Cayman Islands
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001-39573
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98-1554598
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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2550 Sand Hill Road, Suite 150 Menlo Park, CA
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94025
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(Address of principal executive offices)
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(Zip Code)
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☒ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading
Symbol(s)
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Name of each exchange
on which registered
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Units, each consisting of one Class A ordinary share, $0.0001 par value, and one fifth of one redeemable warrant
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AGCUU
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NASDAQ Capital Market
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Class A ordinary shares included as part of the units
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AGC
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NASDAQ Capital Market
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Redeemable warrants included as part of the units, each whole warrant exercisable for one Class A ordinary share at an exercise price of $11.50
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AGCWW
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NASDAQ Capital Market
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Dated: April 13, 2021
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ALTIMETER GROWTH CORP.
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By:
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/s/ Hab Siam
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Name:
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Hab Siam
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Title:
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General Counsel
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Page
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ARTICLE I CERTAIN DEFINITIONS
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5
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Section 1.1.
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Definitions
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5
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Section 1.2.
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Other Definitions
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20
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Section 1.3.
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Construction
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22
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ARTICLE II TRANSACTIONS; CLOSING
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24
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Section 2.1.
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Pre-Closing Actions
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24
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Section 2.2.
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The Initial Merger
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25
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Section 2.3.
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The Acquisition Merger
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27
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Section 2.4.
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Closing Deliverables
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31
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Section 2.5.
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Surrender of Company Equity Securities and SPAC Equity Securities and Disbursement of Shareholder Merger Consideration
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32
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Section 2.6.
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Dissenter’s Rights
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35
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Section 2.7.
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Withholding
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36
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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36
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Section 3.1.
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Organization, Good Standing and Qualification
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36
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Section 3.2.
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Capitalization and Voting Rights
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37
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Section 3.3.
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Corporate Structure; Subsidiaries
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37
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Section 3.4.
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Authorization
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38
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Section 3.5.
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Consents; No Conflicts
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38
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Section 3.6.
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Compliance with Laws; Consents; Permits
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39
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Section 3.7.
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Tax Matters
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40
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Section 3.8.
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Financial Statements
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40
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Section 3.9.
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Absence of Changes
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41
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Section 3.10.
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Actions
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42
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Section 3.11.
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Liabilities
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42
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Section 3.12.
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Commitments
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42
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Section 3.13.
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Title; Properties
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42
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Section 3.14.
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Intellectual Property Rights
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43
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Section 3.15.
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Labor and Employee Matters
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44
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Section 3.16.
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Brokers
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46
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Section 3.17.
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Proxy/Registration Statement
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46
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Section 3.18.
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Environmental Matters
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46
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Section 3.19.
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Insurance
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46
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Section 3.20.
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Company Related Parties.
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46
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Section 3.21.
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Investigation
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47
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Section 3.22.
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Board Approval
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47
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SPAC
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47
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Section 4.1.
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Organization, Good Standing, Corporate Power and Qualification
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47
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Section 4.2.
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Capitalization and Voting Rights
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47
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Section 4.3.
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Corporate Structure; Subsidiaries
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48
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Section 4.4.
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Authorization
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48
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Section 4.5.
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Consents; No Conflicts
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49
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Section 4.6.
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Tax Matters
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49
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Section 4.7.
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Financial Statements
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49
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Section 4.8.
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Absence of Changes
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50
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Section 4.9.
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Actions
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50
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Section 4.10.
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Brokers
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50
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Section 4.11.
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Proxy/Registration Statement
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51
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Section 4.12.
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SEC Filings
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51
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Section 4.13.
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Trust Account
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51
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Section 4.14.
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Investment Company Act; JOBS Act
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52
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Section 4.15.
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Business Activities
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52
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Section 4.16.
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Nasdaq Quotation
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52
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Section 4.17.
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Board Approval
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53
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Section 4.18.
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PIPE Investment
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53
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Section 4.19.
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SPAC Related Parties
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53
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Section 4.20.
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No Outside Reliance
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54
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ACQUISITION ENTITIES
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54
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Section 5.1.
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Organization, Good Standing, Corporate Power and Qualification
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54
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Section 5.2.
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Capitalization and Voting Rights
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54
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Section 5.3.
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Corporate Structure; Subsidiaries
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55
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Section 5.4.
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Authorization
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55
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Section 5.5.
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Consents; No Conflicts
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56
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Section 5.6.
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Absence of Changes
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56
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Section 5.7.
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Actions
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56
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Section 5.8.
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Brokers
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56
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Section 5.9.
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Proxy/Registration Statement
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56
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Section 5.10.
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Investment Company Act; JOBS Act
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57
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Section 5.11.
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Business Activities
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57
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Section 5.12.
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PubCo Incentive Equity Plan
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57
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Section 5.13.
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PIPE Investment
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57
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Section 5.14.
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Intended Tax Treatment
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58
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Section 5.15.
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Foreign Private Issuer
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58
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Section 5.16.
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No Outside Reliance
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58
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ARTICLE VI COVENANTS OF THE COMPANY AND CERTAIN OTHER PARTIES
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59
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Section 6.1.
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Conduct of Business
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59
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Section 6.2.
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Access to Information
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61
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Section 6.3.
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Acquisition Proposals and Alternative Transactions
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62
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Section 6.4.
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D&O Indemnification and Insurance
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62
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Section 6.5.
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Notice of Developments
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63
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Section 6.7.
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No Trading
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64
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Section 6.8.
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PIPE Investments
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64
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ARTICLE VII COVENANTS OF SPAC AND CERTAIN OTHER PARTIES
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65
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Section 7.1.
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PubCo Incentive Equity Plan
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65
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Section 7.2.
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Trust Account Proceeds and Related Available Equity
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65
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Section 7.3.
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Nasdaq Listing
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65
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Section 7.4.
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Conduct of Business
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65
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Section 7.5.
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Post-Closing Directors and Officers of PubCo
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67
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Section 7.6.
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Acquisition Proposals and Alternative Transactions
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67
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Section 7.7.
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SPAC Public Filings
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67
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Section 7.8.
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PIPE Investments
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68
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Section 7.9.
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Section 16 Matters
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68
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Section 7.10.
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Voting of Company Shares
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68
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ARTICLE VIII JOINT COVENANTS
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69
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Section 8.1.
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Regulatory Approvals; Other Filings
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69
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Section 8.2.
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Preparation of Proxy/Registration Statement; SPAC Shareholders’ Meeting and Approvals; Company Shareholders’ Meeting and Approvals
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70
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Section 8.3.
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Support of Transaction
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74
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Section 8.4.
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Tax Matters
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74
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Section 8.5.
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Stockholder Litigation
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75
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ARTICLE IX CONDITIONS TO OBLIGATIONS
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75
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Section 9.1.
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Conditions to Obligations of SPAC, the Acquisition Entities and the Company
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75
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Section 9.2.
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Conditions to Obligations of SPAC at Initial Closing
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76
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Section 9.3.
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Conditions to Obligations of the Acquisition Entities at Initial Closing
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77
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Section 9.4.
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Conditions to Obligations of the Company at Acquisition Closing
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77
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Section 9.5.
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Frustration of Conditions
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77
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ARTICLE X TERMINATION/EFFECTIVENESS
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78
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Section 10.1.
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Termination
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78
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Section 10.2.
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Effect of Termination
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79
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ARTICLE XI MISCELLANEOUS
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79
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Section 11.1.
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Trust Account Waiver
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79
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Section 11.2.
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Waiver
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80
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Section 11.3.
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Notices
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80
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Section 11.4.
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Assignment
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81
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Section 11.5.
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Rights of Third Parties
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82
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Section 11.6.
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Expenses
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82
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Section 11.7.
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Governing Law
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82
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Section 11.8.
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Consent to Jurisdiction
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83
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Section 11.9.
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Headings; Counterparts
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83
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Section 11.10.
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Disclosure Letters
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83
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Section 11.11.
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Entire Agreement
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84
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Section 11.12.
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Amendments
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84
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Section 11.13.
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Publicity
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84
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Section 11.14.
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Confidentiality
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84
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Section 11.15.
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Severability
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85
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Section 11.16.
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Enforcement
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85
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Section 11.17.
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Non-Recourse
|
85
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Section 11.18.
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Non-Survival of Representations, Warranties and Covenants
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86
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Section 11.19.
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Conflicts and Privilege
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86
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Exhibit A
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Amended and Restated Forward Purchase Agreements
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Exhibit B
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PIPE Subscription Agreements
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Exhibit C
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Sponsor Support Agreement
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Exhibit D
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Backstop Agreement
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Exhibit E
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Sponsor Subscription Agreement
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Exhibit F
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Shareholder Deed
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Exhibit G
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Registration Rights Agreement
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Exhibit H
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Form of Plan of Acquisition Merger
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Exhibit I
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Form of Plan of Initial Merger
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Exhibit J
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Form of A&R Articles of Merger Sub 1
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Exhibit K
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Form of Articles of Surviving Corporation
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Exhibit L
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PubCo Charter
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Exhibit M-1
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Form of PubCo Incentive Equity Plan
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Exhibit M-2
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Form of PubCo Stock Purchase Plan
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Exhibit N-1
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Shareholder Support Agreement No. 1
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Exhibit N-2
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Shareholder Support Agreement No. 2
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Exhibit N-3
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Shareholder Support Agreement No. 3
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Exhibit O
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Form of Assignment, Assumption and Amendment Agreement
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(i) |
involves obligations (contingent or otherwise), payments or revenues in excess of $20,000,000 (except, for purposes of Section 6.1, $50,000,000) in the last twelve months prior to the date
of this Agreement or expected obligations (contingent or otherwise), payments or revenues in excess of $20,000,000 (except, for purposes of Section 6.1, $50,000,000) in the next twelve months after the date of this Agreement;
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(ii) |
is with a Related Party (other than those employment agreements, confidentiality agreements, non-competition agreements or any other agreement of similar nature entered into in the Ordinary
Course with employees or technical consultants) with an amount of over $5,000,000;
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(iii) |
involves (A) indebtedness for borrowed money or (B) an extension of credit, a guaranty, surety or assumption of any obligation or any secondary or contingent Liabilities, deed of trust, or
the grant of a Security Interest (with an amount higher than $20,000,000 except, for purposes of Section 6.1, $50,000,000);
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(iv) |
involves the lease, license, sale, use, disposition or acquisition of a business or assets constituting a business involving purchase price, payments or revenues in excess of $20,000,000
(except, for purposes of Section 6.1, $50,000,000);
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(v) |
involves the waiver, compromise, or settlement of any dispute, claim, litigation or arbitration with an amount higher than $25,000,000 (except, for purposes of Section 6.1, $50,000,000);
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(vi) |
involves the ownership or lease of, title to, use of, or any leasehold or other interest in, any personal property (except for personal property leases in the Ordinary Course and involving
payments of less than $20,000,000 (except, for purposes of Section 6.1, $50,000,000) in the last twelve months prior to the date of this Agreement or expected payments of less than $20,000,000 (except, for purposes of Section 6.1, $50,000,000)
in the next twelve months after the date of this Agreement);
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(vii) |
involves the establishment, contribution to, or operation of a partnership, joint venture, alliance or similar entity, or involving a sharing of profits or losses (including joint
development and joint marketing Contracts), or any investment in, loan to or acquisition or sale of the securities, Equity Securities or assets of any person, involving payments of an amount higher than $30,000,000 (except, for purposes of
Section 6.1, $100,000,000);
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(viii) |
is a collective bargaining agreement with a Union; or
|
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(ix) |
is with a Governmental Authority or sole-source supplier of any product or service (other than utilities), in each case involving payments of an amount higher than $12,500,000 (except, for
purposes of Section 6.1, $25,000,000);
|
A&R Articles of Merger Sub 1
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2.2(c)
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Acquisition Closing
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2.3(a)
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Acquisition Closing Date
|
2.3(a)
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Acquisition Effective Time
|
2.3(a)
|
Acquisition Entity
|
V
|
Acquisition Merger
|
Recitals
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Acquisition Merger Filing Documents
|
2.3(a)
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Agreement
|
Preamble
|
Agreement End Date
|
10.1(g)
|
Altimeter Group
|
11.19(a)
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Amended and Restated Forward Purchase Agreements
|
Recitals
|
Anticorruption Laws
|
3.6(d)
|
Articles of the Surviving Corporation
|
2.3(c)
|
Assignment, Assumption and Amendment Agreement
|
Recitals
|
Assumed Key Executive Option
|
2.3(e)(iv)(2)
|
Assumed Option
|
2.3(e)(iv)(1)
|
Backstop Agreement
|
Recitals
|
Cayman Act
|
Recitals
|
Company
|
Preamble
|
Company Board
|
Recitals
|
Company Board Recommendation
|
8.2(b)(ii)
|
Company Certificates
|
2.5(d)
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Company Cure Period
|
10.1(e)
|
Company Director
|
2.4(a)(ii)
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Company Disclosure Letter
|
III
|
Company Financial Statements
|
3.8
|
Company Lease
|
3.13(b)
|
Company Letter of Transmittal
|
2.5(a)
|
Company Material Lease
|
3.13(b)
|
Company Non-Recourse Party
|
11.17
|
Company Shareholders’ Approval
|
3.4
|
Company Shareholders’ Meeting
|
8.2(c)
|
Converted Key Executive Restricted Stock Award
|
2.3(e)(vi)(2)
|
Converted Key Executive RSU Award
|
2.3(e)(vi)(2)
|
Converted Restricted Stock Award
|
2.3(e)(vi)(1)
|
Converted RSU Award
|
2.3(e)(vi)(1)
|
D&O Indemnified Parties
|
6.4(a)
|
Dissenting Shares
|
2.6(a)
|
Exchange Agent
|
2.5(a)
|
Forward Purchase Investors
|
Recitals
|
Forward Purchase Subscriptions
|
Recitals
|
Founder
|
Recitals
|
Grab Group
|
11.19(b)
|
Hughes Hubbard
|
11.19(b)
|
Initial Closing
|
2.2(a)
|
Initial Closing Date
|
2.2(a)
|
Initial Merger
|
Recitals
|
Initial Merger Effective Time
|
2.2(a)
|
Initial Merger Filing Documents
|
2.2(a)
|
Intended Tax Treatment
|
Recitals
|
Interim Period
|
6.1
|
Investment Amount
|
4.18(a)
|
Investors
|
Recitals
|
IPO
|
11.1
|
IT Systems
|
3.14(d)
|
JOBS Act
|
4.14
|
Letter of Transmittal
|
2.5(a)
|
Lost Certificate Affidavit
|
2.5(f)
|
MAS
|
8.1(b)
|
Material Permits
|
3.6(g)
|
Merger Sub 1
|
Preamble
|
Merger Sub 1 Share
|
5.2(a)
|
Merger Sub 2
|
Preamble
|
Merger Sub 2 Share
|
5.2(a)
|
Mergers
|
Recitals
|
Mutual Fund Investors
|
2.2(a)
|
PIPE Investments
|
Recitals
|
PIPE Subscription Agreements
|
Recitals
|
Private Placement
|
Recitals
|
Proxy/Registration Statement
|
8.2(a)(i)
|
PubCo
|
Preamble
|
|
SPAC: | |
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Altimeter Growth Corp. | |
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By:
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/s/ Hab Siam
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Name:
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Hab Siam
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Title:
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General Counsel |
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MERGER SUB 1: | |
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J2 Holdings Inc. | |
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By:
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/s/ Artawat Udompholkul
|
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Name:
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Artawat Udompholkul
|
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Title:
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Director |
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MERGER SUB 2: | |
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J3 Holdings Inc. | |
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By:
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/s/ Artawat Udompholkul
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Name:
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Artawat Udompholkul
|
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Title:
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Director |
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PUBCO: | |
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J1 Holdings Inc. | |
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By:
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/s/ Artawat Udompholkul |
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Name:
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Artawat Udompholkul |
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Title:
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Director |
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COMPANY: | |
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Grab Holdings Inc. | |
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By:
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/s/ Anthony Tan Ping Yeow
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Name:
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Anthony Tan Ping Yeow
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Title:
|
Director |
2.1 |
Closing. The closing of the Subscription contemplated hereby (the “Closing”) shall occur on the same day, and substantially concurrent with, consummation of the
Acquisition Closing (the date of the Closing, “Closing Date”) subject to the terms and conditions set forth herein; provided that the Closing shall occur no earlier than immediately after the Initial
Merger Effective Time (as defined in the Business Combination Agreement). Not less than ten (10) business days prior to the anticipated Closing Date, the Issuer shall provide written notice to Subscriber (the “Closing
Notice”) of such anticipated Closing Date. Subscriber shall deliver on or before two (2) business days prior to the anticipated Closing Date the Purchase Price for the Shares by wire transfer of U.S. dollars in immediately available
funds to the escrow account specified by the Issuer in the Closing Notice, to be held by the escrow agent until the Acquisition Closing. As soon as practicable following the Closing Date, but not later than one (1) business day after the
Closing Date, the Issuer shall deliver to Subscriber (1) the Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under applicable securities laws), in the name of Subscriber (or its nominee
in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable; and (2) a copy of the records of the Issuer’s transfer agent (the “Transfer Agent”) or other
evidence showing Subscriber as the owner of the Shares on and as of the Closing Date. For purposes of this Subscription Agreement, “business day” shall mean a day, other than a Saturday, Sunday or other day on which commercial banks in New
York, New York, the Cayman Islands or Singapore are authorized or required by law to close. In the event the Closing Date does not occur within two (2) business days after the anticipated Closing Date identified in the Closing Notice, the
Issuer shall cause the escrow agent to promptly (but not later than two (2) business days thereafter) return the Purchase Price to Subscriber by wire transfer of U.S. dollars in immediately available funds to the account specified by
Subscriber, and any book entries shall be deemed cancelled; provided that unless this Subscription Agreement has been terminated pursuant to Section 5, such return of funds shall not terminate this Subscription Agreement or
relieve Subscriber of its obligation to purchase the Shares at the Closing upon delivery of a new Closing Notice in accordance with the terms of this Section 2.1. Prior to or at Closing, Subscriber shall deliver to Issuer a duly
completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
|
2.1 |
Closing. The closing of the Subscription contemplated hereby (the “Closing”) shall occur on a closing date (the “Closing Date”)
specified in the Closing Notice (as defined below), which closing shall occur on the same day, and substantially concurrent with, the Acquisition Closing; provided that the Closing shall occur no earlier than immediately after the
Initial Merger Effective Time (as defined in the Business Combination Agreement) (the “Transaction Closing Date”). Not less than ten (10) business days prior to
the anticipated Transaction Closing Date, the Issuer shall provide written notice to Subscriber (the “Closing Notice”) of such anticipated Transaction Closing Date and the Closing Date. Subscriber shall
deliver, as promptly as practicable following receipt of evidence of issuance of the Shares described below, on the Closing Date the Purchase Price for the Shares by wire transfer of U.S. dollars in immediately available funds to the account
specified by the Issuer in the Closing Notice. On the Closing Date immediately after the Initial Merger Effective Time (as defined in the Business Combination Agreement) and prior to the delivery of the Purchase Price for the Shares by the
Subscriber, the Issuer shall deliver to Subscriber (1) the Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under applicable securities laws), in the name of Subscriber (or its nominee in
accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable; and (2) a copy of the records of the Issuer’s transfer agent (the “Transfer Agent”) or other
evidence showing Subscriber as the owner of the Shares on and as of the Closing Date (it being understood that the delivery of items (1) and (2) as described in this sentence shall be a condition precedent to Subscriber’s obligation to
deliver the Purchase Price). In the event that the Subscriber has not delivered the Purchase Price to the Issuer’s bank account specified in the Closing Notice within one (1) business day of such funding having been initiated in accordance
with this agreement (or if such Subscriber has not initiated funding of the Purchase Price within one (1) business day of the Closing), any book entries in the name of Subscriber shall be deemed cancelled. For purposes of this Subscription
Agreement, “business day” shall mean a day, other than a Saturday, Sunday or other day on which commercial banks in New York, New York, the Cayman Islands or Singapore are authorized or required by law to close. In the event the Transaction
Closing Date does not occur within two (2) business days after the expected Transaction Closing Date, the Issuer shall promptly (but not later than two (2) business days thereafter) return the Purchase Price to Subscriber by wire transfer of
U.S. dollars in immediately available funds to the account specified by Subscriber, and any book entries in the name of Subscriber shall be deemed cancelled; provided that unless this Subscription Agreement has been terminated
pursuant to Section 5, such return of funds shall not terminate this Subscription Agreement or relieve Subscriber of its obligation to purchase the Shares at the Closing upon delivery of a new Closing Notice in accordance with the
terms of this Section 2.1. Prior to or at Closing, Subscriber shall deliver to Issuer a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.]
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2.2 |
Conditions to Closing of the Issuer. The Issuer’s obligations to sell and issue the Shares at the Closing are subject to the fulfillment or (to the extent permitted by applicable law) written waiver, on or
prior to the Closing Date, of each of the following conditions:
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(a) |
Representations and Warranties Correct. The representations and warranties made by Subscriber in Section 3.3 shall be true and correct as of the Closing Date (except with respect to such
representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date) except for inaccuracies or the failure of such representations and warranties to be true
and correct that (without giving effect to any limitation as to “materiality” or “Subscriber Material Adverse Effect” (as defined in Section 3.3(c) below) or another similar materiality qualification set forth herein), individually or
in the aggregate, has not had, and would not reasonably be expected to have, a Subscriber Material Adverse Effect.
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(b) |
Closing of the Transactions. All conditions precedent to the Issuer’s, the Company’s, the Acquisition Entities’ (as defined in the Business Combination Agreement) and Altimeter’s obligations to effect the
Acquisition Closing shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Acquisition Closing but subject to satisfaction or waiver thereof), the Initial
Closing (as defined in the Business Combination Agreement) shall have been consummated prior to the Closing and the Closing will be consummated on the same day, and substantially concurrent with, the Acquisition Closing.
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(c) |
Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or
regulation enjoining or prohibiting the consummation of the Subscription.
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(d) |
Performance and Compliance under Subscription Agreement. Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this
Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or
materially impair the ability of the Subscriber to consummate the Closing.
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2.3 |
Conditions to Closing of Subscriber. Subscriber’s obligation to subscribe for and purchase the Shares at the Closing is subject to the fulfillment or (to the extent permitted by applicable law) written
waiver, on or prior to the Closing Date, of each of the following conditions:
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(a) |
Representations and Warranties Correct. The representations and warranties made by the Issuer in Section 3.1 and Altimeter in Section 3.2 shall be true and correct as of the Closing Date, with
respect to the Issuer, and the Initial Closing (as defined in the Business Combination Agreement), with respect to Altimeter (except with respect to such representations and warranties which speak as to an earlier date, which representations
and warranties shall be true and correct at and as of such date) except for inaccuracies or the failure of such representations and warranties to be true and correct that (without giving effect to any limitation as to “materiality” or Issuer
Material Adverse Effect (as defined in Section 3.1(d) below) or Altimeter Material Adverse Effect (as defined in Section 3.2(c) below), as the case may be, or another similar materiality qualification set forth herein),
individually or in the aggregate, has not had, and would not reasonably be expected to have, an Altimeter Material Adverse Effect or an Issuer Material Adverse Effect.
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(b) |
Closing of the Transactions. All conditions precedent to the Issuer’s, the Company’s, the Acquisition Entities’ (as defined in the Business Combination Agreement) and Altimeter’s obligations to effect the
Acquisition Closing shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Acquisition Closing but subject to satisfaction or waiver thereof), the Initial
Closing (as defined in the Business Combination Agreement) shall have been consummated prior to the Closing, and the Closing will be consummated on the same day, and substantially concurrent with, the Acquisition Closing.
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(c) |
Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or
regulation enjoining or prohibiting the consummation of the Subscription.
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(d) |
Performance and Compliance under Subscription Agreement. The Issuer shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this
Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or
materially impair the ability of the Issuer to consummate the Closing.
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(e) |
Business Combination Agreement. The terms of the Business Combination Agreement (including the conditions thereto) shall not have been amended or waived in a manner that would reasonably be expected to be
materially adverse to the economic benefits Subscriber reasonably expects to receive under this Subscription Agreement.
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(f) |
Other Subscription Agreements. There shall have been no amendment, waiver or modification to any Other Subscription Agreement that materially benefits such Other Subscriber thereunder unless Subscriber has
been offered the same benefits.
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(g) |
Listing. (i) The Issuer’s initial listing application with Nasdaq Stock Market LLC (“Nasdaq”) in connection with the Transactions shall have been conditionally approved and, immediately following the Acquisition Closing, the Issuer shall satisfy any applicable initial and continuing listing
requirements of Nasdaq and the Issuer shall not have received any notice of non-compliance therewith, and (ii) the Shares shall have been approved for listing on Nasdaq, subject to official notice of issuance.
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3.1 |
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber as follows:
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(a) |
The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all power (corporate or otherwise) and authority to own, lease and
operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
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(b) |
At Closing, subject to the receipt of the Purchase Price in accordance with the terms of this Subscription Agreement and registration with the Transfer Agent, the Shares will be duly authorized, validly issued and
allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under
the Issuer’s organizational documents (as in effect at such time of issuance) or the laws of the Cayman Islands.
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(c) |
This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber and Altimeter, is
the valid and binding obligation of the Issuer and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
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(d) |
The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the other
transactions contemplated herein, including the Transactions, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the Issuer pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or
by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its
obligations under this Subscription Agreement, including the issuance and sale of the Shares (an “Issuer Material Adverse Effect”), (ii) result in any violation of
the provisions of the organizational documents of the Issuer or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction
over the Issuer or any of its properties that would reasonably be expected to have an Issuer Material Adverse Effect.
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(e) |
As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of one (1) fully paid ordinary share, with a par value of $0.00001, and such share is duly authorized and validly
issued, is fully paid and non-assessable, and is not subject to preemptive rights or encumbrances. As of the date of this Subscription Agreement, and immediately prior to Closing, except as set forth above and pursuant to the Other
Subscription Agreements, the Insider Subscription Agreements, the Business Combination Agreement, the other Transaction Documents (as defined in the Business Combination Agreement) and the transactions contemplated thereby, there are no
outstanding (i) shares, equity interests or voting securities of the Issuer, (ii) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (iii) options, warrants or
other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no
obligation of the Issuer to issue, any shares or other equity interests or voting securities of the Issuer (collectively, the “Equity Interests”) or securities convertible into or exchangeable or
exercisable for Equity Interests, or (iv) other similar rights of or with respect to the Issuer, or (v) obligations of the Issuer to repurchase, redeem or otherwise acquire any of the foregoing Equity Interests, or other similar rights. As of
the date of this Subscription Agreement, there are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer,
other than as contemplated by the Business Combination Agreement, the other Transaction Documents (as defined in the Business Combination Agreement) and the transactions contemplated thereby.
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(f) |
Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 3.3, in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription
Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber. The Shares (i) were not offered to Subscriber by any form of general solicitation or general advertising,
including methods described in section 502(c) of Regulation D under the Securities Act and (ii) to Issuer’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities
Act, or any state securities laws.
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(g) |
The Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer and made available to Subscriber all the information reasonably available to the Issuer that Subscriber has reasonably
requested to make an investment decision with respect to the Shares.
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(h) |
Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would
adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities
Act.
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(i) |
Except for such matters as would not reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect, there is no (i) action, suit, claim or other proceeding, in each case by or
before any governmental authority pending, or, to the knowledge of the Issuer, threatened against the Issuer, or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.
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(j) |
The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written
communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to
have, individually or in the aggregate, an Issuer Material Adverse Effect.
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(k) |
The Issuer is not required to obtain any material consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section
7.19; (iv) those required by Nasdaq, and (v) those required to consummate the Transactions as provided under the Business Combination Agreement.
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(l) |
Upon consummation of the Acquisition Closing, the Issuer Shares will be registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and will be listed for trading on Nasdaq, and the Shares will be approved for listing on Nasdaq, subject to official notice of issuance, and no suspension of such approval shall have occurred.
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(m) |
Neither the Issuer nor any person acting on its behalf is under any obligation to pay any broker’s fee or finder’s fee or other fee or commission in connection with the sale of the Shares other than to J.P. Morgan
Securities LLC, Evercore Group L.L.C., Morgan Stanley & Co. L.L.C. and UBS Securities LLC (the “Placement Agents”, each a “Placement Agent”). The Issuer and
Altimeter are solely responsible for the payment of any fees, costs, expenses or commissions of the Placement Agents.
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(n) |
The Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by Subscriber in connection with a bona fide margin agreement, which shall not be deemed to be a
transfer, sale or assignment of the Shares hereunder, and Subscriber effecting a pledge of Shares shall not be required to provide the Issuer with any notice thereof or otherwise make any delivery to the Issuer pursuant to this Subscription
Agreement.
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(o) |
The Issuer is not, and immediately after receipt of payment for the Shares of the Issuer will not be, (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “Investment Company Act”), and as such subject to registration as an “investment company” under the Investment Company Act or (ii) a “business development
company” (as defined in Section 2(a)(48) of the Investment Company Act).
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(p) |
The Other Subscription Agreements reflect the same Per Share Purchase Price and other terms and conditions with respect to the purchase of Issuer Shares that are no more favorable to such subscriber thereunder than
the terms of this Subscription Agreement, other than (i) terms particular to the regulatory requirements of such subscriber or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing
of funding and the issuance of the related Issuer Shares and (ii) where such subscriber was identified by the Company and not any Placement Agent, the fact that (A) the Placement Agents are not third-party beneficiaries under such Other
Subscription Agreement and (B) such subscriber may be a natural person. For the avoidance of doubt, this Section 3.1(p) shall not apply to any document entered into in connection with the Insider PIPE Investment; provided, however, that such
Insider PIPE Investment shall be with respect to the same class of ordinary shares being acquired by Subscriber hereunder and at the same Per Share Purchase Price.
