Units, each consisting of one share of Class A Ordinary Share, $0.0001 par value, and one-third of one redeemable warrant 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 false 0001836190 0001836190 2021-11-15 2021-11-15 0001836190 gmbtu:UnitsMember 2021-11-15 2021-11-15 0001836190 us-gaap:CommonClassAMember 2021-11-15 2021-11-15 0001836190 us-gaap:WarrantMember 2021-11-15 2021-11-15

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): November 15, 2021

 

 

QUEEN’S GAMBIT GROWTH CAPITAL

(Exact name of registrant as specified in its charter)

 

 

 

Cayman Islands   001-39908   98-1571453

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

55 Hudson Yards, 44th Floor  
New York, NY   10001
(Address of principal executive offices)   (Zip Code)

(917) 907-4618

(Registrant’s telephone number, including area code)

Not Applicable

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

 

 

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange on

which registered

Units, each consisting of one share of Class A Ordinary Share, $0.0001 par value, and one-third of one redeemable warrant   GMBTU   Nasdaq Capital Market
Class A Ordinary Shares included as part
of the units
  GMBT   Nasdaq Capital Market
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
  GMBTW   Nasdaq Capital Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2).

Emerging growth company ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 


Item 1.01. Entry Into a Material Definitive Agreement.

As previously announced, on July 28, 2021, Queen’s Gambit Growth Capital, a Cayman Islands exempted company with limited liability (“SPAC”), Swvl Inc., a British Virgin Islands business company limited by shares incorporated under the laws of the British Virgin Islands (“Swvl”), Pivotal Holdings Corp, a British Virgin Islands business company limited by shares incorporated under the laws of the British Virgin Islands and wholly owned subsidiary of Swvl (“Holdings”), Pivotal Merger Sub Company I, a Cayman Islands exempted company with limited liability and wholly owned subsidiary of Holdings (“Cayman Merger Sub”), and Pivotal Merger Sub Company II Limited, a British Virgin Islands business company limited by shares incorporated under the laws of the British Virgin Islands and wholly owned subsidiary of SPAC (“BVI Merger Sub”), entered into a business combination agreement (the “Business Combination Agreement”). Subject to the satisfaction or waiver of the conditions to closing of the transactions contemplated by the Business Combination Agreement (the “Proposed Transactions”), the Proposed Transactions will effect a business combination between SPAC and Swvl.

Forward Purchase Agreement

On November 15, 2021, SPAC and ACM ARRT VII B, LLC, a Delaware limited liability company (“Seller”), entered into an agreement (the “Forward Purchase Agreement”) for an OTC Equity Prepaid Forward Transaction (the “Forward Purchase Transaction”) with respect to Class A Ordinary Shares, par value $0.0001 per share, of SPAC (“SPAC Shares”) and the Class A ordinary shares, par value $0.0001, of Holdings (“Holdings Common Shares A”) into which such SPAC Shares will be converted in the Proposed Transactions. Seller has informed SPAC that it intends to purchase up to 10,000,000 SPAC Shares after the date of the Forward Purchase Agreement from holders of such shares (other than SPAC or affiliates of SPAC) who have redeemed such Subject Shares pursuant to the redemptions rights set forth in SPAC’s Amended and Restated Memorandum and Articles of Association in connection with the Proposed Transactions (the SPAC Shares so purchased, the “Subject Shares”). Pursuant to the terms of the Forward Purchase Agreement, subject to certain conditions, including the completion of the Proposed Transactions by the Outside Date (as defined in the Business Combination Agreement), Seller has agreed to waive any redemption rights with respect to any Subject Shares in connection with the Proposed Transactions. Although Seller has informed SPAC that it intends to purchase the SPAC Shares, the Seller has no obligation to do so and may determine in its sole discretion, as a result of market conditions or otherwise, not to purchase the SPAC Shares. If the Seller is unable to purchase at least 2,500,000 SPAC Shares, then the Seller will have the right under the Forward Purchase Agreement to purchase 2,500,000 Holdings Common Shares A from Holdings in a private placement at the Redemption Price (as defined below), which right the Seller may or may not exercise in its sole discretion.

Subject to certain termination provisions, the Forward Purchase Agreement provides that on the 2-year anniversary of the effective date of the Forward Purchase Transaction, which is expected to be on or about the date of the Closing (as defined below) (such 2-year anniversary, the “Maturity Date”), Seller will sell to Holdings a specified number of Holdings Common Shares A (up to the greater of (x) the number of Subject Shares or 10,000,000 shares, whichever number is lower and (y) 2,500,000 shares) at a price (the “Forward Price”) equal to the per share redemption price of Holdings Common Shares A calculated pursuant to Article 168 of the Amended and Restated Memorandum and Articles of Association of Holdings in effect at the date and time on which the merger of SPAC into Cayman Merger Sub becomes effective (the “Redemption Price”) plus 50% of the difference between (i) the average price per Subject Share paid by Seller to acquire the Subject Shares, including any brokerage commission paid by the Seller in connection therewith, minus (ii) the Redemption Price per Subject Share, which amount may be positive or negative. Immediately following the closing of the Proposed Transactions (“Closing”), SPAC will pay to Seller, out of funds held in SPAC’s trust account, an amount equal to the Forward Price multiplied by the number of Holdings Common Shares A underlying the Forward Purchase Transaction (the “Prepayment Amount”). Seller’s obligations to SPAC under the Forward Purchase Agreement will be secured by perfected liens on (i) the proceeds of any sale or other disposition of the Subject Shares and (ii) the deposit account (the “Deposit Account”) into which such proceeds are required to be deposited (the “Collateral”). The Deposit Account will be subject to a customary deposit account control agreement in favor of SPAC.

If, on any trading day prior to the Maturity Date, the dollar volume weighted average price per Holdings Common Share A equals or exceeds (a) $12.00 per Holdings Common Share A for at least 20 of 30 of the preceding trading days (such period, an “Early Settlement Determination Period”), Seller would pay an amount of cash (an “Early Settlement Cash Amount”) to Holdings equal to 25% of the Prepayment Amount, (b) $14.00 per Holdings

 

1


Common Share A for any Early Settlement Determination Period, Seller would pay an Early Settlement Cash Amount to Holdings equal to 50% of the Prepayment Amount, (c) $16.00 per Holdings Common Share A for any Early Settlement Determination Period, Seller would pay an Early Settlement Cash Amount to Holdings equal to 75% of the Prepayment Amount, or (d) $18.00 per Holdings Common Share A for any Early Settlement Determination Period, Seller would pay an Early Settlement Cash Amount to Holdings equal to the remainder of the Prepayment Amount, in each case subject to certain minimum trading volume requirements. In the case of each of (a) - (d) above, the Forward Purchase Transaction would be terminated with respect to a number of shares determined by dividing the applicable Early Settlement Cash Amount by the Forward Price and the remainder of the Forward Purchase Transaction would continue in accordance with its terms. The Early Settlement Determination Periods will not run concurrently.

At any time after the Closing, Seller may terminate the Forward Purchase Transaction in whole or in part, upon no less than three days prior written notice to SPAC and Holdings. The effect of such termination would be to reduce the number of shares for the Forward Purchase Transaction (the reduction being “Terminated Shares”). On the settlement date of any such early termination, Seller would pay to Holdings an amount equal to the product of the Forward Price and the Terminated Shares. To the extent that the Seller has sold such Subject Shares at a price greater than the Forward Price, the Seller would be entitled to retain such excess.

The foregoing description is only a summary of the Forward Purchase Agreement and is qualified in its entirety by reference to the full text of the Forward Purchase Agreement, which is filed as Exhibit 10.1 hereto and incorporated by reference herein. The Forward Purchase Agreement is included as an exhibit to this Current Report on Form 8-K in order to provide investors and security holders with material information regarding its terms and the transaction. It is not intended to provide any other factual information about SPAC, Holdings or Seller and their respective affiliates. The representations, warranties and covenants contained in the Forward Purchase Agreement were made only for purposes of that agreement; are solely for the benefit of the parties to the Forward Purchase Agreement; may have been made for the purposes of allocating contractual risk between the parties to the Forward Purchase Agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the parties that differ from those applicable to investors. Investors should not rely on the representations, warranties or covenants or any description thereof as characterizations of the actual state of facts or condition of SPAC or Seller and their respective affiliates.

Disclosure On Redemptions Relating to the Forward Purchase Agreement

As described above, subject to certain conditions, including the completion of the Proposed Transactions by the Outside Date (as defined in the Business Combination Agreement), Seller has agreed to waive any redemption rights with respect to the Subject Shares. Such waiver may reduce the number of Holdings Common Shares A redeemed in connection with the Proposed Transactions, which reduction could alter the perception of the potential strength of the Proposed Transactions.

Item 8.01. Other Events.

As previously announced in connection with the execution of the Business Combination Agreement, on July 28, 2021, SPAC, Swvl and Holdings entered into separate subscription agreements (collectively, the “PIPE Subscription Agreements”) with a number of investors (collectively, the “PIPE Investors”), pursuant to which the PIPE Investors agreed to purchase, and Holdings agreed to sell to the PIPE Investors, an aggregate of up to 10 million newly issued Holdings Common Shares A for a purchase price of $10.00 per share (the “Acquired Shares”) in a private placement (the “Private Placement”) for an aggregate purchase price of $100 million (the “PIPE Subscription Amount”).

