shall also include the feminine and neutral genders, and vice versa; (c) words importing the singular shall also include the plural, and vice versa; (d) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (e) references to “$” or “dollar” or “US$” shall be references to United States dollars; (f) the word “or” is disjunctive but not necessarily exclusive; (g) the words “writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (h) the word “day” means calendar day unless Business Day is expressly specified; (i) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (j) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement; (k) the words “made available” (regardless of whether capitalized or not) shall mean, when used with reference to documents or other materials required to be provided or made available to SPAC, any documents or other materials posted to the electronic data room located at https://drive.google.com/drive/folders/1SAmheXmnqjKN_e9XJoddv9zTFdzMbqkA?usp=drive_link as of at least two hours prior to the execution of this Agreement; (l) the phrase “ordinary course of business” means the ordinary course of business; (m) all references to any Law will be to such Law as amended, supplemented or otherwise modified or re-enacted from time to time; and (n) all references to any Contract are to that Contract as amended or modified from time to time in accordance with the terms thereof (subject to any restrictions on amendments or modifications set forth in this Agreement). If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter.

 

Section 8.8 Exhibits and Schedules. All Exhibits and Schedules, or documents expressly incorporated into this Agreement, are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full in this Agreement. The Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered Sections and subsections set forth in this Agreement. Any item disclosed in the Company Disclosure Schedules or in the SPAC Disclosure Schedules corresponding to any Section or subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the SPAC Disclosure Schedules), respectively, shall be deemed to have been disclosed with respect to every other section and subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the SPAC Disclosure Schedules), respectively, where the relevance of such disclosure to such other Section or subsection is reasonably apparent on the face of the disclosure. The information and disclosures set forth in the Schedules that correspond to the section or subsections of Article 3 or Article 4 may not be limited to matters required to be disclosed in the Schedules, and any such additional information or disclosure is for informational purposes only and does not necessarily include other matters of a similar nature.

 

Section 8.9 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns and, except as provided in Section 5.14, the last sentence of this Section 8.9 and Section 8.13, nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. The SPAC Sponsor shall be an express third-party beneficiary of Section 5.14, Section 8.2, Section 8.3, this Section 8.9, Section 8.13 and Section 8.14 (collectively, the “SPAC Sponsor Specified Provisions”).

 

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Section 8.10 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transactions are consummated as originally contemplated to the greatest extent possible.

 

Section 8.11 Counterparts; Electronic Signatures. This Agreement and each Ancillary Document (including any of the closing deliverables contemplated hereby) may be executed in one or more counterparts (including facsimile, DocuSign or other electronic counterparts), each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement or any Ancillary Document (including any of the closing deliverables contemplated hereby) by e-mail, electronic signature or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement or any such Ancillary Document.

 

Section 8.12 Knowledge of Company; Knowledge of SPAC. For all purposes of this Agreement, the phrases “to the Company’s Knowledge”, “to the Company’s knowledge” and “known by the Company” and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12 of the Company Disclosure Schedules, assuming reasonable due inquiry of such individual’s direct reports. For all purposes of this Agreement, the phrase “to SPAC’s knowledge” and “to the knowledge of SPAC” and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12 of the SPAC Disclosure Schedules, assuming reasonable due inquiry and investigation of such individual’s direct reports. For the avoidance of doubt, none of the individuals set forth on Section 8.12 of the Company Disclosure Schedules or Section 8.12 of the SPAC Disclosure Schedules shall have any personal Liability or obligations regarding such knowledge.

 

Section 8.13 No Recourse. Without limiting any rights of any party against any other party to an Ancillary Document to the extent of the terms and subject to the conditions thereunder or the Liabilities of any party to an Ancillary Document to the extent arising from a claim against such party by another party to such agreement on the terms and subject to the conditions thereunder, (i) this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the Transactions may only be brought by and against, the Parties, and then only with respect to the specific covenants, agreements, obligations, representations and warranties set forth herein with respect to such Party; and (ii) (a) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or Representative or Affiliate of any named party to this Agreement and (b) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or Representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, SPAC or Merger Sub under this Agreement of or for any claim based on, arising out of, or related to this Agreement or the Transactions.

 

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Section 8.14 Extension; Waiver. Any Party may (a) extend the time for the performance of any of the obligations or other acts of any other Party set forth herein, (b) waive any inaccuracies in the representations and warranties of any other Party set forth herein or (c) waive compliance by any other Party with any of the agreements or conditions set forth herein. Any agreement on the part of any such Party to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Party. 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, any extension or waiver following the Closing with respect to the SPAC Sponsor Specified Provisions shall also require the written consent of the SPAC Sponsor.

 

Section 8.15 Waiver of Jury Trial. EACH OF THE PARTIES HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (i) ARISING UNDER, FOR ENFORCEMENT OR BREACH OF, OR RELATING TO THIS AGREEMENT OR UNDER ANY ANCILLARY DOCUMENT OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THIS AGREEMENT, TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY ANCILLARY DOCUMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH OF THE PARTIES HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.15.

 

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Section 8.16 Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the state and federal courts situated in the State of New York, for the purposes of any Proceeding, claim, demand, action or cause of action (a) arising under, for enforcement or breach of, or relating to this Agreement or any Ancillary Document or (b) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any Ancillary Document or any of the Transactions or any of the transactions contemplated thereby, and irrevocably and unconditionally waives any objection to the laying of jurisdiction and venue of any such Proceeding in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding has been brought in an inconvenient forum. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding claim, demand, action or cause of action against such Party (i) arising under, for enforcement or breach of, or relating to this Agreement or any Ancillary Document or (ii) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any Ancillary Document or any of the Transactions or any of the transactions contemplated thereby, (a) any claim that such Party is not personally subject to the jurisdiction of the courts as described in this Section 8.16 for any reason, (b) that such Party or such Party’s property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (x) the Proceeding, claim, demand, action or cause of action in any such court is brought against such Party in an inconvenient forum, (y) the venue of such Proceeding, claim, demand, action or cause of action against such Party is improper or (z) this Agreement, or the subject matter hereof, may not be enforced against such Party in or by such courts. Each Party agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 8.4 shall be effective service of process for any such Proceeding, claim, demand, action or cause of action.

 

Section 8.17 Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their respective obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the Transactions) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other Parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.

 