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(q) |
There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or threatened against or affecting the Issuer or any of the Issuer’s properties or rights
that affects or would reasonably be expected to affect the Issuer’s ability to consummate the transactions contemplated by this Subscription Agreement, nor is there any decree, injunction, rule or order of any governmental authority or
arbitrator outstanding against the Issuer or any of the Issuer’s properties or rights that affects or would reasonably be expected to affect the Issuer’s ability to consummate the transactions contemplated by this Subscription Agreement.
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(r) |
Upon consummation of the Acquisition Closing, the Issuer will own all of the equity securities of the Company and Altimeter or their successors.
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3.2 |
Altimeter’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, Altimeter hereby represents and warrants to Subscriber as follows:
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(a) |
Altimeter is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. Altimeter has all power (corporate or otherwise) and authority to own, lease and
operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
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(b) |
This Subscription Agreement has been duly authorized, executed and delivered by Altimeter and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the valid and
binding obligation of Altimeter and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating
to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
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(c) |
The execution, delivery and performance of this Subscription Agreement (including compliance by Altimeter with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain
other transactions contemplated herein, including the Transactions, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets of Altimeter pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Altimeter is a
party or by which Altimeter is bound or to which any of the property or assets of Altimeter is subject, which would reasonably be expected to have a material adverse effect on the ability of Altimeter to enter into and timely perform its
obligations under this Subscription Agreement (an “Altimeter Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational
documents of Altimeter or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Altimeter or any of its properties
that would reasonably be expected to have an Altimeter Material Adverse Effect.
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(d) |
As of the date of this Subscription Agreement, the authorized capital shares of Altimeter consists of (i) 200,000,000 shares of Class A ordinary shares, par value $0.0001 per share (“Class A Shares”), (ii) 20,000,000 shares of Class B ordinary shares, par value $0.0001 per share (“Class B Shares”) and 1,000,000 shares of preferred stock, par value $0.0001 per share. As of the date hereof: (i) 50,000,000 Class A Shares are issued and outstanding; (ii) 12,500,000 Class B Shares are issued and outstanding; and
(iii) 22,000,000 warrants, each exercisable to purchase one existing Class A Share at $11.50 per share are outstanding. As of the date of this Subscription Agreement, and immediately prior to the Initial Closing (as defined in the Business
Combination Agreement) other than as set forth in this clause (d) or in any form, report, statement, schedule, prospectus, proxy, registration statement or other document filed by Altimeter with the Commission prior to the date of this
Subscription Agreement (each, an “SEC Document” and collectively, the “SEC Documents”) or any of the Transaction Documents, there are no outstanding (1) shares, equity interests or voting securities of Altimeter, (2) securities of Altimeter convertible into or exchangeable for shares or other equity
interests or voting securities of Altimeter, or (3) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of Altimeter to subscribe for,
purchase or acquire from any individual, entity or other person, and no obligation of Altimeter to issue, any shares or other equity interests or voting securities of Altimeter (collectively, the “Altimeter Equity Interests”) or securities convertible into or exchangeable or exercisable for Altimeter Equity Interests, (4) or other similar rights of or with respect to Altimeter, or
(5) obligations of Altimeter to repurchase, redeem or otherwise acquire any of the foregoing Altimeter Equity Interests or other similar rights. As of the date of this Subscription Agreement, Altimeter has no subsidiaries and does not own,
directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements or understandings to which Altimeter is
a party or by which it is bound relating to the voting of any securities of Altimeter, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Business Combination Agreement (including the Transaction Documents).
There are no securities or instruments issued by or to which Altimeter is party containing anti-dilution or similar provisions that will be triggered by the issuance of the Shares or the issuance of the Issuer Shares under any Other
Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing Date.
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(e) |
As of the date of this Subscription Agreement, and immediately prior to Initial Closing (as defined in the Business Combination Agreement), the issued and outstanding Class A Shares of Altimeter are registered
pursuant to Section 12(b) of the Exchange Act, and are listed for trading on Nasdaq under the symbol “AGC”. There is no suit, action, proceeding or investigation pending or, to the knowledge of Altimeter, threatened against Altimeter by
Nasdaq or the Commission with respect to any intention by such entity to deregister the Class A Shares of Altimeter or prohibit or terminate the listing of the Class A Shares of Altimeter on Nasdaq. Altimeter has taken no action that is
designed to terminate the registration of the shares of Class A Shares of Altimeter under the Exchange Act prior to the Initial Closing (as defined in the Business Combination Agreement).
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(f) |
Altimeter has made available to Subscriber (including via the Commission’s EDGAR system) a true, correct and complete copy of each SEC Document which, as of their respective filing dates, complied in all
material respects with the requirements of the Securities Act and Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents. None of the SEC
Documents, contained, when filed or, if amended prior to the date of this Subscription Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted 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, not misleading; provided, that Altimeter makes no such representation or warranty with respect to the proxy statement of Altimeter to be filed in connection with the approval of the Business Combination Agreement by the shareholders of
Altimeter (the “Proxy Statement”) or any other information relating to the Company or any of its affiliates and consolidated affiliated entities (together with the
Company, the “Group”) included in any SEC Documents or filed as an exhibit thereto. Altimeter has timely filed each SEC Document that Altimeter was
required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the
SEC Documents.
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(g) |
Except for such matters as have not had and would not reasonably be expected to have, individually or in the aggregate, an Altimeter Material Adverse Effect, there is no (i) action, suit, claim or other proceeding,
in each case by or before any governmental authority pending, or, to the knowledge of Altimeter, threatened against Altimeter, or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against
Altimeter.
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(h) |
There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or threatened against or affecting Altimeter or any of Altimeter’s properties or rights
that affects or would reasonably be expected to affect Altimeter’s ability to consummate the transactions contemplated by this Subscription Agreement, nor is there any decree, injunction, rule or order of any governmental authority or
arbitrator outstanding against Altimeter or any of Altimeter’s properties or rights that affects or would reasonably be expected to affect Altimeter’s ability to consummate the transactions contemplated by this Subscription Agreement.
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(i) |
Altimeter is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Altimeter Material Adverse Effect. Altimeter has not received any written
communication from a governmental authority that alleges that Altimeter is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to
have, individually or in the aggregate, an Altimeter Material Adverse Effect.
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(j) |
Altimeter is not required to obtain any material consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the Commission, (ii) filings required by applicable state
or federal securities laws, (iii) the filings required in accordance with Section 7.19; (iv) those required by Nasdaq, and (v) those required to consummate the Transactions as provided under the Business Combination Agreement.
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(k) |
Neither Altimeter nor any person acting on its behalf is under any obligation to pay any broker’s fee or finder’s fee or other fee or commission in connection with the sale of the Shares other than to the Placement
Agents. Altimeter and Issuer are solely responsible for the payment of any fees, costs, expenses or commissions of the Placement Agents.
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3.3 |
Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and Altimeter and acknowledges and
agrees with the Issuer and Altimeter as follows:
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(a) |
Subscriber has been duly formed or incorporated and is validly existing and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and
authority to enter into, deliver and perform its obligations under this Subscription Agreement.
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(b) |
This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Altimeter,
this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
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(c) |
The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (where such Subscriber is an “employee
benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA), (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan
agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any
of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the Subscriber’s ability to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in
any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties
that would reasonably be expected to have a Subscriber Material Adverse Effect.
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(d) |
Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or
agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full
power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with,
any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise
dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). The information provided by Subscriber on Schedule I is true and correct in all respects.
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(e) |
Together with its investment adviser, if applicable, Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the
offer and sale of the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement
under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii)
pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United
States, and that any book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber
understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the
Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.
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(f) |
Subscriber is purchasing the Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Altimeter,
the Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer and Altimeter expressly set forth in this Subscription
Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement.
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(g) |
Subscriber’s acquisition and holding of the Shares will not (where such Subscriber is an “employee benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan
assets” under ERISA) constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law.
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(h) |
Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and
Altimeter’s representations, warranties and agreements contained in Section 3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information
provided by anyone other than the Issuer and Altimeter concerning the Issuer or Altimeter, respectively, or the Shares or the offer and sale of the Shares. Subscriber has received access to and has had an adequate opportunity to review, such
financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Altimeter, the Company, the Group and the Transactions and made its own
assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber has received access to and has had an adequate opportunity to review the documents
made available to the Subscriber by Altimeter and the Company. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber
and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber also acknowledges that the 2020 historical financial data concerning the Company has been
derived based on the Company’s management accounts in accordance with International Financial Reporting Standards, or IFRS, and has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s
audited results for 2020 will not differ from the financial data presented to Subscriber and such changes could be material. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent,
Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Except for the representations, warranties and agreements of the Issuer and Altimeter expressly set forth in this Subscription Agreement,
Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the
business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further
acknowledges that the information provided to Subscriber is preliminary and subject to change.
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(i) |
Subscriber acknowledges and agrees that:
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(j) |
Subscriber became aware of this offering of the Shares solely by means of direct contact from either the Placement Agents, the Issuer or Altimeter as a result of a pre-existing substantive relationship (as
interpreted in guidance from the Commission under the Securities Act) with the Issuer, Altimeter or their representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents, the
Issuer or Altimeter. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to it by any form of general
solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) to its knowledge, are not being offered to it in a manner involving a public offering under, or in a
distribution in violation of, the Securities Act, or any state securities laws.
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(k) |
Together with its investment adviser, if applicable, Subscriber is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber is able to fend for itself in the
transactions contemplated herein. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting,
legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that (A) it (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated
investor, experienced in investing in financial and business transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or
securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares and (B) the purchase and sale of the Shares hereunder meets the institutional customer exemption under FINRA Rule 2111(b).
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(l) |
Subscriber, alone, or together with any professional advisor(s), has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that
Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists.
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(m) |
Subscriber understands that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares.
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(n) |
Subscriber is not a person that is the target of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by relevant
governmental authorities, including, but not limited those administered by the U.S. government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State, the United Nations Security Council, the European Union, or Her Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), including (i) any person listed in any Sanctions-related list of sanctioned persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union, or any EU member
state, (ii) any person operating, organized or resident in a country or territory which is itself the subject or target of any Sanctions (at the time of this Subscription Agreement, Crimea, Cuba, Iran, North Korea, and Syria), (iii) any
person owned or controlled by, or acting on behalf of, any such person or persons; or (iv) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that (i) if it is a financial institution subject to the Bank Secrecy Act (31
U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber
maintains policies and procedures reasonably designed to ensure compliance with applicable obligations under the BSA/PATRIOT Act, and (ii) to the extent required, it maintains policies and procedures reasonably designed to ensure compliance
with the anti-money laundering-related laws administered and enforced by other governmental authorities. Subscriber also represents that it maintains policies and procedures reasonably designed to ensure compliance with applicable
Sanctions. Subscriber further represents and warrants that it maintains policies and procedures reasonably designed to ensure the funds held by Subscriber and used to purchase the Shares were legally derived and were not obtained, directly
or indirectly, from a Prohibited Investor.
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(o) |
If Subscriber is or is acting on behalf of an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the
Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not
subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (“Similar Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that none of Altimeter, the Issuer, the Company, or any of their respective
affiliates (the “Transaction Parties”) has provided investment advice or otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold
the Shares, and none of the Transaction Parties is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with its investment in the Shares (including with respect to any decision to acquire, continue to
hold or transfer the Shares).
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(p) |
Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by Subscriber with the Commission with respect to the beneficial ownership of Altimeter’s ordinary shares prior to the
date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) acting for the purpose of
acquiring, holding or disposing of equity securities of Altimeter (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).
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(q) |
No foreign person (as defined in Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. §4565), and all rules and regulations issued and effective thereunder (together, the “DPA”))
in which the national or subnational governments of a single foreign state have a “substantial interest” (as defined in the DPA) will acquire a “substantial interest” (as defined in the DPA) in the Issuer as a result of the purchase of Shares
by Subscriber hereunder such that a filing before the Committee on Foreign Investment in the United States would be required under the DPA, and no such foreign person will have “control” (as defined in the DPA) over the Issuer from and after
the Closing as a result of the purchase of Shares by Subscriber hereunder.
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(r) |
On each date the Purchase Price would be required to be funded pursuant to Section 2.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 2.1.
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(s) |
Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including Altimeter, the Issuer, the Company, the
Placement Agents, any of their respective affiliates or any of its or their respective control persons, officers, directors or employees), other than the representations and warranties of the Issuer and Altimeter expressly set forth in this
Subscription Agreement, in making its investment or decision to invest in the Issuer. Subscriber agrees that none of any Other Subscriber or Insider PIPE Investor (including the controlling persons, officers, directors, partners, agents or
employees of any such Other Subscriber or Insider PIPE Investor) shall be liable to the Subscriber pursuant to this Subscription Agreement (or any Other Subscriber pursuant to any Other Subscription Agreement or any Insider PIPE Investor
pursuant to any Insider Subscription Agreement) or any other agreement related to the private placement of shares of the Issuer’s capital stock for any action heretofore or hereafter taken or omitted to be taken by any of them in connection
with the purchase of the Shares hereunder.
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(t) |
No broker, finder or other financial consultant is acting on Subscriber’s behalf in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability of
Altimeter, the Issuer or the Company for the payment of any fees, costs, expenses or commissions.
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4.1 |
The Issuer agrees that, within thirty (30) calendar days after the consummation of the Acquisition Closing (the “Filing Date”), the
Issuer will file with the Commission (at the Issuer’s sole cost and expense) a registration statement registering the resale of the Shares (the “Registration Statement”), and the Issuer shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the sixtieth (60th) calendar day (or ninetieth (90th) calendar day if the Commission notifies the Issuer that it will “review” the Registration Statement) following the Filing Date and (ii) the tenth (10th) business day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that the
Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided, however, that the Issuer’s obligations to include such shares in the Registration Statement
are contingent upon Subscriber furnishing in writing to the Issuer such information regarding Subscriber, the securities of the Issuer beneficially owned by Subscriber (or any unit trust beneficially owning such securities and which is
managed by Subscriber) and the intended method of disposition of the Shares as shall be reasonably requested by the Issuer to effect the registration of the Shares, and Subscriber shall execute such documents in connection with such
registration as the Issuer may reasonably request that are customary of a selling shareholder in similar situations, including providing that the Issuer shall be entitled to postpone and suspend the effectiveness or use of the Registration
Statement as permitted hereunder; provided, however, that Subscriber shall
not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Shares. In no event shall Subscriber be identified as a
statutory underwriter in the Registration Statement unless requested by the Commission; provided, that if the Commission requests that Subscriber be
identified as a statutory underwriter in the Registration Statement, Subscriber will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement, in which case the
Issuer’s obligation to register the Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the Commission prevents the Issuer from including any or all of the shares
proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Issuer Shares by the applicable shareholders or otherwise, such Registration Statement shall
register for resale such number of Issuer Shares which is equal to the maximum number of Issuer Shares as is permitted by the Commission. In such event, the number of Issuer Shares to be registered for each selling shareholder named in the
Registration Statement shall be reduced pro rata among all such selling shareholders, and the Issuer shall use its commercially reasonable efforts to file with the Commission, as promptly as practicable and as allowed by the Commission, one
or more registration statements to register the resale of those Issuer Shares that were not registered on the initial Registration Statement, as so amended. For purposes of clarification, any failure by the Issuer to file the Registration
Statement by the Filing Date or to effect such Registration Statement by the Effectiveness Date shall not otherwise relieve the Issuer of its obligations to file or effect the Registration Statement as set forth above in this Section 4. For purposes of this Section 4, the Shares included in the Registration
Statement, subject to the foregoing provisions, shall include, as of any date of determination, the Shares and any other equity security of the Issuer issued or issuable with respect to the Shares by way of share split, dividend,
distribution, recapitalization, merger, exchange, replacement or similar event or otherwise.
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4.2 |
In the case of the registration effected by the Issuer pursuant to this Subscription Agreement, the Issuer shall, upon reasonable request by a Subscriber in writing, inform such Subscriber as to the status of such
registration. At its sole expense, the Issuer shall, until the End Date (as defined below) or as otherwise specified:
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(a) |
except for such times as the Issuer is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any
qualification, exemption or compliance under state securities laws which the Issuer determines to obtain, continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf
registration statement free of any material misstatements or omissions and update or amend the Registration Statement as necessary to include the Shares and provide customary notice to holders of the Shares, until the earlier of the
following: (i) Subscriber ceases to hold any Shares, (ii) the date all Shares held by Subscriber who is not an affiliate of the Issuer may be sold without restriction under Rule 144, including any volume and manner of sale restrictions and
without the requirement for the Issuer to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), and (iii) two (2) years from the date that the initial registration statement
filed hereunder is declared effective (such date, the “End Date”);
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(b) |
advise Subscriber as soon as reasonably practicable (and in any event within three (3) business days):
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(i) |
when a Registration Statement or any post-effective amendment thereto has become effective;
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(ii) |
after it shall have obtained knowledge thereof, of any request by the Commission for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information;
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(iii) |
after it shall have obtained knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
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(iv) |
of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
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(v) |
subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements
therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not
misleading.
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(c) |
use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
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(d) |
upon the occurrence of any event contemplated in Section 4.2(b)(v), except for such times as the Issuer is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a
Registration Statement, the Issuer shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any
other required document so that, as thereafter delivered to purchasers of the Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
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(e) |
use its commercially reasonable efforts to cause all Shares to be listed on each securities exchange or market, if any, on which the Issuer Shares are then listed beginning on, or as promptly as reasonably
practicable following, the Effectiveness Date;
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(f) |
use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Shares contemplated hereby; and
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(g) |
use its commercially reasonable efforts to file all reports and other materials required to be filed by the Exchange Act so long as the Issuer remains subject to such requirements and the filing of such reports and
other documents is required for the applicable provisions of Rule 144 to enable the Subscriber to sell the Shares under Rule 144 for so long as the Subscriber holds Shares.
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4.3 |
Upon Subscriber’s request, the Issuer shall deliver all the necessary documentation to cause the Transfer Agent to (i) remove the legend set forth above in Section 3.3(e), as promptly as practicable and no
later than three (3) business days after such request and (ii) issue Shares without any such legend in certificated or book-entry form or by electronic delivery through The Depository Trust Company (“DTC”),
at the Subscriber’s option, provided that in each case (a) such Shares are registered for resale under the Securities Act and the Subscriber has sold or proposes to sell such Shares pursuant to such registration or (b)(A) the
Subscriber has sold or transferred, or proposes to sell or transfer, Shares pursuant to Rule 144 and (B) the Issuer, its counsel or the Transfer Agent have received customary representations and other documentation from the Subscriber that is
reasonably necessary to establish that such restrictive legend is no longer required as reasonably requested by the Issuer, its counsel or the Transfer Agent (the “Legend Documents”). If the legend set
forth above in Section 3.3(e) is no longer required for the Shares pursuant to the foregoing, the Issuer shall, reasonably promptly following any request therefor from Subscriber accompanied by such Legend Documents, deliver to the
Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for the Shares. The Issuer shall be responsible for the fees of the Transfer Agent and its counsel and any fees of DTC incurred in connection
with such legend removal requests.
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4.4 |
Notwithstanding anything to the contrary in this Subscription Agreement, the Issuer shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require
Subscriber not to sell under the Registration Statement or to suspend the effectiveness thereof, if the negotiation or consummation of a transaction by the Issuer or its subsidiaries is pending or an event has occurred, which negotiation,
consummation or event that the Issuer’s board of directors reasonably believes, upon the advice of legal counsel (which may be in-house legal counsel), would require additional disclosure by the Issuer in the Registration Statement of
material information that the Issuer has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of the Issuer’s board of
directors, upon the advice of legal counsel (which may be in-house legal counsel), to cause the Registration Statement to fail to comply with applicable disclosure requirements (each such circumstance, a “Suspension Event”); provided, however, that the Issuer may not delay or suspend the Registration Statement on more than three (3) occasions or for more than sixty (60) consecutive days or for more than one hundred and twenty (120) total calendar days, in each case,
during any twelve-month period; provided that the Issuer shall use commercially reasonable efforts to make such Registration Statement available for the sale by the Subscriber of the Shares as soon as reasonably practicable thereafter. Upon
receipt of any written notice from the Issuer of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus
contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the
prospectus) not misleading, Subscriber agrees that (i) it will immediately discontinue offers and sales of the Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until
Subscriber receives copies of a supplemental or amended prospectus (which the Issuer agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has
become effective or unless otherwise notified by the Issuer that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by the Issuer unless (a)
otherwise required by law or subpoena or (b) disclosed to Subscriber’s employees, agents and professional advisors who need to know such information and are obligated to keep it confidential. If so directed by the Issuer, Subscriber will
deliver to the Issuer or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Shares in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Shares shall not apply (i) to the extent Subscriber is required to retain a
copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored
electronically on archival servers as a result of automatic data back-up.
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4.5 |
Subscriber may deliver written notice (an “Opt-Out Notice”) to the Issuer requesting that Subscriber not receive notices from the Issuer otherwise required by Section 4.4;
provided, however, that Subscriber may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from Subscriber (unless subsequently revoked), (i) the Issuer shall not deliver any such notices to
Subscriber and Subscriber shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to Subscriber’s intended use of an effective Registration Statement, Subscriber will notify the Issuer in writing at
least two (2) business days in advance of such intended use, and if a notice of a Suspension Event was previously delivered (or would have been delivered but for the provisions of this Section 4.5) and the related suspension period
remains in effect, the Issuer will so notify Subscriber, within one (1) business day of Subscriber’s notification to the Issuer, by delivering to Subscriber a copy of such previous notice of Suspension Event, and thereafter will provide
Subscriber with the related notice of the conclusion of such Suspension Event promptly following its availability.
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4.6 |
The Issuer shall, notwithstanding any termination of this Subscription Agreement, indemnify and hold harmless the Subscriber (to the extent a seller under, or named as a selling shareholder in, the Registration
Statement), its officers, directors, partners, members, managers, employees, advisers and agents, and each person who controls the Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the
fullest extent permitted by applicable law, from and against all reasonable out-of-pocket losses, claims, damages, liabilities, costs (including reasonable and documented attorneys’ fees) and expenses (collectively, “Losses”), based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any
prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions are
based upon information regarding the Subscriber furnished in writing to the Issuer by the Subscriber expressly for use therein, or that such Losses result from the use of the Registration Statement by Subscriber after Subscriber has received
notice of a Suspension Event in accordance with Section 4.4; provided, however, that the indemnification contained in this Section 4.6 shall not apply to amounts paid in settlement of any Losses if such settlement is
effected without the consent of the Issuer (which consent shall not be unreasonably withheld, conditioned or delayed). Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an Indemnified
Party and shall survive the transfer of the Shares by Subscriber.
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4.7 |
The Subscriber shall, severally and not jointly with any Other Subscriber or Insider PIPE Investor, indemnify and hold harmless the Issuer, its directors, officers, agents and employees, and each person who controls
the Issuer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising out of or are based upon any untrue
or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement
thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based upon information regarding the Subscriber furnished in writing to the
Issuer by the Subscriber expressly for use therein; provided, however, that the indemnification contained in this Section 4.7 shall not apply to amounts paid in settlement of any Losses if such settlement is effected
without the consent of the Subscriber (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, in no event shall the liability of the Subscriber be greater in amount than the
dollar amount of the net proceeds received by the Subscriber upon the sale of the Shares giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf
of an indemnified party and shall survive the transfer of the Shares by the Subscriber.
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4.8 |
For the purposes of this Subscription Agreement, “Indemnifying Party” shall mean the party with an obligation to indemnify another party pursuant to Section 4.6 or Section
4.7 (as applicable) and “Indemnified Party” shall mean the party seeking indemnification pursuant to Section 4.6 or Section 4.7 (as applicable). The Indemnified Party shall
promptly notify the Indemnifying Party in writing of the institution, threat or assertion of any proceeding against the Indemnified Party that the Indemnified Party believes relates to Losses the subject of indemnification pursuant to Section
4.6 or Section 4.7 (as applicable) and of which such Indemnified Party is aware (a “Third Party Proceeding”). In the case of any delay or failure by an Indemnified Party to provide the
notice required by the preceding sentence, the obligation of the Indemnifying Party to indemnify the Indemnified Party shall be reduced to the extent that such Indemnifying Party is prejudiced by such delay or failure. The Indemnifying Party
will be entitled to participate in any Third Party Proceeding and to assume the defense thereof with counsel it elects, in its sole discretion, and in the event the Indemnifying Party assumes such defense, the Indemnifying Party will not be
liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned or delayed), consent to the entry of any judgment or enter into any settlement that is not both fully resolved or settled (i) in all
respects by the payment of money damages alone and no other form of relief (and such money damages are so paid in full by the indemnifying party pursuant to the terms of such order or settlement) and (ii) with an unconditional release by the
claimant or plaintiff of the indemnified party and its affiliates from all liability in respect to such claim or litigation.
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4.9 |
If the indemnification provided under Section 4.6 or Section 4.7 from the Indemnifying Party is unavailable or insufficient to hold harmless an Indemnified Party in respect of any Losses, then the
Indemnifying Party, in lieu of indemnifying the Indemnified Party, shall contribute to the amount paid or payable by the Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and the Indemnified Party, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such Indemnifying Party or Indemnified
Party, and the Indemnifying Party’s and Indemnified Party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above
shall be subject to the limitations set forth in Section 4.6 and Section 4.7 and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or
proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.9 from any person who was not guilty of such
fraudulent misrepresentation. Each Indemnifying Party’s obligation to make a contribution pursuant to this Section 4.9 shall be individual, not joint and several, and in no event shall the liability of Subscriber hereunder exceed the
net proceeds received by Subscriber upon the sale of the Shares giving rise to such indemnification obligation.
|
7. |
Miscellaneous.
|
7.1 |
Further Assurances. The parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to
consummate the Subscription as contemplated by this Subscription Agreement no later than immediately prior to the consummation of the Acquisition Closing.
|
|
(a) |
Subscriber acknowledges that (i) the Issuer and Altimeter will rely on the acknowledgments, understandings, agreements, covenants, representations and warranties of the Subscriber contained in this Subscription
Agreement and (ii) that the Placement Agents will rely on, and are third party beneficiaries of, the acknowledgments, understandings, agreements, covenants, representations and warranties of Subscriber contained in Section 3.3 and Section
7. Prior to the Closing, Subscriber agrees to promptly notify the Issuer and Altimeter if any of the acknowledgments, understandings, agreements, covenants representations and warranties made by Subscriber set forth herein are no longer
accurate in all material respects. In addition, the Issuer and Altimeter each acknowledges and agrees that each of the Placement Agents and the Company is a third-party beneficiary of the acknowledgments, understandings, agreements,
covenants, representations and warranties made by the Issuer or Altimeter (as applicable) contained in this Subscription Agreement.
|
|
(b) |
Each of Altimeter and the Issuer acknowledges that the Subscriber will rely on the acknowledgements, understandings, agreements, covenants, representations and warranties of Altimeter and the Issuer, respectively,
contained in this Subscription Agreement. Prior to the Closing, each of the Issuer and Altimeter agrees to promptly notify the Subscriber if any of the acknowledgements, understandings, agreements, covenants, representations and warranties
made by Issuer or Altimeter, as applicable, set forth herein are no longer accurate in all material respects.
|
|
(c) |
Subscriber acknowledges and agrees that no party to the Business Combination Agreement (other than the Issuer and Altimeter) nor any Non-Party Affiliate (as defined below), shall have any liability to Subscriber,
any Other Subscriber, or any Insider PIPE Investor pursuant to, arising out of or relating to this Subscription Agreement, any Other Subscription Agreement or any Insider Subscription Agreement, the negotiation hereof or thereof or its
subject matter, or the transactions contemplated hereby or thereby, including with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares or with respect to any
claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith or for any actual or alleged inaccuracies,
misstatements or omissions with respect to any information or materials of any kind furnished by the Issuer, Altimeter, the Company, or any Non-Party Affiliate concerning the Issuer, Altimeter, the Company, any of their controlled affiliates,
this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee,
partner, member, investment manager, manager, direct or indirect equityholder, investors, representatives, agents, predecessors, successors, assigns, or affiliate of the Issuer, Altimeter, the Company, or any of the Issuer’s, Altimeter’s or
the Company’s controlled affiliates or any family member of the foregoing.
|
|
(d) |
Each of the Issuer, Altimeter, Subscriber and the Company is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
|
|
(e) |
The Issuer and Altimeter may request from Subscriber such additional information as the Issuer and Altimeter may deem reasonably necessary to evaluate the eligibility of Subscriber to acquire the Shares, and
Subscriber shall promptly provide such information as may be reasonably requested to the extent readily available and consistent with its internal policies; provided, that (subject to Section 7.19 below) the Issuer and Altimeter
agrees to keep any such information provided by Subscriber confidential.
|
|
(f) |
Each party shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
|
7.2 |
No Short Sales. Subscriber hereby agrees that neither it nor any person or entity acting on its behalf or pursuant to any understanding with the Subscriber, shall engage in any hedging activities or execute
any Short Sales (as defined below) with respect to the securities of Altimeter prior to the Closing or the earlier termination of this Subscription Agreement in accordance with its terms. “Short Sales”
shall mean all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements),
forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other short transactions through non-U.S. broker dealers or foreign regulated brokers. Notwithstanding the
foregoing, nothing herein shall prohibit (A) (x) other entities under common management with Subscriber with whom Subscriber is not acting in concert with respect to any trading in securities of Altimeter, this Subscription Agreement or
Subscriber’s participation in the Subscription (including Subscriber’s controlled affiliates and/or affiliates) or (y) in the case of a Subscriber that is externally managed, advised or sub-advised by another person, any other person that is
not directly controlled or managed by such manager, adviser or sub-adviser, from entering into any short sale, or (B) in the case of a Subscriber that is a multi-managed investment bank or vehicle whereby separate portfolio managers manage
separate portions of such Subscriber’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, this Section 7.2 shall
apply only with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement. For the avoidance of doubt, nothing in this Section 7.2
shall restrict any transactions with respect to securities of Altimeter other than transactions that are Short Sales including the exercise of any redemption with respect to securities of Altimeter.
|
7.3 |
Additional Information. Altimeter and the Issuer may request from the Subscriber such additional information as is necessary for Altimeter or the Issuer, as applicable, to comply with public disclosure
requirements of applicable securities laws or any filing requirements pursuant to the rules of any stock exchange or the Financial Industry Regulatory Authority, and the Subscriber shall provide such information; provided that,
subject to Section 7.19 the Issuer and Altimeter shall keep any such information provided by Subscriber confidential. The Subscriber acknowledges that Altimeter or the Issuer may file a copy of the form of this Subscription Agreement
with the Commission as an exhibit to a current or periodic report or a registration statement of Altimeter or the Issuer, as applicable.
|
7.4 |
Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by
certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three (3) business
days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder (a courtesy copy of any notice sent shall also be sent via email):
|
|
(a) |
if to Subscriber, to such address or addresses set forth on the signature page hereto;
|
|
(b) |
if to the Issuer, to:
|
|
(c) |
if to Altimeter, to:
|
7.5 |
Entire Agreement. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the
parties, with respect to the subject matter hereof, including any commitment letter entered into relating to the subject matter hereof.
|
7.6 |
Modifications and Amendments. This Subscription Agreement may not be amended, modified, supplemented or waived (i) except by an instrument in writing, signed by the party against whom enforcement of such
amendment, modification, supplement or waiver is sought and (ii) without the prior written consent of Altimeter, the Issuer and Subscriber.
|
7.7 |
Assignment. Neither this Subscription Agreement nor any rights, interests or obligations that may accrue to the parties hereunder (including Subscriber’s rights to purchase the Shares) may be transferred or
assigned without the prior written consent of each of the other parties hereto (other than the Shares acquired hereunder, if any, and then only in accordance with this Subscription Agreement), other than an assignment to any controlled
affiliate of the Subscriber or any fund or account managed by the same investment manager as the Subscriber or a controlled affiliate thereof (as defined in Rule 12b-2 of the Exchange Act), subject to, if such transfer or assignment is prior
to the Closing, such transferee or assignee, as applicable, executing a joinder to this Subscription Agreement or a separate subscription agreement in substantially the same form as this Subscription Agreement, including with respect to the
Purchase Price and other terms and conditions; provided, however, that, in the case of any such transfer or assignment, the initial party to this Subscription Agreement shall remain bound by its obligations under this
Subscription Agreement. For the avoidance of doubt, any transaction contemplated by the Business Combination Agreement shall be deemed not to constitute an assignment of this Subscription Agreement or any rights, interests or obligations that
may accrue to the parties hereunder.
|
7.8 |
Benefit. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal
representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors,
legal representatives and permitted assigns. Except as set forth in Section 4.6, Section 4.7, Section 4.8, Section 4.9, Section 7.1(a), Section 7.1(c) and Section 7.1(d), this
Subscription Agreement shall not confer rights or remedies upon any person other than the parties hereto and their respective successors and assigns.
|
7.9 |
Governing Law. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in
tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws that would otherwise require the application of the law of any other state.
|
7.10 |
Consent to Jurisdiction; Waiver of Jury Trial. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, TO THE EXTENT SUCH COURT DOES NOT HAVE
SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT
OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A DELAWARE STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH
DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 7.4 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE
THEREOF. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY
THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) 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; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 7.10.
|
7.11 |
Severability. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement
shall not in any way be affected or impaired thereby and shall continue in full force and effect.
|
7.12 |
No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto,
shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to
enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a
waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
|
7.13 |
Remedies.
|
|
(a) |
The parties agree that irreparable damage would occur if this Subscription Agreement was not performed or the Closing is not consummated in accordance with its specific terms or was otherwise breached and that money
damages or other legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that the parties hereto shall be entitled to equitable relief, including in the form of an injunction or injunctions, to prevent
breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 7.10, this
being in addition to any other remedy to which any party is entitled at law, in equity, in contract, in tort or otherwise, including money damages. The right to specific enforcement shall include the right of the Issuer and Altimeter to cause
Subscriber and the right of Altimeter and Subscriber to cause the Issuer to cause the transactions contemplated hereby to be consummated on the terms and subject to the conditions and limitations set forth in this Subscription Agreement. The
parties hereto further agree (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (ii) not to assert that a remedy of specific enforcement pursuant to this Section 7.13 is
unenforceable, invalid, contrary to applicable law or inequitable for any reason and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.