Notwithstanding the foregoing, certain of the PIPE Investors agreed to pre-fund Swvl with up to $35 million of the aggregate PIPE Subscription Amount by purchasing exchangeable notes from Swvl prior to the Closing (the “Company Exchangeable Notes”). Pursuant to the terms of the PIPE Subscription Agreements entered into with such PIPE Investors, such PIPE Investors, Holdings and Swvl executed definitive documentation in respect of such Company Exchangeable Notes within ten business days following the date of the PIPE Subscription Agreements. Upon the issuance of a Company Exchangeable Note to any such PIPE Investor, the PIPE Subscription Amount of such PIPE Investor was reduced by the purchase price of such Company Exchangeable Note. At the Closing, each Company Exchangeable Note will be automatically exchanged into Holdings Common Shares A at an exchange price of $8.50 per share. The issuance of the Company Exchangeable Notes was not registered under the Securities Act of 1933, as amended (the “Securities Act”) in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act.

 

2


On November 15, 2021, SPAC, Swvl and Holdings entered into a subscription agreement (the “Additional Subscription Agreement” and, together with the PIPE Subscription Agreements, the “Subscription Agreements”) with an investor affiliated with the Seller (the “Additional Subscriber”), pursuant to which the Additional Subscriber agreed to purchase, and Holdings agreed to sell to the Additional Subscriber, an aggregate of 200,000 newly issued Holdings Common Shares A (together with the Acquired Shares, the “PIPE Shares”), for a purchase price of $10.00 per share and an aggregate purchase price of $2,000,000, in a private placement (the “Additional PIPE” and, together with the Private Placement, the “PIPE”). The Additional Subscriber may satisfy its obligations to purchase PIPE Shares in the Additional PIPE by purchasing SPAC Shares in open market transactions or private purchases and agreeing not to exercise redemption rights with respect to such SPAC Shares or the Holdings Common Shares A into which such SPAC Shares are converted in the Proposed Transactions.

The closing of the sale of the PIPE Shares pursuant to the Subscription Agreements will take place substantially concurrently with the Closing and is contingent upon, among other customary closing conditions, the concurrent consummation of the Proposed Transactions. The purpose of the PIPE is to raise additional capital for use by the combined company following the Closing.

Pursuant to the Subscription Agreements, Holdings agreed that, within 30 calendar days after the Closing, Holdings will use its commercially reasonable efforts to file with the Securities and Exchange Commission (the “SEC”) (at Holdings’ sole cost and expense) a registration statement registering the resale of the Acquired Shares (the “PIPE Resale Registration Statement”), and Holdings will use its commercially reasonable efforts to have the PIPE Resale Registration Statement declared effective as soon as practicable after the filing thereof but no later than the earlier of (i) 90 calendar days (or 135 calendar days if the SEC notifies Holdings that it will review the PIPE Resale Registration Statement) following the Closing and (ii) the tenth business day after the SEC notifies Holdings that the registration statement will not be reviewed or will not be subject to further review.

The issuance of Holdings Common Shares A in connection with the Subscription Agreements will not be registered under the Securities Act, in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act.

The foregoing description of the Subscription Agreements is qualified in its entirety by reference to the full text of the form of the Subscription Agreement, a copy of which is included as Exhibit 99.1 to this Current Report on Form 8-K, and incorporated herein by reference.

 

Item 9.01.

Financial Statements and Exhibits.

(d)    Exhibits.

 

Exhibit
No.
  

Exhibit

10.1    Forward Purchase Agreement, dated November 15, 2021.
99.1    Form of Subscription Agreement.
104    Cover Page Interactive Data File (embedded within the Inline XBRL document).

Legends

Additional Information and Where to Find It

This communication relates to the Proposed Transactions. This communication does not constitute an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. In connection with the Proposed Transactions, SPAC and Holdings filed a registration statement on Form F-4 (File No. 333-259800) (as amended, the “Registration Statement”) with the SEC, which includes a joint proxy statement/prospectus. SPAC and Holdings also will file other documents regarding the

 

3


Proposed Transactions with the SEC. Before making any voting decision, investors and security holders of SPAC are urged to read the Registration Statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the Proposed Transactions as they become available because they will contain important information about the Proposed Transactions.

INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ THE REGISTRATION STATEMENT, PROXY STATEMENT/PROSPECTUS, ALL AMENDMENTS THERETO, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE BUSINESS COMBINATION AND THE PARTIES TO THE BUSINESS COMBINATION. Investors and security holders can obtain copies of these documents and other documents filed with the SEC free of charge at www.sec.gov. The definitive proxy statement/final prospectus (if and when available) will be mailed to shareholders of SPAC as of a record date to be established for voting on the business combination. Shareholders of SPAC will also be able to obtain copies of the definitive proxy statement/final prospectus without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to: Queen’s Gambit Growth Capital, 55 Hudson Yards, 44th Floor, New York, New York, 10001.

Participants in Solicitation

SPAC, Swvl and Holdings and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from SPAC’s shareholders in connection with the Proposed Transactions. Investors and security holders may obtain more detailed information regarding the names and interests in the business combination of the directors and officers of Holdings, Swvl and SPAC in the Registration Statement. Information about SPAC’s directors and executive officers is also available in SPAC’s Annual Form 10-K for the fiscal year ended December 31, 2020 and other relevant materials filed with the SEC. You may obtain a free copy of these documents as described in the preceding paragraph.

Forward-Looking Statements

Certain statements made herein are not historical facts but are forward-looking statements. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding future events, the proposed business combination between Swvl and SPAC, the estimated or anticipated future results and benefits of the combined company following the business combination, including the likelihood and ability of the parties to successfully consummate the business combination, future opportunities for the combined company and other statements that are not historical facts.

These statements are based on the current expectations of Swvl and/or SPAC’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on, by any investor as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Swvl and SPAC. These statements are subject to a number of risks and uncertainties regarding Swvl’s business and the business combination, and actual results may differ materially. These risks and uncertainties include, but are not limited to: general economic, political and business conditions, including but not limited to the economic and operational disruptions and other effects of the COVID-19 pandemic; the inability of the parties to consummate the business combination or the occurrence of any event, change or other circumstances that could give rise to the termination of the Business Combination Agreement; the number of redemption requests made by SPAC’s shareholders in connection with the business combination; the outcome of any legal proceedings that may be instituted against the parties following the announcement of the business combination; the risk that the approval of the shareholders of Swvl or SPAC for the potential transaction is not obtained; failure to realize the anticipated benefits of the business combination, including as a result of a delay in consummating the potential transaction or additional information that may later arise in connection with preparation of the Registration Statement and proxy materials, or after the consummation of the business combination as a result of the limited time SPAC had to conduct due diligence; the risk that the business combination disrupts current plans and operations as a result of the announcement and consummation of the business

 

4


combination; the ability of the combined company to execute its growth strategy, manage growth profitably and retain its key employees; competition with other companies in the mobility industry; Swvl’s limited operating history and lack of experience as a public company; the lack of, or recent implementation of, certain policies and procedures to ensure compliance with applicable laws and regulations, including with respect to anti-bribery, anti-corruption, and cyber protection; the risk that Swvl is not able to execute its growth plan, which depends on rapid, international expansion; the risk that Swvl is unable to attract and retain consumers and qualified drivers and other high quality personnel; the risk that Swvl is unable to protect and enforce its intellectual property rights; the risk that Swvl is unable to determine rider demand to develop new offerings on its platform; the difficulty of obtaining required registrations, licenses, permits or approvals in jurisdictions in which Swvl currently operates or may in the future operate; the fact that Swvl currently operates in and intends to expand into jurisdictions that are, or have been, characterized by political instability, may have inadequate or limited regulatory and legal frameworks and may have limited, if any, treaties or other arrangements in place to protect foreign investment or involvement; the risk that Swvl’s drivers could be classified as employees, workers or quasi-employees in the jurisdictions they operate; the fact that Swvl has operations in countries known to experience high levels of corruption and is subject to territorial anti-corruption laws in these jurisdictions; the ability of Holdings to obtain or maintain the listing of its securities on a U.S. national securities exchange following the business combination; costs related to the business combination; Swvl’s pending acquisition of a controlling interest in Shotl Transportation, S.L may not be completed as anticipated, or if completed, may not be beneficial to Swvl as a result of the cost of integrating geographically disparate operations and the diversion of management’s attention from its existing business, among other things; and other risks that will be detailed from time to time in filings with the SEC. The foregoing list of risk factors is not exhaustive. There may be additional risks that Swvl presently does not know or that Swvl currently believes are immaterial that could also cause actual results to differ from those contained in forward-looking statements. In addition, forward-looking statements provide Swvl’s expectations, plans or forecasts of future events and views as of the date of this communication. Swvl anticipates that subsequent events and developments will cause Swvl’s assessments and projections to change. However, while Swvl may elect to update these forward-looking statements in the future, Swvl specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing Swvl’s assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements.

No Offer or Solicitation

This Current Report on Form 8-K is for informational purposes only and is not a “solicitation” as defined in Section 14 of the Securities Exchange Act of 1934, as amended. This Current Report on Form 8-K is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities or the solicitation of any vote in any jurisdiction pursuant to the business combination or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.

 

5


SIGNATURES

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

Dated: November 15, 2021

 

QUEEN’S GAMBIT GROWTH CAPITAL
By:  

/s/ Victoria Grace

  Name: Victoria Grace
  Title: Chief Executive Officer

 

6

Exhibit 10.1

 

Date:    November 15, 2021
To:    Queen’s Gambit Growth Capital (“Counterparty”)
Address:    55 Hudson Yards, 44th Floor
   New York, NY 10001
From:    ACM ARRT VII B, LLC, a Delaware limited liability company (“Seller”)
Re:    OTC Equity Prepaid Forward Transaction

The purpose of this agreement (this “Confirmation”) is to confirm the terms and conditions of the transaction (the “Transaction”) entered into between Seller and Counterparty on the Trade Date specified below. Certain terms of the Transaction shall be as set forth in this Confirmation, with additional terms as set forth in a Pricing Date Notice (the “Pricing Date Notice”) in the form of Schedule A hereto. This Confirmation, together with the Pricing Date Notice, constitutes a “Confirmation” and the Transaction constitutes a separate “Transaction” as referred to in the ISDA Form (as defined below).