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Section 8.18 Trust Account Waiver. Reference is made to SPAC’s final prospectus (File No. 333-268188), dated December 19, 2022 and filed with the SEC on December 20, 2022 (the “Prospectus”). The Company and Merger Sub hereby represent and warrant that they understand that SPAC has established a trust account (the “Trust Account”) containing the proceeds of SPAC’s initial public offering (“IPO”) and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of SPAC’s public shareholders (the “Public Shareholders”) and that, except as otherwise described in the Prospectus, SPAC may disburse monies from the Trust Account only: (a) to the Public Shareholders in the event they elect to redeem their SPAC Shares in connection with the consummation of its initial business combination (as such term is used in the Prospectus) (“Business Combination”) or in connection with a shareholder vote to amend SPAC’s Governing Documents to modify the substance or timing of SPAC’s obligation to provide holders of SPAC Shares the right to have their shares redeemed in connection with a Business Combination or to redeem 100% of the SPAC Shares if SPAC does not complete a Business Combination within the time period set forth in SPAC’s Governing Documents or with respect to any other provision relating to the rights of holders of SPAC Shares, (b) to the Public Shareholders if SPAC fails to consummate a Business Combination within to the time period set forth in SPAC’s Governing Documents, and (c) to SPAC after the consummation of a Business Combination, in each case, subject to the Trust Agreement. For and in consideration of SPAC entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company hereby agrees on behalf of itself and its Affiliates that, notwithstanding anything to the contrary in this Agreement, except for the funds released to SPAC as described in clause (c) above, neither of the Company nor any of its Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account, or make any claim against the Trust Account, regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any proposed or actual business relationship between SPAC or any of its Representatives, on the one hand, and the Company or any of its Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”). The Company, on behalf of itself and its Affiliates hereby irrevocably waives any Released Claims that the Company or any of its Affiliates may have against the Trust Account now or in the future as a result of, or arising out of, any negotiations, contracts or agreements with SPAC or its Representatives and will not seek recourse against the Trust Account, except for the funds released to SPAC as described in clause (c) above, for any reason whatsoever (including for an alleged breach of this Agreement or any other agreement with SPAC or its Affiliates). The Company agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by SPAC to induce SPAC to enter in this Agreement, and the Company further intends and understands such waiver to be valid, binding and enforceable against such Party and each of its Affiliates under applicable Law. Notwithstanding anything herein to the contrary, (A) the Company and its Affiliates may commence any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to SPAC, Merger Sub or their respective Representatives, which proceeding seeks, in whole or in part, monetary relief against SPAC, Merger Sub or their respective Representatives, against assets or funds held outside of the Trust Account (including any funds released from the Trust Account and assets that are acquired with such funds); provided that such claim shall not permit the Company or any of its Affiliates (or any Person claiming on any of their behaves or in lieu of them) to have any claim against the Trust Account or any amounts contained therein, and (B) nothing herein shall limit or prohibit the Company or any of its Affiliates from pursuing a claim against SPAC or Merger Sub for specific performance or other equitable relief. This Section 8.18 shall survive termination of this Agreement for any reason.

 

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Section 8.19 Conflicts and Privilege.

 

(a) SPAC and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), hereby agree that, in the event a dispute with respect to this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby arises after the Closing between or among (x) the shareholders or holders of other equity interests of the Company and/or any of their respective directors, members, partners, officers, employees or Affiliates, other than the Surviving Company (collectively, the “Company Designated Persons”), on the one hand, and (y) the Surviving Company, the SPAC Sponsor, the shareholders or holders of other equity interests of SPAC or the SPAC Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates, other than the Surviving Company, on the other hand, any legal counsel, including Graubard Miller (“Graubard”) that represented the Company prior to the Closing may represent any Company Designated Person in such dispute (any such representation, the “Company Post-Closing Representation”), even though the interests of such Company Designated Persons may be directly adverse to the Surviving Company, and even though such counsel may have represented SPAC and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company. Each of SPAC and the Company, on behalf of their respective successors and assigns, hereby consents to the Company Post-Closing Representation and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. SPAC and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), 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 action 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 Company Designated Person, on the one hand, and Graubard, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to the Company Designated Persons after the Closing, and shall not pass to or be claimed or controlled by the Surviving Company. Notwithstanding the foregoing, any privileged communications or information shared by SPAC or SPAC Sponsor prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Surviving Company.

 

(b) SPAC and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), hereby agree that, in the event a dispute with respect to this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby arises after the Closing between or among (x) the SPAC Sponsor, the shareholders or holders of other equity interests of SPAC or SPAC Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates, other than the Surviving Company (collectively, the “SPAC Designated Persons”), on the one hand, and (y) the Surviving Company, the shareholders or holders of other equity interests of the Company and/or any of their respective directors, members, partners, officers, employees or Affiliates, other than the Surviving Company, on the other hand, any legal counsel, including Winston & Strawn LLP (“Winston”) that represented SPAC or the SPAC Sponsor prior to the Closing may represent any SPAC Designated Person in such dispute (any such representation, the “SPAC Post-Closing Representation”), even though the interests of such Persons may be directly adverse to the Surviving Company, and even though such counsel may have represented SPAC and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC, the SPAC Sponsor or the Surviving Company. Each of SPAC and the Company, on behalf of their respective successors and assigns, hereby consents to the SPAC Post-Closing Representation and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. SPAC and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), 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 action arising out of or relating to, this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby) between or among the SPAC and/or any SPAC Designated Person, on the one hand, and Winston, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to the SPAC Designated Persons after the Closing, and shall not pass to or be claimed or controlled by the Surviving Company. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or SPAC Sponsor under a common interest agreement shall remain the privileged communications or information of the Surviving Company.

 

[Remainder of page intentionally left blank.]

 

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IN WITNESS WHEREOF, each of the Parties has caused this Business Combination Agreement to be duly executed on its behalf as of the date first written above.

 

ALPHAVEST ACQUISITION CORP.  
     
By: /s/ Yong Yan  
Name: Yong Yan  
Title: CEO  
     
AV MERGER SUB  
     
By: /s/ Pengfei Zheng  
Name: Pengfei Zheng  
Title: Manager  
     
AMC CORPORATION  
     
By: /s/ Sean Da  
Name: Sean Da  
Title: Chairman  

 

[Signature Page to Business Combination Agreement]

 

 

 

 

Exhibit 10.1

 

SPONSOR SUPPORT AGREEMENT

 

This SPONSOR SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of August 16, 2024, by and among AlphaVest Acquisition Corp, an exempted company incorporated in the Cayman Islands with limited liability (together with its successors, “SPAC”), AMC Corporation, a Washington corporation (the “Company”), AlphaVest Holding LP, a Delaware limited partnership (the “Sponsor”), and the undersigned parties who hold Subject Shares (as defined below) (such parties, the “Insiders” and together with the Sponsor, the “Founder Holders”).

 

WHEREAS, SPAC, AV Merger Sub, a Washington corporation and a direct wholly-owned subsidiary of SPAC (“Merger Sub”), and the Company, are concurrently herewith entering into a Business Combination Agreement (as the same may be amended, restated or supplemented, the “Business Combination Agreement”; capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Business Combination Agreement) pursuant to which, among other things, Merger Sub will merge with and into the Company (the “Merger”), with the Company being the surviving entity and becoming a wholly-owned subsidiary of SPAC, such Merger to occur upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with the applicable provisions of the Revised Code of Washington (the “RCW”);

 

WHEREAS, each Founder Holder is, as of the date of this Agreement, the sole legal owner of the number of outstanding ordinary shares of SPAC (“SPAC Shares”) set forth opposite such Founder Holder’s name on Schedule A hereto (such SPAC Shares owned by the Founder Holders, together with any additional shares of SPAC Shares or other SPAC’s securities (including any securities convertible into or exercisable or for SPAC Shares or other securities), whether by purchase, as a result of a share dividend, share split, recapitalization, combination, reclassification, exchange or change of such shares, or upon the exercise or conversion of any securities, acquired by the Founder Holders after the date hereof and during the term of this Agreement, including upon consummation of the Domestication, being collectively referred to herein as the “Subject Shares”); and

 

WHEREAS, as a condition to their willingness to enter into the Business Combination Agreement, SPAC and the Company have requested that each Founder Holder enter into this Agreement.

 

NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:

 

 
 

 

ARTICLE I

 

Representations and Warranties of Each Founder Holder

 

Each Founder Holder hereby represents and warrants, severally and not jointly, to the Company and SPAC as follows:

 

1.1 Organization and Standing; Authorization. Such Founder 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, (i) has been duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization, (ii) has all requisite corporate or limited liability power and authority, as applicable, to own, lease and operate its properties and to carry on its business as now being conducted and (iii) has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. If the Founder Holder is not a natural person, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and no other corporate proceedings on the part of such Founder Holder are necessary to authorize the execution and delivery of this Agreement or to consummate the transactions contemplated hereby.