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|
(b) |
The parties acknowledge and agree that this Section 7.13 is an integral part of the transactions contemplated hereby and without that right, the parties hereto would not have entered into this Subscription
Agreement.
|
7.14 |
Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Subscription Agreement shall survive the Closing. For the avoidance of doubt, if for any
reason the Closing does not occur prior to the consummation of the Acquisition Closing, all representations, warranties, covenants and agreements of the parties hereunder shall survive the consummation of the Acquisition Closing and remain in
full force and effect.
|
7.15 |
Headings and Captions. The headings and captions of the various subdivisions of this Subscription Agreement are for convenience of reference only and shall in no way modify or affect the meaning or
construction of any of the terms or provisions hereof.
|
7.16 |
Counterparts. This Subscription Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other parties, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form
of electronic delivery (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com), such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
|
7.17 |
Construction. The words “include,” “includes,” and “including” will be deemed to be
followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the
plural and vice versa, unless the context otherwise requires. The words “this Subscription Agreement,” “herein,” “hereof,”
“hereby,” “hereunder,” and words of similar import refer to this Subscription Agreement as a whole and not to any particular subdivision unless expressly so
limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate
the fact that such party hereto is in breach of the first representation, warranty, or covenant. All references in this Subscription Agreement to numbers of shares, per share amounts and purchase prices shall be appropriately adjusted to
reflect any stock split, stock dividend, stock combination, recapitalization or the like occurring after the date hereof.
|
7.18 |
Mutual Drafting. Each provision of this Subscription Agreement has been subject to the mutual consultation, negotiation and agreement of the parties and shall not be construed for or against any party hereto.
|
7.19 |
Cleansing Statement; Consent to Disclosure.
|
|
(a) |
Altimeter shall, by no later than 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement, issue one (1) or more press releases or file with
the Commission a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and by
the Other Subscription Agreements and the Transactions and any other material, nonpublic information that the Issuer or Altimeter or their respective representatives has provided to the Subscriber at any time prior to the filing of the
Disclosure Document. From and after the issuance of the Disclosure Document, to the Issuer and Altimeter’s knowledge, Subscriber shall not be in possession of any material, non-public information received from the Issuer, Altimeter or the
Company or any of their respective officers, directors, employees or agents (including the Placement Agents) relating to the transactions contemplated by this Subscription Agreement, and the Subscriber shall no longer be subject to any
confidentiality or similar obligations under any current agreement, whether written or oral with Issuer, the Company, Altimeter or any of their affiliates or agents, relating to the transactions contemplated by this Subscription Agreement.
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|
(b) |
Neither Altimeter nor the Issuer shall issue any press releases or other public communications relating to the transactions contemplated hereby that reference the Subscriber or its affiliates or investment advisers
by name without the prior written consent of Subscriber. This restriction shall not apply to the extent public disclosure is required by applicable securities law, any governmental authority or stock exchange rule or as otherwise requested by
the staff of the Commission or the request of any other regulatory or governmental agency; provided, that in the event such disclosure is required, Altimeter or the Issuer, as applicable, shall to the extent practicable and legally
permissible, provide Subscriber with prior written notice of such permitted disclosure and consider, in good faith, any comments provided by Subscriber.
|
7.20 |
Regulatory Compliance. Subscriber hereby agrees that it shall comply with applicable requirements in connection with the Subscription and shall use commercially reasonable efforts to coordinate with the
Issuer, Altimeter or the Company, as applicable, to upon request provide information regarding the Subscriber as may reasonably be requested by any applicable governmental authority relating to the Subscription or the Transactions.
|
8. |
Independent Obligations. The obligations of Subscriber under this
Subscription Agreement are several and not joint with the obligations of any Other Subscriber or Insider PIPE Investor under the Other Subscription Agreements or Insider Subscription Agreements, and Subscriber shall not be responsible in
any way for the performance of the obligations of any Other Subscriber under the Other Subscription Agreements or any Insider PIPE Investor under the Insider Subscription Agreements. The decision of Subscriber to purchase Shares pursuant to
this Subscription Agreement has been made by Subscriber independently of any Insider PIPE Investor or Other Subscriber (except where such Other Subscriber is in managed by or under common management
with Subscriber) and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the
Issuer or any of its subsidiaries which may have been made or given by any Other Subscriber or Insider PIPE Investor or by any agent or employee of any Other Subscriber or Insider PIPE Investor, and neither Subscriber nor any of its agents
or employees shall have any liability to any Other Subscriber or Insider PIPE Investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other
Subscription Agreement or Insider Subscription Agreement, and no action taken by Subscriber, any Other Subscriber or Insider PIPE Investor pursuant hereto or thereto, shall be deemed to constitute the Subscriber, on the one hand, and any
Other Subscriber or Insider PIPE Investor, on the other hand, as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Subscriber, any Other Subscriber or Insider PIPE Investor are in
any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement, the Other Subscription Agreements and the Insider Subscription Agreements; provided that it is acknowledged that certain Subscribers may be managed by, or under common management with, an Other Subscriber. Subscriber acknowledges that no
Other Subscriber or Insider PIPE Investor has acted as agent for the Subscriber in connection with making its investment hereunder and no Other Subscriber or Insider PIPE Investor will be acting as agent of the Subscriber in connection with
monitoring its investment in the Shares or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this
Subscription Agreement, and it shall not be necessary for any Other Subscriber or Insider PIPE Investor to be joined as an additional party in any proceeding for such purpose.
|
9. |
Certain Tax Matters. The parties acknowledge and agree that for U.S. federal income tax purposes, Subscriber shall be deemed to be the owner of any funds
transferred by Subscriber to any escrow account (if applicable) unless and until such funds are disbursed to Issuer in accordance with the terms of this Subscription Agreement, which disbursement shall occur, for the avoidance of doubt, no
earlier than immediately following the Initial Merger Effective Time (as defined in the Business Combination Agreement).
|
10. |
Massachusetts Business Trust. If Subscriber is a Massachusetts Business Trust, a copy of the Declaration of Trust of Subscriber or any affiliate thereof is on file with
the Secretary of State of the Commonwealth of Massachusetts and notice is hereby given that the Subscription Agreement is executed on behalf of the trustees of Subscriber or any affiliate thereof as trustees and not individually and that the
obligations of the Subscription Agreement are not binding on any of the trustees, officers or stockholders of Subscriber or any affiliate thereof individually but are binding only upon Subscriber or any affiliate thereof and its assets and
property.
|
J1 HOLDINGS INC.
|
||
By:
|
||
Name:
|
||
Title:
|
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ALTIMETER GROWTH CORP.
|
||
By:
|
||
Name:
|
||
Title:
|
SUBSCRIBER:
|
Signature of Joint Subscriber, if applicable:
|
|||
Signature of Subscriber:
|
||||
By:
|
By: N/A
|
|||
Name:
|
Name:
|
|||
Title:
|
Title:
|
|||
Date: April , 2021
|
Name of Subscriber:
|
Name of Joint Subscriber, if applicable:
|
|
N/A
|
||
(Please print. Please indicate name and capacity of person signing above)
|
(Please Print. Please indicate name and capacity of person signing above)
|
|
Name in which securities are to be registered (if different from the name of Subscriber listed directly above):
|
||
Email
|
||
Address:
|
If there are joint investors, please check one: N/A
|
||||
☐
|
Joint Tenants with Rights of Survivorship
|
|||
☐
|
Tenants-in-Common
|
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☐
|
Community Property
|
|||
Subscriber’s EIN:
|
Joint Subscriber’s EIN: N/A
|
Business Address-Street:
|
Mailing Address-Street (if different):
|
|||
City, State,
|
City, State,
|
|||
Zip:
|
Zip:
|
|||
Attn:
|
Attn:
|
|||
Telephone
|
Telephone
|
|||
No.:
|
No.:
|
|||
Facsimile No.:
|
Facsimile No.:
|
|||
Aggregate Number of Shares subscribed for:
|
||
Aggregate Purchase Price: $
|
A. |
QUALIFIED INSTITUTIONAL BUYER STATUS
|
B. |
INSTITUTIONAL ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs):
|
C. |
AFFILIATE STATUS (Please check the applicable box)
|
1 |
The name of the Company is Grab Holdings Limited.
|
5 |
The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided, that nothing in this section shall be
construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands.
|
6 |
The liability of each Shareholder is limited to the amount, if any, from time to time unpaid on such Shareholder’s shares.
|
7 |
The authorized share capital of the Company is US$50,000.00 divided into 50,000,000,000 shares of a par value of US$0.000001 each, of which 49,500,000,000 shall be designated as Class A ordinary shares and 500,000,000 shall be designated
as convertible Class B ordinary shares. Subject to the provisions of the Companies Act (Revised) and the Articles of Association, the Company has the power to redeem or purchase any of its shares and to increase or reduce the said capital
and to issue any part of its capital, whether original, redeemed or increased with or without any preference, priority or special privilege or subject to any postponement of rights or to any conditions or restrictions and so that unless the
conditions of issue shall otherwise expressly declare every issue of shares whether declared to be preference or otherwise shall be subject to the powers hereinbefore contained.
|
9 |
Capitalized terms that are not defined in this Memorandum of Association bear the same meaning as those given in the Articles of Association of the Company.
|
INTERPRETATION
|
5
|
PRELIMINARY
|
11
|
ISSUE OF SHARES
|
11
|
RIGHTS AND RESTRICTIONS ATTACHING TO ORDINARY SHARES
|
13
|
REGISTER OF MEMBERS AND SHARE CERTIFICATES
|
16
|
TRANSFER OF SHARES
|
17
|
REDEMPTION AND PURCHASE OF OWN SHARES
|
18
|
TREASURY SHARES
|
18
|
VARIATION OF RIGHTS ATTACHING TO SHARES
|
18
|
COMMISSION ON SALE OF SHARES
|
19
|
NON-RECOGNITION OF TRUSTS
|
19
|
LIEN ON SHARES
|
19
|
CALLS ON SHARES
|
20
|
FORFEITURE OF SHARES
|
21
|
TRANSMISSION OF SHARES
|
21
|
ALTERATION OF CAPITAL
|
22
|
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
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23
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GENERAL MEETINGS
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23
|
NOTICE OF GENERAL MEETINGS
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24
|
REGISTRATION BY WAY OF CONTINUATION
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40
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MERGERS AND CONSOLIDATIONS
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40
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1 |
“Acquisition Effective Time”
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has the meaning ascribed to such term in the Business Combination Agreement;
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“Affiliate”
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means a Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, another Person; provided, that in the case of a Key Executive, the
term “Affiliate” shall include such Key Executive’s Permitted Entities, notwithstanding anything to the contrary contained herein;
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“Articles”
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means these Articles of Association of the Company as altered or added to, from time to time;
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“AT”
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means Anthony Tan Ping Yeow, and, where these Articles refer to AT in his capacity as Shareholder, such references shall include him, his Permitted Entities and Permitted Transferees with respect to any shares held by him, his Permitted
Entities or Permitted Transferees (as applicable);
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“Auditor”
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“Board” or “Board of Directors”
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means the board of Directors for the time being of the Company;
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“Business Combination Agreement”
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means that certain Business Combination Agreement among the Company, Grab Holdings Inc., an exempted company limited by shares incorporated under the laws of the Cayman Islands, Altimeter Growth Corp., an exempted company limited by shares
incorporated under the laws of the Cayman Islands, J2 Holdings Inc., an exempted company limited by shares incorporated under the laws of the Cayman Islands and J3 Holdings Inc., an exempted company limited by shares incorporated under the
laws of the Cayman Islands, dated as of April 12, 2021;
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“Business Day”
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means any day, excluding Saturdays, Sundays, and any other day on which commercial banks are authorized or required by Law to close in New York, New York, the Cayman Islands, or the Republic of Singapore;
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“Cause”
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has the meaning ascribed to such term in AT’s employment agreement with the Company as in effect from time to time;
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“Chairman”
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“Class A Ordinary Share”
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means a Class A ordinary share in the capital of the Company of a par value of US$0.000001;
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“Class B Director”
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“Class B Ordinary Share”
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means a convertible Class B ordinary share in the capital of the Company of a par value of US$0.000001;
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“Class B Ordinary Shareholder”
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means a holder of Class B Ordinary Shares and any Permitted Transferee of such holder for so long as such Permitted Transferee is a holder of any Class B Ordinary Shares;
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“Co-Chairman”
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has the meaning ascribed to such term in Article 84(c);
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“Companies Act”
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means the Companies Act (Revised) of the Cayman Islands;
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“Company”
|
means Grab Holdings Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands;
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“Company’s Website”
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means the website of the Company, the address or domain name of which has been notified to the Shareholders;
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“Control,” “Controlling,” “under common Control with”
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means, directly or indirectly:
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|
(i)
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the ownership or control of a majority of the outstanding voting securities of such Person;
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(ii)
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the right to control the exercise of a majority of the votes at a meeting of the board of directors (or equivalent governing body) of such Person; or
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(iii)
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the ability to direct or cause the direction of the management and policies of such Person (whether by contract, through other legally enforceable rights or howsoever arising);
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“Directors”
|
means the directors of the Company for the time being, or as the case may be, the Directors assembled as a Board or as a committee thereof;
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“electronic”
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has the meaning ascribed to such term in the Electronic Transactions Act;
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“electronic communication”
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means an electronic posting to the Company’s Website, transmission to any number, address or internet website or other electronic delivery methods as otherwise decided and approved by not less than two-thirds of the vote of the Board;
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“Electronic Record”
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has the meaning given to it in the Electronic Transactions Act;
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“Electronic Transactions Act”
|
means the Electronic Transactions Act (Revised) of the Cayman Islands;
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“Family Members”
|
means and includes only the following individuals: the applicable individual, the spouse of the applicable individual (including former spouses), the parents of the applicable individual, the lineal descendants
of the applicable individual, the siblings of the applicable individual, and the lineal descendants of a sibling of the applicable individual. For purposes of the preceding sentence, the descendants of any individual shall include adopted
individuals and their issue but only if the adopted individual was adopted prior to attaining age 18;
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“GrabforGood Fund”
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means the GrabforGood endowment fund, a subsidiary of the Company or other fund or entity designed to grant financial support for long-term social and environmental impact benefiting communities across Southeast
Asia, or any successor or replacement entity approved by the Board from time to time;
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“Incapacity”
|
means, with respect to an individual, the permanent and total disability of such individual so that such individual is unable to engage in any substantial gainful activity by reason of any medically determinable
mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months as determined by a licensed medical practitioner. In the event of a dispute
regarding whether an individual has suffered an Incapacity, no Incapacity of such individual will be deemed to have occurred unless and until an affirmative ruling regarding such Incapacity has been made by a court or arbitral panel of
competent jurisdiction, and such ruling has become final and non-appealable;
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“Indemnified Person”
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“Initial Merger Effective Time”
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has the meaning ascribed to such term in the Business Combination Agreement;
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“Key Executives”
|
means AT, Ming-Hokng Maa and Tan Hooi Ling, and the Permitted Entities and Permitted Transferees of each of them;
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“Memorandum”
|
means the Memorandum of Association of the Company;
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“Notice Period”
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“Ordinary Resolution”
|
means a resolution passed by a simple majority of votes cast, including by all holders of a specific class of shares, if applicable;
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“Ordinary Shares”
|
means, collectively, the Class A Ordinary Shares and the Class B Ordinary Shares;
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“paid up”
|
means paid up as to the par value and any premium payable in respect of the issue of any shares and includes credited as paid up;
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(b)
|
any trust the beneficiaries of which consist primarily of a Key Executive, his or her Family Members, and/or any Persons Controlled directly or indirectly Controlled by such a trust;
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(c)
|
any Person Controlled by a trust described in the immediately preceding clause (b); or
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(d)
|
for the avoidance of doubt, with respect to AT, Hibiscus Worldwide Ltd.;
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“Person”
|
means any individual, corporation, partnership, joint venture, trust, unincorporated organization, limited liability company, estate, association, joint stock company, unincorporated organization, company or other form of business or legal
entity or government authority;
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“Proxy and Voting Deed”
|
means a deed or agreement conveying to AT the voting rights of outstanding Class B Ordinary Shares, which includes, for signatories thereof, the proxy and voting rights conveyed to AT by signatories thereof dated as of the date on which
the Acquisition Effective Time occurs; for the avoidance of doubt, the Shareholders’ Deed dated April 12, 2021 by and among the Company, Altimeter Growth Holdings, a Cayman Islands limited liability company, Grab Holdings Inc., an exempted
company limited by shares incorporated under the laws of the Cayman Islands, AT and the other signatories thereto shall be deemed to be a Proxy and Voting Deed;
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“Register of Members”
|
means the register of Shareholders to be kept by the Company in accordance with the Companies Act;
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“Seal”
|
means the Common Seal of the Company (if adopted), including any facsimile thereof;
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“Securities Act”
|
means the U.S. Securities Act of 1933;
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“share”
|
means any share in the capital of the Company and includes a fraction of a share;
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“Shareholder”
|
has the meaning ascribed to the term “member” in the Companies Act;
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“signed”
|
includes a signature or representation of a signature affixed by mechanical means or an electronic symbol or process attached to or logically associated with an electronic communication and executed or adopted by a Person with the intent
to sign the electronic communication;
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“Special Resolution”
|
has the meaning ascribed to such term in the Companies Act and includes a unanimous written resolution of all Shareholders;
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“Statutes”
|
means the Companies Act and every other law and regulation of the Cayman Islands for the time being in force concerning companies and affecting the Company;
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“subsidiary”
|
of any Person means any other Person in respect of which such first Person possesses ownership, or the power to direct the voting, of securities entitling to (i) more than fifty percent (50%) of the voting rights and/or (ii) the
appointment of a majority of the directors (or Persons performing a similar function);
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“Treasury Share”
|
means a share held in the name of the Company as a treasury share in accordance with the Companies Act;
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2 |
In these Articles, save where the context requires otherwise:
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(a) |
words importing the singular number shall include the plural number and vice versa;
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(b) |
words importing one gender only shall include any gender, as the context requires;
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(c) |
the terms “hereof,” “herein,” “hereby,” “herewith,” “hereto” and derivative or similar words refer to these Articles;
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(d) |
the word “extent” in the phrase “to the extent” means the degree to which a subject or thing extends and such phrase shall not simply mean “if;”
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(e) |
words importing natural persons and references to a “company” shall include any Person, and references to any Person includes such Person’s predecessors, successors and permitted assigns;
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(g) |
“may” shall be construed as permissive and “shall,” “will,” and “agrees” shall be construed as imperative;
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(h) |
a reference to “$”, “US$”, “USD”, or dollar(s) is a reference to the lawful currency of the United States of America;
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(i) |
references to provisions of any Statute, law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced, and including all regulations promulgated thereunder;
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(j) |
references to any agreement, deed or other instrument (including to these Articles and the Memorandum) is a reference to that agreement or instrument as amended, restated, or novated from time to time;
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(k) |
any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, in each case as if followed by the
words “but not limited to”;
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|
(l) |
the term “and/or” is used herein to mean both “and” as well as “or.” The use of “and/or” in certain contexts in no respects qualifies or modifies the use of the terms “and” or “or” in others. The term “or” shall not be interpreted to be
exclusive, unless the context otherwise requires;
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(m) |
headings are inserted for reference only and shall be ignored in construing the Articles;
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(n) |
any requirements as to delivery under the Articles include delivery in the form of an Electronic Record;
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(o) |
any requirements as to execution or signature under the Articles including the execution of the Articles themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Act;
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|
(p) |
notwithstanding the references in these Articles to an Electronic Record and to the Electronic Transactions Act (Revised), Sections 8 and 19(3) of the Electronic Transactions Act shall not apply;
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|
(q) |
“day” means calendar day, “month” means calendar month, and “year” means calendar year unless otherwise specifically stated. Time periods within or following which any payment is to be made or act is to be done under these Articles shall
be calculated by excluding the calendar day on which the period commences and including the calendar day on which the period ends, and by extending the period to the next following Business Day if the last calendar day of the period is not a
Business Day;
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(r) |
the term “clear days” in relation to the period of a notice means that period excluding the day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect;
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(s) |
“directly or indirectly” means, except where the context requires otherwise, directly or indirectly through one or more intermediate Persons or through contractual or other arrangements, and “direct or indirect” has the correlative
meaning; and
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(t) |
the term “holder” in relation to a share means a Person whose name is entered in the Register of Members as the holder of such share.
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3 |
Subject to the last two preceding Articles, any words defined in the Companies Act shall, if not inconsistent with the subject or context, bear the same meaning in these Articles.
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4 |
The business of the Company may be conducted as the Directors see fit.
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7 |
The Company shall not issue shares in bearer form.
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|
(a) |
the designation of such series, the number of preference shares to constitute such series and the subscription price thereof if different from the par value thereof;
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(b) |
whether the shares of such series shall have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights, which may be general or limited;
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(c) |
the dividends, if any, payable on such series, whether any such dividends shall be cumulative, and, if so, from what dates, the conditions and dates upon which such dividends shall be payable, the preference or relation which such
dividends shall bear to the dividends payable on any shares of any other class or any other series of preference shares;
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(d) |
whether the preference shares of such series shall be subject to redemption by the Company, and, if so, the times, prices and other conditions of such redemption;
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(e) |
the amount or amounts payable upon preference shares of such series upon, and the rights of the holders of such series in, a voluntary or involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of the
Company;
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(f) |
whether the preference shares of such series shall be subject to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption
of the preference shares of such series for retirement or other corporate purposes and the terms and provisions relative to the operation thereof;
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(g) |
whether the preference shares of such series shall be convertible into, or exchangeable for, shares of any other class or any other series of preference shares or any other securities and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same, and any other terms and conditions of conversion or exchange;
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(h) |
the limitations and restrictions, if any, to be effective while any preference shares of such series are outstanding upon the payment of dividends or the making of other distributions on, and upon the purchase, redemption or other
acquisition by the Company of, the existing shares or shares of any other class of shares or any other series of preference shares;
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(i) |
the conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon the issue of any additional shares, including additional shares of such series or of any other class of shares or any other series of
preference shares; and
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(j) |
any other powers, preferences and relative, participating, optional and other special rights, and any qualifications, limitations and restrictions thereof.
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|
(a) |
Income
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(b) |
Capital
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(c) |
Attendance at General Meetings; Class Voting
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(i) |
Holders of Ordinary Shares have the right to receive notice of, attend, speak and vote at general meetings of the Company.
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(ii) |
Except as otherwise provided in these Articles (including Articles 10(c)(iv), 84(a) and 84(d)), holders of Class A Ordinary Shares and Class B Ordinary Shares shall at all times vote together as one class on all matters submitted to a
vote for Shareholders’ consent.
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(iii) |
On all matters subject to a vote of the Shareholders, Ordinary Shares shall be entitled to voting rights as set forth in Article 72.
|
|
(A) |
increase the number of authorized Class B Ordinary Shares;
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(B) |
issue any Class B Ordinary Shares or securities convertible into or exchangeable for Class B Ordinary Shares, other than to any Key Executive or his or her Affiliates (provided, that such Key Executive (other than AT) or his or
her applicable Affiliate shall have executed an original, a counterpart of, or a deed of adherence with respect to, a Proxy and Voting Deed in respect of such Class B Ordinary Shares);
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(C) |
create, authorize, issue, or reclassify into, any preference shares in the capital of the Company or any shares in the capital of the Company that carry more than one (1) vote per share;
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(D) |
reclassify any Class B Ordinary Shares into any other class of shares or consolidate or combine any Class B Ordinary Shares without proportionately increasing the number of votes per Class B Ordinary Share; or
|
|
(d) |
Optional and Automatic Conversion of Class B Ordinary Shares
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|
(A) |
on the first anniversary of AT’s death or Incapacity;
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|
(B) |
on a date determined by the Board during the period commencing 90 days after, and ending 180 days after, the date on which AT is terminated for Cause (and in the event of a dispute regarding whether there was Cause, Cause will be deemed
not to exist unless and until an affirmative ruling regarding such Cause has been made by a court or arbitral panel of competent jurisdiction, and such ruling has become final and non-appealable); or
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|
(C) |
on a date determined by the Board during the period commencing 90 days and ending 180 days after the date that AT and his Affiliates and Permitted Transferees together own less than thirty-three percent (33%) of the number of Class B
Ordinary Shares that AT and his Affiliates and Permitted Transferees owned immediately following the Acquisition Effective Time, as adjusted for share splits, share combinations and similar transactions occurring after the Acquisition
Effective Time.
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|
(iii) |
No Class B Ordinary Shares shall be issued by the Company after conversion of all Class B Ordinary Shares into Class A Ordinary Shares.
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|
(e) |
Procedures of Conversion. The Company may, from time to time, establish such policies and procedures relating to the conversion of the Class B Ordinary Shares to Class A Ordinary Shares, including the issuance of share
certificates with respect thereto, as it may deem necessary or advisable.
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(f) |
Reservation of Class A Ordinary Shares Issuable upon Conversion of Class B Ordinary Shares. The Company shall at all times reserve and keep available out of its authorized but unissued Class A Ordinary Shares, solely for the
purpose of effecting the conversion of the Class B Ordinary Shares, such number of its Class A Ordinary Shares as shall from time to time be sufficient to effect the conversion of all outstanding Class B Ordinary Shares; and if at any time
the number of authorized but unissued Class A Ordinary Shares shall not be sufficient to effect the conversion of all then-outstanding Class B Ordinary Shares, the Company will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued Class A Ordinary Shares to such numbers of shares as shall be sufficient for such purpose.
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12 |
All share certificates shall bear legends required under the applicable laws, including the Securities Act.
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15 |
In the event that shares are held jointly by several Persons, any request may be made by any one of the joint holders and if so made shall be binding on all of the joint holders.