This Confirmation, together with the Pricing Date Notice, evidences a complete binding agreement between Seller and Counterparty as to the subject matter and terms of the Transaction to which this Confirmation relates and shall supersede all prior or contemporaneous written or oral communications with respect thereto.

The 2006 ISDA Definitions (the “Swap Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and with the Swap Definitions, the “Definitions”), each as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. If there is any inconsistency between the Definitions and this Confirmation, this Confirmation governs. If, in relation to the Transaction to which this Confirmation relates, there is any inconsistency between the ISDA Form, this Confirmation (including the Pricing Date Notice), the Swap Definitions and the Equity Definitions, the following will prevail for purposes of such Transaction in the order of precedence indicated: (i) this Confirmation (including the Pricing Date Notice); (ii) the Equity Definitions; (iii) the Swap Definitions, and (iv) the ISDA Form.

This Confirmation, together with the Pricing Date Notice, shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “ISDA Form”) as if Seller and Counterparty had executed an agreement in such form (but without any Schedule except as set forth herein under “Schedule Provisions”) on the Trade Date of the Transaction.

The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms

 

Type of Transaction:    Share Forward Transaction
Trade Date:    November 15, 2021
Pricing Date:    As specified in the Pricing Date Notice
Effective Date:    One (1) Settlement Cycle following the Pricing Date.
Valuation Date:    The earlier to occur of (a) the second anniversary of the closing of the business combination (the “Business Combination”) between Counterparty and Swvl Inc. (the “Target”) pursuant to the Business Combination Agreement by and among the Target, Counterparty, the Issuer (as defined below), Pivotal Merger Sub Company I and Pivotal Merger Sub Company II Limited, dated as of July 28, 2021 (the “Business Combination Agreement”), as reported on the Form 8-K filed by Counterparty on July 28, 2021 (the “Signing 8-K”) and (b) upon the occurrence of a Trigger Event, if any, such date as elected by the Seller pursuant to its acceleration right in connection therewith and as describe below.


Trigger Event:    Seller shall have the right to accelerate the Valuation Date to the Exchange Business Day that the Relevant Price per Share is at or below $5.00 per Share for 20 out of the preceding 30 Exchange Business Days.
Pricing Date Notice:    Seller shall deliver to Counterparty a Pricing Date Notice no later than one (1) Exchange Business Day prior to the closing of the Business Combination.
Seller:    Seller
Buyer:    Counterparty
SPAC Shares:    The Class A ordinary shares, par value $0.0001 per share, of Counterparty, which, in connection with the closing of the Business Combination, shall be automatically cancelled, extinguished and converted into the right to receive Shares.
Shares:    The Class A ordinary shares, par value $0.0001 per share of Pivotal Holdings Corp, a British Virgin Islands business company limited by shares incorporated under the laws of the British Virgin Islands (the “Issuer”), as described on Bloomberg screen “SWVL US <Equity> DES” (or any equivalent or successor screen thereto).
Number of Shares:    As specified in the Pricing Date Notice; provided that the Number of Shares shall not exceed the greater of (x) the number of Subject Shares or the Maximum Number of Shares, whichever number is lower, and (y) the Minimum Number of Shares and, provided further that the Number of Shares shall be equal to the Minimum Number of Shares if a Share Premium Event is applicable. The Number of Shares is subject to partial or full termination as described below under “Early Settlement” or “Optional Early Termination”.
Maximum Number of Shares:    10,000,000 Shares
Minimum Number of Shares:    2,500,000 Shares upon a Share Premium Event (otherwise, zero Shares).
Acquisition Price    The average price per SPAC Share paid by the Seller to acquire the SPAC Shares, including any brokerage commissions paid by the Seller in connection therewith.
Excess    The difference between (i) the Acquisition Price minus (ii) the Redemption Price, which amount may be positive or negative.
Forward Price:    The Redemption Price plus 50% of the Excess.
Redemption Price:    The “Redemption Price” as defined in Article 168 of the Amended and Restated Articles of Association of Pivotal Holdings Corp, the form of which is included as Exhibit C to the Business Combination Agreement (the “Counterparty Articles”).
Share Premium Event:    If Seller is unable to acquire at least the Minimum Number of Shares before the completion of the Business Combination, Seller may, at its sole option upon not less than two Business Days notice prior to the closing of the Business Combination, elect to acquire Shares from the Issuer by delivering a notice with the number of Shares that Issuer must deliver so that Seller will own the Minimum Number of Shares (the “Minimum Share Notice”), which number of Shares may be reduced by subsequent notice to the extent that Seller acquires additional shares


       from shareholders of Counterparty or the Issuer who exercise redemption rights in connection with the Business Combination. Following the completion of the Business Combination and within ten (10) Exchange Business Days following receipt of the Minimum Share Notice and subject to the due execution and delivery of the Private Placement Documentation (as defined below), Issuer shall deliver the relevant number of Shares (the “Minimum Shares”) to Seller such that Seller will own the Minimum Number of Shares for the Transaction at a price per Share equal to the Redemption Price. Such delivery of the Minimum Number of Shares shall be pursuant to a private placement transaction not involving any public offering within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), which transaction shall occur pursuant to definitive documentation substantially consistent with the PIPE Subscription Agreements described in the Signing 8-K, the form of which was included as Exhibit 99.1 thereto (the “Private Placement Documentation”).
  Within thirty (30) calendar days after the closing of the Business Combination, Issuer shall use its commercially reasonable efforts to file (at Issuer’s sole cost and expense) with the Securities Exchange Commission (the “Commission”) a registration statement registering the resale of the Minimum Shares (the “Registration Statement”), and have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earliest of (i) the 90th calendar day (or 135th calendar day if the Commission notifies the Issuer that it will “review” the Registration Statement) following such closing and (ii) the 10th Exchange Business Day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, subject to the Issuer’s right to postpone and suspend the effectiveness or use of the Registration Statement on the terms set forth in the Private Placement Documentation. Upon notification by the Commission that the Registration Statement has been declared effective by the Commission, within two (2) Exchange Business Days thereafter, the Issuer shall file the final prospectus under Rule 424 of the Securities Act. In no event shall Seller be identified as a statutory underwriter in the Registration Statement unless requested by the Commission.
  If requested by Seller, the Issuer shall remove or instruct its transfer agent to remove any restrictive legend with respect to transfers under the Securities Act from the Minimum Shares if (1) the Registration Statement is and continues to be effective under the Securities Act, (2) such Minimum Shares are sold or transferred pursuant to Rule 144 under the Securities Act (subject to all applicable requirements of Rule 144 being met), or (3) such Minimum Shares are eligible for sale under Rule 144, 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) as to the Minimum Shares and without volume or manner-of-sale restrictions; provided that Seller shall have timely provided customary representations and other documentation reasonably acceptable to the Issuer, its counsel and/or its transfer agent in connection therewith. Any fees (with respect to the transfer agent, Issuer’s counsel or otherwise) associated with the issuance of any legal opinion required by the Issuer’s transfer agent or the removal of such legend shall be borne by the Issuer. If a legend is no longer required pursuant to the foregoing, the Issuer will, no later than five (5) Exchange Business Days following the delivery by Seller to the Issuer or the transfer agent (with notice to the Issuer) of customary representations and other documentation reasonably acceptable to the Issuer, its counsel and/or its transfer agent, remove the restrictive legend related to the book entry account holding the Minimum Shares and make a new, unlegended book entry for the Minimum Shares.


   For the avoidance of doubt, the Minimum Shares shall be included in the Number of Shares for this Share Forward Transaction and be subject to, and form part of, the Transaction in all material respects.
Prepayment:    Applicable
Prepayment Amount:    An amount equal to 100% of the Forward Price multiplied by the Number of Shares, which shall be paid out of the funds held in the Counterparty’s trust account as part of the flow of funds upon closing of the Business Combination.
Prepayment Date:    The closing date of the Business Combination
Variable Obligation:    Not applicable
Exchange(s):    Nasdaq Global Market
Related Exchange(s):    All Exchanges
Seller Payment Amounts:    Seller shall pay to Issuer an amount equal to 50% of the dividend paid to non-redeeming holders of SPAC shares in connection with closing the Business Combination; provided the Seller Payment Amount shall not exceed $345,000 and provided further that the Seller Payment Amount shall not be payable if the closing price of the SPAC shares on the last Exchange Business Day prior to the Pricing Date exceeds $10.10 per share.
Counterparty Payment Amounts:    Counterparty shall pay to Seller (a) on each Payment Date, a structuring fee of $2,500 per Calculation Period (the “Structuring Fee”), provided that the Structuring Fee with respect to the first and final Calculation Period shall be prorated to reflect the number of days in such Calculation Period relative to the number of days in the calendar quarter in which such Calculation Period falls and (b) on the Effective Date an amount equal to the lesser of (x) the attorney fees and other reasonable expenses, including in connection with regulatory filings, related thereto incurred by Seller or its affiliates in connection with this Transaction and (y) $50,000 (“Professional Fees”). Counterparty shall pay any accrued but unpaid Professional Fees on the next Payment Date.
Payment Dates:    Counterparty shall pay to Seller the Counterparty Payment Amounts on the last day of each calendar quarter or, if such date is not a Local Business Day, the next following Local Business Day, except that the final Payment Date shall be the Settlement Date. Seller shall pay to Issuer the Seller Payment Amount within 10 Local Business Days of the closing of the Business Combination.
Calculation Period:    Notwithstanding anything to the contrary in Section 4.13 of the Swap Definitions, each period from, and including, one Period End Date to, but excluding, the next following applicable Period End Date during the term of the Transaction, except that (a) the initial Calculation Period will commence on, and include, the date of the closing of the Business Combination and (b) the final Calculation Period will end on, but exclude the Settlement Date.
Settlement Terms   
Settlement Method Election:    Not Applicable
Settlement Method:    Physical Settlement