 

1.2 Binding Agreement. This Agreement has been or shall be when delivered, duly and validly executed and delivered by such Founder Holder and, assuming the due authorization, execution and delivery of this Agreement by the other parties hereto, constitutes, or when delivered shall constitute, the valid and binding obligation of such Founder Holder, enforceable against such Founder Holder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditor’s rights generally and to general principles of equity (collectively, the “Enforceability Exceptions”).

 

1.3 Governmental Approvals. No consent of or filing with any Governmental Authority on the part of such Founder Holder is required to be obtained or made in connection with the execution, delivery or performance by such Founder Holder of this Agreement or the consummation by such Founder Holder of the transactions contemplated hereby, other than (a) 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 (b) where the failure to obtain such consents or to make such filings or notifications has not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of such Founder Holder to enter into and perform this Agreement and to consummate the transactions contemplated hereby.

 

 
 

 

1.4 Non-Contravention. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with any of the provisions hereof by such Founder Holder will not (a) conflict with or violate any provision of the Governing Documents of such Founder Holder, (b) conflict with or violate any Law, Order or required consent or approval applicable to such Founder Holder or any of its properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by such Founder Holder under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien (other than Permitted Lien) upon any of the properties or assets of such Founder Holder under, (viii) give rise to any obligation to obtain any third party consent or approval from any Person or (ix) give any Person the right to declare a default, exercise any remedy, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any material Contract of such Founder Holder, except for any deviations from any of the foregoing clauses (b) or (c) that has not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of such Founder Holder to enter into and perform this Agreement and to consummate the transactions contemplated hereby.

 

1.5 Subject Shares. As of the date of this Agreement, such Founder Holder has sole legal and beneficial ownership of the Subject Shares set forth opposite such Founder Holder’s name on Schedule A hereto, and all such Subject Shares are owned by such Founder Holder free and clear of all Liens, other than liens or encumbrances pursuant to this Agreement, SPAC Governing Documents, applicable federal or state securities laws or that certain Letter Agreement, dated December 19, 2022, by and among the Company and such Founder Holder. Other than the Subject Shares, such Founder Holder does not legally or beneficially own any SPAC Shares or any other SPAC securities that are convertible into or exercisable for SPAC Shares or other SPAC securities. Such Founder Holder has the sole right to vote the Subject Shares, and none of the Subject Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Subject Shares, except as contemplated by this Agreement or SPAC Governing Documents.

 

1.6 Business Combination Agreement. Such Founder Holder understands and acknowledges that SPAC, Merger Sub and the Company are entering into the Business Combination Agreement in reliance upon such Founder Holder’s execution and delivery of this Agreement. Such Founder Holder has received a copy of the Business Combination Agreement and is familiar with the provisions of the Business Combination Agreement.

 

1.7 Adequate Information. Each of the Founder Holders is a sophisticated shareholder and has adequate information concerning the business and financial condition of SPAC, Merger Sub and the Company to make an informed decision regarding this Agreement and the transactions contemplated by the Business Combination Agreement and has independently and without reliance upon SPAC, Merger Sub or the Company and based on such information as such Founder Holder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Each Founder Holder acknowledges that SPAC, Merger Sub and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character. Each of the Founder Holders acknowledges that the agreements contained herein with respect to the Subject Shares held by such Founder Holder are irrevocable and shall only terminate upon the termination of this Agreement.

 

 
 

 

ARTICLE II

Agreement to Vote; Certain Other Covenants of the Founder Holders

 

Each Founder Holder covenants and agrees with SPAC and the Company during the term of this Agreement as follows:

 

2.1 Agreement to Vote.

 

(a) In Favor of Merger. So long as the Company is not in breach of the terms of the Business Combination Agreement such that the conditions to Closing would not reasonably be expected to be met, at any meeting of the shareholders of SPAC called to seek the SPAC Shareholder Approvals, or at any adjournment thereof, or in connection with the written consent of SPAC or in any other circumstances upon which a vote, consent or other approval with respect to the Business Combination Agreement, any other Ancillary Document, the Merger, or any other Transaction is sought, each Founder Holder shall (i) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum, and (ii) vote or cause to be voted (including by class vote and/or written consent, if applicable) the Subject Shares in favor of the SPAC Shareholder Approvals or, if there are insufficient votes in favor of the SPAC Shareholder Approvals, in favor of the adjournment of such meeting of the shareholders of SPAC to a later date but not past the Termination Date.

 

(b) Against Other Transactions. At any meeting of shareholders of SPAC or at any adjournment thereof, or in connection with any written consent of the shareholders of SPAC or in any other circumstances upon which such Founder Holder’s vote, consent or other approval is sought, such Founder Holder shall vote (or cause to be voted) the Subject Shares (including by proxy, withholding class vote and/or written consent, if applicable) against (i) any SPAC Competing Acquisition and (ii) any other action that would be reasonably likely to in any material respect impede, interfere with, delay or attempt to discourage, frustrate the purposes of, result in a breach by SPAC of, prevent or nullify any provision of the Business Combination Agreement or any other Ancillary Document, the Merger, any other transaction.

 

(c) Revoke Other Proxies. Such Founder Holder represents and warrants that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies have been or are hereby revoked, other than the voting and other arrangements under SPAC Governing Documents.

 

 
 

 

2.2 No Transfer. Other than (w) pursuant to this Agreement, (x) upon the written consent of SPAC, (y) in connection with any transaction financing contemplated by the Business Combination Agreement, or (z) to an Affiliate of such Founder Holder (provided that such Affiliate shall enter into a written agreement, in form and substance reasonably satisfactory to SPAC and the Company, agreeing to be bound by this Agreement to the same extent as such Founder Holder was with respect to such transferred Subject Shares), from the date of this Agreement until the date of termination of this Agreement in accordance with its terms, such Founder Holder shall not, directly or indirectly, (i) (a) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option, right or warrant to purchase or otherwise transfer, dispose of or agree to transfer or dispose of (including by gift, tender or exchange offer, merger or operation of law), directly or indirectly, encumber or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the Securities and Exchange Commission (the “SEC”) promulgated thereunder, any Subject Share, (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Shares, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) publicly announce any intention to effect any transaction specified in clause (a) or (b) (the actions specified in clauses (a)-(c), collectively, “Transfer”), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any Person other than pursuant to the Merger, (ii) grant any proxies or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, voting deed or otherwise (including pursuant to any loan of Subject Shares), or enter into any other agreement, with respect to any Subject Shares, in each case, other than as set forth in this Agreement or the voting and other arrangements under SPAC Governing Documents, (iii) take any action that would make any representation or warranty of such Founder Holder herein untrue or incorrect, or have the effect of preventing or delaying such Founder Holder from performing its obligations hereunder, or (iv) commit or agree to take any of the foregoing actions. Any action attempted to be taken in violation of the preceding sentence will be null and void. Such Founder Holder agrees with, and covenants to, SPAC and the Company that such Founder Holder shall not request that SPAC register the Transfer (by book-entry or otherwise) of any certificated or uncertificated interest representing any of the Subject Shares.