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(b) |
The Directors shall not refuse to register any transfer of a share which is permitted under these Articles save that the Directors may decline to register any transfer of any share in the event that any of the following is known by the
Directors not to be both applicable and true with respect to such transfer:
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|
(i) |
the instrument of transfer is lodged with the Company, or the designated transfer agent or share registrar, accompanied by the certificate for the shares to which it relates (if any) and such other evidence as the Board may reasonably
require to show the right of the transferor to make the transfer;
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(ii) |
the instrument of transfer is in respect of only one class of shares;
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|
(iii) |
the instrument of transfer is properly stamped, if required;
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|
(iv) |
the transferred shares are fully paid up and free of any lien in favor of the Company (it being understood and agreed that all other liens, e.g. pursuant to a bona fide loan or indebtedness transaction, shall be permitted); or
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|
(v) |
a fee of such maximum sum as the Designated Stock Exchange may determine to be payable, or such lesser sum as the Board may from time to time require, is paid to the Company in respect thereof.
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(c) |
If the Directors refuse to register a transfer they shall, within two months after the date on which the instrument of transfer was lodged, send to each of the transferor and the transferee notice of such
refusal stating the facts which are considered to justify the refusal to register the transfer.
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19 |
All instruments of transfer that shall be registered shall be retained by the Company.
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22 |
The Company may make a payment in respect of the redemption or purchase of its own shares in any manner permitted by the Companies Act, including out of capital.
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23 |
The Directors may accept the surrender for no consideration of any fully paid share.
|
24 |
The Directors may, prior to the purchase, redemption or surrender of any share, determine that such share shall be held as a Treasury Share.
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25 |
The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration).
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27 |
The provisions of these Articles relating to general meetings shall apply to every such general meeting of the holders of one class or series of shares except the following:
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(a) |
separate general meetings of the holders of a class or series of shares may be called only by:
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|
(i) |
the Chairman;
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|
(ii) |
a majority of the entire Board of Directors (unless otherwise specifically provided by the terms of issue of the shares of such class or series); or
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|
(iii) |
with respect to general meetings of the holders of Class B Ordinary Shares, AT;
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(b) |
|
(c) |
the necessary quorum shall be one or more Persons holding or representing by proxy at least one-third of the issued shares of the class or series and that any holder of shares of the class or series present in person or by proxy may
demand a poll.
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36 |
The joint holders of a share shall be jointly and severally liable to pay calls in respect thereof.
|
39 |
The Directors may make arrangements on the issue of shares for a difference between the Shareholders, or the particular shares, in the amount of calls to be paid and in the times of payment.
|
51 |
The Company may by Ordinary Resolution, subject to the rights of Class B Ordinary Shares, including under Article 10(c)(iv):
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|
(a) |
increase the share capital by such sum, to be divided into shares of such classes and amount, as the resolution shall prescribe;
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|
(b) |
consolidate and divide all or any of its share capital into shares of a larger amount than its existing shares;
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|
(c) |
sub-divide its existing shares or any of them into shares of a smaller amount; provided, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it
was in case of the share from which the reduced share is derived; or
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|
(d) |
cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any Person and diminish the amount of its share capital by the amount of the shares so cancelled.
|
57 |
All general meetings of the Company other than annual general meetings shall be called extraordinary general meetings.
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58
|
(a) |
The Company shall hold an annual general meeting and shall specify the meeting as such in the notices calling it. The annual general meeting shall be held at such time and place as the Directors shall determine.
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|
(b) |
At these annual general meetings, the report of the Directors (if any) shall be presented.
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59
|
(a) |
The Directors may call general meetings, and they shall on a Shareholders requisition forthwith proceed to convene an extraordinary general meeting of the Company.
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|
(b) |
A Shareholders requisition is a requisition of:
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|
(i) |
Shareholders of the Company holding at the date of deposit of the requisition not less than a majority of the votes that may be cast by all of the issued share capital of the Company as at that date carries the right of voting at general
meetings of the Company; or
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|
(ii) |
the holders of Class B Ordinary Shares entitled to cast (including by proxy) a majority of the votes that all Class B Ordinary Shares are entitled to cast.
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|
(c) |
The requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the principal place of business of the Company (with a copy forwarded to the registered office), and may consist of several
documents in like form each signed by one or more requisitionists.
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|
(d) |
If the Directors do not within 21 calendar days from the date of the deposit of the requisition duly proceed to convene a general meeting to be held within a further 21 calendar days, the requisitionists, or any of them representing more
than one half of the total voting rights of all of them, may themselves convene a general meeting, but any meeting so convened shall not be held after the expiration of three months after the expiration of the second said 21 calendar days.
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|
(e) |
A general meeting convened as aforesaid by requisitionists shall be convened in the same manner as nearly as possible as that in which general meetings are to be convened by Directors.
|
|
(a) |
in the case of an annual general meeting by all the Shareholders (or their proxies) entitled to attend and vote thereat; and
|
|
(b) |
in the case of an extraordinary general meeting by Shareholders (or their proxies) having a right to attend and vote at the meeting, together holding shares entitling the holders thereof to not less than two thirds of the votes entitled
to be cast at such extraordinary general meeting.
|
61 |
The accidental omission to give notice of a meeting to or the non-receipt of a notice of a meeting by any Shareholder shall not invalidate the proceedings at any meeting.
|
65 |
The Chairman shall preside as chairman at every general meeting of the Company.
|
75 |
No Shareholder shall be entitled to vote at any general meeting unless all calls or other sums presently payable by him in respect of shares in the Company have been paid.
|
76 |
On a poll, votes may be given either personally or by proxy.
|
77 |
A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by all Shareholders for the time being entitled to receive notice of and to attend and vote at general meetings (or, being entities, signed by
their duly authorised representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held.
|
|
(a) |
not less than 48 hours before the time for holding the meeting or adjourned meeting at which the Person named in the instrument proposes to vote; or
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|
(b) |
in the case of a poll taken more than 48 hours after it is demanded, be deposited as aforesaid after the poll has been demanded and not less than 24 hours before the time appointed for the taking of the poll; or
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|
(c) |
where the poll is not taken forthwith but is taken not more than 48 hours after it was demanded, be delivered at the meeting at which the poll was demanded to the chairman or to the secretary or to any Director;
|
84
|
(a)
|
The number of Directors shall not be more than seven Directors; provided, that, at any time and from time to time, the number of Directors may be increased to eight or nine (or reduced to any number
smaller than nine, as the case may be, as long as the provisions in Articles 84(d) and 85 regarding the removal of Directors are complied with), if and as determined by the holders of a majority of the Class B Ordinary Shares, voting
exclusively and as a separate class in a meeting or by written notice served upon the Company signed by or on behalf of the holders of a majority of the Class B Ordinary Shares for the time being in issue. Such appointment or removal
shall have immediate effect when the vote is passed or the notice served, or take effect at such later time as may be stated in such resolution or notice. Such resolution or notice shall include the specifications provided for in Article
84(d) as to additional Class B Director(s), if any, to be appointed to maintain the rights of the Class B Ordinary Shares set forth in Article 84(d). Where these Articles refer to an addition to the existing Board beyond nine Directors,
it is understood that this Article 84(a) shall first have been amended by Special Resolution subject to Article 10(c)(iv)(E).
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|
(b) |
Each Director shall hold office until the earlier to occur of:
|
|
(i) |
his or her successor having been elected;
|
|
(ii) |
his or her removal as set out in Article 84(d) or Article 85, as applicable; or
|
|
(iii) |
such time as determined in accordance with Article 101.
|
85 |
Any Director (other than any Class B Director) may be removed from office at any time before the expiration of his or her term by Ordinary Resolution.
|
86 |
A vacancy on the Board created by the removal of a Director (other than any Class B Director) under the provisions of Article 85 above may be filled in accordance with Article 84(e).
|
99 |
Any such delegates as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers, authorities, and discretions for the time being vested to them.
|
101 |
Notwithstanding anything in these Articles, the office of any Director shall be vacated if:
|
|
(a) |
such Director dies, becomes bankrupt or makes any arrangement or composition with his creditors;
|
|
(b) |
(i) with respect to any Director other than AT, a licensed medical practitioner who has evaluated that Director gives a written opinion to the Company stating he has become physically or mentally incapable of acting as a Director and may
remain so for more than three (3) months and (ii) with respect to AT, his Incapacity shall have been determined;
|
|
(c) |
such Director resigns his office by notice in writing to the Company; or
|
|
(d) |
such Director shall be removed from office pursuant to Article 84(d) (in the case a Class B Director) or Article 85.
|
102 |
The Directors may meet together (whether within or outside the Cayman Islands) for the dispatch of business, adjourn, and otherwise regulate their meetings and proceedings as they think fit.
|
104 |
(a)
|
At least one (1) Business Day notice shall be given to all Directors and their respective alternates (if any) for a Board meeting; provided, that such notice period may be reduced or waived with the
consent of all the Directors or their respective alternates (if any); provided, further, that such notice period may, in the event of an emergency as determined by a majority of all Directors (and Class B Directors shall
form a majority of such majority of all Directors), be shortened to such notice period as the Chairman may determine to be appropriate. The applicable notice period under this Article 104(a) for the applicable meeting of the Board shall
be referred to as the “Notice Period.”
|
|
(b) |
An agenda identifying in reasonable detail the issues to be considered by the Directors at any such meeting and copies (in printed or electronic form) of any relevant papers to be discussed at the meeting together with all relevant
information shall be provided to and received by all Directors and their alternates (if any) within the Notice Period. The agenda for each meeting shall include any matter submitted to the Company by any Director within the Notice Period.
|
|
(c) |
Unless approved by all Directors (whether or not present or represented at such meeting), matters not set out in the agenda need not be considered at a Board meeting.
|
108 |
109 |
The Directors shall cause minutes to be made in books or electronic records provided for the purpose of recording:
|
|
(a) |
all appointments of officers made by the Directors;
|
|
(b) |
the names of the Directors present at each meeting of the Directors and of any committee of the Directors; and
|
|
(c) |
all resolutions and proceedings at all meetings of the Company, and of the Directors and of committees of Directors.
|
117 |
(a)
|
A Director or alternate Director may hold any other office or place of profit under the Company (other than the office of the Auditor) in conjunction with his office of
Director for such period and on such terms as to remuneration and otherwise as the Directors may determine.
|
123 |
No dividend shall be paid otherwise than out of profits or, subject to the restrictions of the Companies Act, the share premium account.
|
125 |
If several Persons are registered as joint holders of any share, any of them may give effectual receipts for any dividend or other monies payable on or in respect of the share.
|
126 |
No dividend shall bear interest against the Company.
|
132 |
The Board shall make the requisite annual returns and any other requisite filings in accordance with the Companies Act.
|
133 |
The Directors may appoint an auditor of the Company who shall hold office until removed from office by a resolution of the Directors and may fix his or their remuneration (the “Auditor”).
|
140 |
Subject to the Companies Act and these Articles, the Board may, with the authority of an Ordinary Resolution:
|
|
(a) |
resolve to capitalise any amount standing to the credit of reserves (including a share premium account, capital redemption reserve and profit and loss account) or otherwise available for distribution;
|
|
(b) |
appropriate the sum resolved to be capitalised to the Shareholders in the proportions in which such sum would have been divisible amongst such Shareholders had the same been a distribution of profits by way of dividend or other
distribution, and apply that sum on their behalf in or towards:
|
|
(i) |
paying up the amounts (if any) for the time being unpaid on shares held by them respectively; or
|
|
(ii) |
paying up in full unissued shares or debentures of a nominal amount equal to that sum,
|
|
(c) |
make any arrangements it thinks fit to resolve a difficulty arising in the distribution of a capitalised reserve and in particular, without limitation, where shares or debentures become distributable in fractions the Board may deal with
the fractions as it thinks fit (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Shareholders concerned);
|
|
(d) |
authorise a Person to enter (on behalf of all the Shareholders concerned) an agreement with the Company providing for either:
|
|
(i) |
the allotment to the Shareholders respectively, credited as fully paid, of shares or debentures to which they may be entitled on the capitalisation, or
|
|
(ii) |
the payment by the Company on behalf of the Shareholders (by the application of their respective operations of the reserves resolved to be capitalised) of the amounts or part of the amounts remaining unpaid on their existing shares,
|
|
(e) |
generally do all acts and things required to give effect to the resolution.
|
142 |
Notices posted to addresses outside the Cayman Islands shall be forwarded by prepaid airmail.
|
144 |
Any notice or other document, if served by:
|
|
(a) |
post, service of the notice shall be deemed to have been served five calendar days after the time when the letter containing the same is posted (in proving such service it shall be sufficient to prove that the letter containing the
notice or document was properly addressed and duly posted);
|
|
(b) |
fax, service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted;
|
|
(c) |
recognised courier service, service of the notice shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier service and in proving such service it shall be sufficient to
prove that the letter containing the notice or documents was properly addressed and duly delivered to the courier; or
|
|
(d) |
e-mail, service of the notice shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not
be necessary for the receipt of the e-mail to be acknowledged by the recipient.
|
146 |
Notice of every general meeting shall be given to:
|
|
(a) |
all Shareholders who have supplied to the Company an address for the giving of notices to them;
|
|
(b) |
every Person entitled to a share in consequence of the death or bankruptcy of a Shareholder, who but for his death or bankruptcy would be entitled to receive notice of the meeting; and
|
|
(c) |
each Director and alternate Director.
|
152 |
Unless the Directors otherwise prescribe, the financial year of the Company shall end on December 31st in each year and shall begin on January 1st in each year.
|
2.1 |
Determination of Number of Shares and Closing. The closing of the Subscription contemplated hereby (the “Closing”) shall occur on the same day, and substantially
concurrent with, the consummation of the Transactions Closing (the date of the Closing, “Closing Date”) subject to the terms and conditions set forth herein; provided that the Closing shall occur no
earlier than immediately after the Initial Merger Effective Time (as defined in the Business Combination Agreement). Not less than ten (10) business days prior to the anticipated Closing Date, the Issuer shall provide written notice to
Subscriber (the “Closing Notice”) of such anticipated Closing Date. Subscriber shall deliver to the Issuer on or before two (2) business days prior to the anticipated Closing Date the Purchase Price for
the Shares by wire transfer of U.S. dollars in immediately available funds to the escrow account specified by the Issuer in the Closing Notice, to be held by the escrow agent until the Transactions Closing. As soon as practicable following
the Closing Date, but not later than one (1) business day after the Closing Date, the Issuer shall deliver to Subscriber (1) the Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under
applicable securities laws), in the name of Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable; and (2) a copy of the records of the Issuer’s transfer agent (the
“Transfer Agent”) or other evidence showing Subscriber as the owner of the Shares on and as of the Closing Date. For purposes of this Subscription Agreement, “business day” shall mean a day, other than
a Saturday, Sunday or other day on which commercial banks in New York, New York, the Cayman Islands or Singapore are authorized or required by law to close. In the event the Closing Date does not occur within two (2) business days after the
anticipated Closing Date identified in the Closing Notice, the Issuer shall cause the escrow agent to promptly (but not later than two (2) business days thereafter) return the Purchase Price to Subscriber by wire transfer of U.S. dollars in
immediately available funds to the account specified by Subscriber, and any book entries shall be deemed cancelled; provided that unless this Subscription Agreement has been terminated pursuant to Section 4, such return of
funds shall not terminate this Subscription Agreement or relieve Subscriber of its obligation to purchase the Shares at the Closing upon delivery of a new Closing Notice in accordance with the terms of this Section 2.1. Prior to or at
Closing, Subscriber shall deliver to Issuer a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
|
2.2 |
Conditions to Closing of the Issuer. The Issuer’s obligations to sell and issue the Shares at the Closing are subject to the fulfillment or (to the extent permitted by applicable law) written waiver, on or
prior to the Closing Date, of each of the following conditions:
|
|
(a) |
Representations and Warranties Correct. The representations and warranties made by Subscriber in Section 3.3 shall be true and correct as of the Closing Date (except with respect to such
representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date) except for inaccuracies or the failure of such representations and warranties to be true
and correct that (without giving effect to any limitation as to “materiality” or “Subscriber Material Adverse Effect” (as defined below) or another similar materiality qualification set forth herein), individually or in the aggregate, has not
had, and would not reasonably be expected to have, a Subscriber Material Adverse Effect.
|
|
(b) |
Closing of the Transactions. All conditions precedent to the Issuer’s, the Company’s, the Acquisition Entities’ (as defined in the Business Combination Agreement) and Altimeter’s obligations to effect the
Transactions Closing shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transactions Closing but subject to satisfaction or waiver thereof), the Initial
Closing (as defined in the Business Combination Agreement) shall have been consummated prior to the Closing and the Closing will be consummated on the same day, and substantially concurrent with, the Transactions Closing.
|
|
(c) |
Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or
regulation enjoining or prohibiting the consummation of the Subscription.
|
|
(d) |
Performance and Compliance under Subscription Agreement. Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this
Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or
materially impair the ability of the Subscriber to consummate the Closing.
|
2.3 |
Conditions to Closing of Subscriber. Subscriber’s obligation to subscribe for and purchase the Shares at the Closing is subject to the fulfillment or (to the extent permitted by applicable law) written
waiver, on or prior to the Closing Date, of each of the following conditions:
|
|
(a) |
Representations and Warranties Correct. The representations and warranties made by the Issuer in Section 3.1 and Altimeter in Section 3.2 shall be true and correct as of the Closing Date,
with respect to the Issuer, and the Initial Closing (as defined in the Business Combination Agreement), with respect to Altimeter (except with respect to such representations and warranties which speak as to an earlier date, which
representations and warranties shall be true and correct at and as of such date) except for inaccuracies or the failure of such representations and warranties to be true and correct that (without giving effect to any limitation as to
“materiality” or Issuer Material Adverse Effect (as defined in Section 3.1(d) below) or Altimeter Material Adverse Effect (as defined in Section 3.2(c) below), as the case may be, or another similar materiality qualification
set forth herein), individually or in the aggregate, has not had, and would not reasonably be expected to have, an Altimeter Material Adverse Effect or an Issuer Material Adverse Effect.
|
|
(b) |
Closing of the Transactions. All conditions precedent to the Issuer’s, the Company’s, the Acquisition Entities’ (as defined in the Business Combination Agreement) and Altimeter’s obligations to effect the
Transactions Closing shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transactions Closing but subject to satisfaction or waiver thereof), the Initial
Closing (as defined in the Business Combination Agreement) shall have been consummated prior to the Closing, and the Closing will be consummated on the same day, and substantially concurrent with, the Transactions Closing.
|
|
(c) |
Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or
regulation enjoining or prohibiting the consummation of the Subscription.
|
|
(d) |
Performance and Compliance under Subscription Agreement. The Issuer shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this
Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or
materially impair the ability of the Issuer to consummate the Closing.
|
|
(e) |
Listing. (i) The Issuer’s initial listing application with Nasdaq Stock Market LLC (“Nasdaq”) in connection with the Transactions shall have been conditionally approved and, immediately following the
Transactions Closing, the Issuer shall satisfy any applicable initial and continuing listing requirements of Nasdaq and the Issuer shall not have received any notice of non-compliance therewith, and (ii) the Shares shall have been approved
for listing on Nasdaq, subject to official notice of issuance.
|
3.1 |
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber as follows:
|
|
(a) |
The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all power (corporate or otherwise) and authority to own, lease and
operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
|
|
(b) |
At Closing, subject to the receipt of the Purchase Price in accordance with the terms of this Subscription Agreement and registration with the Transfer Agent, the Shares will be duly authorized, validly issued and
allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under
the Issuer’s organizational documents (as in effect at such time of issuance) or the laws of the Cayman Islands.
|
|
(c) |
This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber and Altimeter, is
the valid and binding obligation of the Issuer and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
|
|
(d) |
The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the other
transactions contemplated herein, including the Transactions, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the Issuer pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or
by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its
obligations under this Subscription Agreement, including the issuance and sale of the Shares (an “Issuer Material Adverse Effect”), (ii) result in any violation of
the provisions of the organizational documents of the Issuer or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction
over the Issuer or any of its properties that would reasonably be expected to have an Issuer Material Adverse Effect.
|
|
(e) |
As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of one (1) fully paid ordinary share, with a par value of $0.00001, and such share is duly authorized and validly
issued, is fully paid and non-assessable, and is not subject to preemptive rights or encumbrances. As of the date of this Subscription Agreement, and immediately prior to Closing, except as set forth above and pursuant to the Other
Subscription Agreements, the Business Combination Agreement, the other Transaction Documents (as defined in the Business Combination Agreement) and the transactions contemplated thereby, there are no outstanding (i) shares, equity interests
or voting securities of the Issuer, (ii) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (iii) options, warrants or other rights (including preemptive rights)
or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any shares or
other equity interests or voting securities of the Issuer (collectively, the “Equity Interests”) or securities convertible into or exchangeable or exercisable for Equity Interests, or (iv) other similar
rights of or with respect to the Issuer, or (v) obligations of the Issuer to repurchase, redeem or otherwise acquire any of the foregoing Equity Interests, or other similar rights. As of the date of this Subscription Agreement, there are no
shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination
Agreement, the other Transaction Documents (as defined in the Business Combination Agreement) and the transactions contemplated thereby.
|
|
(f) |
Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 3.3, in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription
Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber. The Shares (i) were not offered to Subscriber by any form of general solicitation or general advertising,
including methods described in section 502(c) of Regulation D under the Securities Act and (ii) to Issuer's knowledge, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities
Act, or any state securities laws.
|
|
(g) |
The Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer and made available to Subscriber all the information reasonably available to the Issuer that Subscriber has reasonably
requested to make an investment decision with respect to the Shares.
|
|
(h) |
Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would
adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities
Act.
|
|
(i) |
Except for such matters as would not reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect, there is no (i) action, suit, claim or other proceeding, in each case by or
before any governmental authority pending, or, to the knowledge of the Issuer, threatened against the Issuer, or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.
|
|
(j) |
The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written
communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to
have, individually or in the aggregate, an Issuer Material Adverse Effect.
|
|
(k) |
The Issuer is not required to obtain any material consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section
6.20; (iv) those required by Nasdaq, and (v) those required to consummate the Transactions as provided under the Business Combination Agreement.
|
|
(l) |
Upon consummation of the Transactions Closing, the Issuer Shares will be registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and will be listed for trading on Nasdaq, and the Shares will be approved for listing on Nasdaq, subject to official notice of issuance, and no suspension of such approval shall have occurred.
|
|
(m) |
Neither the Issuer nor any person acting on its behalf is under any obligation to pay any broker’s fee or finder’s fee or other fee or commission in connection with the sale of the Shares.
|
|
(n) |
The Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by Subscriber in connection with a bona fide margin agreement, which shall not be deemed to be a
transfer, sale or assignment of the Shares hereunder, and Subscriber effecting a pledge of Shares shall not be required to provide the Issuer with any notice thereof or otherwise make any delivery to the Issuer pursuant to this Subscription
Agreement.
|
|
(o) |
The Issuer is not, and immediately after receipt of payment for the Shares of the Issuer will not be, (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “Investment Company Act”), and as such, subject to registration as an “investment company” under the Investment Company Act or (ii) a “business
development company” (as defined in Section 2(a)(48) of the Investment Company Act).
|
|
(p) |
There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or threatened against or affecting the Issuer or any of the Issuer’s properties or rights
that affects or would reasonably be expected to affect the Issuer’s ability to consummate the transactions contemplated by this Subscription Agreement, nor is there any decree, injunction, rule or order of any governmental authority or
arbitrator outstanding against the Issuer or any of the Issuer’s properties or rights that affects or would reasonably be expected to affect the Issuer’s ability to consummate the transactions contemplated by this Subscription Agreement.
|
3.2 |
Altimeter’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, Altimeter hereby represents and warrants to Subscriber as follows:
|
|
(a) |
Altimeter is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. Altimeter has all power (corporate or otherwise) and authority to own, lease and
operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
|
|
(b) |
This Subscription Agreement has been duly authorized, executed and delivered by Altimeter and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the valid and
binding obligation of Altimeter and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating
to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
|
|
(c) |
The execution, delivery and performance of this Subscription Agreement (including compliance by Altimeter with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain
other transactions contemplated herein, including the Transactions, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets of Altimeter pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Altimeter is a
party or by which Altimeter is bound or to which any of the property or assets of Altimeter is subject, which would reasonably be expected to have a material adverse effect on the ability of Altimeter to enter into and timely perform its
obligations under this Subscription Agreement (an “Altimeter Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational
documents of Altimeter or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Altimeter or any of its properties
that would reasonably be expected to have an Altimeter Material Adverse Effect.
|
|
(d) |
As of the date of this Subscription Agreement, the authorized capital shares of Altimeter consists of (i) 200,000,000 shares of Class A ordinary shares, par value $0.0001 per share (“Class A Shares”), (ii) 20,000,000 shares of Class B ordinary shares, par value $0.0001 per share (“Class B Shares”) and 1,000,000 shares of preferred stock, par value $0.0001 per share. As of the date hereof: (i) 50,000,000 Class A Shares are issued and outstanding; (ii) 12,500,000 Class B Shares are issued and outstanding; and
(iii) 22,000,000 warrants, each exercisable to purchase one existing Class A Share at $11.50 per share are outstanding. As of the date of this Subscription Agreement, and immediately prior to the Initial Closing (as defined in the Business
Combination Agreement) other than as set forth in this clause (d) or in any form, report, statement, schedule, prospectus, proxy, registration statement or other document filed by Altimeter with the Commission prior to the date of this
Subscription Agreement (each, an “SEC Document” and collectively, the “SEC Documents”) or any of the Transaction Documents, there are no outstanding (1) shares, equity interests or voting securities of Altimeter, (2) securities of Altimeter convertible into or exchangeable for shares or other equity
interests or voting securities of Altimeter, or (3) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of Altimeter to subscribe for,
purchase or acquire from any individual, entity or other person, and no obligation of Altimeter to issue, any shares or other equity interests or voting securities of Altimeter (collectively, the “Altimeter Equity Interests”) or securities convertible into or exchangeable or exercisable for Altimeter Equity Interests, (4) or other similar rights of or with respect to Altimeter, or
(5) obligations of Altimeter to repurchase, redeem or otherwise acquire any of the foregoing Altimeter Equity Interests or other similar rights. As of the date of this Subscription Agreement, Altimeter has no subsidiaries and does not own,
directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements or understandings to which Altimeter is
a party or by which it is bound relating to the voting of any securities of Altimeter, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Business Combination Agreement (including the Transaction Documents).
There are no securities or instruments issued by or to which Altimeter is party containing anti-dilution or similar provisions that will be triggered by the issuance of the Shares or the issuance of the Issuer Shares under any Other
Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing Date.
|
|
(e) |
As of the date of this Subscription Agreement, and immediately prior to Initial Closing (as defined in the Business Combination Agreement), the issued and outstanding Class A Shares of Altimeter are registered
pursuant to Section 12(b) of the Exchange Act, and are listed for trading on Nasdaq under the symbol “AGC”. There is no suit, action, proceeding or investigation pending or, to the knowledge of Altimeter, threatened against Altimeter by
Nasdaq or the Commission with respect to any intention by such entity to deregister the Class A Shares of Altimeter or prohibit or terminate the listing of the Class A Shares of Altimeter on Nasdaq. Altimeter has taken no action that is
designed to terminate the registration of the shares of Class A Shares of Altimeter under the Exchange Act prior to the Initial Closing (as defined in the Business Combination Agreement).
|
|
(f) |
Altimeter has made available to Subscriber (including via the Commission’s EDGAR system) a true, correct and complete copy of each SEC Document which, as of their respective filing dates, complied in all
material respects with the requirements of the Securities Act and Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents. None of the SEC Documents
contained, when filed or, if amended prior to the date of this Subscription Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted 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, not misleading; provided, that Altimeter makes no such representation or warranty with respect to the proxy statement of Altimeter to be filed in connection with the approval of the Business Combination Agreement by the shareholders of
Altimeter (the “Proxy Statement”) or any other information relating to the Company or any of its affiliates and consolidated affiliated entities (together with the
Company, the “Group”) included in any SEC Documents or filed as an exhibit thereto. Altimeter has timely filed each SEC Document that Altimeter was
required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the
SEC Documents.
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(g) |
Except for such matters as have not had and would not reasonably be expected to have, individually or in the aggregate, an Altimeter Material Adverse Effect, there is no (i) action, suit, claim or other proceeding,
in each case by or before any governmental authority pending, or, to the knowledge of Altimeter, threatened against Altimeter, or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against
Altimeter.
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(h) |
There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or threatened against or affecting Altimeter or any of Altimeter’s properties or rights
that affects or would reasonably be expected to affect Altimeter’s ability to consummate the transactions contemplated by this Subscription Agreement, nor is there any decree, injunction, rule or order of any governmental authority or
arbitrator outstanding against Altimeter or any of Altimeter’s properties or rights that affects or would reasonably be expected to affect Altimeter’s ability to consummate the transactions contemplated by this Subscription Agreement.
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(i) |
Altimeter is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Altimeter Material Adverse Effect. Altimeter has not received any written
communication from a governmental authority that alleges that Altimeter is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to
have, individually or in the aggregate, an Altimeter Material Adverse Effect.
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(j) |
Altimeter is not required to obtain any material consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the Commission, (ii) filings required by applicable state
or federal securities laws, (iii) the filings required in accordance with Section 6.20; (iv) those required by Nasdaq, and (v) those required to consummate the Transactions as provided under the Business Combination Agreement.
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(k) |
Neither Altimeter nor any person acting on its behalf is under any obligation to pay any broker’s fee or finder’s fee or other fee or commission in connection with the sale of the Shares.
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3.3 |
Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and Altimeter and acknowledges and
agrees with the Issuer and Altimeter as follows:
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(a) |
Subscriber has been duly formed or incorporated and is validly existing and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and
authority to enter into, deliver and perform its obligations under this Subscription Agreement.