Settlement Currency:    USD
Excess Dividend Amount    Ex Amount
Settlement Amount:    On the Settlement Date, Seller will deliver to Counterparty the remaining Number of Shares and Counterparty shall pay to Seller an amount in cash to Seller equal to (i) the remaining Number of Shares multiplied by the Forward Price minus (ii) the remaining Prepayment Amount, and Counterparty shall release its security interest in 100% of the Collateral.
Settlement Date:    Unless Seller elects Optional Early Termination or if Early Settlement is applicable to the Transaction, two (2) Exchange Business Days following the Valuation Date.
Relevant Price:    Solely for determining if Early Settlement is applicable, for any Exchange Business Day prior to the Valuation Date, the dollar volume weighted average price per Share for such day, as displayed under the heading “Bloomberg VWAP” on the Bloomberg screen “SWVL <Equity> AQR” (or any equivalent or successor screen thereto) or, in the event such volume weighted average price per Share is unavailable, as reasonably determined by the Calculation Agent using a volume weighted method..
Market Disruption Events:    Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” in clause (ii) thereof.
   Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
Early Settlement:    On any Exchange Business Day prior to the Valuation Date (any such date, an “Early Settlement Date”), if the Relevant Price equals or exceeds:
  

a)  $12.00 per Share for at least 20 of 30 of the preceding Exchange Business Days (such period, an “Early Settlement Determination Period”), Seller shall pay an amount of cash (an “Early Settlement Cash Amount”) to the Issuer equal to 25% of the Prepayment Amount and Counterparty shall release its security interest in 25% of the Collateral, in each case, less any Prepayment Amount paid or Collateral previously released in connection with an Optional Early Termination, as described below;

  

b)  $14.00 per Share for any Early Settlement Determination Period, Seller shall pay an Early Settlement Cash Amount to the Issuer equal to 50% of the Prepayment Amount and Counterparty shall release its security interest in 50% of the Collateral, in each case, less any Prepayment Amount paid or Collateral previously released in connection with clause (a) above or an Optional Early Termination, as described below;

  

c)  $16.00 per Share for any Early Settlement Determination Period, Seller shall pay an Early Settlement Cash Amount to the Issuer equal to 75% of the Prepayment Amount and Counterparty shall release its security interest in 75% of the Collateral, in each case, less any Prepayment Amount paid or Collateral previously released in connection with clause (a) or (b) above or an Optional Early Termination, as described below; or


  

d)  $18.00 per Share for any Early Settlement Determination Period, Seller shall pay an Early Settlement Cash Amount to the Issuer equal to the remainder of the Prepayment Amount and Counterparty shall release its security interest in the remainder of the Collateral.

   ; provided that (i) no Early Settlement Determination Period shall run concurrently with any other Early Settlement Determination Period and no more than 25% of the Prepayment Amount shall be paid to the Issuer and no more than 25% of the Counterparty’s security interest in the Collateral shall be released pursuant to this provision with respect to each Early Settlement Determination Period, (ii) if the average daily trading volume in the Shares for the 30 Exchange Business Days prior to the Early Settlement Date is less than 1/10 of the applicable Share Reduction Amount (as defined below) per day, then Seller may elect to pay the Early Settlement Cash Amount over a period commencing two Exchange Business Days after the Early Settlement Date and ending on the date that the Early Settlement Cash Amount has been paid to Issuer in full (the “Extended Settlement Period”) in installments in an amount on each Exchange Business Day of the Extended Settlement Period equal to (x) 10% of such average daily trading volume times (y) the Trigger Price (not to exceed the Early Settlement Cash Amount in the aggregate), where “Trigger Price” means (I) with respect to clause (a), $12.00 per Share, (II) with respect to clause (b), $14.00 per Share, (III) with respect to clause (c), $16.00 per Share and (IV) with respect to clause (d), $18.00 per Share; provided further that in the case of each of (a)-(d) above, the Transaction shall be terminated in part, the effect of such termination shall be to reduce the Number of Shares for such Transaction by the number obtained by dividing the applicable Early Settlement Cash Amount by the Forward Price (such number, the “Share Reduction Amount”), and the remainder of the Transaction, if any, shall continue in accordance with its terms.
Optional Early Termination:    From time to time and on any Exchange Business Day following the date of the closing of the Business Combination (any such date, an “OET Settlement Date”), Seller may, in its absolute discretion, terminate the Transaction in whole or in part upon no less than three (3) days prior written notice to Counterparty and Issuer (the “OET Notice”), the effect of such termination shall be to reduce the Number of Shares for such Transaction (the reduction being “Terminated Shares”). Each OET Notice shall specify the OET Settlement Date and the number of Terminated Shares with respect to such termination. On each OET Settlement Date, Seller shall pay to Issuer an amount equal to the product of (x) the number of Terminated Shares and (y) the Forward Price. The remainder of the Transaction, if any, shall continue in accordance with its terms; provided that if the OET Settlement Date is also the stated Valuation Date, the remainder of the Transaction shall be settled in accordance with the other provisions of “Settlement Terms.”
Share Adjustments:   
Method of Adjustment:    Calculation Agent Adjustment
Extraordinary Events:   
Consequences of Merger Events:   
Share-for-Share:    Calculation Agent Adjustment
Share-for-Other:    Cancellation and Payment


Share-for-Combined:    Component Adjustment
Tender Offer:    Applicable; provided, however, that Section 12.1(d) of the Equity Definitions is hereby amended by adding “, or of the outstanding Shares,” before “of the Issuer” in the fourth line thereof and replacing the reference to “10%” therein with “20%”. Sections 12.1(e) and 12.1(l)(ii) of the Equity Definitions are hereby amended by adding “or Shares, as applicable,” after “voting Shares”.
Consequences of Tender Offers:   
Share-for-Share:    Calculation Agent Adjustment
Share-for-Other:    Calculation Agent Adjustment
Share-for-Combined:    Calculation Agent Adjustment
Composition of Combined Consideration:    Not Applicable
Nationalization, Insolvency or Delisting:    Cancellation and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the Nasdaq Global Select Market or the Nasdaq Global Market (or their respective successors) or such other exchange or quotation system which, in the determination of the Calculation Agent, has liquidity comparable to the aforementioned exchanges; if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
Business Combination Exclusion:    Notwithstanding the foregoing or any other provision herein, the parties agree that the Business Combination shall not constitute a Merger Event, Tender Offer, Delisting or any other Extraordinary Event hereunder.
Additional Disruption Events:   

(a)   Change in Law:

   Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by adding the words “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” after the word “regulation” in the second line thereof.

(a)   Failure to Deliver:

   Not Applicable

(b)   Insolvency Filing:

   Applicable

(c)   Hedging Disruption:

   Not Applicable

(d)   Increased Cost of Hedging:

   Not Applicable

(e)   Loss of Stock Borrow:

   Not Applicable

(f)   Increased Cost of Stock Borrow:

   Not Applicable


Determining Party:    For all applicable events, Seller, unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect to Seller, or (ii) if Seller fails to perform its obligations as Determining Party, in which case a Third Party Dealer (as defined below) in the relevant market selected by Counterparty will be the Determining Party. When making any determination or calculation as “Determining Party,” Seller shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if Determining Party were the Calculation Agent.
Additional Provisions:   
Calculation Agent:    Seller, unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect to Seller, or (ii) if Seller fails to perform its obligations as Calculation Agent, in which case an unaffiliated leading dealer in the relevant market selected by Counterparty will be the Calculation Agent.
   In the event that a party (the “Disputing Party”) does not agree with any determination made (or the failure to make any determination) by the Calculation Agent, the Disputing Party shall have the right to require that the Calculation Agent have such determination reviewed by a disinterested third party that is a dealer in derivatives of the type that is the subject of the dispute and that is not an Affiliate of either party (a “Third Party Dealer”). Such Third Party Dealer shall be jointly selected by the parties within one Business Day after the Disputing Party’s exercise of its rights hereunder (once selected, such Third Party Dealer shall be the “Substitute Calculation Agent”). If the parties are unable to agree on a Substitute Calculation Agent within the prescribed time, each of the parties shall elect a Third Party Dealer and such two dealers shall agree on a third Party Dealer by the end of the subsequent Business Day. Such third Party Dealer shall be deemed to be the Substitute Calculation Agent. Any exercise by the Disputing Party of its rights hereunder must be in writing and shall be delivered to the Calculation Agent not later than the third Business Day following the Business Day on which the Calculation Agent notifies the Disputing Party of any determination made (or of the failure to make any determination). Any determination by the Substitute Calculation Agent shall be binding in the absence of manifest error and shall be made as soon as possible but no later than the second Business Day following the Substitute Calculation Agent’s appointment. The costs of such Substitute Calculation Agent shall be borne by (a) the Disputing Party if the Substitute Calculation Agent substantially agrees with the Calculation Agent or (b) the non-Disputing Party if the Substitute Calculation Agent does not substantially agree with the Calculation Agent. If, after following the procedures and within the specified time frames set forth above, a binding determination is not achieved, the original determination of the Calculation Agent shall apply.
   Following any adjustment, determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty (which may be by email), the Calculation Agent will promptly (but in any event within five Exchange Business Days) provide to Counterparty by email to the email address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such adjustment, determination or calculation (including any quotations, market data or information from internal or external sources, and any assumptions used in making such adjustment, determination or calculation), it being understood that in no event will the Calculation Agent be obligated to share with Counterparty any proprietary or confidential data or information or any proprietary or confidential models used by it in making such adjustment, determination or calculation or any information that is subject to an obligation not to disclose such information.