 

2.3 No Solicitation. During the term of this Agreement, each Founder Holder agrees not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or facilitate any inquiry, proposal, or offer which constitutes, or could reasonably be expected to lead to, a SPAC Competing Acquisition proposal in their capacity as such, (ii) participate in any discussions or negotiations regarding, or furnish or receive to or from any Person (other than the Company, SPAC, Merger Sub, a Company Affiliated Party and their respective Representatives) any nonpublic information relating to the SPAC or its Subsidiaries, in connection with any SPAC Competing Acquisition proposal, (iii) approve or recommend, or make any public statement approving or recommending a SPAC Competing Acquisition proposal, (iv) enter into any letter of intent, merger agreement or similar agreement providing for a SPAC Competing Acquisition proposal, (v) make, or in any manner participate in a “solicitation” (as such term is used in the rules of the SEC) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to voting of Subject Shares intending to facilitate any SPAC Competing Acquisition proposal or cause any holder of shares of SPAC capital stock not to vote to adopt the Business Combination Agreement and approve the Merger, (vi) become a member of a “group” (as such term is defined in Section 13(d) of the Exchange Act) with respect to any voting securities of SPAC that takes any action in support of a SPAC Competing Acquisition proposal or (vii) otherwise resolve or agree to do any of the foregoing. Each Founder Holder shall promptly (and in any event within 48 hours) notify SPAC and the Company after receipt by such Founder Holder of any acquisition proposal, any inquiry or proposal that would reasonably be expected to lead to an acquisition proposal or any inquiry or request for nonpublic information relating to the SPAC or its Subsidiaries by any Person who has made or would reasonably be expected to make an acquisition proposal. Thereafter, such Founder Holder shall keep SPAC and the Company reasonably informed, on a prompt basis (and in any event within 48 hours), regarding any material changes in the status and material terms of any such proposal or offer. Each Founder Holder agrees that, following the date hereof, it and its Representatives shall cease and cause to be terminated any existing activities, solicitations, discussions or negotiations by such Founder Holder or its Representatives with any parties conducted prior to the date hereof with respect to any SPAC Competing Acquisition proposal. Notwithstanding anything contained herein to the contrary, (i) no Founder Holder shall be responsible for the actions of SPAC or its board of directors (or any committee thereof), Merger Sub or any Subsidiary of SPAC, or any officers, directors (in their capacities as such), employees, professional advisors of any of the foregoing (the “SPAC Related Parties”), including with respect to any of the matters contemplated by this Section 2.3, (ii) no Founder Holder makes any representations or warranties with respect to the action of any of the SPAC Related Parties and (iii) any breach by SPAC of its obligations under the Business Combination Agreement shall not be considered a breach of this Section 2.3 (for the avoidance of doubt, it being understood that each Founder Holder shall remain responsible for any breach by it or its Representatives (other than any such Representative that is a SPAC Related Party) of this Section 2.3.

 

 
 

 

2.4 Support of Merger. During the term of this Agreement, such Founder Holder shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary to consummate the Merger on the terms and subject to the conditions applicable thereto and shall not take any action that would reasonably be expected to materially delay or prevent the satisfaction of any of the conditions to the Merger set forth under the Business Combination Agreement.

 

2.5 Waiver of Appraisal and Dissenters’ Rights. Each of the Founder Holders hereby irrevocably waives, and agrees not to exercise or assert, any dissenters’ or appraisal rights under Cayman Act and any other similar statute in connection with the Merger and the Business Combination Agreement.

 

2.6 No Redemption or Tender. Such Founder Holder irrevocably and unconditionally agrees that, from the date hereof and until the termination of this Agreement in accordance with its terms, such Founder Holder shall not elect to cause SPAC to redeem any Subject Shares now or at any time legally or beneficially owned by such Founder Holder or submit or surrender any of its Subject Shares for redemption, or seek to sell any Subject Shares to SPAC in any tender offer, in connection with the transactions contemplated by the Business Combination Agreement or otherwise.

 

2.7 New Shares. In the event that prior to the Closing (i) any shares of SPAC or other securities of SPAC are issued or otherwise distributed to such Founder Holder pursuant to any share dividend or distribution, or any change in any of shares of SPAC by reason of any share split-up, recapitalization, combination, exchange of shares or the like, (ii) such Founder Holder acquires legal or beneficial ownership of any SPAC securities after the date of this Agreement, including upon exercise of rights, options or settlement of restricted share units or (iii) such Founder Holder acquires the right to vote or share in the voting of any SPAC ‘s shares after the date of this Agreement (collectively, the “New Securities”), for the avoidance of doubt, the terms “Subject Shares” shall be deemed to refer to and include such New Securities (including all such share dividends and distributions and any securities into which or for which any or all of the Subject Shares may be changed or exchanged into).

 

 
 

 

2.8 Waiver of Anti-Dilution Protection. Such Founder Holder hereby waives, forfeits, surrenders and agrees not to exercise, assert or claim, to the fullest extent permitted by applicable Law, any anti-dilution protection (if any) pursuant to SPAC Governing Documents in connection with the transactions contemplated by this Agreement, the Business Combination Agreement and the other Ancillary Documents. Such Founder Holder acknowledges and agrees that (i) this Section 2.8 shall constitute written consent waiving, forfeiting and surrendering any anti-dilution protection pursuant to SPAC Governing Documents in connection with the transactions contemplated by this Agreement, the Business Combination Agreement and the other Ancillary Agreement; and (ii) such waiver, forfeiture and surrender granted hereunder shall only terminate upon the termination of this Agreement.

 

2.9 Payment of Expenses. The Sponsor shall pay as they become due, or shall reimburse the SPAC prior to the Closing for, and in either case shall be solely liable for, (i) all fees, expenses, costs, disbursements, commissions or other amounts incurred by or on behalf of the SPAC or the Sponsor, or that the SPAC or the Sponsor is obligated to pay, whether or not such amounts are due and payable, in connection with, or as a result of, the proposed transaction with Wanshun Technology Industrial Group Ltd, including the fees and expenses of outside legal counsel, accountants, advisors, brokers, placement agents, investment bankers, consultants, or other agents or service providers of the SPAC or any other party to the transaction, and (ii) all fees, expenses, costs, disbursements, commissions or other amounts incurred by or on behalf of the SPAC or the Sponsor, or that the SPAC or the Sponsor is obligated to pay, on or prior to September 30, 2024, other than such fees, expenses, costs, disbursements, commissions and amounts incurred in connection with the Transactions.

 

ARTICLE III

 

Additional Agreements of the Parties

 

3.1 Mutual Release.

 

(a) Founder Holder Release. Sponsor, on its own behalf and on behalf of each of its Affiliates (other than SPAC or any of SPAC’s Subsidiaries), and each other Founder Holder on its own behalf, and each of its and their successors, assigns and executors (each, a “Sponsor Releasor”), effective as at the Effective Time, shall be deemed to have, and hereby does, irrevocably, unconditionally, knowingly and voluntarily release, waive, relinquish and forever discharge the Company, SPAC, their respective Subsidiaries and each of their respective successors, assigns, heirs, executors, officers, directors, partners, managers and employees (in each case in their capacity as such) (each, a “Sponsor Releasee”), from (i) any and all obligations or duties the Company, SPAC or any of their respective Subsidiaries has prior to or as of the Effective Time to such Sponsor Releasor or (ii) all claims, demands, Liabilities, defenses, affirmative defenses, setoffs, counterclaims, actions and causes of action of whatever kind or nature, whether known or unknown, which any Sponsor Releasor has prior to or as of the Effective Time, against any Sponsor Releasee arising out of, based upon or resulting from any Contract, transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, and which occurred, existed, was taken, permitted or begun prior to the Effective Time (except in the event of Fraud on the part of a Sponsor Releasee); provided, however, that nothing contained in this Section 5.1(a) shall release, waive, relinquish, discharge or otherwise affect the rights or obligations of any party (i) arising under this Agreement, the Business Combination Agreement, the Ancillary Documents, or SPAC Governing Documents, (ii) for indemnification or contribution, in any Sponsor Releasor’s capacity as an officer or director of SPAC, (iii) arising under any then-existing insurance policy of SPAC, (iv) pursuant to a contract and/or SPAC policy, to reimbursements for reasonable and necessary business expenses incurred and documented prior to the Effective Time, or (v) for any claim for Fraud. The Sponsor Releasors covenant not to make or bring any such claim against the Sponsor Releasees, and forever release and discharge the Sponsor Releasees from liability under any such claims, subject to the proviso in the preceding sentence.