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(b) |
This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Altimeter,
this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
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(c) |
The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant
to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or
to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the Subscriber’s ability to enter into and timely perform its obligations
under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of
Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of
its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect.
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(d) |
Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or
agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full
power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with,
any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise
dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). The information provided by Subscriber on Schedule I is true and correct in all respects.
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(e) |
Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the offer and sale of the Shares have not been registered
under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a
subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the
registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any book entries representing the
Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be
subject to the foregoing transfer restrictions and, as a result, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time.
Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.
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(f) |
Subscriber is purchasing the Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Altimeter,
the Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer and Altimeter expressly set forth in this Subscription
Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement.
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(g) |
Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),
or any applicable similar law.
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(h) |
In making its decision to purchase the Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and Altimeter’s representations, warranties and agreements
contained in Section 3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and Altimeter
concerning the Issuer or Altimeter, respectively, or the Shares or the offer and sale of the Shares. Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems
necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Altimeter, the Group and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other
economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber has reviewed the documents made available to the Subscriber by Altimeter and the Company. Subscriber and Subscriber’s professional advisor(s), if any,
have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to
the Shares. Subscriber also acknowledges that the 2020 historical financial data concerning the Company has been derived based on the Company’s management accounts in accordance with International Financial Reporting Standards, or IFRS, and
has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s audited results for 2020 will not differ from the financial data presented to Subscriber and such changes could be material.
Based on such information as Subscriber has deemed appropriate, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Except for the representations, warranties and agreements of the Issuer
expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with
respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company, including but not limited to all business, legal, regulatory,
accounting, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change.
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(i) |
Subscriber is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge
and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to
make an informed investment decision. Subscriber understands and acknowledges that (A) it (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in financial and business
transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating
its participation in the purchase of the Shares and (B) the purchase and sale of the Shares hereunder meets the institutional customer exemption under FINRA Rule 2111(b).
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(j) |
Subscriber, alone, or together with any professional advisor(s), has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that
Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists.
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(k) |
Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the
Shares.
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(l) |
Subscriber is not a person that is the target of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by relevant
governmental authorities, including, but not limited those administered by the U.S. government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State, the United Nations Security Council, the European Union, or Her Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), including (i) any person listed in any Sanctions-related list of sanctioned persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union, or any EU member
state, (ii) any person operating, organized or resident in a country or territory which is itself the subject or target of any Sanctions (at the time of this Subscription Agreement, Crimea, Cuba, Iran, North Korea, and Syria), (iii) any
person owned or controlled by, or acting on behalf of, any such person or persons; or (iv) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that (i) if it is a financial institution subject to the Bank Secrecy Act (31
U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber
maintains policies and procedures reasonably designed to ensure compliance with applicable obligations under the BSA/PATRIOT Act, and (ii) to the extent required, it maintains policies and procedures reasonably designed to ensure compliance
with the anti-money laundering-related laws administered and enforced by other governmental authorities. Subscriber also represents that it maintains policies and procedures reasonably designed to ensure compliance with applicable
Sanctions. Subscriber further represents and warrants that it maintains policies and procedures reasonably designed to ensure the funds held by Subscriber and used to purchase the Shares were legally derived and were not obtained, directly
or indirectly, from a Prohibited Investor.
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(m) |
If Subscriber is or is acting on behalf of an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the
Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not
subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (“Similar Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that none of Altimeter, the Issuer, the Company, or any of their respective
affiliates (the “Transaction Parties”) has provided investment advice or otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold
the Shares, and none of the Transaction Parties is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with its investment in the Shares (including with respect to any decision to acquire, continue to
hold or transfer the Shares).
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(n) |
Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by Subscriber with the Commission with respect to the beneficial ownership of Altimeter’s ordinary shares prior to the
date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) acting for the purpose of
acquiring, holding or disposing of equity securities of Altimeter (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).
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(o) |
No foreign person (as defined in Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. §4565), and all rules and regulations issued and effective thereunder (together, the “DPA”))
in which the national or subnational governments of a single foreign state have a "substantial interest" (as defined in the DPA) will acquire a "substantial interest" (as defined in the DPA) in the Issuer as a result of the purchase of Shares
by Subscriber hereunder such that a filing before the Committee on Foreign Investment in the United States would be required under the DPA, and no such foreign person will have "control" (as defined in the DPA) over the Issuer from and after
the Closing as a result of the purchase of Shares by Subscriber hereunder.
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(p) |
On each date the Purchase Price would be required to be funded pursuant to Section 2.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 2.1.
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(q) |
Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including Altimeter, the Issuer, the Company, any of
their respective affiliates or any of its or their respective control persons, officers, directors or employees), other than the representations and warranties of the Issuer and Altimeter expressly set forth in this Subscription Agreement, in
making its investment or decision to invest in the Issuer. Subscriber agrees that none of (i) any Other Subscriber (including the controlling persons, officers, directors, partners, agents or employees of any such Other Subscriber) or (ii)
the Company or their respective affiliates or any of their or their respective affiliates’ control persons, officers, directors, partners, agents or employees shall be liable to: the Subscriber pursuant to this Subscription Agreement (or any
Other Subscriber pursuant to any Other Subscription Agreement) or any other agreement related to the private placement of shares of the Issuer’s capital stock for any action heretofore or hereafter taken or omitted to be taken by any of them
in connection with the purchase of the Shares hereunder.
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(r) |
No broker, finder or other financial consultant is acting on Subscriber’s behalf in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability of the
Issuer or the Company for the payment of any fees, costs, expenses or commissions.
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(s) |
Subscriber has no binding arrangement in place to sell, transfer or otherwise dispose of any of the Shares.
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6. |
Miscellaneous.
|
6.1 |
Further Assurances. The parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to
consummate the Subscription as contemplated by this Subscription Agreement no later than immediately prior to the consummation of the Transactions Closing.
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|
(a) |
Subscriber acknowledges that the Issuer and Altimeter (as parties) and the Company (as a third party beneficiary with right of enforcement) will rely on the acknowledgments, understandings, agreements, covenants,
representations and warranties of the Subscriber contained in this Subscription Agreement including, for the avoidance of doubt, the provisions of Section 3.3(q). Prior to the Closing, Subscriber agrees to promptly notify the Issuer,
the Company and Altimeter if any of the acknowledgments, understandings, agreements, covenants representations and warranties made by Subscriber set forth herein are no longer accurate. In addition, the Issuer and Altimeter each acknowledges
and agrees that the Company is a third-party beneficiary of the acknowledgments, understandings, agreements, covenants, representations and warranties made by the Issuer or Altimeter (as applicable) contained in this Subscription Agreement.
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(b) |
Each of Altimeter and the Issuer acknowledges that the Subscriber will rely on the acknowledgements, understandings, agreements, covenants representations and warranties of Altimeter and the Issuer, respectively,
contained in this Subscription Agreement. Prior to the Closing, each of the Issuer and Altimeter agrees to promptly notify the Subscriber if any of the acknowledgements, understandings, agreements, covenants, representations and warranties
made by Issuer or Altimeter, as applicable, set forth herein are no longer accurate in all material respects.
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(c) |
Subscriber acknowledges and agrees that no party to the Business Combination Agreement (other than the Issuer and Altimeter) nor any Non-Party Affiliate (as defined below), shall have any liability to Subscriber, or
to any other investor, pursuant to, arising out of or relating to this Subscription Agreement or any other subscription agreement related to the private placement of the Shares, the negotiation hereof or thereof or its subject matter, or the
transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares or with respect to any
claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith or for any actual or alleged inaccuracies,
misstatements or omissions with respect to any information or materials of any kind furnished by the Issuer, Altimeter, the Company, or any Non-Party Affiliate concerning the Issuer, Altimeter, the Company, any of their controlled affiliates,
this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee,
partner, member, investment manager, manager, direct or indirect equityholder, investors, representatives, agents, predecessors, successors, assigns, or affiliate of the Issuer, Altimeter, the Company, or any of the Issuer’s, Altimeter’s or
the Company’s controlled affiliates or any family member of the foregoing.
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(d) |
Each of the Issuer, Altimeter, Subscriber and the Company is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
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(e) |
The Issuer and Altimeter may request from Subscriber such additional information as the Issuer and Altimeter may deem reasonably necessary to evaluate the eligibility of Subscriber to acquire the Shares, and
Subscriber shall promptly provide such information as may be reasonably requested; provided, that (subject to Section 6.20 below) the Issuer and Altimeter agrees to keep any such information provided by Subscriber confidential.
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(f) |
Each party shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
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(g) |
Each of Subscriber, the Issuer and Altimeter shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this
Subscription Agreement on the terms and conditions described herein no later than immediately prior to the consummation of the Transactions Closing.
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6.2 |
No Short Sales. Subscriber hereby agrees that neither it, its affiliates, nor any person or entity acting on its behalf or pursuant to any understanding with the Subscriber, shall, directly or indirectly,
engage in any hedging activities or execute any Short Sales (as defined below) with respect to the securities of Altimeter prior to the Closing or the earlier termination of this Subscription Agreement in accordance with its terms. “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges (other than pledges in
the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S.
broker dealers or foreign regulated brokers. Notwithstanding the foregoing, in the case of a Subscriber that is a multi-managed investment bank or vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, this Section 6.2 shall apply only with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement.
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6.3 |
Additional Information. Altimeter and the Issuer may request from the Subscriber such additional information as is necessary for Altimeter or the Issuer, as applicable, to comply with public disclosure
requirements of applicable securities laws or any filing requirements pursuant to the rules of any stock exchange or the Financial Industry Regulatory Authority, and the Subscriber shall provide such information. The Subscriber acknowledges
that Altimeter or the Issuer may file a copy of the form of this Subscription Agreement with the Commission as an exhibit to a current or periodic report or a registration statement of Altimeter or the Issuer, as applicable.
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6.4 |
Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by
certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three (3) business
days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder (a courtesy copy of any notice sent shall also be sent via email):
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(a) |
if to Subscriber, to such address or addresses set forth on the signature page hereto;
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|
(b) |
if to the Issuer, to:
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|
(c) |
if to the Company, to:
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6.5 |
Entire Agreement. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the
parties, with respect to the subject matter hereof, including any commitment letter entered into relating to the subject matter hereof.
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6.6 |
Modifications and Amendments. This Subscription Agreement may not be amended, modified, supplemented or waived (i) except by an instrument in writing, signed by the party against whom enforcement of such
amendment, modification, supplement or waiver is sought and (ii) without the prior written consent of Altimeter, the Issuer and the Company.
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6.7 |
Assignment. Neither this Subscription Agreement nor any rights, interests or obligations that may accrue to the parties hereunder (including Subscriber’s rights to purchase the Shares) may be transferred or
assigned without the prior written consent of each of the other parties hereto (other than the Shares acquired hereunder, if any, and then only in accordance with this Subscription Agreement), other than an assignment to one or more
affiliates of the Subscriber, subject to, if such transfer or assignment is prior to the Closing, such transferee or assignee, as applicable, executing a joinder to this Subscription Agreement or a separate subscription agreement in
substantially the same form as this Subscription Agreement, including with respect to the Purchase Price and other terms and conditions; provided, however, that, in the case of any such transfer or assignment, the initial
party to this Subscription Agreement shall remain bound by its obligations under this Subscription Agreement. For the avoidance of doubt, any transaction contemplated by the Business Combination Agreement shall be deemed not to constitute an
assignment of this Subscription Agreement or any rights, interests or obligations that may accrue to the parties hereunder.
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6.8 |
Benefit.
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|
(a) |
Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives,
and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal
representatives and permitted assigns. This Subscription Agreement shall not confer rights or remedies upon any person other than the parties hereto and their respective successors and assigns, provided that notwithstanding the
foregoing, the Company is an express third-party beneficiary of the provisions of this Subscription Agreement.
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(b) |
Each of Altimeter, the Issuer and Subscriber acknowledges and agrees that (a) this Subscription Agreement is being entered into in order to induce the Company to execute and deliver the Business Combination
Agreement and without the acknowledgments, understandings, agreements, covenants, representations and warranties of Altimeter, the Issuer and Subscriber hereunder, the Company would not enter into the Business Combination Agreement, (b) each
of the acknowledgments, understandings, agreements, covenants, representations and warranties of the Issuer and Subscriber hereunder is being made also for the benefit of the Company and (c) the Company may directly enforce (including by
seeking an action for specific performance, injunctive relief or other equitable relief, including to cause the Purchase Price to be paid and the Closing to occur) each of acknowledgments, understandings, agreements, covenants,
representations and warranties of each of Altimeter, the Issuer and Subscriber under this Subscription Agreement.
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6.9 |
Governing Law. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in
tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws that would otherwise require the application of the law of any other state.
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6.10 |
Consent to Jurisdiction; Waiver of Jury Trial. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, TO THE EXTENT SUCH COURT DOES NOT HAVE
SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT
OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A DELAWARE STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH
DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 6.4 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE
THEREOF. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY
THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) 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; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 6.10.
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6.11 |
Severability. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement
shall not in any way be affected or impaired thereby and shall continue in full force and effect.
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6.12 |
No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto,
shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to
enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a
waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
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6.13 |
Remedies.
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(a) |
The parties agree that irreparable damage would occur if this Subscription Agreement was not performed or the Closing is not consummated in accordance with its specific terms or was otherwise breached and that money
damages or other legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that the parties hereto shall be entitled to equitable relief, including in the form of an injunction or injunctions, to prevent
breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 6.10, this
being in addition to any other remedy to which any party is entitled at law, in equity, in contract, in tort or otherwise, including money damages. The right to specific enforcement shall include the right of the Issuer, Altimeter and the
Company to cause Subscriber and the right of Altimeter and the Company to cause the Issuer to cause the transactions contemplated hereby to be consummated on the terms and subject to the conditions and limitations set forth in this
Subscription Agreement. The parties hereto further agree (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (ii) not to assert that a remedy of specific enforcement pursuant to
this Section 6.13 is unenforceable, invalid, contrary to applicable law or inequitable for any reason and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be
adequate. In connection with any action for which the Company is being granted an award of money damages, Subscriber agrees that such damages, to the extent payable by such party, shall include, without limitation, damages related to the
consideration that is or was to be issued or paid to the Company or its equityholders under the Business Combination Agreement and/or Subscription Agreement and such damages are not limited to an award of out-of-pocket fees and expenses
related to the Business Combination Agreement and Subscription Agreement.
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(b) |
The parties acknowledge and agree that this Section 6.13 is an integral part of the transactions contemplated hereby and without that right, the parties hereto would not have entered into this Subscription
Agreement.
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(c) |
In any dispute arising out of or related to this Subscription Agreement, or any other agreement, document, instrument or certificate contemplated hereby, or any transactions contemplated hereby or thereby, the
applicable adjudicating body shall award to the prevailing party, if any, the reasonable and documented out-of-pocket costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the dispute and the enforcement of
its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby and, if the adjudicating body determines a party to be the prevailing party under circumstances where the prevailing
party won on some but not all of the claims and counterclaims, the adjudicating body may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the
adjudication and the enforcement of its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby or thereby.
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6.14 |
Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Subscription Agreement shall survive the Closing. For the avoidance of doubt, if for any
reason the Closing does not occur prior to the consummation of the Transactions Closing, all representations, warranties, covenants and agreements of the parties hereunder shall survive the consummation of the Transactions Closing and remain
in full force and effect.
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6.15 |
No Broker or Finder. Each of the Issuer, Altimeter and Subscriber represents and warrants to the other parties hereto that no broker, finder or other financial consultant has acted on its behalf in connection
with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on any other party hereto.1
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6.16 |
Headings and Captions. The headings and captions of the various subdivisions of this Subscription Agreement are for convenience of reference only and shall in no way modify or affect the meaning or
construction of any of the terms or provisions hereof.
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6.17 |
Counterparts. This Subscription Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other parties, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form
of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
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6.18 |
Construction. The words “include,” “includes,” and “including” will be deemed to be
followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the
plural and vice versa, unless the context otherwise requires. The words “this Subscription Agreement,” “herein,” “hereof,”
“hereby,” “hereunder,” and words of similar import refer to this Subscription Agreement as a whole and not to any particular subdivision unless expressly so
limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate
the fact that such party hereto is in breach of the first representation, warranty, or covenant. All references in this Subscription Agreement to numbers of shares, per share amounts and purchase prices shall be appropriately adjusted to
reflect any stock split, stock dividend, stock combination, recapitalization or the like occurring after the date hereof.
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6.19 |
Mutual Drafting. Each provision of this Subscription Agreement has been subject to the mutual consultation, negotiation and agreement of the parties and shall not be construed for or against any party hereto.
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6.20 |
Cleansing Statement; Consent to Disclosure.
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(a) |
Altimeter shall, by no later than 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement, issue one (1) or more press releases or file with
the Commission a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and by
the Other Subscription Agreements and the Transactions and any other material, nonpublic information that the Issuer or Altimeter or their respective representatives has provided to the Subscriber at any time prior to the filing of the
Disclosure Document. From and after the issuance of the Disclosure Document, to the Issuer and Altimeter’s knowledge, Subscriber shall not be in possession of any material, non-public information received from the Issuer, Altimeter or the
Company or any of their respective officers, directors, employees or agents relating to the transactions contemplated by this Subscription Agreement, and the Subscriber shall no longer be subject to any confidentiality or similar
obligations under any current agreement, whether written or oral with Issuer, the Company, Altimeter or any of their affiliates, relating to the transactions contemplated by this Subscription Agreement.
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(b) |
Subscriber hereby consents to the publication and disclosure in any press release issued by the Issuer, Altimeter or the Company or any other filing with the Commission by Altimeter or the Issuer in connection with
the execution and delivery of the Business Combination Agreement and the Proxy Statement (and, as and to the extent otherwise required by the federal securities laws or the Commission or any other securities authorities, any other documents
or communications provided by the Issuer, Altimeter or the Company or any of their respective affiliates to any governmental authority or to securityholders of Altimeter, the Issuer or the Company) of Subscriber’s identity and beneficial
ownership of the Shares and the nature of Subscriber’s commitments, arrangements and understandings under and relating to this Subscription Agreement and, if deemed appropriate by the Issuer, Altimeter or the Company, a copy of this
Subscription Agreement. Subscriber will promptly provide any information reasonably requested by Altimeter, the Issuer or the Company for any regulatory application or filing made or approval sought in connection with the Transactions
(including filings with the Commission).
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6.21 |
Regulatory Compliance. Subscriber hereby agrees that it shall comply with all regulatory requirements in connection with the Subscription and the Transactions and shall coordinate in good faith with the
Issuer, Altimeter or the Company, as applicable, to provide all information as may reasonably be requested by any applicable governmental authority relating to the Subscription or the Transactions.
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7. |
Independent Obligations. The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other
Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under this Subscription Agreement or any other investor under the Other Subscription Agreements. The
decision of Subscriber to purchase Shares pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber or any other investor and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company or any of its subsidiaries which may have been made or given by any
Other Subscriber or other investor or by any agent or employee of any Other Subscriber or other investor, and neither Subscriber nor any of its agents or employees shall have any liability to any Other Subscriber or other investor (or any
other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or any Other Subscriber or other investor
pursuant hereto or thereto, shall be deemed to constitute the Subscriber, on the one hand, and any Other Subscriber or other investor, on the other hand, as a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Subscriber and any Other Subscriber or other investor are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the
Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for the Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of the Subscriber in
connection with monitoring its investment in the Shares or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising
out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber or investor to be joined as an additional party in any proceeding for such purpose.
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8. |
Certain Tax Matters. The Parties acknowledge and agree that for U.S. federal income tax purposes, Subscriber shall be deemed to
be the owner of any funds transferred by Subscriber to any escrow account (if applicable) unless and until such funds are disbursed to Issuer in accordance with the terms of this Subscription Agreement, which disbursement shall occur, for the
avoidance of doubt, no earlier than immediately following the Initial Merger Effective Time (as defined in the Business Combination Agreement).
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J1 HOLDINGS INC.
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By:
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||
Name:
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||
Title:
|
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ALTIMETER GROWTH CORP.
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By:
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||
Name:
|
||
Title:
|
||
ALTIMETER PARTNERS FUND, L.P.
|
||
By:
|
||
Name:
|
||
Title:
|
||
Subscriber’s EIN:
|
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Business Address-Street:
|
||
City, State, Zip:
|
||
Attn:
|
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Telephone No.:
|
||
Facsimile No.:
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|
2. |
☐ We are not a natural person.
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C. |
AFFILIATE STATUS (Please check the applicable box)
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☐ |
is an insurance company as defined in section 2(a)(13) of the Securities Act;
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☐ |
is an investment adviser registered under the Investment Advisers Act;
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2.1 |
Closing. The closing of the Subscription contemplated hereby (the “Closing”) shall occur on the same day, and substantially concurrent with, consummation of the
Transactions Closing (the date of the Closing, “Closing Date”) subject to the terms and conditions set forth herein; provided that the Closing shall occur no earlier than immediately after the Initial
Merger Effective Time (as defined in the Business Combination Agreement). Not less than ten (10) business days prior to the anticipated Closing Date, the Issuer shall provide written notice to Subscriber and Altimeter of such anticipated
Closing Date (the “Closing Notice”) of such anticipated Closing Date. Not less than five (5) business days prior to the anticipated Closing Date (as specified in the Closing Notice), Altimeter shall
provide written notice to Subscriber and Issuer of the aggregate amount payable in respect of the SPAC Share Redemptions (as defined in the Business Combination Agreement), together with a certificate duly executed by an officer or director
of Altimeter certifying such aggregate amount (the “Redemption Notice”). Subscriber shall deliver to the Issuer on or before two (2) business days prior to the anticipated Closing Date the Purchase
Price for the Shares by wire transfer of U.S. dollars in immediately available funds to the escrow account specified by the Issuer in the Closing Notice, to be held by the escrow agent until the Transactions Closing. As soon as reasonably
practicable following the Closing Date, but not later than one (1) business day after the Closing Date, the Issuer shall deliver to Subscriber (1) the Shares in book entry form, free and clear of any liens or other restrictions (other than
those arising under applicable securities laws), in the name of Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable; and (2) a copy of the records of the Issuer’s
transfer agent (the “Transfer Agent”) or other evidence showing Subscriber as the owner of the Shares on and as of the Closing Date. For purposes of this Subscription Agreement, “business day” shall
mean a day, other than a Saturday, Sunday or other day on which commercial banks in New York, New York, the Cayman Islands or Singapore are authorized or required by law to close. In the event the Closing Date does not occur within two (2)
business days after the anticipated Closing Date identified in the Closing Notice, the Issuer shall cause the escrow agent to promptly (but not later than two (2) business days thereafter) return the Purchase Price to Subscriber by wire
transfer of U.S. dollars in immediately available funds to the account specified by Subscriber, and any book entries shall be deemed cancelled; provided that unless this Subscription Agreement has been terminated pursuant to Section
4, such return of funds shall not terminate this Subscription Agreement or relieve Subscriber of its obligation to purchase the Shares at the Closing upon delivery of a new Closing Notice in accordance with the terms of this Section
2.1. Prior to or at Closing, Subscriber shall deliver to Issuer a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8. Altimeter warrants to the Issuer that the information provided by it in the
Redemption Notice shall, when given, be true and correct in all material respects.
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2.2 |
Conditions to Closing of the Issuer. The Issuer’s obligations to sell and issue the Shares at the Closing are subject to the fulfillment or (to the extent permitted by applicable law) written waiver, on or
prior to the Closing Date, of each of the following conditions:
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(a) |
Representations and Warranties Correct. The representations and warranties made by Subscriber in Section 3.3 shall be true and correct as of the Closing Date (except with respect to such
representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date) except for inaccuracies or the failure of such representations and warranties to be true
and correct that (without giving effect to any limitation as to “materiality” or “Subscriber Material Adverse Effect” (as defined below) or another similar materiality qualification set forth herein), individually or in the aggregate, has not
had, and would not reasonably be expected to have, a Subscriber Material Adverse Effect.
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(b) |
Closing of the Transactions. All conditions precedent to the Issuer’s, the Company’s, the Acquisition Entities’ (as defined in the Business Combination Agreement) and Altimeter’s obligations to effect the
Transactions Closing shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transactions Closing but subject to satisfaction or waiver thereof), the Initial
Closing (as defined in the Business Combination Agreement) shall have been consummated prior to the Closing and the Closing will be consummated on the same day, and substantially concurrent with, the Transactions Closing.
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(c) |
Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or
regulation enjoining or prohibiting the consummation of the Subscription.
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(d) |
Performance and Compliance under Subscription Agreement. Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this
Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or
materially impair the ability of the Subscriber to consummate the Closing.
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2.3 |
Conditions to Closing of Subscriber. Subscriber’s obligation to subscribe for and purchase the Shares at the Closing is subject to the fulfillment or (to the extent permitted by applicable law) written
waiver, on or prior to the Closing Date, of each of the following conditions:
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(a) |
Representations and Warranties Correct. The representations and warranties made by the Issuer in Section 3.1 and Altimeter in Section 3.2 shall be true and correct as of the Closing Date,
with respect to the Issuer and the Initial Closing (as defined in the Business Combination Agreement), with respect to Altimeter (except with respect to such representations and warranties which speak as to an earlier date, which
representations and warranties shall be true and correct at and as of such date) except for inaccuracies or the failure of such representations and warranties to be true and correct that (without giving effect to any limitation as to
“materiality” or Issuer Material Adverse Effect (as defined in Section 3.1(d) below) or Altimeter Material Adverse Effect (as defined in Section 3.2(c) below), as the case may be, or another similar materiality qualification
set forth herein), individually or in the aggregate, has not had, and would not reasonably be expected to have, an Altimeter Material Adverse Effect or an Issuer Material Adverse Effect.
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(b) |
Closing of the Transactions. All conditions precedent to the Issuer’s, the Company’s, the Acquisition Entities’ (as defined in the Business Combination Agreement) and Altimeter’s obligations to effect the
Transactions Closing shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transactions Closing but subject to satisfaction or waiver thereof), the Initial
Closing (as defined in the Business Combination Agreement) shall have been consummated prior to the Closing, and the Closing will be consummated on the same day, and substantially concurrent with, the Transactions Closing.
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(c) |
Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or
regulation enjoining or prohibiting the consummation of the Subscription.
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(d) |
Performance and Compliance under Subscription Agreement. The Issuer shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this
Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or
materially impair the ability of the Issuer to consummate the Closing.
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(e) |
Listing. (i) The Issuer’s initial listing application with Nasdaq Stock Market LLC (“Nasdaq”) in connection with the Transactions shall have been conditionally approved and, immediately following the
Transactions Closing, the Issuer shall satisfy any applicable initial and continuing listing requirements of Nasdaq and the Issuer shall not have received any notice of non-compliance therewith, and (ii) the Shares shall have been approved
for listing on Nasdaq, subject to official notice of issuance.
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3.1 |
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber as follows:
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(a) |
The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all power (corporate or otherwise) and authority to own, lease and
operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
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(b) |
At Closing, subject to the receipt of the Purchase Price in accordance with the terms of this Subscription Agreement and registration with the Transfer Agent, the Shares will be duly authorized, validly issued and
allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under
the Issuer’s organizational documents (as in effect at such time of issuance) or the laws of the Cayman Islands.
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(c) |
This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber and Altimeter, is
the valid and binding obligation of the Issuer and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
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(d) |
The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the other
transactions contemplated herein, including the Transactions, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the Issuer pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or
by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its
obligations under this Subscription Agreement, including the issuance and sale of the Shares (an “Issuer Material Adverse Effect”), (ii) result in any violation of
the provisions of the organizational documents of the Issuer or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction
over the Issuer or any of its properties that would reasonably be expected to have an Issuer Material Adverse Effect.
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(e) |
As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of one (1) fully paid ordinary share, with a par value of $0.00001, and such share is duly authorized and validly
issued, is fully paid and non-assessable, and is not subject to preemptive rights or encumbrances. As of the date of this Subscription Agreement, and immediately prior to Closing, except as set forth above and pursuant to the Other
Subscription Agreements, the Business Combination Agreement, the other Transaction Documents (as defined in the Business Combination Agreement) and the
transactions contemplated thereby, there are no outstanding (i) shares, equity interests or voting securities of the Issuer, (ii) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting
securities of the Issuer, (iii) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from
any individual, entity or other person, and no obligation of the Issuer to issue, any shares or other equity interests or voting securities of the Issuer (collectively, the “Equity Interests”) or
securities convertible into or exchangeable or exercisable for Equity Interests, or (iv) other similar rights of or with respect to the Issuer, or (v) obligations of the Issuer to repurchase, redeem or otherwise acquire any of the foregoing
Equity Interests, or other similar rights.. As of the date of this Subscription Agreement, there are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound
relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement, the other Transaction Documents (as defined in the Business Combination Agreement) and the transactions contemplated
thereby.
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(f) |
Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 3.3, in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription
Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber. The Shares (i) were not offered to Subscriber by any form of general solicitation or general advertising,
including methods described in section 502(c) of Regulation D under the Securities Act and (ii) to Issuer's knowledge, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities
Act, or any state securities laws.
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(g) |
The Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer and made available to Subscriber all the information reasonably available to the Issuer that Subscriber has reasonably
requested to make an investment decision with respect to the Shares.
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(h) |
Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would
adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities
Act.
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(i) |
Except for such matters as would not reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect, there is no (i) action, suit, claim or other proceeding, in each case by or
before any governmental authority pending, or, to the knowledge of the Issuer, threatened against the Issuer, or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.
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(j) |
The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written
communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to
have, individually or in the aggregate, an Issuer Material Adverse Effect.
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(k) |
The Issuer is not required to obtain any material consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section
6.20; (iv) those required by Nasdaq, and (v) those required to consummate the Transactions as provided under the Business Combination Agreement.
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(l) |
Upon consummation of the Transactions Closing, the Issuer Shares will be registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and will be listed for trading on Nasdaq, and the Shares will be approved for listing on Nasdaq, subject to official notice of issuance, and no suspension of such approval shall have occurred.