   All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner.
Non-Reliance:    Applicable
Agreements and   
Acknowledgements Regarding   
Hedging Activities:    Applicable
Additional Acknowledgements:    Applicable
Collateral Provisions:   
Grant of Security Interest:    Seller hereby grants a security interest in the Collateral to Counterparty to secure the payment or performance of all of Seller’s present and future obligations to Counterparty with respect to this Transaction.
Collateral:    All of the following personal property of Seller, wherever located, and now owned, held or existing, or hereafter acquired or arising:
   (i) all cash proceeds of the sale, transfer or other disposition of SPAC Shares standing to the credit of the Securities Account;
   (ii) the deposit account of Seller at First Republic Bank in which such cash proceeds will be deposited; and
   (iii) to the extent not listed above as original collateral, proceeds and products of the foregoing.
Securities Account:    The securities account opened or to be opened in the name of Seller and maintained at the Securities Intermediary, and any renumbering of that account and any permitted account in replacement thereof. Seller will immediately upon establishment of the Securities Account furnish to Counterparty information identifying the Securities Account. Seller will instruct the Securities Intermediary to deposit all cash proceeds of any sale or other disposition of the SPAC Shares into a deposit account in the name of Seller at First Republic Bank.
Securities Intermediary:    Cantor Fitzgerald, a nationally recognized “securities intermediary” (as defined in Article 8 of the UCC) that will maintain the Securities Account.
Perfection:    Seller authorizes Counterparty to file one or more financing statements, in the standard form for a UCC-1 filing or other appropriate form, describing the Collateral to perfect the security interest created hereby and otherwise make it effective against third parties. Seller hereby authorizes Counterparty at any time and from time to time to amend any financing statements naming Seller as “debtor” to include the Collateral. In addition, Seller, Counterparty and First Republic Bank shall enter into a customary deposit account control agreement in form and substance acceptable to such Bank, Seller, Issuer and Counterparty.
Schedule Provisions:   
Specified Entity:    In relation to both Seller and Counterparty for the purpose of:


   Section 5(a)(v), Not Applicable
   Section 5(a)(vi), Not Applicable
   Section 5(a)(vii), Not Applicable
   Section 5(b)(v), Not Applicable
Cross-Default    The “Cross-Default” provisions of Section 5(a)(vi) of the ISDA Form will not apply to either party.
Credit Event Upon Merger    The “Credit Event Upon Merger” provisions of Section 5(b)(v) of the ISDA Form will not apply to either party.
Automatic Early Termination:    The “Automatic Early Termination” of Section 6(a) of the ISDA Form will not apply to either party.
Termination Currency:    United States Dollars
Additional Termination Event:    Will apply to Seller and will apply to Counterparty. The occurrence of either of the following events shall constitute an Additional Termination Event in respect of which Seller and Counterparty shall both be Affected Parties:
   (a) The Business Combination fails to close on or before the “Outside Date” as defined in the Business Combination Agreement (as such Outside Date may be amended or extended from time to time).
   (b) The Business Combination Agreement is terminated prior to the closing of the Business Combination.
   If this Transaction terminates due to the occurrence of the foregoing Additional Termination Event, then, subject to the immediately following sentence, no further payments or deliveries shall be due by either Seller to Counterparty or Counterparty to Seller in respect of the Transaction, including without limitation in respect of any settlement amount, breakage costs or any amounts representing the future value of the Transaction, and neither party shall have any further obligation under the Transaction and, for the avoidance of doubt and without limitation, no payments will have accrued or be due under Sections 2, 6 or 11 of the ISDA Form. Notwithstanding the foregoing, Counterparty’s obligations set forth under the captions, “‘Payment Amounts”, “Representations, Warranties and Covenants – (h) Waiver by Counterparty” and “Other Provisions — (d) Indemnification” shall survive any termination due to the occurrence of the foregoing Additional Termination Event.
Governing Law:    New York law (without reference to choice of law doctrine)
Credit Support Document:    With respect to Seller, each of (i) the undertakings of Seller set forth under Collateral Provisions above, (ii) the obligations of Seller set forth under “Representations, Warranties and Covenants – (f) Perfected Security Interest; Other Agreements” below; and (iii) the deposit account control agreement referred to under “Perfection” above. With respect to Counterparty, None.
Credit Support Provider:    With respect to Seller and Counterparty, None.
Local Business Days:    Seller specifies the following places for the purposes of the definition of Local Business Day as it applies to it: New York.
   Counterparty specifies the following places for the purposes of the definition of Local Business Day as it applies to it: New York.


Representations, Warranties and Covenants

Each of Counterparty and Seller represents and warrants to, and covenants and agrees with, the other as of the date on which it enters into the Transaction that (in the absence of any written agreement between the parties that expressly imposes affirmative obligations to the contrary for the Transaction):

 

(a)

Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction, it being understood that information and explanations related to the terms and conditions of the Transaction will not be considered investment advice or a recommendation to enter into the Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of the Transaction.

 

(b)

Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction. It is also capable of assuming, and assumes, the risks of the Transaction.

 

(c)

Non-Public Information. It is in compliance with Section 10(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(d)

Eligible Contract Participant. It is an “eligible contract participant” under, and as defined in, the Commodity Exchange Act (7 U.S.C. § 1a(18)) and CFTC regulations (17 CFR § 1.3).

 

(e)

Tax Characterization. It shall treat the Transaction as a derivative financial contract for U.S. federal income tax purposes, and it shall not take any action or tax return filing position contrary to this characterization.

 

(f)

Private Placement. It (i) is an “accredited investor” as such term is defined in Regulation D as promulgated under the Securities Act, (ii) is entering into the Transaction for its own account without a view to the distribution or resale thereof and (iii) understands that the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act.

 

(g)

Investment Company Act. It is not and, after giving effect to the Transaction, will not be required to register as an “investment company” under, and as such term is defined in, the Investment Company Act of 1940, as amended.

 

(h)

Authorization. The Transaction has been entered into pursuant to authority granted by its board of directors or other governing authority. It has no internal policy, whether written or oral, that would prohibit it from entering into any aspect of the Transaction, including, but not limited to, the purchase of Shares to be made in connection therewith.

Counterparty represents and warrants to, and covenants and agrees with Seller as of the date on which it enters into the Transaction that (in the absence of any written agreement between the parties that expressly imposes affirmative obligations to the contrary for the Transaction):

 

(a)

Total Assets. It has total assets of at least USD 50,000,000 as of the date hereof.

 

(b)

Non-Reliance. Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Seller is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards.


(c)

Solvency. Counterparty is, and shall be as of the date of any payment or delivery by Counterparty under the Transaction, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the businesses in which it engages. Counterparty: (i) has not engaged in and will not engage in any business or transaction after which the property remaining with it will be unreasonably small in relation to its business, (ii) has not incurred and does not intend to incur debts beyond its ability to pay as they mature, and (iii) as a result of entering into and performing its obligations under the Transaction, (a) it has not violated and will not violate any relevant state law provision applicable to the acquisition or redemption by an issuer of its own securities and (b) it would not be nor would it be rendered “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code). If on any Exchange Business Day Counterparty has liquidity, including cash and amounts available for borrowing under any applicable credit facility, of less than $20 million, Counterparty shall promptly provide written notice of such condition to Seller.

 

(d)

Public Reports. As of the Trade Date, Counterparty is in compliance with its reporting obligations under the Exchange Act, and all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act, when considered as a whole (with the most recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(e)

No Distribution. Counterparty is not entering into the Transaction to facilitate a distribution of the Shares (or any security that may be converted into or exercised or exchanged for Shares, or whose value under its terms may in whole or in significant part be determined by the value of the Shares) or in connection with any future issuance of securities.

 

(f)

Form 8-K. The Counterparty will not file with the Securities and Exchange Commission any Form 8-K or other document that includes any disclosure regarding this Confirmation or the Transaction without consulting with and reasonably considering any comments received from Seller, provided that, no consultation shall be required with respect to any subsequent disclosures that are substantially similar to prior disclosures by Counterparty that were reviewed by Seller.

 

(g)

No Affiliation. Counterparty, to the best of its knowledge, and each other person that is directly or indirectly through one or more intermediates controlling or controlled by or under common control with Counterparty is not to be considered and shall not become or be considered an “affiliate” (as defined in Rule 144 under the Securities Act) of Seller at any time during the term of the Transaction.

 

(h)

Waiver by Counterparty. Counterparty shall (i) provide any consent of its board of directors required under Article 169 of the Queens Gambit Growth Capital Amended and Restated Articles of Association adopted by special resolution dated January 2021 (the “QG Articles”) (or Article 168 of the Counterparty Articles, if applicable) in order to enable the Seller to exercise its redemption rights with respect to all of the SPAC Shares held thereby if (a) the Business Combination fails to close on or before the “Outside Date” as defined in the Business Combination Agreement (as such Outside Date may be amended or extended from time to time) or (b) the Business Combination Agreement is terminated at any time prior to the closing of the Business Combination, and (ii) use commercially reasonable efforts to provide any consent, waiver or amendment reasonably requested by the Seller with respect to any other rights that may prohibit or materially restrict or limit Seller from entering into or maintaining the Transaction or transactions contemplated herein.