 

 
 

 

(b) Company Release. Each of the Company, SPAC and their respective Subsidiaries and each of its and their successors, assigns and executors (each, a “Company Releasor”), effective as at the Effective Time, shall be deemed to have, and hereby does, irrevocably, unconditionally, knowingly and voluntarily release, waive, relinquish and forever discharge each Founder Holder and its respective successors, assigns, heirs, executors, officers, directors, partners, members, managers and employees (in each case in their capacity as such) (each, a “Company Releasee”), from (i) any and all obligations or duties such Company Releasee has prior to or as of the Effective Time to such Company Releasor, (ii) all claims, demands, Liabilities, defenses, affirmative defenses, setoffs, counterclaims, actions and causes of action of whatever kind or nature, whether known or unknown, which any Company Releasor has, may have or might have or may assert now or in the future, against any Company Releasee arising out of, based upon or resulting from any Contract, transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, and which occurred, existed, was taken, permitted or begun prior to the Effective Time (except in the event of Fraud on the part of a Company Releasee); provided, however, that nothing contained in this Section 5.1(b) shall release, waive, relinquish, discharge or otherwise affect the rights or obligations of any party (i) arising under this Agreement, the Business Combination Agreement or the Ancillary Documents, (ii) resulting from or arising out of any material deficiencies or misstatements in any SPAC’s public filings with the SEC prior to the Effective Time, or (iii) for any claim for Fraud. The Company Releasors covenant not to make or bring any such claim against the Company Releasees, and forever release and discharge the Company Releasees from liability under any such claims, subject to the proviso in the preceding sentence.

 

3.2 Termination. This Agreement shall terminate upon the earliest of (i) the Effective Time (except with respect to Section 2.9 and Article IV), (ii) the unanimous written agreement of all the parties hereto, and (iii) the termination of the Business Combination Agreement in accordance with its terms, and upon such termination, no party shall have any liability hereunder other than for its actual fraud or its willful and material breach of this Agreement prior to such termination.

 

3.3 Further Assurances. Each Founder Holder shall, from time to time, (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as SPAC or the Company may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement, the Business Combination Agreement and the other Ancillary Documents and (ii) refrain from exercising any veto right, consent right or similar right (whether under SPAC Governing Documents or the Cayman Islands Companies Act (As Revised)) which would impede, disrupt, prevent or otherwise adversely affect the consummation of the Merger or any other Transaction.

 

 
 

 

ARTICLE IV

 

General Provisions

 

4.1 Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by overnight courier (providing proof of delivery) to the Company and SPAC in accordance with the Business Combination Agreement and to such Founder Holder at its address set forth set forth on Schedule A hereto (or at such other address for a party as shall be specified by like notice).

 

4.2 Disclosure. Each of the Founder Holders hereby authorizes SPAC and the Company to publish and disclose in any announcement or disclosure required by the SEC, the Founder Holder’s identity and ownership of the Subject Shares and the nature of the Founder Holder’s obligations under this Agreement; provided, that prior to any such publication or disclosure SPAC and the Company have provided the Founder Holder with an opportunity to review and comment on such announcement or disclosure, which comments SPAC and the Company will consider in good faith.

 

4.3 Miscellaneous. The provisions of Sections [8.2, 8.3, 8.5, 8.7, 8.9, 8.10, 8.11, 8.13, 8.15, 8.16, and 8.18] of the Business Combination Agreement are incorporated herein by reference, mutatis mutandis, as if set forth in full herein.

 

[Signature pages follow]

 

 
 

 

IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date first written above.

 

  ALPHAVEST ACQUISITION CORP
   
  Signature: /s/ Yong Yan
  Name: Yong Yan
  Title: CEO

 

[Signature Page to Sponsor Support Agreement]

 

 
 

 

IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date first written above.

 

  AMC CORPORATION
   
  Signature: /s/ Sean Da
  Name: Sean Da
  Title: Chairman

 

[Signature Page to Sponsor Support Agreement]

 

 
 

 

IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date first written above.

 

  ALPHAVEST HOLDING LP
   
  Signature: /s/ Pengfei Zheng
  Name: Pengfei Zheng
  Title: Partner

 

[Signature Page to Sponsor Support Agreement]

 

 
 

 

IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date first written above.

 

  OTHER INSIDERS:
   
  /s/ Pengfei Zheng
  Pengfei Zheng

 

[Signature Page to Sponsor Support Agreement]

 

 

 

 

Exhibit 10.2

 

TRANSACTION SUPPORT AGREEMENT

 

This TRANSACTION SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of August 16, 2024 by and among AlphaVest Acquisition Corp., an exempted company incorporated in the Cayman Islands with limited liability (together with its successors, “SPAC”), AMC Corporation, a Washington corporation (the “Company”), and the persons identified on Schedule A hereto who hold Shareholder Shares (as defined below) (each, a “Shareholder” and collectively the “Shareholders”).

 

WHEREAS, SPAC, AV Merger Sub, a Washington corporation and a direct wholly-owned subsidiary of SPAC (“Merger Sub”), and the Company are concurrently herewith entering into a Business Combination Agreement (as the same may be amended, restated or supplemented, the “Business Combination Agreement”; capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Business Combination Agreement) pursuant to which, among other things, Merger Sub will merge with and into the Company (the “Merger”) with the Company being the surviving entity and becoming a wholly-owned subsidiary of SPAC, such Merger to occur upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with the applicable provisions of the Revised Code of Washington (the “RCW”); and

 

WHEREAS, each Shareholder is, as of the date of this Agreement, the sole legal owner of the number of outstanding shares of common stock and preferred stock of the Company (“Company Shares”) set forth opposite such Shareholder’s name on Schedule A hereto (such Company Shares owned by the Shareholders, together with any additional Company Shares or other Company’s securities (including any securities convertible into or exercisable or for Company Shares or other securities), whether by purchase, as a result of a share dividend, share split, recapitalization, combination, reclassification, exchange or change of such shares, or upon the exercise or conversion of any securities, acquired by the Shareholders after the date hereof and prior to the Termination Date being collectively referred to herein as the “Shareholder Shares”); and

 

WHEREAS, as a condition to their willingness to enter into the Business Combination Agreement, SPAC and the Company have requested that each Shareholder enter into this Agreement.

 

NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:

 

 

 

 

ARTICLE I

 

Representations and Warranties of Shareholders

 

Each Shareholder hereby represents and warrants, severally and not jointly, to the Company and SPAC as follows:

 

1.1 Organization and Standing; Authorization. Such Shareholder, (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, (i) has been duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization, (ii) has all requisite corporate or other entity power and authority, as applicable, to own, lease and operate its properties and to carry on its business as now being conducted and (iii) has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. If the Shareholder is not a natural person, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and no other corporate proceedings on the part of such Shareholder are necessary to authorize the execution and delivery of this Agreement or to consummate the transactions contemplated hereby.

 

1.2 Binding Agreement. This Agreement has been or shall be when delivered, duly and validly executed and delivered by such Shareholder and, assuming the due authorization, execution and delivery of this Agreement by the other parties hereto, constitutes, or when delivered shall constitute, the valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditor’s rights generally and to general principles of equity (collectively, the “Enforceability Exceptions”).

 

1.3 Governmental Approvals. No consent of or filing with any Governmental Authority on the part of such Shareholder is required to be obtained or made in connection with the execution, delivery or performance by such Shareholder of this Agreement or the consummation by such Shareholder of the transactions contemplated hereby, other than (a) 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 (b) where the failure to obtain such consents or to make such filings or notifications has not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of such Shareholder to enter into and perform this Agreement and to consummate the transactions contemplated hereby.