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(m) |
Neither the Issuer nor any person acting on its behalf is under any obligation to pay any broker’s fee or finder’s fee or other fee or commission in connection with the sale of the Shares.
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(n) |
The Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by Subscriber in connection with a bona fide margin agreement, which shall not be deemed to be a
transfer, sale or assignment of the Shares hereunder, and Subscriber effecting a pledge of Shares shall not be required to provide the Issuer with any notice thereof or otherwise make any delivery to the Issuer pursuant to this Subscription
Agreement.
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(o) |
The Issuer is not, and immediately after receipt of payment for the Shares of the Issuer will not be, (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “Investment Company Act”), and as such, subject to registration as an “investment company” under the Investment Company Act or (ii) a “business
development company” (as defined in Section 2(a)(48) of the Investment Company Act).
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(p) |
There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or threatened against or affecting the Issuer or any of the Issuer’s properties or rights
that affects or would reasonably be expected to affect the Issuer’s ability to consummate the transactions contemplated by this Subscription Agreement, nor is there any decree, injunction, rule or order of any governmental authority or
arbitrator outstanding against the Issuer or any of the Issuer’s properties or rights that affects or would reasonably be expected to affect the Issuer’s ability to consummate the transactions contemplated by this Subscription Agreement.
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3.2 |
Altimeter’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, Altimeter hereby represents and warrants to Subscriber as follows:
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(a) |
Altimeter is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. Altimeter has all power (corporate or otherwise) and authority to own, lease and
operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
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(b) |
This Subscription Agreement has been duly authorized, executed and delivered by Altimeter and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the valid and
binding obligation of Altimeter and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating
to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
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(c) |
The execution, delivery and performance of this Subscription Agreement (including compliance by Altimeter with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain
other transactions contemplated herein, including the Transactions, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets of Altimeter pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Altimeter is a
party or by which Altimeter is bound or to which any of the property or assets of Altimeter is subject, which would reasonably be expected to have a material adverse effect on the ability of Altimeter to enter into and timely perform its
obligations under this Subscription Agreement (an “Altimeter Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational
documents of Altimeter or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Altimeter or any of its properties
that would reasonably be expected to have an Altimeter Material Adverse Effect.
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(d) |
As of the date of this Subscription Agreement, the authorized capital shares of Altimeter consists of (i) 200,000,000 shares of Class A ordinary shares, par value $0.0001 per share (“Class A Shares”), (ii) 20,000,000 shares of Class B ordinary shares, par value $0.0001 per share (“Class B Shares”) and 1,000,000 shares of preferred stock, par value $0.0001 per share. As of the date hereof: (i) 50,000,000 Class A Shares are issued and outstanding; (ii) 12,500,000 Class B Shares are issued and outstanding; and
(iii) 22,000,000 warrants, each exercisable to purchase one existing Class A Share at $11.50 per share are outstanding. As of the date of this Subscription Agreement, and immediately prior to the Initial Closing (as defined in the Business
Combination Agreement) other than as set forth in this clause (d) or in any form, report, statement, schedule, prospectus, proxy, registration statement or other document filed by Altimeter with the Commission prior to the date of this
Subscription Agreement (each, an “SEC Document” and collectively, the “SEC Documents”) or any of the Transaction Documents, there are no outstanding (1) shares, equity interests or voting securities of Altimeter, (2) securities of Altimeter convertible into or exchangeable for shares or other equity
interests or voting securities of Altimeter, or (3) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of Altimeter to subscribe for,
purchase or acquire from any individual, entity or other person, and no obligation of Altimeter to issue, any shares or other equity interests or voting securities of Altimeter (collectively, the “Altimeter Equity Interests”) or securities convertible into or exchangeable or exercisable for Altimeter Equity Interests, (4) or other similar rights of or with respect to Altimeter, or
(5) obligations of Altimeter to repurchase, redeem or otherwise acquire any of the foregoing Altimeter Equity Interests or other similar rights. As of the date of this Subscription Agreement, Altimeter has no subsidiaries and does not own,
directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements or understandings to which Altimeter is
a party or by which it is bound relating to the voting of any securities of Altimeter, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Business Combination Agreement (including the Transaction Documents).
There are no securities or instruments issued by or to which Altimeter is party containing anti-dilution or similar provisions that will be triggered by the issuance of the Shares or the issuance of the Issuer Shares under any Other
Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing Date.
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(e) |
As of the date of this Subscription Agreement, and immediately prior to Initial Closing (as defined in the Business Combination Agreement), the issued and outstanding Class A Shares of Altimeter are registered
pursuant to Section 12(b) of the Exchange Act, and are listed for trading on Nasdaq under the symbol “AGC”. There is no suit, action, proceeding or investigation pending or, to the knowledge of Altimeter, threatened against Altimeter by
Nasdaq or the Commission with respect to any intention by such entity to deregister the Class A Shares of Altimeter or prohibit or terminate the listing of the Class A Shares of Altimeter on Nasdaq. Altimeter has taken no action that is
designed to terminate the registration of the shares of Class A Shares of Altimeter under the Exchange Act prior to the Initial Closing (as defined in the Business Combination Agreement).
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(f) |
Altimeter has made available to Subscriber (including via the Commission’s EDGAR system) a true, correct and complete copy of each SEC Document which, as of their respective filing dates, complied in all
material respects with the requirements of the Securities Act and Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents. None of the SEC Documents
contained, when filed or, if amended prior to the date of this Subscription Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted 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, not misleading; provided, that Altimeter makes no such representation or warranty with respect to the proxy statement of Altimeter to be filed in connection with the approval of the Business Combination Agreement by the shareholders of
Altimeter (the “Proxy Statement”) or any other information relating to the Company or any of its affiliates and consolidated affiliated entities (together with the
Company, the “Group”) included in any SEC Documents or filed as an exhibit thereto. Altimeter has timely filed each SEC Document that Altimeter was
required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the
SEC Documents.
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(g) |
Except for such matters as have not had and would not reasonably be expected to have, individually or in the aggregate, an Altimeter Material Adverse Effect, there is no (i) action, suit, claim or other proceeding,
in each case by or before any governmental authority pending, or, to the knowledge of Altimeter, threatened against Altimeter, or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against
Altimeter.
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(h) |
There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or threatened against or affecting Altimeter or any of Altimeter’s properties or rights
that affects or would reasonably be expected to affect Altimeter’s ability to consummate the transactions contemplated by this Subscription Agreement, nor is there any decree, injunction, rule or order of any governmental authority or
arbitrator outstanding against Altimeter or any of Altimeter’s properties or rights that affects or would reasonably be expected to affect Altimeter’s ability to consummate the transactions contemplated by this Subscription Agreement.
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(i) |
Altimeter is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Altimeter Material Adverse Effect. Altimeter has not received any written
communication from a governmental authority that alleges that Altimeter is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to
have, individually or in the aggregate, an Altimeter Material Adverse Effect.
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(j) |
Altimeter is not required to obtain any material consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the Commission, (ii) filings required by applicable state
or federal securities laws, (iii) the filings required in accordance with Section 6.20; (iv) those required by Nasdaq, and (v) those required to consummate the Transactions as provided under the Business Combination Agreement.
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(k) |
Neither Altimeter nor any person acting on its behalf is under any obligation to pay any broker’s fee or finder’s fee or other fee or commission in connection with the sale of the Shares.
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3.3 |
Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and Altimeter and acknowledges and
agrees with the Issuer and Altimeter as follows:
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(a) |
Subscriber has been duly formed or incorporated and is validly existing and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and
authority to enter into, deliver and perform its obligations under this Subscription Agreement.
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(b) |
This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Altimeter,
this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
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(c) |
The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant
to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or
to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the Subscriber’s ability to enter into and timely perform its obligations
under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of
Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of
its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect.
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(d) |
Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or
agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full
power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with,
any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise
dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). The information provided by Subscriber on Schedule I is true and correct in all respects.
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(e) |
Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the offer and sale of the Shares have not been registered
under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a
subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the
registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any book entries representing the
Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be
subject to the foregoing transfer restrictions and, as a result, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time.
Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.
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(f) |
Subscriber is purchasing the Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Altimeter,
the Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer and Altimeter expressly set forth in this Subscription
Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement.
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(g) |
Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),
or any applicable similar law.
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(h) |
In making its decision to purchase the Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and Altimeter’s representations, warranties and agreements
contained in Section 3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and Altimeter
concerning the Issuer or Altimeter, respectively, or the Shares or the offer and sale of the Shares. Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems
necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Altimeter, the Group and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other
economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber has reviewed the documents made available to the Subscriber by Altimeter and the Company. Subscriber and Subscriber’s professional advisor(s), if any,
have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to
the Shares. Subscriber also acknowledges that the 2020 historical financial data concerning the Company has been derived based on the Company’s management accounts in accordance with International Financial Reporting Standards, or IFRS, and
has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s audited results for 2020 will not differ from the financial data presented to Subscriber and such changes could be material.
Based on such information as Subscriber has deemed appropriate, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Except for the representations, warranties and agreements of the Issuer
expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with
respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company, including but not limited to all business, legal, regulatory,
accounting, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change.
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(i) |
Subscriber is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge
and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to
make an informed investment decision. Subscriber understands and acknowledges that (A) it (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in financial and business
transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating
its participation in the purchase of the Shares and (B) the purchase and sale of the Shares hereunder meets the institutional customer exemption under FINRA Rule 2111(b).
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(j) |
Subscriber, alone, or together with any professional advisor(s), has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that
Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists.
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(k) |
Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the
Shares.
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(l) |
Subscriber is not a person that is the target of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by relevant
governmental authorities, including, but not limited those administered by the U.S. government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State, the United Nations Security Council, the European Union, or Her Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), including (i) any person listed in any Sanctions-related list of sanctioned persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union, or any EU member
state, (ii) any person operating, organized or resident in a country or territory which is itself the subject or target of any Sanctions (at the time of this Subscription Agreement, Crimea, Cuba, Iran, North Korea, and Syria), (iii) any
person owned or controlled by, or acting on behalf of, any such person or persons; or (iv) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that (i) if it is a financial institution subject to the Bank Secrecy Act (31
U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber
maintains policies and procedures reasonably designed to ensure compliance with applicable obligations under the BSA/PATRIOT Act, and (ii) to the extent required, it maintains policies and procedures reasonably designed to ensure compliance
with the anti-money laundering-related laws administered and enforced by other governmental authorities. Subscriber also represents that it maintains policies and procedures reasonably designed to ensure compliance with applicable
Sanctions. Subscriber further represents and warrants that it maintains policies and procedures reasonably designed to ensure the funds held by Subscriber and used to purchase the Shares were legally derived and were not obtained, directly
or indirectly, from a Prohibited Investor.
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(m) |
If Subscriber is or is acting on behalf of an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the
Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not
subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (“Similar Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that none of Altimeter, the Issuer, the Company, or any of their respective
affiliates (the “Transaction Parties”) has provided investment advice or otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold
the Shares, and none of the Transaction Parties is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with its investment in the Shares (including with respect to any decision to acquire, continue to
hold or transfer the Shares).
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(n) |
Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by Subscriber with the Commission with respect to the beneficial ownership of Altimeter’s ordinary shares prior to the
date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) acting for the purpose of
acquiring, holding or disposing of equity securities of Altimeter (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).
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(o) |
No foreign person (as defined in Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. §4565), and all rules and regulations issued and effective thereunder (together, the “DPA”))
in which the national or subnational governments of a single foreign state have a "substantial interest" (as defined in the DPA) will acquire a "substantial interest" (as defined in the DPA) in the Issuer as a result of the purchase of Shares
by Subscriber hereunder such that a filing before the Committee on Foreign Investment in the United States would be required under the DPA, and no such foreign person will have "control" (as defined in the DPA) over the Issuer from and after
the Closing as a result of the purchase of Shares by Subscriber hereunder.
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(p) |
On each date the Purchase Price would be required to be funded pursuant to Section 2.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 2.1.
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(q) |
Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including Altimeter, the Issuer, the Company, any of
their respective affiliates or any of its or their respective control persons, officers, directors or employees), other than the representations and warranties of the Issuer and Altimeter expressly set forth in this Subscription Agreement, in
making its investment or decision to invest in the Issuer. Subscriber agrees that none of (i) any Other Subscriber (including the controlling persons, officers, directors, partners, agents or employees of any such Other Subscriber) or (ii)
the Company or their respective affiliates or any of their or their respective affiliates’ control persons, officers, directors, partners, agents or employees shall be liable to: the Subscriber pursuant to this Subscription Agreement (or any
Other Subscriber pursuant to any Other Subscription Agreement) or any other agreement related to the private placement of shares of the Issuer’s capital stock for any action heretofore or hereafter taken or omitted to be taken by any of them
in connection with the purchase of the Shares hereunder.
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(r) |
No broker, finder or other financial consultant is acting on Subscriber’s behalf in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability of the
Issuer or the Company for the payment of any fees, costs, expenses or commissions.
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(s) |
Subscriber has no binding arrangement in place to sell, transfer or otherwise dispose of any of the Shares.
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4. |
Termination
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6. |
Miscellaneous.
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6.1 |
Further Assurances. The parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to
consummate the Subscription as contemplated by this Subscription Agreement no later than immediately prior to the consummation of the Transactions Closing
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(a) |
Subscriber acknowledges that the Issuer and Altimeter (as parties) and the Company (as a third party beneficiary with right of enforcement) will rely on the acknowledgments, understandings, agreements, covenants,
representations and warranties of the Subscriber contained in this Subscription Agreement including, for the avoidance of doubt, the provisions of Section 3.3(q). Prior to the Closing, Subscriber agrees to promptly notify the Issuer,
the Company and Altimeter if any of the acknowledgments, understandings, agreements, covenants representations and warranties made by Subscriber set forth herein are no longer accurate. In addition, the Issuer and Altimeter each acknowledges
and agrees that the Company is a third-party beneficiary of the acknowledgments, understandings, agreements, covenants, representations and warranties made by the Issuer or Altimeter (as applicable) contained in this Subscription Agreement.
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(b) |
Each of Altimeter and the Issuer acknowledges that the Subscriber will rely on the acknowledgements, understandings, agreements, covenants representations and warranties of Altimeter and the Issuer, respectively,
contained in this Subscription Agreement. Prior to the Closing, each of the Issuer and Altimeter agrees to promptly notify the Subscriber if any of the acknowledgements, understandings, agreements, covenants, representations and warranties
made by Issuer or Altimeter, as applicable, set forth herein are no longer accurate in all material respects.
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(c) |
Subscriber acknowledges and agrees that no party to the Business Combination Agreement (other than the Issuer and Altimeter) nor any Non-Party Affiliate (as defined below), shall have any liability to Subscriber, or
to any other investor, pursuant to, arising out of or relating to this Subscription Agreement or any other subscription agreement related to the private placement of the Shares, the negotiation hereof or thereof or its subject matter, or the
transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares or with respect to any
claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith or for any actual or alleged inaccuracies,
misstatements or omissions with respect to any information or materials of any kind furnished by the Issuer, Altimeter, the Company, or any Non-Party Affiliate concerning the Issuer, Altimeter, the Company, any of their controlled affiliates,
this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee,
partner, member, investment manager, manager, direct or indirect equityholder, investors, representatives, agents, predecessors, successors, assigns, or affiliate of the Issuer, Altimeter, the Company, or any of the Issuer’s, Altimeter’s or
the Company’s controlled affiliates or any family member of the foregoing.
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(d) |
Each of the Issuer, Altimeter, Subscriber and the Company is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
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(e) |
The Issuer and Altimeter may request from Subscriber such additional information as the Issuer and Altimeter may deem reasonably necessary to evaluate the eligibility of Subscriber to acquire the Shares, and
Subscriber shall promptly provide such information as may be reasonably requested; provided, that (subject to Section 6.20 below) Issuer and Altimeter agrees to keep any such information provided by Subscriber confidential.
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(f) |
Each party shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
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(g) |
Each of Subscriber, the Issuer and Altimeter shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this
Subscription Agreement on the terms and conditions described herein no later than immediately prior to the consummation of the Transactions Closing.
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6.2 |
No Short Sales. Subscriber hereby agrees that neither it, its affiliates, nor any person or entity acting on its behalf or pursuant to any understanding with the Subscriber, shall, directly or indirectly,
engage in any hedging activities or execute any Short Sales (as defined below) with respect to the securities of Altimeter prior to the Closing or the earlier termination of this Subscription Agreement in accordance with its terms. “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges (other than pledges in
the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S.
broker dealers or foreign regulated brokers. Notwithstanding the foregoing, in the case of a Subscriber that is a multi-managed investment bank or vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, this Section 6.2 shall apply only with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement.
|
6.3 |
Additional Information. Altimeter and the Issuer may request from the Subscriber such additional information as is necessary for Altimeter or the Issuer, as applicable, to comply with public disclosure
requirements of applicable securities laws or any filing requirements pursuant to the rules of any stock exchange or the Financial Industry Regulatory Authority, and the Subscriber shall provide such information. The Subscriber acknowledges
that Altimeter or the Issuer may file a copy of the form of this Subscription Agreement with the Commission as an exhibit to a current or periodic report or a registration statement of Altimeter or the Issuer, as applicable.
|
6.4 |
Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by
certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three (3) business
days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder (a courtesy copy of any notice sent shall also be sent via email):
|
|
(a) |
if to Subscriber, to such address or addresses set forth on the signature page hereto;
|
|
(b) |
if to the Issuer, to:
|
|
(c) |
if to the Company, to:
|
6.5 |
Entire Agreement. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the
parties, with respect to the subject matter hereof, including any commitment letter entered into relating to the subject matter hereof.
|
6.6 |
Modifications and Amendments. This Subscription Agreement may not be amended, modified, supplemented or waived (i) except by an instrument in writing, signed by the party against whom enforcement of such
amendment, modification, supplement or waiver is sought and (ii) without the prior written consent of Altimeter, the Issuer and the Company.
|
6.7 |
Assignment. Neither this Subscription Agreement nor any rights, interests or obligations that may accrue to the parties hereunder (including Subscriber’s rights to purchase the Shares) may be transferred or
assigned without the prior written consent of each of the other parties hereto (other than the Shares acquired hereunder, if any, and then only in accordance with this Subscription Agreement), other than an assignment to one or more
affiliates of the Subscriber, subject to, if such transfer or assignment is prior to the Closing, such transferee or assignee, as applicable, executing a joinder to this Subscription Agreement or a separate subscription agreement in
substantially the same form as this Subscription Agreement, including with respect to the Purchase Price and other terms and conditions; provided, however, that, in the case of any such transfer or assignment, the initial
party to this Subscription Agreement shall remain bound by its obligations under this Subscription Agreement. For the avoidance of doubt, any transaction contemplated by the Business Combination Agreement shall be deemed not to constitute an
assignment of this Subscription Agreement or any rights, interests or obligations that may accrue to the parties hereunder.
|
6.8 |
Benefit.
|
|
(a) |
Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives,
and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal
representatives and permitted assigns. This Subscription Agreement shall not confer rights or remedies upon any person other than the parties hereto and their respective successors and assigns, provided that notwithstanding the
foregoing, the Company is an express third-party beneficiary of the provisions of this Subscription Agreement.
|
|
(b) |
Each of Altimeter, the Issuer and Subscriber acknowledges and agrees that (a) this Subscription Agreement is being entered into in order to induce the Company to execute and deliver the Business Combination
Agreement and without the acknowledgments, understandings, agreements, covenants, representations and warranties of Altimeter, the Issuer and Subscriber hereunder, the Company would not enter into the Business Combination Agreement, (b) each
of the acknowledgments, understandings, agreements, covenants, representations and warranties of the Issuer and Subscriber hereunder is being made also for the benefit of the Company and (c) the Company may directly enforce (including by
seeking an action for specific performance, injunctive relief or other equitable relief, including to cause the Purchase Price to be paid and the Closing to occur) each of acknowledgments, understandings, agreements, covenants,
representations and warranties of each of Altimeter, the Issuer and Subscriber under this Subscription Agreement.
|
6.9 |
Governing Law. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in
tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws that would otherwise require the application of the law of any other state.
|
6.10 |
Consent to Jurisdiction; Waiver of Jury Trial. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, TO THE EXTENT SUCH COURT DOES NOT HAVE
SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT
OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A DELAWARE STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH
DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 6.4 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE
THEREOF. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY
THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) 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; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 6.10.
|
6.11 |
Severability. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement
shall not in any way be affected or impaired thereby and shall continue in full force and effect.
|
6.12 |
No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto,
shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to
enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a
waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
|
6.13 |
Remedies.
|
|
(a) |
The parties agree that irreparable damage would occur if this Subscription Agreement was not performed or the Closing is not consummated in accordance with its specific terms or was otherwise breached and that money
damages or other legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that the parties hereto shall be entitled to equitable relief, including in the form of an injunction or injunctions, to prevent
breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 6.10, this
being in addition to any other remedy to which any party is entitled at law, in equity, in contract, in tort or otherwise, including money damages. The right to specific enforcement shall include the right of the Issuer, Altimeter and the
Company to cause Subscriber and the right of Altimeter and the Company to cause the Issuer to cause the transactions contemplated hereby to be consummated on the terms and subject to the conditions and limitations set forth in this
Subscription Agreement. The parties hereto further agree (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (ii) not to assert that a remedy of specific enforcement pursuant to
this Section 6.13 is unenforceable, invalid, contrary to applicable law or inequitable for any reason and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be
adequate. In connection with any action for which the Company is being granted an award of money damages, Subscriber agrees that such damages, to the extent payable by such party, shall include, without limitation, damages related to the
consideration that is or was to be issued or paid to the Company or its equityholders under the Business Combination Agreement and/or Subscription Agreement and such damages are not limited to an award of out-of-pocket fees and expenses
related to the Business Combination Agreement and Subscription Agreement.
|
|
(b) |
The parties acknowledge and agree that this Section 6.13 is an integral part of the transactions contemplated hereby and without that right, the parties hereto would not have entered into this Subscription
Agreement.
|
|
(c) |
In any dispute arising out of or related to this Subscription Agreement, or any other agreement, document, instrument or certificate contemplated hereby, or any transactions contemplated hereby or thereby, the
applicable adjudicating body shall award to the prevailing party, if any, the reasonable and documented out-of-pocket costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the dispute and the enforcement of
its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby and, if the adjudicating body determines a party to be the prevailing party under circumstances where the prevailing
party won on some but not all of the claims and counterclaims, the adjudicating body may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the
adjudication and the enforcement of its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby or thereby.
|
6.14 |
Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Subscription Agreement shall survive the Closing. For the avoidance of doubt, if for any
reason the Closing does not occur prior to the consummation of the Transactions Closing, all representations, warranties, covenants and agreements of the parties hereunder shall survive the consummation of the Transactions Closing and remain
in full force and effect.
|
6.15 |
No Broker or Finder. Each of the Issuer, Altimeter and Subscriber represents and warrants to the other parties hereto that no broker, finder or other financial consultant has acted on its behalf in connection
with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on any other party hereto.
|
6.16 |
Headings and Captions. The headings and captions of the various subdivisions of this Subscription Agreement are for convenience of reference only and shall in no way modify or affect the meaning or
construction of any of the terms or provisions hereof.
|
6.17 |
Counterparts. This Subscription Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other parties, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form
of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
|
6.18 |
Construction. The words “include,” “includes,” and “including” will be deemed to be
followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the
plural and vice versa, unless the context otherwise requires. The words “this Subscription Agreement,” “herein,” “hereof,”
“hereby,” “hereunder,” and words of similar import refer to this Subscription Agreement as a whole and not to any particular subdivision unless expressly so
limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate
the fact that such party hereto is in breach of the first representation, warranty, or covenant. All references in this Subscription Agreement to numbers of shares, per share amounts and purchase prices shall be appropriately adjusted to
reflect any stock split, stock dividend, stock combination, recapitalization or the like occurring after the date hereof.
|
6.19 |
Mutual Drafting. Each provision of this Subscription Agreement has been subject to the mutual consultation, negotiation and agreement of the parties and shall not be construed for or against any party hereto.
|
6.20 |
Cleansing Statement; Consent to Disclosure.
|
|
(a) |
Altimeter shall, by no later than 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement, issue one (1) or more press releases or file with
the Commission a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and by
the Other Subscription Agreements and the Transactions and any other material, nonpublic information that the Issuer or Altimeter or their respective representatives has provided to the Subscriber at any time prior to the filing of the
Disclosure Document. From and after the issuance of the Disclosure Document, to the Issuer and Altimeter’s knowledge, Subscriber shall not be in possession of any material, non-public information received from the Issuer, Altimeter or the
Company or any of their respective officers, directors, employees or agents relating to the transactions contemplated by this Subscription Agreement, and the Subscriber shall no longer be subject to any confidentiality or similar
obligations under any current agreement, whether written or oral with Issuer, the Company, Altimeter or any of their affiliates, relating to the transactions contemplated by this Subscription Agreement.
|
|
(b) |
Subscriber hereby consents to the publication and disclosure in any press release issued by the Issuer, Altimeter or the Company or any other filing with the Commission by Altimeter or the Issuer in connection with
the execution and delivery of the Business Combination Agreement and the Proxy Statement (and, as and to the extent otherwise required by the federal securities laws or the Commission or any other securities authorities, any other documents
or communications provided by the Issuer, Altimeter or the Company or any of their respective affiliates to any governmental authority or to securityholders of Altimeter, the Issuer or the Company) of Subscriber’s identity and beneficial
ownership of the Shares and the nature of Subscriber’s commitments, arrangements and understandings under and relating to this Subscription Agreement and, if deemed appropriate by the Issuer, Altimeter or the Company, a copy of this
Subscription Agreement. Subscriber will promptly provide any information reasonably requested by Altimeter, the Issuer or the Company for any regulatory application or filing made or approval sought in connection with the Transactions
(including filings with the Commission).
|
6.21 |
Regulatory Compliance. Subscriber hereby agrees that it shall comply with all regulatory requirements in connection with the Subscription and the Transactions and shall coordinate in good faith with the
Issuer, Altimeter or the Company, as applicable, to provide all information as may reasonably be requested by any applicable governmental authority relating to the Subscription or the Transactions.
|
7. |
Independent Obligations. The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other
Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under this Subscription Agreement or any other investor under the Other Subscription Agreements. The
decision of Subscriber to purchase Shares pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber or any other investor and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company or any of its subsidiaries which may have been made or given by any
Other Subscriber or other investor or by any agent or employee of any Other Subscriber or other investor, and neither Subscriber nor any of its agents or employees shall have any liability to any Other Subscriber or other investor (or any
other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or any Other Subscriber or other investor
pursuant hereto or thereto, shall be deemed to constitute the Subscriber, on the one hand, and any Other Subscriber or other investor, on the other hand, as a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Subscriber and any Other Subscriber or other investor are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the
Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for the Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of the Subscriber in
connection with monitoring its investment in the Shares or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising
out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber or investor to be joined as an additional party in any proceeding for such purpose.
|
8. |
Certain Tax Matters. The Parties acknowledge and agree that for U.S. federal income tax purposes, Subscriber shall be deemed to be the owner of any funds
transferred by Subscriber to any escrow account (if applicable) unless and until such funds are disbursed to Issuer in accordance with the terms of this Subscription Agreement, which disbursement shall occur, for the avoidance of doubt, no
earlier than immediately following the Initial Merger Effective Time (as defined in the Business Combination Agreement).
|
J1 HOLDINGS INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
ALTIMETER GROWTH CORP.
|
||
By:
|
||
Name:
|
||
Title:
|
||
ALTIMETER PARTNERS FUND, L.P.
|
||
By:
|
||
Name:
|
||
Title:
|
||
Subscriber’s EIN:
|
||
Business Address-Street:
|
||
City, State, Zip:
|
||
Attn:
|
||
Telephone No.:
|
||
Facsimile No.:
|
A. |
QUALIFIED INSTITUTIONAL BUYER STATUS
|
B. |
INSTITUTIONAL ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs):
|
C. |
AFFILIATE STATUS (Please check the applicable box)
|
|
☐ |
is an insurance company as defined in section 2(a)(13) of the Securities Act;
|
|
☐ |
is an investment adviser registered under the Investment Advisers Act;
|
☐ |
Any broker or dealer registered pursuant to section 15 of the Exchange Act;
|
☐ |
Any insurance company as defined in section 2(a)(13) of the Securities Act;
|
1 |
“Family of investment companies” means any two or more investment companies registered under the Investment Company Act, except for a unit investment trust whose assets consist solely of shares of
one or more registered investment companies, that have the same investment adviser (or, in the case of unit investment trusts, the same depositor); provided, that (a) each series of a series company (as defined in Rule 1 8f-2 under
the Investment Company Act) shall be deemed to be a separate investment company and (b) investment companies shall be deemed to have the same adviser (or depositor) if their advisers (or depositors) are majority-owned subsidiaries of the same
parent, or if one investment company’s adviser (or depositor) is a majority-owned subsidiary of the other investment company’s adviser (or depositor).
|
EXECUTED AS A DEED for and on behalf of:
|
||
ALTIMETER GROWTH CORP.
|
||
By
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
GRAB HOLDINGS INC.
|
||
By
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
J1 HOLDINGS INC.
|
||
By
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
Dated: , 2021
|
||
Name:
|
||
Witness:
|
EXECUTED AS A DEED for and on behalf of:
|
||
ALTIMETER GROWTH CORP.
|
||
By
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
GRAB HOLDINGS INC.
|
||
By
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
J1 HOLDINGS INC.
|
||
By
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
Dated: , 2021
|
||
Name:
|
||
Witness:
|
EXECUTED AS A DEED for and on behalf of:
|
||
ALTIMETER GROWTH CORP.
|
||
By:
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
GRAB HOLDINGS INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
J1 HOLDINGS INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
Dated: , 2021
|
||
Name:
|
||
Witness:
|
||
Altimeter Growth Holdings
|
||
By:
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
Altimeter Growth Corp.
|
||
By:
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
Grab Holdings Inc.