Seller represents and warrants to, and covenants and agrees with Counterparty as of the date on which it enters into the Transaction and each other date specified that (in the absence of any written agreement between the parties that expressly imposes affirmative obligations to the contrary for the Transaction):

 

(a)

Regulatory Filings. It together with each other person in the Seller Group (as defined in “Other Provisions” below) is in compliance with all material regulatory filings relating to the Issuer and the Transaction. Counterparty covenants that it will make all regulatory filings that it is required by law or regulation to make with respect to the Transaction including, without limitation, as may be required by Section 13 or Section 16 under the Exchange Act and, assuming the accuracy of Counterparty’s Repurchase Notices (as described under “Repurchase Notices” below) any sales of SPAC Shares will be in compliance therewith.


(b)

Net Long Position. During the term of this Transaction it together with each other person in the Seller Group will maintain on an aggregated basis a net long position at least equal to the Number of Shares then subject to this Transaction. In computing the net long position it shall aggregate all cash transactions in the Shares as well as the notional amount of all derivatives or other instruments that directly or indirectly give economic exposure to the Shares.

 

(c)

Compliance with SPV Provisions. During the term of this Transaction it will comply with all provisions of Section 7 and Section 9(d) of the Limited Liability Company Agreement of Seller and shall not amend or permit the amendment of such provisions without the written consent of Counterparty. Failure to comply with the foregoing covenant shall constitute an Event of Default hereunder.

 

(d)

No Affiliation. Seller and each other person that is directly or indirectly through one or more intermediates controlling or controlled by or under common control with Seller is not to be considered and shall not become or be considered an “affiliate” (as defined in Rule 144 under the Securities Act) of Counterparty at any time during the term of the Transaction.

 

(e)

Compliance with Law. Seller with comply with applicable law in all material respects in connection with its purchases or sales of any SPAC Shares or Shares in connection with the Transaction.

 

(f)

Perfected Security Interest; Other Agreements. (i) Counterparty shall have a first and prior perfected security interest in the Deposit Account during the term of this Transaction. (ii) Without limiting the foregoing, Seller shall not (a) transfer any cash from the Deposit Account except as contemplated by this Confirmation, (b) pledge or otherwise grant a security interest in the Deposit Account in favor of any third party or (c) incur any indebtedness or other obligations other than as are incidental to Seller’s performance of its obligations under this Confirmation.

Transactions by Seller in the Shares

 

(a)

Seller hereby waives the redemption rights (“Redemption Rights”) set forth in Article 168 of the Counterparty Articles and Article 169 of the QG Articles, in connection with the Business Combination with respect to Shares or SPAC Shares, respectively, it acquires from holders thereof other than Counterparty or its affiliates (each, a “Third Party Shareholder”) who have exercised, or indicate an interest in exercising, their redemption rights in connection with the Business Combination pursuant to the Redemption Rights during the period (the “Hedging Period”) beginning on the date of execution of this Agreement and ending at the time reversals of redemptions in connection with the Business Combination are no longer permitted (the “Subject Shares”). Following such date, Seller shall notify Counterparty of the Number of Shares. For the avoidance of doubt, Seller may sell or otherwise transfer or dispose of any of the Shares, Shares or any other shares or securities of the Issuer or Counterparty in one or more public or private transactions at any time; provided that if such SPAC Shares or Shares are transferred prior to the Closing of the Business Combination, such transferee also agrees to waive Redemption Rights with respect to such SPAC Shares or Shares, as applicable (in each case with Counterparty as the third party beneficiary of such waiver) and provided, further, that upon the sale of any Shares Seller shall immediately be deemed to have delivered an OET Notice with respect thereto specifying the settlement date of such sale as the OET Settlement Date. Any Shares sold by Seller during the term of the Transaction will cease to be Shares for purposes of the Transaction.

 

(b)

Within five (5) Local Business Days of receipt of a written request from Counterparty or the Issuer, Seller will provide the Counterparty or the Issuer, as applicable, with a written report of the sale of Shares by Seller during the period preceding the date of such written request, such report to include the date of the sale and the number of Shares sold.

No Arrangements

Seller and Counterparty each acknowledge and agree that: (i) there are no voting, hedging or settlement arrangements between Seller and Counterparty with respect to any Shares or the Issuer, other than those set forth herein; (ii) although Seller may hedge its risk under the Transaction in any way Seller determines, Seller has no obligation to hedge with the purchase or maintenance of any Shares or otherwise; (iii) Counterparty will not be entitled to any voting rights in respect of any of the Shares underlying the Transaction; and (iv) Counterparty will not seek to influence Seller with respect to the voting of any Hedge Positions of Seller consisting of Shares.


Wall Street Transparency and Accountability Act

In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of WSTAA or any regulation under WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, nor any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the date of this Confirmation, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the ISDA Form, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the ISDA Form.

Address for Notices

Notice to Seller:

ACM ARRT VII B, LLC

c/o Atalaya Capital Management LP

One Rockefeller Center 32nd Floor

New York, NY 10020

Notice to Counterparty:

Queens Gambit Growth Capital

55 Hudson Yards 44th Floor

New York, NY 10001

Following the Closing of the Business Combination:

Swvl Holdings Corp

The Offices 4, One Central

Dubai World Trade Centre

Dubai, United Arab Emirates

Account Details

Account details for Seller: To be advised.

Account details for Counterparty: To be advised.

Other Provisions.

 

(a)

Rule 10b5-1.

 

  (i)

Counterparty represents and warrants to Seller that Counterparty is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) for the purpose of inducing the purchase or sale of such securities or otherwise in violation of the Exchange Act, and Counterparty represents and warrants to Seller that Counterparty has not entered into or altered, and agrees that Counterparty will not enter into or alter, any corresponding or hedging transaction or position with respect to the Shares. Counterparty acknowledges that it is the intent of the parties that the Transaction comply with the requirements of paragraphs (c)(1)(i)(A) and (B) of Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”) and the Transaction shall be interpreted to comply with the requirements of Rule 10b5-1(c).


  (ii)

Counterparty agrees that it will not seek to control or influence Seller’s decision to make any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under the Transaction, including, without limitation, Seller’s decision to enter into any hedging transactions. Counterparty represents and warrants that it has consulted with its own advisors as to the legal aspects of its adoption and implementation of this Confirmation and the Transaction under Rule 10b5-1.

 

  (iii)

Counterparty acknowledges and agrees that any amendment, modification, waiver or termination of this Confirmation must be effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing, Counterparty acknowledges and agrees that any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification or waiver shall be made at any time at which Counterparty or any officer, director, manager or similar person of Counterparty is aware of any material non-public information regarding Counterparty or the Shares.

 

(b)

Repurchase Notices. Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Seller a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares as determined on such day is (i) less than the number of Shares outstanding that would result in the percentage of total Shares outstanding represented by the number of Shares underlying the Transaction increasing by 0.50% (in the case of the first such notice) or (ii) thereafter more than the number of Shares that would need to be repurchased to result in the percentage of total Shares outstanding represented by the number of Shares underlying the Transaction increasing by a further 0.50% less than the number of Shares included in the immediately preceding Repurchase Notice. Counterparty agrees to indemnify and hold harmless Seller and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all losses (including losses relating to Seller’s hedging activities as a consequence of remaining or becoming a Section 16 “insider” following the closing of the Business Combination, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to, as a result of Counterparty’s failure to provide Seller with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within thirty (30) days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing; provided, however, for the avoidance of doubt, Counterparty has no indemnification or other obligations with respect to Seller becoming a Section 16 “insider” prior to the closing of the Business Combination or as a result of Seller’s purchases of Shares in excess of the Number of Shares. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Seller with a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Counterparty may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding. Counterparty shall not be liable for any settlement of any proceeding contemplated by this paragraph that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding contemplated by this paragraph that is in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.


(c)

Transfer or Assignment. The rights and duties under this Confirmation may not be transferred or assigned by any party hereto without the prior written consent of the other party, such consent not to be unreasonably withheld. If at any time following the closing of the Business Combination at which (A) the Section 16 Percentage exceeds 9.9%, or (B) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clause (A) or (B), an “Excess Ownership Position”), Seller is unable after using its commercially reasonable efforts to effect a transfer or assignment of a portion of the Transaction to a third party on pricing terms reasonably acceptable to Seller and within a time period reasonably acceptable to Seller such that no Excess Ownership Position exists, then Seller may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Seller so designates an Early Termination Date with respect to a portion of the Transaction, a portion of the Shares with respect to the Transaction shall be delivered to Counterparty as if the Early Termination Date was the Valuation Date in respect of a Transaction having terms identical to the Transaction and a Number of Shares equal to the number of Shares underlying the Terminated Portion. The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, as determined by Seller, (A) the numerator of which is the number of Shares that Seller and each person subject to aggregation of Shares with Seller under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) of the Exchange Act) with Seller directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) (the “Seller Group” ) and (B) the denominator of which is the number of Shares outstanding.

The “Share Amount” as of any day is the number of Shares that Seller and any person whose ownership position would be aggregated with that of Seller and any group (however designated) of which Seller is a member (Seller or any such person or group, a “Seller Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Seller in its sole discretion.

The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Seller Person, or could result in an adverse effect on a Seller Person, under any Applicable Restriction, as determined by Seller in its sole discretion, minus (B) 0.1% of the number of Shares outstanding.