 

1.4 Non-Contravention. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with any of the provisions hereof by such Shareholder will not (a) conflict with or violate any provision of the Governing Documents or similar organizational documents of such Shareholder, if and as applicable, (b) conflict with or violate any Law, Order or required consent or approval applicable to such Shareholder or any of its properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by such Shareholder under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien (other than Permitted Lien) upon any of the properties or assets of such Shareholder under, (viii) give rise to any obligation to obtain any third party consent or approval from any Person or (ix) give any Person the right to declare a default, exercise any remedy, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any material Contract of such Shareholder, except for any deviations from any of the foregoing clauses (b) or (c) that has not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of such Shareholder to enter into and perform this Agreement and to consummate the transactions contemplated hereby.

 

 

 

 

1.5 Shareholder Shares. As of the date of this Agreement, such Shareholder has sole legal and beneficial ownership of the Shareholder Shares set forth opposite such Shareholder’s name on Schedule A hereto, and all such Shareholder Shares are owned by such Shareholder free and clear of all Liens, other than liens or encumbrances pursuant to this Agreement, the Company’s Governing Documents or applicable federal or state securities laws. Other than the Shareholder Shares, such Shareholder does not legally or beneficially own any of the Company Shares or any other Company securities that are convertible into or exercisable for the Company Shares or other Company securities. Such Shareholder has the sole right to vote the Shareholder Shares, and none of the Shareholder Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shareholder Shares, except as contemplated by this Agreement or the Company’s Governing Documents.

 

1.6 Business Combination Agreement. Such Shareholder understands and acknowledges that SPAC, Merger Sub and the Company are entering into the Business Combination Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement. Such Shareholder has received a copy of the Business Combination Agreement and is familiar with the provisions of the Business Combination Agreement.

 

1.7 Adequate Information. Each of the Shareholders is a sophisticated shareholder and has adequate information concerning the business and financial condition of SPAC, Merger Sub and the Company to make an informed decision regarding this Agreement and the transactions contemplated by the Business Combination Agreement and has independently and without reliance upon SPAC, Merger Sub or the Company and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Each Shareholder acknowledges that SPAC, Merger Sub and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character. Each of the Shareholders acknowledges that the agreements contained herein with respect to the Shareholder Shares held by such Shareholder are irrevocable and shall only terminate upon the termination of this Agreement.

 

 

 

 

ARTICLE II

 

Agreement to Vote; Certain Other Covenants of the Shareholders

 

Each Shareholder covenants and agrees with the Company and SPAC during the term of this Agreement as follows:

 

2.1 Agreement to Vote.

 

(a) In Favor of Merger. So long as neither SPAC nor Merger Sub is in breach of the terms of the Business Combination Agreement such that the conditions to Closing would not reasonably be expected to be met, at any meeting of the shareholders of the Company called to seek the Company Required Shareholder Approval, or at any adjournment thereof, or in connection with the written consent of the Company or in any other circumstances upon which a vote, consent or other approval with respect to the Business Combination Agreement, any other Ancillary Agreements, the Merger, or any other Transaction is sought, each Shareholder shall (i) if a meeting is held, appear at such meeting or otherwise cause the Shareholder Shares to be counted as present at such meeting for purposes of establishing a quorum, and (ii) vote or cause to be voted (including by written consent, if applicable) the Shareholder Shares in favor of the Company Required Shareholder Approval or, if there are insufficient votes in favor of the Company Required Shareholder Approval, in favor of the adjournment or postponement of such meeting of the shareholders of the Company to a later date but not past the Termination Date.

 

(b) Against Other Transactions. At any meeting of shareholders of the Company or at any adjournment thereof, or in connection with any written consent of the shareholders of the Company or in any other circumstances upon which such Shareholder’s vote, consent or other approval is sought, such Shareholder shall vote (or cause to be voted) the Shareholder Shares (including by proxy and/or written consent, if applicable) against (i) any Company Competing Acquisition and (ii) any other action that would be reasonably likely to in any material respect impede, interfere with, delay or attempt to discourage, frustrate the purposes of, result in a breach by the Company of, prevent or nullify any provision of the Business Combination Agreement or any other Ancillary Agreement, the Merger, any other Transaction.

 

(c) Revoke Other Proxies. Such Shareholder represents and warrants that any proxies heretofore given in respect of the Shareholder Shares that may still be in effect are not irrevocable, and such proxies have been or are hereby revoked, other than the voting and other arrangements under the Company’s Governing Documents.

 

 

 

 

2.2 No Transfer. Other than (x) pursuant to this Agreement, (y) upon the written consent of the Company or (z) to an Affiliate of such Shareholder (provided that such Affiliate shall enter into a written agreement, in form and substance reasonably satisfactory to SPAC and the Company, agreeing to be bound by this Agreement to the same extent as such Shareholder was with respect to such transferred Shareholder Shares), from the date of this Agreement until the date of termination of this Agreement in accordance with its terms, such Shareholder shall not, directly or indirectly, (i) (a) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option, right or warrant to purchase or otherwise transfer, dispose of or agree to transfer or dispose of (including by gift, tender or exchange offer, merger or operation of law), directly or indirectly, encumber or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the Securities and Exchange Commission (the “SEC”) promulgated thereunder, any Shareholder Share, (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Shareholder Shares, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) publicly announce any intention to effect any transaction specified in clause (a) or (b) (the actions specified in clauses (a)-(c), collectively, “Transfer”), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Shareholder Shares to any Person other than pursuant to the Merger, (ii) grant any proxies or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, voting deed or otherwise (including pursuant to any loan of Shareholder Shares), or enter into any other agreement, with respect to any Shareholder Shares, in each case, other than as set forth in this Agreement or the voting and other arrangements under the Company’s Governing Documents, (iii) take any action that would make any representation or warranty of such Shareholder herein untrue or incorrect, or have the effect of preventing or delaying such Shareholder from performing its obligations hereunder, or (iv) commit or agree to take any of the foregoing actions. Any action attempted to be taken in violation of the preceding sentence will be null and void. Each Shareholder agrees with, and covenants to, SPAC and the Company that such Shareholder shall not request that the Company register the Transfer (by book-entry or otherwise) of any certificated or uncertificated interest representing any of the Shareholder Shares.

 

2.3 No Solicitation. During the term of this Agreement, each Shareholder agrees not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or facilitate any inquiry, proposal, or offer which constitutes, or could reasonably be expected to lead to, a Company Competing Acquisition proposal in their capacity as such, (ii) participate in any discussions or negotiations regarding, or furnish or receive to or from any Person (other than the Company, SPAC, Merger Sub, the Company’s Affiliates and their respective Representatives) any nonpublic information relating to the Company or its Subsidiaries, in connection with any Company Competing Acquisition proposal, (iii) approve or recommend, or make any public statement approving or recommending a Company Competing Acquisition proposal, (iv) enter into any letter of intent, merger agreement or similar agreement providing for a Company Competing Acquisition proposal, (v) make, or in any manner participate in a “solicitation” (as such term is used in the rules of the SEC) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to voting of Shareholders Shares intending to facilitate any Company Competing Acquisition proposal or cause any Shareholder of the Company not to vote to adopt the Business Combination Agreement and approve the Merger, (vi) become a member of a “group” (as such term is defined in Section 13(d) of the Exchange Act) with respect to any voting securities of the Company that takes any action in support of a Company Competing Acquisition proposal or (vii) otherwise resolve or agree to do any of the foregoing. Each Shareholder shall promptly (and in any event within 48 hours) notify the Company after receipt by such Shareholder of any Company Competing Acquisition proposal, any inquiry or proposal that would reasonably be expected to lead to an acquisition proposal or any inquiry or request for nonpublic information relating to the Company or its Subsidiaries by any Person who has made or would reasonably be expected to make an acquisition proposal. Thereafter, such Shareholder shall keep the Company reasonably informed, on a prompt basis (and in any event within 48 hours), regarding any material changes in the status and material terms of any such proposal or offer. Each Shareholder agrees that, following the date hereof, it and its Representatives shall cease and cause to be terminated any existing activities, solicitations, discussions or negotiations by such Shareholder or its Representatives with any parties conducted prior to the date hereof with respect to any Company Competing Acquisition proposal. Notwithstanding anything contained herein to the contrary, (i) no Shareholder shall be responsible for the actions of the Company or its board of directors (or any committee thereof), any Subsidiary of the Company, or any officers, directors (in their capacities as such), employees, professional advisors of any of the foregoing (the “Company Related Parties”), including with respect to any of the matters contemplated by this Section 2.3, (ii) no Shareholder makes any representations or warranties with respect to the action of any of the Company Related Parties, and (iii) any breach by the Company of its obligations under the Business Combination Agreement shall not be considered a breach of this Section 2.3 (for the avoidance of doubt, it being understood that each Shareholder shall remain responsible for any breach by it or its Representatives (other than any such Representative that is a Company Related Party) of this Section 2.3).