|
||
By:
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
EXECUTED AS A DEED for and on behalf of:
|
||
J1 Holdings Inc.
|
||
By:
|
||
Name:
|
||
Title:
|
||
In the presence of:
|
||
Witness:
|
||
Name:
|
||
Title:
|
Name and Address of Sponsor
|
Total SPAC Class B Ordinary Shares Held
|
Total SPAC Warrants Held
|
Altimeter Growth Holdings
|
12,275,000
|
12,000,000
|
1.
|
Administrative Services Agreement, dated as of September 30, 2020, between SPAC and Sponsor Holdco
|
2.
|
Promissory Note, dated as of August 27, 2020, between SPAC and Sponsor Holdco
|
3.
|
Securities Subscription Agreement, dated August 27, 2020, between SPAC and Sponsor Holdco
|
1.
|
Indemnity Agreement, dated September 30, 2020, between SPAC and Brad Gerstner
|
2.
|
Indemnity Agreement, dated September 30, 2020, between SPAC and Hab Siam
|
3.
|
Indemnity Agreement, dated September 30, 2020, between SPAC and Richard N. Barton
|
4.
|
Indemnity Agreement, dated September 30, 2020, between SPAC and Aishetu Fatima Dozie
|
5.
|
Indemnity Agreement, dated September 30, 2020, between SPAC and Dev Ittycheria
|
Defined Term
|
Page
|
10b-5
|
19
|
Acquisition Merger
|
1
|
Acquisition Merger Closing
|
1
|
Addendum Agreement
|
25
|
Affiliate
|
3
|
Agreement
|
1, 3
|
Amended and Restated Forward Purchase Agreements
|
3
|
Amended and Restated JS Forward Purchase Agreement
|
3
|
Amended and Restated Sponsor Affiliate Forward Purchase Agreement
|
3
|
Amended and Restated Warrant Agreement
|
4
|
Backstop Agreement
|
4
|
Business Combination Agreement
|
1
|
Business Day
|
4
|
Commission
|
4
|
Company
|
1
|
Company Shareholders’ Agreement
|
1
|
Company Support Agreement
|
2
|
Demand Registration
|
13
|
Demand Takedown
|
11
|
Demanding Holder
|
13
|
Demanding Holders
|
13
|
Effectiveness Period
|
18
|
Exchange Act
|
4
|
Form F-1
|
9
|
Form F-3
|
10
|
Holders
|
1
|
Indemnified Party
|
22
|
Indemnifying Party
|
22
|
Initial Demanding Holders
|
13
|
Initial Merger
|
1
|
Initial Merger Closing
|
1
|
Initial Merger Consideration
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2
|
Investor
|
1
|
Investor Indemnified Party
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21
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Investors
|
1
|
JS Capital
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4
|
Key Executive
|
4
|
Lock-Up Agreement
|
2
|
Maximum Number of Shares
|
14
|
Merger Sub 1
|
1
|
Merger Sub 2
|
1
|
New Registration Statement
|
11
|
Notices
|
25
|
Ordinary Shares
|
4
|
Other Registrable Securities
|
9
|
Permitted Entity
|
4
|
Piggy-Back Registration
|
15
|
PIPE Registration Statement
|
9
|
PIPE Registration Statement Cap
|
9
|
PIPE Securities
|
4
|
PIPE Subscription Agreements
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5
|
Prior Agreement
|
1
|
Pro Rata
|
14
|
PubCo
|
1
|
PubCo Charter
|
5
|
PubCo Class A Ordinary Shares
|
5
|
PubCo Class B Ordinary Shares
|
5
|
PubCo Options
|
2
|
PubCo Restricted Shares
|
5
|
PubCo RSU Awards
|
5
|
PubCo Sponsor Warrants
|
5
|
PubCo Warrants
|
5
|
Register
|
5
|
Registered
|
5
|
Registrable Securities
|
5
|
Registration
|
5
|
Registration Statement
|
6
|
Requesting Holder
|
11
|
Requesting Holders
|
11
|
Resale Shelf Registration Statement
|
10
|
SEC Guidance
|
11
|
Securities Act
|
6
|
Selling Holders
|
12
|
Shareholder Merger Consideration
|
2
|
Side-by-Side Sponsor Subscription Agreement
|
6
|
SPAC
|
1
|
Sponsor
|
1
|
Sponsor Affiliate
|
6
|
Sponsor Commitment Shares
|
9
|
Sponsor Subscription Agreement
|
6
|
Transaction Form F-4
|
7
|
Underwriter
|
7
|
Underwritten Takedown
|
7
|
Warrant Agreement
|
7
|
PUBCO:
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J1 HOLDINGS INC.
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By:
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||
Name:
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||
Title:
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SPAC:
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ALTIMETER GROWTH CORP.
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By:
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||
Name:
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||
Title:
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||
SPONSOR:
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||
ALTIMETER GROWTH HOLDINGS
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||
By:
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||
Name:
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||
Title:
|
||
INVESTORS:
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||
[Signature blocks to be inserted.]
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ALTIMETER GROWTH CORP.
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By:
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Name:
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||
Title:
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||
J1 HOLDINGS INC.
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By:
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||
Name:
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Title:
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CONTINENTAL STOCK TRANSFER &
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TRUST COMPANY, as Warrant Agent
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||
By:
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Name:
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Title:
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Defined Term
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Page
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Acquisition Closing
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2
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Agreement
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1
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Business Combination
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1
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Business Combination Agreement
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1
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Business Day
|
2
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Claim
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9
|
Code
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11
|
Company
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1
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Company Class A Shares
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1
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Company Forward Purchase Securities
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1
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Company Material Adverse Effect
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9
|
Existing Agreement
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1
|
FPS Closing
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2
|
FPS Purchase Price
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1
|
IPO
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1
|
Joinder Agreement
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10
|
PFIC
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11
|
PubCo
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1
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PubCo Class A Share
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2
|
PubCo Forward Purchase Securities
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1
|
PubCo Forward Purchase Shares
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1
|
PubCo Forward Purchase Warrants
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1
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PubCo Material Adverse Effect
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7
|
PubCo Notice
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2
|
Public Warrants
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1
|
Purchaser
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1, 10
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Purchaser Material Adverse Effect
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4
|
Purchaser Parties
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6
|
Securities Act
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3
|
Transfer Agent
|
3
|
Transferee
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10
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Transferee Securities
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10
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Trust Account
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9
|
Warrant Agent
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2
|
Warrant Agreement
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2
|
(a)
|
Forward Purchase Securities.
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(i) |
Pursuant to the terms and subject to the conditions of this Agreement, PubCo shall issue and sell to the Purchaser, and the Purchaser shall purchase from PubCo, the PubCo Forward Purchase Securities for an
aggregate purchase price of $175,000,000 (the “FPS Purchase Price”).
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(ii) |
Each PubCo Forward Purchase Warrant, if any, will have the same terms as each warrant of the Company sold as part of the units in the IPO (which themselves are to be converted into and become warrants of PubCo
with effect on and from the closing of Initial Merger (as defined under the Business Combination Agreement) (the “Public Warrants”) and will be subject to the
terms and conditions of the Warrant Agreement, dated September 30, 2020, by and between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent (the “Warrant Agent”), in
connection with the IPO, to be amended pursuant to the Assignment, Assumption and Amendment Agreement to be entered into by and between the Company, PubCo and the Warrant Agent pursuant to the Business Combination Agreement (the “Warrant
Agreement”). Each PubCo Forward Purchase Warrant will entitle the holder thereof to purchase one Class A ordinary share of PubCo (“PubCo Class A Share”) at a
price of $11.50 per share, subject to adjustment as described in the Warrant Agreement. The PubCo Forward Purchase Warrants will become exercisable on the later of thirty (30) days after the Acquisition Closing (as defined in the Business
Combination Agreement, the “Acquisition Closing”) and October 5, 2021, and will expire at 5:00 p.m., New York City time, five (5) years after the Acquisition Closing or earlier upon redemption or
the liquidation of PubCo, as described in the Warrant Agreement, and only whole PubCo Forward Purchase Warrants will be exercisable.
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|
(iii) |
PubCo shall deliver a written notice (the “PubCo Notice”) to the Purchaser, at least five (5) Business Days before the anticipated
date of the Acquisition Closing (provided that the Closing shall occur no earlier than immediately after the Initial Merger Effective Time (as defined in the Business Combination Agreement)), specifying the anticipated date of the
Acquisition Closing and instructions for wiring the FPS Purchase Price to an account designated by PubCo.
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|
(iv) |
Purchaser shall deliver to PubCo on or before two (2) Business Days prior to the anticipated date of the Acquisition Closing specified in the PubCo Notice the FPS Purchase Price by wire transfer of U.S. dollars in
immediately available funds to the escrow account specified by PubCo in the PubCo Notice, to be held by the escrow agent until the Acquisition Closing.
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|
(v) |
For the purposes of this Agreement, “Business Day” means any day, other than a Saturday, Sunday or other day on which commercial banks in New York, New York, the
Cayman Islands or Singapore are authorized or required by law to close.
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|
(vi) |
The closing of the sale of the PubCo Forward Purchase Securities (the “FPS Closing”) shall occur on the same day, but substantially concurrent with, the Acquisition
Closing subject to the terms and conditions set forth herein; provided that the FPS Closing shall occur no earlier than immediately after the Initial Merger Effective Time (as defined in the Business Combination Agreement).
|
|
(vii) |
In the event the Acquisition Closing does not occur within five (5) business days after the FPS Closing, PubCo shall cause the escrow agent to promptly (but not later than two (2) Business Days thereafter) return
the FPS Purchase Price to the Purchaser by wire transfer of U.S. dollars in immediately available funds to the account specified by the Purchaser, and any book entries shall be deemed cancelled; provided that unless this Agreement has
been terminated pursuant to Section 8, such return of funds shall not terminate this Agreement or relieve Purchaser of its obligation to purchase the PubCo Forward Purchase Securities at the FPS Closing upon delivery of a new Closing
Notice in accordance with the terms of this Section 1(a). Prior to or at Closing, Purchaser shall deliver to PubCo a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
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|
(i) |
As soon as reasonably practicable following the Closing Date, not later than one (1) Business Day after the Acquisition Closing, PubCo shall deliver to Purchaser (1) the PubCo Forward Purchase Shares in book
entry form free and clear of any liens or other restrictions (other than those arising under applicable securities laws), in the name of the Purchaser (or its nominee in accordance with its delivery instructions) or to a custodian
designated by the Purchaser, as applicable; and (2) a copy of the records of PubCo’s transfer agent (the “Transfer Agent”) or other evidence showing the Purchaser as the owner of the PubCo Forward
Purchase Shares on and as of the date of the Acquisition Closing.
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|
(ii) |
Each book entry for the PubCo Forward Purchase Securities shall contain a notation, and each certificate (if any) evidencing the PubCo Forward Purchase Securities shall be stamped or otherwise imprinted with a
legend, in substantially the following form:
|
|
(a) |
Organization and Power. The Purchaser has been duly formed or incorporated and is validly existing and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation
or formation, with power and authority to enter into, deliver and perform its obligations under this Agreement.
|
|
(b) |
Authorization. This Agreement has been duly authorized, validly executed and delivered by the Purchaser. Assuming that this Agreement constitutes the valid and binding agreement of the other parties hereto,
this Agreement is the valid and binding obligation of the Purchaser and is enforceable against the Purchaser in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
|
|
(c) |
Governmental Consents and Filings. The Purchaser is not required to obtain any material consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the PubCo Forward Purchase Securities pursuant to this Agreement, other than (i) filings with the
Securities and Exchange Commission, (ii) filings required by applicable state or federal securities laws, (iii) those required by the Nasdaq Stock Market LLC, and (iv) those required to consummate the transactions as provided under the
Business Combination Agreement.
|
|
(d) |
Compliance with Other Instruments. The execution, delivery and performance by the Purchaser of this Agreement and the
consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of the Purchaser or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument
to which the Purchaser or any of its subsidiaries is a party or by which the Purchaser or any of its subsidiaries is bound or to which any of the property or assets of the Purchaser or any of its subsidiaries is subject, which would
reasonably be expected to have a material adverse effect on the Purchaser’s ability to enter into and timely perform its obligations under this Agreement (a “Purchaser Material Adverse Effect”),
(ii) result in any violation of the provisions of the organizational documents of the Purchaser or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or
governmental agency or body, domestic or foreign, having jurisdiction over the Purchaser or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Purchaser Material Adverse Effect.
|
|
(e) |
Purchase Entirely for Own Account. The Purchaser is acquiring the PubCo Forward Purchase Securities only for its own account and not for the account of others.
|
|
(f) |
Disclosure of Information. The Purchaser has reviewed the documents made available to the Purchaser by the Company and PubCo. The Purchaser and the Purchaser’s professional advisor(s), if any, have had the
full opportunity to ask such questions, receive such answers and obtain such information as the Purchaser and the Purchaser’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the PubCo
Forward Purchase Securities. The Purchaser further acknowledges that the information provided to the Purchaser is preliminary and subject to change.
|
|
(h) |
No Public Market. The Purchaser understands that the PubCo Forward Purchase Securities are being offered and sold in a transaction not involving any public offering within the meaning of the Securities Act and that the PubCo Forward
Purchase Securities have not been registered under the Securities Act. The Purchaser understands that the PubCo Forward Purchase Securities may not be resold, transferred, pledged or otherwise disposed of by the Purchaser absent an effective
registration statement under the Securities Act, except (i) to PubCo or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the
Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other
jurisdictions of the United States, and that any book entries representing the PubCo Forward Purchase Securities shall contain a legend to such effect. The Purchaser acknowledges that the PubCo Forward Purchase Securities will not be eligible
for resale pursuant to Rule 144A promulgated under the Securities Act. The Purchaser understands and agrees that the PubCo Forward Purchase Securities will be subject to the foregoing transfer restrictions and, as a result, the Purchaser may
not be able to readily resell the PubCo Forward Purchase Securities and may be required to bear the financial risk of an investment in the PubCo Forward Purchase Securities for an indefinite period of time. The Purchaser understands that it
has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the PubCo Forward Purchase Securities.
|
|
(i) |
High Degree of Risk. The Purchaser is aware that there are substantial risks incident to the purchase and ownership of the PubCo Forward Purchase Securities. The Purchaser is able to fend for itself in the
transactions contemplated herein. The Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the PubCo Forward Purchase Securities, and the
Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision. The Purchaser understands and acknowledges that (A) it (i) is an institutional account as defined in
FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in financial and business transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and
investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the PubCo Forward Purchase Securities and (B) the purchase and sale of the PubCo Forward
Purchase Securities hereunder meets the institutional customer exemption under FINRA Rule 2111(b). The Purchaser, alone, or together with any professional advisor(s), has analyzed and considered the risks of an investment in the PubCo Forward
Purchase Securities and determined that the PubCo Forward Purchase Securities are a suitable investment for the Purchaser and that the Purchaser is able at this time and in the foreseeable future to bear the economic risk of a total loss of
the Purchaser’s investment in PubCo. The Purchaser acknowledges specifically that a possibility of total loss exists.
|
|
(j) |
Qualified Institutional Buyer. The Purchaser (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act), and (ii) is not acquiring the PubCo Forward Purchase Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act and is
not a party to or bound by a binding commitment to sell or otherwise dispose of the PubCo Forward Purchase Securities. The Purchaser acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J).
|
|
(l) |
Non-Public Information. The Purchaser acknowledges its obligations under applicable securities laws with respect to the treatment of material non-public information relating to the Company or PubCo.
|
|
(h) |
Compliance. PubCo is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a PubCo Material Adverse Effect. PubCo has not received any written
communication from a governmental authority that alleges that PubCo is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not be reasonably expected to
have, individually or in the aggregate, a PubCo Material Adverse Effect.
|
|
Governmental Consents and Filings(d) |
. The Company is not required to obtain any material consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the issuance of the PubCo Forward Purchase Securities pursuant to this Agreement, other than (i) filings with the Securities and Exchange Commission, (ii)
filings required by applicable state or federal securities laws, (iii) those required by the Nasdaq, and (iv) those required to consummate the transactions as provided under the Business Combination Agreement.
|
|
(e) |
Compliance with Other Instruments. The execution, delivery and performance of this Agreement (including compliance by the Company with all of the provisions hereof),
issuance and sale of the PubCo Forward Purchase Securities and the consummation of the certain other transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease,
license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, which would reasonably be expected to have a material adverse
effect on the ability of the Company to enter into and timely perform its obligations under this Agreement (a “Company Material Adverse Effect”), (ii) result in any violation of the provisions of
the organizational documents of the Company or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or
any of its properties that would reasonably be expected to have a Company Material Adverse Effect.
|
|
(i) |
Each of the Purchaser and PubCo hereby acknowledges that it is aware that the Company maintains a trust account (the “Trust Account”) for the benefit of its public
shareholders. Each of the Purchaser and PubCo, for itself and its respective affiliates, hereby agrees that it has no right, title, interest or claim of any kind in or to any monies held in the Trust Account, or any other asset of the
Company as a result of any liquidation of the Company, except for redemption and liquidation rights, if any, the Purchaser or PubCo may have in respect of any Company Class A Shares held by it.
|
|
(ii) |
Each of the Purchaser and PubCo hereby agrees that it shall have no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any
monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future, except for redemption and liquidation rights, if any, the Purchaser or PubCo (as
applicable) may have in respect of any Company Class A Shares held by it.
|
|
(c) |
Transfer. This Agreement and all of the Purchaser’s rights and obligations hereunder (including the Purchaser’s obligation to purchase the PubCo Forward Purchase
Securities) may be transferred or assigned, at any time and from time to time, in whole or in part, to one or more affiliates of Purchaser, but not to other third parties (each such transferee, a “Transferee”). Upon any such assignment:
|
|
(i) |
the applicable Transferee shall execute a signature page to this Agreement, substantially in the form of the Purchaser’s signature page hereto (the “Joinder Agreement”), which shall reflect the number of PubCo Forward Purchase Securities to be purchased by such Transferee (the “Transferee Securities”),
and, upon such execution, such Transferee shall have all the same rights and obligations of the Purchaser hereunder with respect to the Transferee Securities, and references herein to the “Purchaser” shall be deemed to refer to and include any such Transferee with respect to such Transferee and to its Transferee Securities; provided, that any representations, warranties, covenants and agreements of the
Purchaser and any such Transferee shall be several and not joint and shall be made as to the Purchaser or any such Transferee, as applicable, as to itself only; and
|
|
(ii) |
upon a Transferee’s execution and delivery of a Joinder Agreement, the maximum number of PubCo Forward Purchase Securities to be purchased by the Purchaser hereunder shall be reduced by the number of PubCo Forward
Purchase Securities to be purchased by the applicable Transferee pursuant to the applicable Joinder Agreement, which reduction shall be evidenced by the Purchaser and PubCo amending Schedule A to this Agreement to reflect each transfer to
reflect such reduced number of PubCo Forward Purchase Securities. For the avoidance of doubt, this Agreement need not be amended and restated in its entirety, but only Schedule A and the Purchaser’s signature page hereto need be so amended
and updated and executed by each of the Purchaser and PubCo upon the occurrence of any such transfer of Transferee Securities; provided that, in the case of any such transfer or assignment, the initial party to this Forward Purchase Agreement
shall remain bound by its obligations under this Forward Purchase Agreement.
|
|
(a) |
Exchange Listing. PubCo will use commercially reasonable efforts to effect the listing of the PubCo Class A Shares and PubCo Forward Purchase Warrants on a national securities exchange.
|
|
(b) |
QEF Election Information. Until the Business Combination, the Company shall use commercially reasonable efforts to determine whether, in any year, the Company or any
subsidiary of the Company is deemed to be a “passive foreign investment company” (a “PFIC”) within the meaning of U.S. Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder (collectively, the “Code”). Until the Business Combination, if the Company determines that the Company or any subsidiary
of the Company is a PFIC in any year, for the year of determination and for each year thereafter during which the Purchaser holds an equity interest in the Company, including warrants, the Company or its subsidiary shall use commercially
reasonable efforts to (i) make available to the Purchaser the information that may be required to make or maintain a “qualified electing fund” election under the Code with respect to the Company and (ii) furnish the information required to
be reported under Section 1298(f) of the Code and/or, upon request, necessary in order to make the election described in Section 1291(d)(2)(B) of the Code.
|
|
(a) |
The obligation of the Purchaser to purchase the PubCo Forward Purchase Securities at the FPS Closing under this Agreement shall be subject to the fulfillment, at or prior to the FPS Closing of each of the following
conditions, any of which, to the extent permitted by applicable laws, may be waived by the Purchaser:
|
|
(i) |
Representations and Warranties Correct. The representations and warranties made by PubCo in Section 3 be true and correct as of the FPS Closing in all (except with respect to such representations and
warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date) except for inaccuracies or the failure of such representations and warranties to be true and correct that
(without giving effect to any limitation as to “materiality” or “Purchaser Material Adverse Effect” or another similar materiality qualification set forth herein), individually or in the aggregate, has not had, and would not reasonably be
expected to have, a Purchaser Material Adverse Effect.
|
|
(ii) |
Closing of the Transactions. All conditions precedent to PubCo’s, the Acquisition Entities’ (as defined in the Business Combination Agreement) and the Company’s obligations to effect the consummation of the
Transactions (as defined in the Combination Agreement) shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transactions but subject to satisfaction or waiver
thereof), the Initial Closing (as defined in the Business Combination Agreement) shall have been consummated prior to the FPS Closing and the Acquisition Closing will be consummated on the same day, and substantially concurrently with, the
FPS Closing; provided that the FPS Closing shall occur no earlier than immediately after the Initial Merger Effective Time (as defined in the Business Combination Agreement).
|
|
(iii) |
Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or
regulation enjoining or prohibiting the consummation of the transactions contemplated herein.
|
|
(iv) |
Performance and Compliance under this Agreement. PubCo shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by it at or prior to the FPS Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the
ability of PubCo to consummate the FPS Closing.
|
|
(b) |
The obligation of PubCo to sell the PubCo Forward Purchase Securities at the FPS Closing under this Agreement shall be subject to the fulfillment, at or prior to the FPS Closing of each of the following conditions,
any of which, to the extent permitted by applicable laws, may be waived by PubCo:
|
|
(i) |
Representations and Warranties Correct. The representations and warranties made by Purchaser in Section 2 shall be true and correct as of the FPS Closing in all (except with respect to such representations
and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date) except for inaccuracies or the failure of such representations and warranties to be true and correct that
(without giving effect to any limitation as to “materiality” or “PubCo Material Adverse Effect” or another similar materiality qualification set forth herein), individually or in the aggregate, has not had, and would not reasonably be
expected to have, a PubCo Material Adverse Effect.
|
|
(ii) |
Closing of the Transactions. All conditions precedent to the PubCo’s, the Company’s, the Acquisition Entities’ (as defined in the Business Combination Agreement) and the Company’s obligations to effect the
Transactions (as defined in the Business Combination Agreement) shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transactions (as defined in the
Combination Agreement) shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transactions but subject to satisfaction or waiver thereof), the Initial Closing
(as defined in the Business Combination Agreement) shall have been consummated prior to the FPS Closing and the Acquisition Closing will be consummated on the same day, and substantially concurrently with, the FPS Closing; provided that the
FPS Closing shall occur no earlier than immediately after the Initial Merger Effective Time (as defined in the Business Combination Agreement).
|
|
(iii) |
Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or
regulation enjoining or prohibiting the consummation of the transactions contemplated herein.
|
|
(iv) |
Performance and Compliance under this Agreement. The Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to
be performed, satisfied or complied with by it at or prior to the FPS Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the
ability of the Purchaser to consummate the FPS Closing.
|
|
(a) |
by mutual written consent of PubCo and the Purchaser;
|
|
(b) |
automatically
|
|
(i) |
if the Business Combination Agreement is terminated; or
|
|
(ii) |
if PubCo becomes subject to any voluntary or involuntary petition under the United States federal bankruptcy laws or any state insolvency law, in each case which is not withdrawn within sixty (60) days after being
filed, or a receiver, fiscal agent or similar officer is appointed by a court for business or property of PubCo, in each case which is not removed, withdrawn or terminated within sixty (60) days after such appointment;
|
|
(r) |
Certain Tax Matters. The parties acknowledge and agree that for U.S. federal income tax purposes, Purchaser shall be deemed to be the owner of any funds transferred by Purchaser to any escrow account unless
and until such funds are disbursed to PubCo in accordance with the terms of this Agreement, which disbursement shall occur, for the avoidance of doubt, no earlier than immediately following the Initial Merger Effective Time (as defined in the
Business Combination Agreement).
|
PUBCO:
|
|||
J1 HOLDINGS INC.
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BY:
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Name:
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Title:
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COMPANY:
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ALTIMETER GROWTH CORP.
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BY:
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Name:
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Title:
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Purchaser
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Pubco Forward Purchase Shares
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Pubco Forward Purchase Warrants
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Altimeter Partners Fund, L.P.
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17,500,000
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3,500,000
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Defined Term
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Page
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Acquisition Closing
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2
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Agreement
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1
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Anti-Money Laundering Laws
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7
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Board
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6
|
Board Observer
|
13
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Business Combination
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1
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Business Combination Agreement
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1
|
Business Day
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2
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Charter
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6
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Claim
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9
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Code
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11
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Company
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1
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Company Class A Shares
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1
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Company Forward Purchase Securities
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1
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Existing Agreement
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1
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FPS Closing
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2
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FPS Purchase Price
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1
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good standing
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3
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IPO
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1
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Joinder Agreement
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10
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Person
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4
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PFIC
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11
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PubCo
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1
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PubCo Class A Share
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2
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PubCo Forward Purchase Securities
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1
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PubCo Forward Purchase Shares
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1
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PubCo Forward Purchase Warrants
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1
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PubCo Notice
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2
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Public Warrants
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2
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Purchaser
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1, 10
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Purchaser Parties
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5
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Registration Rights Agreement
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4
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Securities Act
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3
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Transferee
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10
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Transferee Securities
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10
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Trust Account
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9
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Warrant Agent
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2
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Warrant Agreement
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2
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(i) |
Pursuant to the terms and subject to the conditions of this Agreement, PubCo shall issue and sell to the Purchaser, and the Purchaser shall purchase from PubCo, the PubCo Forward Purchase Securities for an
aggregate purchase price of $25,000,000 (the “FPS Purchase Price”).
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(ii) |
Each PubCo Forward Purchase Warrant, if any, will have the same terms as each warrant of the Company sold as part of the units in the IPO (which themselves are to be converted into and become warrants of PubCo
with effect on and from the closing of Initial Merger (as defined under the Business Combination Agreement) (the “Public Warrants”) and will be subject to the terms and conditions of the Warrant
Agreement, dated September 30, 2020, by and between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent (the “Warrant Agent”), in connection with the IPO to be amended pursuant to the Assignment, Assumption and Amendment Agreement to be entered into by and between the Company, PubCo and the Warrant Agent pursuant to the Business
Combination Agreement (the “Warrant Agreement”). Each PubCo Forward Purchase Warrant will entitle the holder thereof to purchase one Class A ordinary share of PubCo (“PubCo Class A Share”) at a price of $11.50 per share, subject to adjustment as described in the Warrant Agreement. The PubCo Forward Purchase Warrants will become exercisable on the later of thirty (30) days after the Acquisition
Closing (as defined in the Business Combination Agreement, the “Acquisition Closing”) and October 5, 2021, and will expire at 5:00 p.m., New York City time, five (5) years after the Acquisition
Closing or earlier upon redemption or the liquidation of PubCo, as described in the Warrant Agreement, and only whole PubCo Forward Purchase Warrants will be exercisable.
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(iii) |
PubCo shall deliver a written notice (the “PubCo Notice”) to the Purchaser, at least five (5) Business Days before the anticipated date of the Acquisition Closing,
specifying the anticipated date of the Acquisition Closing and instructions for wiring the FPS Purchase Price to an account designated by PubCo.
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(iv) |
Purchaser shall deliver to PubCo on or before three (3) Business Days prior to the anticipated date of the Acquisition Closing specified in the PubCo Notice the FPS Purchase Price by wire transfer of U.S. dollars in
immediately available funds to the escrow account specified by PubCo in the PubCo Notice, to be held by the escrow agent until the Acquisition Closing.
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(v) |
For the purposes of this Agreement, “Business Day” means any day, other than a Saturday, Sunday or other day on which commercial banks in New York, New York, the
Cayman Islands or Singapore are authorized or required by law to close.
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(vi) |
The closing of the sale of the PubCo Forward Purchase Securities (the “FPS Closing”) shall occur prior to but substantially concurrent with the Acquisition Closing
subject to the terms and conditions set forth herein; provided that the FPS Closing shall occur no earlier than immediately after the Initial Merger Effective Time (as defined in the Business Combination Agreement).
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(vii) |
In the event the Acquisition Closing does not occur within five (5) business days after the FPS Closing, PubCo shall cause the escrow agent to promptly (but not later than two (2) Business Days thereafter) return
the FPS Purchase Price to the Purchaser by wire transfer of U.S. dollars in immediately available funds to the account specified by the Purchaser, and any book entries or share certificates shall be deemed cancelled; provided that
unless this Agreement has been terminated pursuant to Section 8, such return of funds shall not terminate this Agreement or relieve the Purchaser of its obligation to purchase the PubCo Forward Purchase Securities at the FPS Closing.
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(i) |
PubCo shall register the Purchaser as the owner of the number of PubCo Forward Purchase Securities with PubCo’s transfer agent by book entry on or promptly after (but in no event more than two (2) Business Days
after) the FPS Closing.
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(ii) |
Each book entry for the PubCo Forward Purchase Securities shall contain a notation, and each certificate (if any) evidencing the PubCo Forward Purchase Securities shall be stamped or otherwise imprinted with a
legend, in substantially the following form:
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(c) |
Governmental Consents and Filings. Assuming the accuracy of the representations and warranties made by the Purchaser in this Agreement, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement, except
for applicable requirements of the Securities Act and applicable state securities laws.