 

(d)

Indemnification. Counterparty agrees to indemnify and hold harmless Seller, its affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (each such person being an “Indemnified Party”) from and against any and all losses (but not including financial losses to an Indemnified Party relating to the economic terms of the Transaction provided that Counterparty performs its obligations under this Confirmation in accordance with its terms), claims, damages and liabilities (or actions in respect thereof), joint or several, incurred by or asserted against such Indemnified Party arising out of, in connection with, or relating to, the execution or delivery of this Confirmation, the performance by the parties hereto of their respective obligations under the Transaction, any breach of any covenant or representation made by Counterparty in this Confirmation or the ISDA Form or the consummation of the transactions contemplated hereby; provided, however, Counterparty has no indemnification obligations with respect to any loss, claim, damage, liability or expense related to the manner in which Seller sells the SPAC Shares or any other Shares owned by Seller. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a nonappealable judgment by a court of competent jurisdiction to have resulted from Seller’s material breach of any covenant, representation or other obligation in this Confirmation or the ISDA Form or from Seller’s willful misconduct, gross negligence or bad faith in performing the services that are subject of the Transaction. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition (and in addition to any other reimbursement     


  of legal fees and expenses contemplated by this Confirmation), Counterparty will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty also agrees that no Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to in this Confirmation except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from such Indemnified Party’s breach of any covenant, representation or other obligation in this Confirmation or the ISDA Form or from the gross negligence, willful misconduct or bad faith of the Indemnified Party. The provisions of this paragraph shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and/or delegation of the Transaction made pursuant to the ISDA Form or this Confirmation shall inure to the benefit of any permitted assignee of Seller.

 

(e)

Amendments to Equity Definitions.

 

  (i)

Section 11.2(a) of the Equity Definitions is hereby amended by (i) replacing the words “a diluting or concentrative” with the word “an” and adding the phrase “or such Transaction” at the end thereof;

 

  (ii)

The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction or Share Forward Transaction, then, following the announcement or occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has an economic effect on the Transaction and, if so, will (i) make appropriate adjustment(s), if any, to any one or more of:’ and the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative”.

 

  (iii)

Section 11.2(e)(vii) of the Equity Definitions is hereby amended by (i) replacing the words “a diluting or concentrative” with the word “an” and (ii) adding the phrase “or the relevant Transaction” at the end thereof;

 

  (iv)

Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (i) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (ii) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Form with respect to that Issuer.”;

 

  (v)

Section 12.6(c)(ii) of the Equity Definitions is hereby amended by replacing the words “the Transaction will be cancelled,” in the first line with the words “Seller will have the right, which it must exercise or refrain from exercising, as applicable, in good faith acting in a commercially reasonable manner, to cancel the Transaction,”; and

 

  (vi)

Section 12.9(b)(i) of the Equity Definitions is hereby amended by (i) replacing “either party may elect” with “Seller may elect” and (ii) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.

 

(f)

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein.

 

(g)

Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.


(h)

Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to be (a) a “securities contract” as defined in the Bankruptcy Code, in which case each payment and delivery made pursuant to the Transaction is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment,” within the meaning of Section 546 of the Bankruptcy Code, and (b) a “swap agreement” as defined in the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code and a “payment or other transfer of property” within the meaning of Sections 362 and 546 of the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate, terminate and accelerate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the ISDA Form with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to otherwise constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.

 

(i)

Process Agent. For the purposes of Section 13(c) of the ISDA Form:

Seller appoints as its Process Agent: None

Counterparty appoints as its Process Agent: None.

 

(j)

Requisite Approvals. Notwithstanding anything herein to the contrary, this Confirmation shall not become effective until each of the parties (other than the Target or Counterparty, as applicable) to each Company Transaction Support Agreement and each SPAC Shareholder Support Agreement (each as defined in the Business Combination Agreement) shall have entered into one or more agreements that approve, consent to or otherwise waive any rights in connection with, or would provide for the approval of, consent to or waiver of any rights in connection with, the Transaction contemplated by this Confirmation

[Signature page follows]


Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Confirmation and returning it to us at your earliest convenience.

 

Very truly yours,
ACM ARRT VII B, LLC
By:  

/s/ Ivan Q. Zinn

Name:   Ivan Q. Zinn
Title:   Authorized Signatory

 

Agreed and accepted by:
QUEENS GAMBIT GROWTH CAPITAL
By:  

/s/ Victoria Grace

Name:   Victoria Grace
Title:   Chief Executive Officer


SCHEDULE A

FORM OF PRICING DATE NOTICE

 

Date:

[ ], 20[_]

 

To:

        Queens Gambit Growth Capital (“Counterparty”)

 

Address:

     55 Hudson Yards, 44th Floor

  New York, NY 10001

 

Phone:

         (917) 907-4618

 

From:

         ACM ARRT VII B, LLC, a Delaware limited liability company (“Seller”)

 

Re:

          OTC Equity Prepaid Forward Transaction

1. This Pricing Date Notice supplements, forms part of, and is subject to the Confirmation Re: OTC Equity Prepaid Forward Transaction dated as of November 15, 2021 (the “Confirmation”) between Counterparty and Seller, as amended and supplemented from time to time. All provisions contained in the Confirmation govern this Pricing Date Notice except as expressly modified below.

2. The purpose of this Pricing Date Notice is to confirm certain terms and conditions of the Transaction entered into between Seller and Counterparty pursuant to the Confirmation.

Pricing Date:                             [_________], 20[_]

Number of Shares:                    [10,000,000]

Exhibit 99.1

SUBSCRIPTION AGREEMENT

This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into this 15th day of November, 2021, by and among Queen’s Gambit Growth Capital, a Cayman Islands exempted company with limited liability (“GMBT”), Pivotal Holdings Corp, a company limited by shares incorporated under the laws of the British Virgin Islands (the “Issuer”), and the undersigned (“Subscriber”). The Issuer is a wholly owned subsidiary of Swvl Inc., a company limited by shares incorporated under the laws of the British Virgin Islands (the “Company”).

WHEREAS, on June 28, 2021, each of the Company, GMBT, the Issuer, Pivotal Merger Sub Company I, a Cayman Islands exempted company with limited liability and wholly owned subsidiary of the Issuer (“Cayman Merger Sub”), and Pivotal Merger Sub Company II Limited, a company limited by shares incorporated under the laws of the British Virgin Islands and wholly owned subsidiary of GMBT (“BVI Merger Sub”), entered into that certain Business Combination Agreement (as the same may be amended, supplemented or otherwise modified from time to time, the “Combination Agreement”, and the transactions contemplated by the Combination Agreement, the “Transactions”);

WHEREAS, pursuant to the Combination Agreement, among other things, (i) GMBT will merge with and into Cayman Merger Sub (the “SPAC Merger”), with Cayman Merger Sub surviving the SPAC Merger and becoming the sole owner of all of the issued and outstanding shares, no par value, of BVI Merger Sub (the “BVI Merger Sub Common Shares”), (ii) concurrently with the SPAC Merger, the Issuer will redeem all of the common shares of the Issuer that are held by the Company, (iii) following the SPAC Merger, Cayman Merger Sub will distribute all of the issued and outstanding BVI Merger Sub Common Shares to the Issuer (the “BVI Merger Sub Distribution”) and (iv) following the BVI Merger Sub Distribution, BVI Merger Sub will merge with and into the Company (the “Company Merger”), with the Company surviving the Company Merger as a wholly owned subsidiary of the Issuer;

WHEREAS, in connection with the Transactions, on the terms and subject to the conditions set forth in this Subscription Agreement, Subscriber desires to subscribe for and purchase from the Issuer at the Closing the number of Class A Shares, par value $0.0001 per share, of the Issuer (“Issuer Class A Shares”) set forth on the signature page hereto (the “Acquired Shares”) for a purchase price of $10.00 per share (the “Share Purchase Price” and the aggregate purchase price set forth on the signature page hereto for the Acquired Shares, the “Purchase Price”), and the Issuer desires to issue and sell to Subscriber at the Closing the Acquired Shares in consideration of the payment of the Purchase Price by or on behalf of Subscriber to the Issuer at the Closing (as defined herein); and

WHEREAS, in connection with the Transactions, certain institutional “accredited investors” (as such term is defined in Rule 501 under the Securities Act of 1933, as amended (the “Securities Act”)) other than Subscriber (each, an “Other Subscriber”), have entered into subscription agreements with the Issuer substantially similar to this Subscription Agreement, pursuant to which such Other Subscribers have agreed to subscribe for and purchase, and the Issuer has agreed to issue and sell to such Other Subscribers, on the Closing Date, Issuer Class A Shares at the Share Purchase Price (the “Other Subscription Agreements”), and the aggregate amount of securities to be sold by the Issuer pursuant to this Subscription Agreement and the Other Subscription Agreements equals, as of the date hereof, $102,000,000 (the “Aggregate Purchase Price”).

 


NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

1. Subscription. Subject to the terms and conditions hereof, Subscriber hereby agrees to subscribe for and purchase at the Closing, and the Issuer hereby agrees to issue and sell to Subscriber at the Closing, upon the receipt of the Purchase Price by the Issuer, the Acquired Shares (such subscription and issuance, the “Subscription”); provided, that the number of Acquired Shares and corresponding Purchase Price shall be reduced by the number of Class A Ordinary Shares, par value US$0.0001 per share, of GMBT (the “GMBT Ordinary Shares”), that Subscriber (i) owns as of the deadline to exercise redemption rights with respect to the GMBT Ordinary Shares in connection with the Transactions and (ii) does not exercise redemption rights with respect thereto.