 

 

 

 

2.4 Support of Merger. During the term of this Agreement, each Shareholder shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary to consummate the Merger on the terms and subject to the conditions applicable thereto and shall not take any action that would reasonably be expected to materially delay or prevent the satisfaction of any of the conditions to the Merger set forth under the Business Combination Agreement.

 

2.5 Waiver of Appraisal and Dissenters’ Rights. Such Shareholder hereby irrevocably waives, and agrees not to exercise or assert, any dissenters’ or appraisal rights under the RCW and any other similar statute in connection with the Merger and the Business Combination Agreement.

 

2.6 New Shares. In the event that prior to the Closing (i) any shares of the Company or other securities of the Company are issued or otherwise distributed to such Shareholder pursuant to any share dividend or distribution, or any change in any of the shares of the Company by reason of any share split-up, recapitalization, combination, exchange of shares or the like, (ii) such Shareholder acquires legal or beneficial ownership of any Company securities after the date of this Agreement, including upon exercise of rights, options or settlement of restricted share units or (iii) such Shareholder acquires the right to vote or share in the voting of any Company shares after the date of this Agreement (collectively, the “New Securities”), for the avoidance of doubt, the terms “Shareholder Shares” shall be deemed to refer to and include such New Securities (including all such stock dividends and distributions and any securities into which or for which any or all of the Shareholder Shares may be changed or exchanged into).

 

2.7 Waiver of Anti-Dilution Protection. Each of the Shareholders hereby waives, forfeits, surrenders and agrees not to exercise, assert or claim, to the fullest extent permitted by applicable Law, any anti-dilution protection (if any) pursuant to the Company’s Governing Documents in connection with the transactions contemplated by this Agreement, the Business Combination Agreement and the other Ancillary Agreements. Each Shareholder acknowledges and agrees that (i) this Section 2.7 shall constitute written consent waiving, forfeiting and surrendering any anti-dilution protection pursuant to the Company’s Governing Documents in connection with the transactions contemplated by this Agreement, the Business Combination Agreement and the other Ancillary Agreements; and (ii) such waiver, forfeiture and surrender granted hereunder shall only terminate upon the termination of this Agreement.

 

 

 

 

ARTICLE III

 

Additional Agreements of the Parties

 

3.1 Termination. This Agreement shall terminate upon the earliest of (i) the Effective Time, (ii) the unanimous written agreement of all the parties hereto, and (iii) the termination of the Business Combination Agreement in accordance with its terms, and upon any such termination, no party shall have any liability hereunder other than for its actual fraud or its willful and material breach of this Agreement prior to such termination.

 

3.2 Further Assurances. Each Shareholder shall, from time to time, (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as SPAC or the Company may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement, the Business Combination Agreement and the other Ancillary Agreements and (ii) refrain from exercising any veto right, consent right or similar right (whether under the Company’s Governing Documents or the RCW) which would impede, disrupt, prevent or otherwise adversely affect the consummation of the Merger or any other transactions.

 

ARTICLE IV

 

General Provisions

 

4.1 Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by overnight courier (providing proof of delivery) to the Company and SPAC in accordance with the Business Combination Agreement and to such Shareholder at its address set forth on Schedule A hereto (or at such other address for a party as shall be specified by like notice).

 

4.2 Disclosure. Each of the Shareholders authorized SPAC and the Company to publish and disclose in any announcement or disclosure required by the SEC, the Shareholder’s identity and ownership of the Shareholder Shares and the nature of the Shareholder’s obligations under this Agreement; provided, that prior to any such publication or disclosure SPAC and the Company have provided the Shareholder with an opportunity to review and comment on such announcement or disclosure, which comments SPAC and the Company will consider in good faith.

 

4.3 Miscellaneous. The provisions of Sections 8.2, 8.3, 8.5, 8.7, 8.9, 8.10, 8.11, 8.13, 8.15, 8.16, and 8.18 of the Business Combination Agreement are incorporated herein by reference, mutatis mutandis, as if set forth in full herein.

 

[Signature pages follow]

 

 

 

 

IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date first written above.

 

  AlphaVest Acquisition Corp
     
  Signature:  
  Name:  
  Title:  

 

[Signature Page to Transaction Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date first written above.

 

  AMC CORPORATION
     
  Signature:              
  Name:  
  Title:  

 

[Signature Page to Transaction Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date first written above.

 

  [Shareholder]
     
  Signature:         
  Name:  
  Title:  

 

[Signature Page to Transaction Support Agreement]

 

 

 

  

 

Exhibit 10.3

 

LOCK-UP AGREEMENT

 

THIS LOCK-UP AGREEMENT (this “Agreement”) is dated as of August 16, 2024, by and among (i) AMC Corporation, a Washington corporation (“Company”), (ii) AlphaVest Acquisition Corp, an exempted company incorporated in the Cayman Islands with limited liability (“SPAC”), and (iii) the undersigned shareholders of the Company (each, a “Company Holder”) and SPAC (each, a “SPAC Holder,” and each Company Holder and SPAC Holder, a “Holder”). Capitalized terms used and not otherwise defined herein shall have the meanings given such terms in the Business Combination Agreement (as defined below).

 

BACKGROUND

 

A. Company, SPAC, and AV Merger Sub, a Washington corporation and a direct wholly-owned subsidiary of SPAC (“Merger Sub”), 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, among other matters, upon the consummation of the transactions contemplated thereby (the “Closing”), Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity (the “Merger”), and as a result of which all of the issued and outstanding Company Shares held by the holders thereof, including the Company Holders, shall be converted automatically into the right to receive a number of SPAC Shares that is equal to the Exchange Ratio.

 

B. As of the date hereof, each Holder is a holder of Company Shares or SPAC Shares, as applicable, in such amounts as set forth underneath such Holder’s name on such Holder’s signature page hereto. As of the date hereof, such Holder does not beneficially own any securities exercisable for or convertible into Company Shares except as indicated on the signature page hereto.

 

C. Pursuant to the Business Combination Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to induce SPAC and the Company to enter into the Business Combination Agreement and to proceed with the Merger, the parties desire to enter into this Agreement, pursuant to which (i) the SPAC Shares to be received by each Company Holder as consideration in the Merger, and further including any other securities held by each Company Holder immediately following the Merger which are convertible into, or exercisable, or exchangeable for, SPAC Shares, and (ii) the SPAC Shares to be held by each SPAC Holder following the Merger, and further including any other securities held by each SPAC Holder immediately following the Merger which are convertible into, or exercisable, or exchangeable for, SPAC Shares (all such SPAC Shares, together with any securities paid as dividends or distributions with respect to such SPAC Shares, the “Restricted Securities”) shall become subject to limitations on disposition as set forth herein.