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(d) |
Compliance with Other Instruments. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any violation or default
(i) of any provisions of its Charter or other governing documents, (ii) of any instrument, judgment, order, writ or decree to which it is a party or by which it is bound, (iii) under any note, indenture or mortgage to which it is a party or
by which it is bound, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound or (v) of any provision of federal or state statute, rule or regulation applicable to the Company, in each case
(other than clause (i)) which would have a material adverse effect on the Company or its ability to consummate the transactions contemplated by this Agreement.
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(i) |
Each of the Purchaser and PubCo hereby acknowledges that it is aware that the Company maintains a trust account (the “Trust Account”) for the benefit of its public
shareholders. Each of the Purchaser and PubCo, for itself and its respective affiliates, hereby agrees that it has no right, title, interest or claim of any kind in or to any monies held in the Trust Account, or any other asset of the
Company as a result of any liquidation of the Company, except for redemption and liquidation rights, if any, the Purchaser or PubCo may have in respect of any Company Class A Shares held by it.
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(ii) |
Each of the Purchaser and PubCo hereby agrees that it shall have no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any
monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future, except for redemption and liquidation rights, if any, the Purchaser or PubCo (as
applicable) may have in respect of any Company Class A Shares held by it.
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(c) |
Transfer. This Agreement and all of the Purchaser’s rights and obligations hereunder (including the Purchaser’s obligation to purchase the PubCo Forward Purchase
Securities) may be transferred or assigned, at any time and from time to time, in whole or in part, to one or more affiliates of Purchaser, but not to other third parties (each such transferee, a “Transferee”). Upon any such assignment:
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(i) |
the applicable Transferee shall execute a signature page to this Agreement, substantially in the form of the Purchaser’s signature page hereto (the “Joinder Agreement”),
which shall reflect the number of PubCo Forward Purchase Securities to be purchased by such Transferee (the “Transferee Securities”), and, upon such execution, such Transferee shall have all the
same rights and obligations of the Purchaser hereunder with respect to the Transferee Securities, and references herein to the “Purchaser” shall be deemed to refer to and include any such
Transferee with respect to such Transferee and to its Transferee Securities; provided, that any representations, warranties, covenants and agreements of the Purchaser and any such Transferee shall be several and not joint and shall be made
as to the Purchaser or any such Transferee, as applicable, as to itself only; and
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(ii) |
upon a Transferee’s execution and delivery of a Joinder Agreement, the maximum number of PubCo Forward Purchase Securities to be purchased by the Purchaser hereunder shall be reduced by the number of PubCo Forward
Purchase Securities to be purchased by the applicable Transferee pursuant to the applicable Joinder Agreement, which reduction shall be evidenced by the Purchaser and PubCo amending Schedule A to this Agreement to reflect each transfer to
reflect such reduced number of PubCo Forward Purchase Securities. For the avoidance of doubt, this Agreement need not be amended and restated in its entirety, but only Schedule A and the Purchaser’s signature page hereto need be so amended
and updated and executed by each of the Purchaser and PubCo upon the occurrence of any such transfer of Transferee Securities; provided that, in the case of any such transfer or assignment, the initial party to this Forward Purchase Agreement
shall remain bound by its obligations under this Forward Purchase Agreement.
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(b) |
QEF Election Information. Until the Business Combination, the Company shall use commercially reasonable efforts to determine whether, in any year, the Company or any
subsidiary of the Company is deemed to be a “passive foreign investment company” (a “PFIC”) within the meaning of U.S. Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder (collectively, the “Code”). Until the Business Combination, if the Company determines that the Company or any subsidiary of the Company is a PFIC in any year, for the year of
determination and for each year thereafter during which the Purchaser holds an equity interest in the Company, including warrants, the Company or its subsidiary shall use commercially reasonable efforts to (i) make available to the
Purchaser the information that may be required to make or maintain a “qualified electing fund” election under the Code with respect to the Company and (ii) furnish the information required to be reported under Section 1298(f) of the Code
and/or, upon request, necessary in order to make the election described in Section 1291(d)(2)(B) of the Code.
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(a) |
The obligation of the Purchaser to purchase the PubCo Forward Purchase Securities at the FPS Closing under this Agreement shall be subject to the fulfillment, at or prior to the FPS Closing of each of the following
conditions, any of which, to the extent permitted by applicable laws, may be waived by the Purchaser:
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|
(i) |
the Acquisition Closing shall be consummated substantially concurrently with, and immediately following the FPS Closing; provided that FPS Closing shall occur no earlier than immediately after the Initial Merger
Effective Time (as defined in the Business Combination Agreement);
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(ii) |
PubCo shall have delivered to the Purchaser a certificate evidencing PubCo’s good standing as a Cayman Islands exempted limited company, as of a date within ten (10) Business
Days of the FPS Closing;
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(iii) |
the representations and warranties of the PubCo set forth in Section 3 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the FPS Closing, as
applicable, with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and
correct as of such specified date), except where the failure to be so true and correct would not have a material adverse effect on PubCo or its ability to consummate the transactions contemplated by this Agreement;
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(iv) |
PubCo shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by PubCo at or prior
to the FPS Closing; and
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(v) |
no order, writ, judgment, injunction, decree, determination, or award shall have been entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral
body, and no other legal restraint or prohibition shall be in effect, preventing the purchase by the Purchaser of the PubCo Forward Purchase Securities.
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(b) |
The obligation of PubCo to sell the PubCo Forward Purchase Securities at the FPS Closing under this Agreement shall be subject to the fulfillment, at or prior to the FPS Closing of each of the following conditions,
any of which, to the extent permitted by applicable laws, may be waived by PubCo:
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|
(i) |
the Acquisition Closing shall be consummated substantially concurrently with, and immediately following the FPS Closing; provided that the FPS Closing shall occur no earlier than immediately after the Initial Merger
Effective Time (as defined in the Business Combination Agreement);
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(ii) |
the representations and warranties of the Purchaser set forth in Section 2 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the FPS Closing, as
applicable, with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and
correct as of such specified date), except where the failure to be so true and correct would not have a material adverse effect on the Purchaser or its ability to consummate the transactions contemplated by this Agreement;
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(iii) |
the Purchaser shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the
Purchaser at or prior to the FPS Closing; and
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(iv) |
no order, writ, judgment, injunction, decree, determination, or award shall have been entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral
body, and no other legal restraint or prohibition shall be in effect, preventing the purchase by the Purchaser of the PubCo Forward Purchase Securities.
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(a) |
by mutual written consent of PubCo and the Purchaser;
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(b) |
automatically
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(i) |
if the Business Combination Agreement is terminated; or
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(ii) |
if PubCo becomes subject to any voluntary or involuntary petition under the United States federal bankruptcy laws or any state insolvency law, in each case which is not withdrawn within sixty (60) days after being
filed, or a receiver, fiscal agent or similar officer is appointed by a court for business or property of PubCo, in each case which is not removed, withdrawn or terminated within sixty (60) days after such appointment;
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(r) |
Certain Tax Matters. The parties acknowledge and agree that for U.S. federal income tax purposes, Purchaser shall be deemed to be the owner of any funds transferred by Purchaser to any escrow account unless
and until such funds are disbursed to PubCo in accordance with the terms of this Agreement, which disbursement shall occur, for the avoidance of doubt, no earlier than immediately following the Initial Merger Effective Time (as defined in the
Business Combination Agreement).
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PURCHASER:
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JS CAPITAL LLC
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Address for Notices:
JS Capital Management LLC
888 Seventh Avenue
New York, NY 10106
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|
By:
|
||
Name:
|
||
Title:
|
||
PUBCO:
|
||
J1 HOLDINGS INC.
|
||
BY:
|
||
Name:
|
||
Title:
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COMPANY:
|
||
ALTIMETER GROWTH CORP.
|
||
BY:
|
||
Name:
|
||
Title:
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Purchaser
|
Pubco Forward Purchase Shares
|
Pubco Forward Purchase Warrants
|
||
JS Capital LLC
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2,500,000
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500,000
|
1. |
Grant of Proxy and Power Of Attorney
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1.1 |
Voting Right Entrustment.
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(a) |
Each Covered Holder hereby irrevocably grants to and appoints the Proxyholder and any individual designated in writing by the Proxyholder, and each of them individually, as such Covered Holder’s attorney-in-fact and proxy for and on such
Covered Holder’s behalf (the “Proxy”), for and in such Covered Holder’s name, place and stead, to: (i) attend any and all meetings of the shareholders of the Company; (ii) vote the Covered Shares of
such Covered Holder at any such meeting; (iii) grant or withhold all written consents with respect to such Covered Shares; and (iv) represent and otherwise act for such Covered Holder in the same manner and with the same effect as if such
Covered Holder was personally present at any such meeting (collectively, the “Entrusted Rights”). The Proxy is coupled with an interest, is irrevocable (and as such shall survive and not be affected by
the incapacity, mental illness or insanity of the Covered Holder) and shall not be terminated by operation of Law or upon the occurrence of any other event other than following a termination pursuant to Section 1.2(a). Each Covered
Holder authorizes the Proxyholder to substitute any other Person to act hereunder, to revoke any substitution and to file this Proxy and any substitution or revocation with the secretary of the Company. SUCH IRREVOCABLE PROXY IS EXECUTED AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF THE POWERS OF ATTORNEY ACT OF THE CAYMAN ISLANDS (REVISED). Each
Covered Holder hereby acknowledges and agrees it is liable for any legal consequences arising from the Proxyholder’s exercise of the aforesaid Entrusted Rights.
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(b) |
Each Covered Holder hereby acknowledges that in exercising the aforesaid Entrusted Rights, the Proxyholder is not required to seek the prior opinion, instruction or consent of such Covered Holder. However, the Proxyholder shall inform each
Covered Holder by notice in writing in a timely manner of any resolution, notice or proposal on convening a shareholders’ meeting after such resolution, notice or proposal is made unless the Proxyholder believes in good faith that such
Covered Holder is already aware of such resolution, notice or proposal.
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(c) |
Any securities of the Company to be issued or issuable to a Covered Holder in respect of Covered Shares during the term of the Proxy shall be deemed Covered Shares.
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(d) |
Each Covered Holder will, upon request, execute and deliver any additional documents and take such actions as may reasonably be deemed by the Proxyholder to be necessary or desirable to give effect to the Proxy granted by such Covered
Holder hereby or to carry out the provisions of this Section 1.
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(e) |
Each Covered Holder (i) consents to and authorizes the publication and disclosure by the Proxyholder of such Covered Holder’s identity and holding of Covered Shares, the nature of such Covered Holder’s commitments, arrangements and
understandings under this Deed (including, for the avoidance of doubt, the disclosure of this Deed) and any other information, in each case, that the Proxyholder reasonably determines is required to be disclosed by applicable Law in any press
release, any Schedule 13D or Schedule 13G filed with the SEC, and any other filings with or notices to Governmental Authorities in connection with this Deed or any other agreement or transaction entered into in connection herewith, and (ii)
agrees promptly to give to the Proxyholder any information it or its agents may reasonably request for the preparation of any such documents. Each Covered Holder hereto also agrees to promptly notify the Proxyholder of any required
corrections with respect to any information supplied by such Covered Holder for use in any such document, if and to the extent that any such information shall have become false or misleading in any material respect.
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1.2 |
Validity Term.
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(a) |
Each Proxy shall terminate on the date that all Class B Ordinary Shares are converted into Class A Ordinary Shares.
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(b) |
As a condition of transfer of Covered Shares by a Covered Holder to a third party that is a Permitted Transferee (as defined in the PubCo Charter), the Covered Holder shall cause such Permitted Transferee to enter into a deed of adherence
to this Deed, in the form of the Deed of Adherence attached hereto as Exhibit A, by which such third party shall agree to be bound by the terms and conditions set forth in this Section 1 and agree to assume the obligations and
liabilities of such Covered Holder as if he/she/it were named herein as such Covered Holder, and shall deliver a copy of such document to the Company and the Proxyholder together with the notice of such transfer.
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1.3 |
Exemption. The Proxyholder shall not be liable for or make any economic or other indemnification to any other Party or any third party as a result of the exercise of the Entrusted Rights hereunder as the Proxyholder in accordance
with this Deed.
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1.4 |
Miscellaneous.
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(a) |
No Ownership Interest. Except as provided for in this Section 1, nothing contained in this Section 1 shall be deemed to vest in any party other than the Covered Holders any direct
or indirect ownership or incidence of ownership of or with respect to any Covered Shares held by the Covered Holder and all rights, ownership and economic benefits of and relating to such Covered Shares (other than the Entrusted Rights) shall
remain vested in and belong to the Covered Holder.
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(b) |
Irrevocable Proxy. Each Proxy granted pursuant to this Section 1 is given in consideration for the Company and the other parties thereto entering into the Business Combination Agreement and
the Company issuing to the Covered Holders the Covered Shares pursuant to the terms thereof and, as such, is coupled with an interest and shall be irrevocable unless and until such Proxy terminates in accordance with Section 1.2. The
Parties expressly acknowledge and agree, among other things, that the Company and the other parties thereto would not enter into the Business Combination Agreement but for the Proxy granted by the Covered Holders to the Proxyholder. The
Company agrees with the Proxyholder that it shall not accept, honor or permit any Covered Holder to vote, or provide any consent with respect to, any Covered Shares with respect to any of the Entrusted Rights.
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(c) |
Revocation of other Proxy or Power of Attorney. Each Covered Holder hereby revokes any and all previous proxies or powers of attorney with respect to the Covered Shares held by such Covered Holder
or over which such Covered Holder has voting power or control and shall not after the date of this Deed, unless and until the Proxy terminates pursuant to Section 1.2(a) above, purport to grant any other proxy or power of attorney
with respect to any of the Covered Shares, deposit any of the Covered Shares into a voting trust or enter into any agreement (other than this Deed), arrangement or understanding with any person, directly or indirectly, to vote, grant any
proxy or give instructions with respect to the voting of any of the Covered Shares, in each case, with respect to any of the matters set forth herein.
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(d) |
Validity; Commitment to Vote. Each Covered Holder agrees not to challenge the validity or enforceability of this Section 1. If for whatever reason or no reason a Proxy is deemed invalid,
unlawful or otherwise unenforceable, the Covered Holder having, or having purported to, grant such Proxy agrees to vote, or cause to be voted, all Covered Shares held by such Covered Holder, or over which such Covered Holder has voting power
or control, from time to time and at all times, in the manner directed by the Proxyholder in respect of all consents or resolutions of the Company.
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(e) |
Transfer or Bequest to Permitted Entity. Promptly following the Acquisition Closing Date, but no later than 20 days thereafter, each Covered Holder shall either transfer or bequeath its Covered
Shares to a Permitted Entity of such Covered Holder. After the Acquisition Closing Date, all Class B Ordinary Shares to be received by the Covered Holders upon exercise of any Assumed Key Executive Option, upon the vesting of any Converted
Key Executive Restricted Stock Award or upon the settlement of any Assumed Key Executive RSU Award and all Class B Ordinary Shares to be received or acquired by any Covered Holder at any time in the future by any other means shall promptly,
but no later than 20 days following the receipt of such Class B Ordinary Shares, be transferred or bequeathed to a Permitted Entity.
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2. |
ENDOWMENT FUND
|
2.1 |
Following the Acquisition Closing, the Company will create the Fund. Once the formation process is concluded, the Company will send a written notice thereof to Sponsor (the “Fund Formation Notice”).
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2.2 |
Within ten Business Days of the date of the Fund Formation Notice but in no event earlier than such time as the Sponsor Contribution Shares have been registered for resale on an effective registration statement filed with the U.S.
Securities and Exchange Commission and the applicable lock-up period under the Sponsor, Support and Lock-Up Agreement has expired (such time, the “Relevant Date”), Sponsor shall gift, or transfer for
nominal amount, the Sponsor Contribution Shares (such gift or transfer, the “Sponsor Contribution”) to the Fund, free and clear of all Security Interests; provided that, notwithstanding the foregoing,
to the extent a Fund Formation Notice has been delivered prior to the Relevant Date, Sponsor shall have the right (but not the obligation) to make the Sponsor Contribution in accordance with this Section 2.2. Sponsor acknowledges and
agrees that the obligation undertaken pursuant to this Section 2.2 is given in consideration for the Company and the other parties thereto entering into the Business Combination Agreement.
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2.3 |
In connection with the foregoing, as promptly as reasonably practicable after the date hereof, the Sponsor and the Company shall cooperate in good faith until the date that is 90 days after the date of the Acquisition Effective Time (under
and as defined in the Business Combination Agreement), to try to structure the Sponsor Contribution such that it maximizes tax efficiency for the Sponsor to further enhance the philanthropic impact of the Sponsor Contribution. In connection
with the foregoing, if the Sponsor and the Company agree that such Sponsor Contribution may be made to a foundation or fund other than the Fund, Sponsor’s obligation under Section 2.2 shall be deemed to be met if such Sponsor
Contribution is made to such other foundation or fund. If the Sponsor and the Company cannot otherwise agree, then the Sponsor Contribution shall be made to the Fund, when and as provided in Section 2.2.
|
2.4 |
Sponsor acknowledges and agrees that
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|
(a) |
the structure, terms and beneficiaries of the Fund will be determined by the Company and GHI in their sole discretion; and
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|
(b) |
the composition of the management and the board of directors of the Fund will be determined by the Company.
|
3. |
Representations And Warranties Of The Parties. Each Party, severally and not jointly, represents and warrants to the other Parties as follows:
|
3.1 |
Organization, Good Standing and Qualification. If such Party is not a natural person, such Party has been duly organized and is validly existing and in good standing under the Laws of its jurisdiction of incorporation and has
requisite corporate power and authority to own and operate its properties and assets, to carry on its business as presently conducted and contemplated to be conducted. If such Party is a natural person, such Party has full legal capacity,
right and authority to execute this Deed and perform his/her obligations hereunder, and to consummate the transactions contemplated hereby. Such Party is duly licensed or qualified and in good standing (to the extent such concept is
applicable in such Party’s jurisdiction of formation) as a foreign or extra-provincial corporation (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to
require it to be so licensed or qualified or in good standing (to the extent such concept is applicable in such Party’s jurisdiction of formation), as applicable, except where the failure to be so licensed or qualified or in good standing
would not have a material adverse effect on the ability of such Party to enter into and perform its obligations under this Deed and to consummate the transactions contemplated hereby.
|
3.2 |
Authorization. If such Party is not a natural person, such Party has all requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Deed and to consummate the transactions
contemplated hereunder; and all corporate actions on the part of such Party necessary for the authorization, execution and delivery of this Deed and the performance of all its obligations hereunder (including any board approval) have been
taken. If such Party is a natural person, such Party has full legal capacity, right and authority to execute this Deed and perform his/her obligations hereunder, and to consummate the transactions contemplated hereby. This Deed is, or when
executed by the other Parties, will be, valid and legally binding obligations of such Party, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other applicable laws now or hereafter in effect of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by applicable laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
|
3.3 |
Consents; No Conflicts. Other than any filings to be made under applicable federal or state securities laws, all filings, notifications, notices, submissions, applications, or consents from or with any Governmental Authority or any
other Person required in connection with the valid execution, delivery and performance of this Deed and the consummation of the transactions contemplated hereby, in each case on the part of such Party, have been duly obtained or completed (as
applicable) and are in full force and effect. The execution, delivery and performance of this Deed by such Party does not, and the consummation by such Party of the transactions contemplated hereby will not result in any violation of, be in
conflict with, or constitute a default under, require any consent under, or give any Person rights of termination, amendment, acceleration (including acceleration of any obligation of such Party) or cancellation under, (x) (i) any
Governmental Order, (ii) any provision of the Organizational Documents of such Party (if such Party is not a natural person), (iii) subject to any filings to be made under applicable federal or state securities laws, any applicable Law, (iv)
any Contract to which such Party is a party or by which its assets are bound, or (y) result in the creation of any lien or encumbrance upon any of the properties or assets of such Party other than liens or encumbrances pursuant to the PubCo
Charter, this Deed, the Shareholder Support Agreements to which such Party is a party, any other Transaction Document or applicable federal or state securities laws, except in the case of sub-clauses (i), (iii), and (iv) of clause (x), as has
not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of any such Party to enter into and perform this Deed and to consummate the transactions contemplated hereby.
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4. |
Miscellaneous; Definitions
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4.1 |
Notices. All general notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by courier or sent by registered post or sent by electronic mail
to the intended recipient thereof at its address or at its email address set out below (or to such other address or email address as a Party may from time to time notify to each other Party). Any such notice, demand or communication shall be
deemed to have been duly served (a) if given personally or sent by courier, upon delivery during normal business hours at the location of delivery or, if later, then on the next Business Day after the day of delivery; (b) if sent by
electronic mail during normal business hours at the location of delivery, immediately, or, if later, then on the next Business Day after the day of delivery; (c) the third Business Day following the day sent by reputable international
overnight courier (with written confirmation of receipt), and (d) if sent by registered post, five days after posting. The initial addresses and email addresses of the Parties for the purpose of this Deed are:
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(a) |
If to Sponsor, to:
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(b) |
If to GHI or the Company, to:
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(c) |
If to the Proxyholder, to:
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(d) |
If to the Covered Holders, to the addresses set forth the name of such Covered Holder on Schedule 1.
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4.2 |
Assignment. Subject to Section 1.2(b), no Party shall assign this Deed or any part hereof without the prior written consent of each other Party and any such transfer without prior written consent shall be void.
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4.3 |
Termination. This Deed shall automatically terminate upon the termination of the Business Combination Agreement, in accordance with its terms, in which case no Party shall have any obligation or liability hereunder.
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4.4 |
Modifications and Amendments. This Deed may not be amended, modified, supplemented or waived, except by an instrument in writing (a) if related to Section 1, signed by the Covered Holders, the Proxyholder and the Company,
(b) if related to Section 2, signed by Sponsor and the Company and (c) if related to any other provision hereof, signed by each Party.
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4.5 |
Benefit. Except as otherwise provided herein, this Deed shall be binding upon, and inure to the benefit of the Parties and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the
agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns. This
Deed shall not confer rights or remedies upon any person other than the Parties and their respective successors and assigns.
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4.6 |
Governing Law. This Deed, and any claim or cause of action hereunder based upon, arising out of or related to this Deed (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution,
performance or enforcement of this Deed, shall be governed by and construed in accordance with the laws of the Cayman Islands, without giving effect to the principles of conflicts of laws that would otherwise require the application of the
law of any other jurisdiction.
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4.7 |
Arbitration. Any dispute arising out of or in connection with this Deed, including any question regarding its existence, validity or termination or breach, shall be referred to and finally resolved by arbitration administered in the
Singapore International Arbitration Centre (“SIAC”) in Singapore in accordance with the Arbitration Rules of the SIAC for the time being in force, which rules are deemed to be incorporated by reference
in this Section 4.7. The seat of the arbitration shall be Singapore. The Tribunal shall consist of three arbitrators and the language of the arbitration shall be English. The appointing authority shall be the Chairman or Deputy
Chairman of SIAC.
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4.8 |
Severability. If any provision of this Deed shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining
provisions of this Deed shall not in any way be affected or impaired thereby and shall continue in full force and effect. The Parties further agree that if any provision contained in this Deed is, to any extent, held invalid or unenforceable
in any respect under the Laws governing this Deed, they shall take any actions necessary to render the remaining provisions of this Deed valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or
otherwise modify this Deed to replace any provision contained in this Deed that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the Parties.
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4.9 |
No Waiver of Rights, Powers and Remedies. No failure or delay by a Party hereto in exercising any right, power or remedy under this Deed, and no course of dealing between the Parties, shall operate as a waiver of any such right,
power or remedy of such Party. No single or partial exercise of any right, power or remedy under this Deed by a Party, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such Party from
any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a Party shall not constitute a waiver of the right of such Party to pursue other available remedies. No notice
to or demand on a Party not expressly required under this Deed shall entitle the Party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the
Party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
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4.10 |
Remedies.
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(a) |
The Parties agree that irreparable damage would occur if this Deed was not performed in accordance with its specific terms or was otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any
such damage. It is accordingly agreed that the Parties shall be entitled to equitable relief, including in the form of an injunction or injunctions, to prevent breaches or threatened breaches of this Deed and to enforce specifically the terms
and provisions of this Deed in an appropriate arbitration tribunal as set forth in Section 4.7, this being in addition to any other remedy to which any Party is entitled at law, in equity, in contract, in tort or otherwise, including
money damages. The right to specific enforcement shall include, by reason of the Proxyholder’s and the Company’s interest as described herein, the Proxyholder’s right to seek injunctive relief to prevent each Covered Holder from exercising or
purporting to exercise the Entrusted Rights. The Parties further agree (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (ii) not to assert that a remedy of specific enforcement
pursuant to this Section 4.10 is unenforceable, invalid, contrary to applicable Law or inequitable for any reason and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at law would
be adequate.
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(b) |
The Parties acknowledge and agree that this Section 4.10 is an integral part of the transactions contemplated hereby and without that right, the Company and the other parties thereto would not have entered into the Business
Combination Agreement and the Parties would not have entered into this Deed.
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(c) |
In any dispute arising out of or related to this Deed, or any other agreement, document, instrument or certificate contemplated hereby, or any transactions contemplated hereby or thereby, the applicable adjudicating body shall award to the
prevailing party, if any, the reasonable and documented out-of-pocket costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the dispute and the enforcement of its rights under this Deed or any other
agreement, document, instrument or certificate contemplated hereby and, if the adjudicating body determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and
counterclaims, the adjudicating body may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the adjudication and the enforcement of its rights
under this Deed or any other agreement, document, instrument or certificate contemplated hereby or thereby.
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4.11 |
Headings; Counterparts. The headings in this Deed are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Deed. This Deed may be executed in two or more
counterparts, and by different Parties in separate counterparts, with the same effect as if all Parties had signed the same document, but all of which together shall constitute one and the same instrument. Copies of executed counterparts of
this Deed transmitted by electronic transmission (including by email or in .pdf format) or facsimile shall have the same legal effect as original signatures and shall be considered original executed counterparts of this Deed.
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4.12 |
Construction. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice
versa, unless the context otherwise requires. The words “this Deed,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Deed as a whole and not to any particular subdivision unless expressly so limited. The Parties intend that each
representation, warranty, and covenant contained herein will have independent significance. The word “will” shall be construed to have the same meaning as the word “shall”. If any Party has breached any representation, warranty, or covenant
contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such Party has not breached will not detract
from or mitigate the fact that such Party is in breach of the first representation, warranty, or covenant. All references in this Deed to numbers of shares shall be appropriately adjusted to reflect any stock split, stock dividend, stock
combination, recapitalization or the like occurring after the date hereof.
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4.13 |
Mutual Drafting. With regard to each and every term and condition of this Deed, the Parties understand and agree that the same has been mutually negotiated, prepared and drafted, and if at any time the Parties desire or are required
to interpret or construe any such term or condition or any agreement or instrument subject hereto, no consideration shall be given to the issue of which Party actually prepared, drafted or requested any term or condition of this Deed.
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4.14 |
Definitions. Table of defined terms.
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Agreement
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Preamble
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Assumed Key Executive Option
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Recitals
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Assumed Key Executive RSU Award
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Recitals
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Business Combination Agreement
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Recitals
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Class A Ordinary Shares
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Recitals
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Class B Ordinary Shares
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Recitals
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Company
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Preamble
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Covered Holder
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Preamble
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Covered Shares
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Recitals
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Entrusted Rights
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1.1(a)
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Fund Formation Notice
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2.1
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GHI
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Preamble
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Parties
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Preamble
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Party
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Preamble
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Proxy
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1.1(a)
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SIAC
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4.7
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Sponsor
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Preamble
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Sponsor Contribution Shares
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Recitals
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Sponsor
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Company:
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|||
Solely for the purposes of Sections 2 and 3
and, to the extent applicable, Section 4
|
||||
ALTIMETER GROWTH HOLDINGS
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J1 HOLDINGS INC.
|
|||
By:
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By:
|
|||
Name:
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Name:
|
|||
Title:
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Title:
|
|||
Executed in the presence of:
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Executed in the presence of:
|
|||
Witness Name:
|
Witness Name:
|
|||
Proxyholder
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GHI
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GRAB HOLDINGS INC.
|
|||
By:
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|||
Name:
|
|||
Name: Anthony Tan Ping Yeow
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Title:
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||
Executed in the presence of:
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Executed in the presence of:
|
||
Witness Name:
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Witness Name:
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|
To: |
J1 Holdings Inc. (the “Company”) and
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|
|
the Proxyholder (as defined below)
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|
From: |
[Permitted Transferee]
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|
Date: |
[ ]
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Name and Contact Information
|
Number of Class B Ordinary Shares
|
[Permitted Transferee]
[Address]
Attention: [ ]
Email: [ ]
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[ ]
|
Witness Name:
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●
|
Grab is relied on for everyday needs in Southeast Asia and is the category leader for online food delivery, ride-hailing and digital wallet payments2 in the region
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●
|
Public listing will reinforce Grab’s strong business momentum including Gross Merchandise Value of approximately US$12.5 billion in 2020, surpassing
pre-pandemic levels
|
●
|
The proposed transactions represent an expected equity value on a pro-forma basis of approximately US$39.6 billion and are expected to provide up to
approximately US$4.5 billion in cash proceeds to Grab
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●
|
Proceeds include more than US$4.0 billion of fully committed PIPE led by US$750 million from funds managed by Altimeter Capital Management, LP
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●
|
Investors in the PIPE include funds and accounts managed or advised by BlackRock, Counterpoint Global (Morgan Stanley Investment Management) and
T.Rowe Price Associates, Inc., as well as Fidelity International, Fidelity Management and Research LLC, Janus Henderson Investors, Mubadala, Nuveen, Permodalan Nasional Berhad and Temasek
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●
|
Altimeter commits to a three-year lock-up period for its sponsor promote shares, 10% of which will go to the recently announced GrabForGood Fund to
support programs with long-term social and environmental impact
|