 

D. As a condition of, and as a material inducement for the Company and SPAC to enter into and consummate the Merger, the Holder has agreed to execute and deliver this Agreement.

 

 
 

 

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:

 

AGREEMENT

 

1. Lock-Up.

 

(a) During the Lock-up Period (as defined below), each Holder irrevocably agrees that, without the prior written consent of SPAC, it, he or she will not offer, sell, contract to sell, pledge, assign, lend, offer, donate, hypothecate or otherwise transfer or dispose of, directly or indirectly, any of the Restricted Securities, enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of such Restricted Securities, whether any such transaction is to be settled by delivery of any such Restricted Securities, in cash or otherwise, or engage in any Short Sales (as defined below), in each case, with respect to any of the Restricted Securities, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement.

 

(b) In furtherance of the foregoing, SPAC will (i) place an irrevocable stop order on all Restricted Securities, including those which may be covered by a registration statement, and (ii) notify SPAC’s transfer agent (or its successor) in writing of the stop order and the restrictions on such Restricted Securities under this Agreement and direct SPAC’s transfer agent (or its successor) not to process any attempts by any Holder to resell or transfer any Restricted Securities, except in compliance with this Agreement.

 

(c) For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.

 

(d) For purpose of this Agreement, the “Lock-up Period” means the period commencing on the Closing Date and ending on the earlier of (i) six-month anniversary of the date of the Closing; and (ii) subsequent to the Closing, the date on which SPAC consummates a Change of Control (as defined below).

 

(e) The restrictions set forth herein shall not apply to: (i) transfers or distributions to any Holder’s current or former general or limited partners, managers or members, stockholders, other equityholders or direct or indirect affiliates (within the meaning of Rule 405 under the Securities Act of 1933, as amended) or to the estates of any of the foregoing; (ii) transfers by bona fide gift to a member of a Holder’s immediate family or to a trust, the beneficiary of which is such Holder or a member of such Holder’s immediate family for estate planning purposes; (iii) by virtue of the laws of descent and distribution upon death of a Holder; (iv) pursuant to a qualified domestic relations order, (v) pledges of Restricted Securities as security or collateral in connection with a borrowing or the incurrence of any indebtedness by such Holder, (vi) the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act; provided, however, that such plan does not provide for the transfer of Restricted Securities during the Lock-Up Period, or (vii) transfers to SPAC, including to satisfy tax withholding or “net” or “cashless” exercise obligations in connection with the exercise of options to purchase shares from SPAC or the vesting of share-based awards, in the case of clauses (i) to (iv), where such transferee enters into a written agreement in form and substance reasonably satisfactory to SPAC, agreeing to be bound by the terms of this Agreement. For purposes of this paragraph, “immediate family” shall mean a spouse, domestic partner, child (including by adoption), father, mother, brother, sister or first cousin of a Holder, and lineal descendant (including by adoption) of such Holder or of any of the foregoing persons.

 

2
 

 

In addition, after the Closing Date, if there is a Change of Control, then upon the consummation of such Change of Control, all Restricted Securities shall be released from the restrictions contained herein. A “Change of Control” means: (a) the sale of all or substantially all of the consolidated assets of SPAC and SPAC subsidiaries to a third-party purchaser; (b) a sale resulting in no less than a majority of the voting power of the SPAC being held by person that did not own a majority of the voting power prior to such sale; or (c) a merger, consolidation, recapitalization or reorganization of SPAC with or into a third-party purchaser that results in the inability of the pre-transaction equity holders to designate or elect a majority of the board of directors (or its equivalent) of the resulting entity or its parent company.

 

2. Representations and Warranties. Each of the parties hereto, by their respective execution and delivery of this Agreement, hereby represents and warrants to the other, severally and not jointly, that (a) such party has the full right, capacity and authority to enter into, deliver and perform its respective obligations under this Agreement, (b) this Agreement has been duly executed and delivered by such party and is the binding and enforceable obligation of such party, enforceable against such party in accordance with the terms of this Agreement, and (c) the execution, delivery and performance of such party’s obligations under this Agreement will not conflict with or breach the terms of any other agreement, contract, commitment or understanding to which such party is a party or to which the assets or securities of such party are bound.

 

3. Beneficial Ownership. Each Company Holder and SPAC Holder hereby represents and warrants that it does not beneficially own, directly or through its nominees (as determined in accordance with Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder), any shares of capital stock of the Company or shares of capital stock of SPAC, or any economic interest in or derivative of such stock, other than those securities specified on such Company Holder’s or SPAC Holder’s signature page hereto, as of the date of this Agreement.

 

4. No Additional Fees/Payment. Other than the consideration specifically referenced herein, the parties hereto agree that no fee, payment or additional consideration in any form has been or will be paid to the Holder in connection with this Agreement.

 

3
 

 

5. Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by facsimile or other electronic means, with confirmation of receipt, (c) one 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):

 

  (i) If to SPAC prior to the Closing, to:

 

AlphaVest Holding, LP

420 Lexington Ave, Suite 2446

New York, New York 10170

Attention: David Yan

Email: David.yan@alphavestacquisition.com

 

with a copy (which shall not constitute notice) to:

 

Michael J. Blankenship

Winston & Strawn LLP

800 Capitol Street, Suite 2400

Houston, Texas 77002

Email: mblankenship@winston.com

 

  (ii) If to the Company at or prior to the Closing, or SPAC or the Company after the Closing, to:

 

[Company to provide Company notice information]

 

with a copy (which shall not constitute notice) to:

 

Graubard Miller

405 Lexington Avenue, 44th Floor

New York, New York 10174

Attention: Jeffrey M. Gallant, David Alan Miller

Email: jgallant@graubard.com, dmiller@graubard.com

 

  (iii) If to any Holder, to the address set forth on such Holder’s signature page hereto;

 

or to such other address as any party may have furnished to the others in writing in accordance herewith.

 

6. Enumeration and Headings. The enumeration and headings contained in this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of any of the provisions of this Agreement.

 

7. Counterparts. This Agreement may be executed in facsimile and in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all of which shall together constitute one and the same agreement.

 

4
 

 

8. Successors and Assigns. This Agreement and the terms, covenants, provisions and conditions hereof shall be binding upon, and shall inure to the benefit of, the respective heirs, successors and permitted assigns of the parties hereto. Each Holder hereby acknowledges and agrees that this Agreement is entered into for the benefit of and is enforceable by SPAC and its successors and assigns.

 

9. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision will be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the parties hereto.

 

10. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

 

11. No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

 

12. Dispute Resolution. Section 8.15 and Section 8.16 of the Business Combination Agreement regarding waiver of jury trial and jurisdiction are incorporated by reference herein to apply with full force to any dispute arising under this Agreement.

 

13. Governing Law. The terms and provisions of this Agreement shall be construed in accordance with the laws of the State of New York.

 

14. Controlling Agreement. To the extent the terms of this Agreement (as amended, supplemented, restated or otherwise modified from time to time) directly conflict with a provision in the Business Combination Agreement, the terms of this Agreement shall control.

 

[Signature Page Follows]

 

5
 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

  AMC INC.
     
  By:  
  Name:  
  Title:  

 

[Signature Page to Lock-Up Agreement]

 

6
 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

  ALPHAVEST ACQUISITION CORP
     
  By:                  
  Name:  
  Title:  

 

[Signature Page to Lock-Up Agreement]

 

7
 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

 

 

HOLDER

     
  By:  
  Name:             
  Title:  

 

                         

Address:

  
     
  NUMBER OF RESTRICTED SECURITIES:

 

[Signature Page to Lock-Up Agreement]

 

8

 

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