2. Closing.

a. Subject to the satisfaction or waiver of the conditions set forth in Sections 2(c) and 2(d), the closing of the Subscription contemplated hereby (the “Closing”) shall occur on the date of, and at a time immediately prior to or substantially concurrently with, the consummation of the Company Merger (such date, the “Closing Date”). Not less than three (3) Business Days prior to the anticipated Closing Date (the “Expected Closing Date”), the Issuer shall provide written notice to Subscriber (the “Closing Notice”) of the Expected Closing Date specifying (i) the Expected Closing Date and (ii) the wire instructions for delivery of the Purchase Price to the Issuer. As used in this Subscription Agreement, “Business Day” means any day on which the principal offices of the Commission (as defined herein) in Washington, D.C. are open to accept filings, or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in New York, NY, the Cayman Islands or the British Virgin Islands; provided, that banks shall not be deemed to be authorized or obligated to be closed due to a “shelter in place,” “non-essential employee” or similar closure of physical branch locations at the direction of any governmental authority if such banks’ electronic funds transfer systems (including for wire transfers) are open for use by customers on such day.

b. Subject to the satisfaction or waiver of the conditions set forth in Sections 2(c) and 2(d) (other than those conditions that by their nature are to be satisfied at the closing of the Company Merger pursuant to the Combination Agreement, but without affecting the requirement that such conditions be satisfied or waived at the closing of the Company Merger):

(i) Subscriber shall deliver to the Issuer (A) any information that is reasonably requested in the Closing Notice that is required in order to enable the Issuer to issue the Acquired Shares, including, without limitation, the legal name of the person (or nominee) in whose name such Acquired Shares are to be issued and a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8 and (B) the Purchase Price for the Acquired Shares on the Closing Date (and in any event not earlier than one (1) Business Day following the SPAC Merger) by wire transfer of U.S. dollars in immediately available funds to the account specified by the Issuer in the Closing Notice (which account shall not be an escrow account); and

 

2


(ii) The Issuer shall deliver to Subscriber (i) at or as promptly as practicable after the Closing, the Acquired Shares against and upon receipt of the Purchase Price by the Issuer in book entry form, free and clear of any liens or other restrictions whatsoever (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 (ii) as promptly as practicable after the Closing, a copy of the records of, or correspondence from, the Issuer’s transfer agent reflecting Subscriber as the owner of the Acquired Shares on and as of the Closing Date. Each book entry for the Acquired Shares shall contain a legend in substantially the following form:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE.

c. The Issuer’s obligation to effect the Closing shall be subject to the satisfaction on the Closing Date, or, to the extent permitted by applicable law, the waiver by the Issuer, of each of the following conditions:

(i) all representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be so true and correct as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements of each such party contained in this Subscription Agreement as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct as of such earlier date);

(ii) 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;

(iii) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the Subscription illegal or otherwise preventing or prohibiting consummation of the Subscription;

 

3


(iv) all conditions precedent to the Issuer’s obligation to effect the Company Merger set forth in the Combination Agreement shall have been satisfied (as determined by the parties to the Combination Agreement) or waived (other than those conditions that (x) may only be satisfied at the closing of the Company Merger, but subject to the satisfaction or waiver of such conditions as of the closing of the Company Merger, or (y) will be satisfied by the Closing and the closing of the transactions contemplated by the Other Subscription Agreements);

(v) the Issuer Class A Shares shall have been approved for listing on the Nasdaq Global Market (“NASDAQ”) (or, if the Issuer does not qualify for such market, the Nasdaq Capital Market, or any other public stock market or exchange in the United States as may be mutually agreed to by the Company and GMBT) as of the Closing Date, subject only to official notice of issuance thereof; and

(vi) no suspension of the offering or sale of the Acquired Shares shall have been initiated or, to GMBT or the Issuer’s knowledge, threatened, in any jurisdiction, including by the Securities and Exchange Commission (the “Commission”).

d. Subscriber’s obligation to effect the Closing shall be subject to the satisfaction on the Closing Date, or, to the extent permitted by applicable law, the waiver by Subscriber, of each of the following conditions:

(i) all representations and warranties of GMBT and the Issuer contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect or GMBT Material Adverse Effect, as applicable (each as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be so true and correct as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by GMBT and the Issuer of each of the representations, warranties and agreements of each such party contained in this Subscription Agreement as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct as of such earlier date);

(ii) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the Subscription illegal or otherwise preventing or prohibiting consummation of the Subscription;

(iii) each of the Issuer and GMBT 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, satisfaction or compliance would not or would not be reasonably expected to prevent, materially delay, or materially impair the ability of the Issuer to consummate the Closing; provided that this condition shall be deemed satisfied unless written notice of such noncompliance is provided by Subscriber to the Issuer and GMBT and the Issuer and GMBT, as applicable, fails to cure such noncompliance in all material respects within five (5) Business Days of receipt of such notice.

 

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(iv) the terms of the Combination Agreement (as the same exists on the date of this Subscription Agreement) shall not have been amended, modified or waived in a manner that would reasonably be expected to materially and adversely affect the economic benefits that Subscriber would reasonably expect to receive under this Subscription Agreement;

(v) all conditions precedent to the closing of the Company Merger set forth in the Combination Agreement, shall have been satisfied (as determined by the parties to the Combination Agreement) or waived (other than those conditions that (x) may only be satisfied at the closing of the Company Merger, but subject to the satisfaction or waiver of such conditions as of the closing of the Company Merger, or (y) will be satisfied by the Closing and the closing of the transactions contemplated by the Other Subscription Agreements); and

(vi) the Issuer Class A Shares shall have been approved for listing on the NASDAQ (or, if the Issuer does not qualify for such market, the Nasdaq Capital Market, or any other public stock market or exchange in the United States as may be mutually agreed by the Company and GMBT) as of the Closing Date, subject only to official notice of issuance thereof.

e. Prior to or at the Closing, Subscriber shall execute and deliver such additional documents and take such additional actions as the Issuer reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.

f. In the event that the closing of the Company Merger does not occur within five (5) Business Days of the Expected Closing Date, the Issuer shall promptly (but not later than three (3) Business Days thereafter) return the Purchase Price to Subscriber in immediately available funds to the account specified by Subscriber, and any book entries shall be deemed cancelled. Notwithstanding such return or cancellation, unless and until this Subscription Agreement is terminated in accordance with Section 9 herein, Subscriber shall remain obligated (A) to redeliver funds to the Issuer following the Issuer’s delivery to Subscriber of a new Closing Notice and (B) to consummate the Closing immediately prior to or substantially concurrently with the consummation of the Company Merger.

g. The parties hereto agree and acknowledge that Subscriber shall have no rights in or with respect to any class of Issuer stock unless and until the Issuer delivers to Subscriber the Acquired Shares pursuant to Section 2(b)(ii).

h. [Reserved.]

3. Issuer Representations and Warranties. The Issuer represents and warrants that:

a. The Issuer has been incorporated and is validly existing as a company limited by shares incorporated under the laws of the British Virgin Islands in good standing (or such equivalent concept to the extent it exists under the laws of the British Virgin Islands) under the laws of the British Virgin Islands, with corporate power 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. The Acquired Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Acquired Shares in accordance with the terms of this Subscription Agreement and entered in the Issuer’s register of members, the Acquired Shares will be validly issued, fully paid and non-assessable (meaning that the holders of the Acquired Shares will not by reason of merely being such a holder, be subject to assessment or calls by the Issuer or its creditors for further payment on such Acquired Shares) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s memorandum and articles of association or under the laws of the British Virgin Islands.

c. This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and is enforceable against the Issuer 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. Assuming the accuracy of Subscriber’s representations and warranties in Section 5, the execution and delivery by the Issuer of this Subscription Agreement, and the performance by the Issuer of its obligations under this Subscription Agreement, including the issuance and sale of the Acquired Shares and the consummation of the other 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 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 be reasonably expected to have, individually or in the aggregate, a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of the Issuer (a “Material Adverse Effect”) or materially affect the validity of the Acquired Shares or the legal authority of the Issuer to comply in all material respects with the terms of this Subscription Agreement; (ii) result in a violation of the memorandum and articles of association of the Issuer; or (iii) result in a 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, except in the case of each of clauses (i) and (iii), that would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Acquired Shares or the legal authority of the Issuer to comply in all material respects with this Subscription Agreement.

e. There are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Acquired Shares or (ii) the Issuer Class A Shares to be issued pursuant to any Other Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing Date.

f. Assuming the accuracy of Subscriber’s representations and warranties in Section 5, the Issuer is not required to obtain any 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 execution, delivery and performance by the Issuer of this Subscription Agreement (including,

 

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without limitation, the issuance of the Acquired Shares), other than (i) the filing with the Registrar of Corporate Affairs in the British Virgin Islands of an amended and restated memorandum and articles of association of the Issuer as further described in the Registration Statement (as defined below), (ii) the filing with the Commission of the Registration Statement (as defined below), (iii) filings required by applicable securities laws, (iv) those required by the NASDAQ, and (v) the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated hereby, including the sale and issuance of the Acquired Shares.

g. As of the date hereof, the authorized shares of the Issuer consists of 25,000 Issuer Class A Shares and 25,000 Class B shares, par value $0.0001 per share (“Issuer Class B Shares”). As of the date hereof, one (1) Issuer Class A Share is issued and outstanding and no Issuer Class B Shares are issued and outstanding.

h. Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 5, no registration under the Securities Act is required for the offer and sale of the Acquired Shares by the Issuer to Subscriber in the manner contemplated by this Subscription Agreement.

i. Neither the Issuer nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Acquired Shares.

j. As of the date hereof, the Issuer has not entered into any side letter or similar agreement with any Other Subscriber or any other investor in connection with such Other Subscriber’s or such other investor’s direct or indirect investment in the Issuer other than (i) the Combination Agreement and (ii) the Other Subscription Agreements (and no Other Subscription Agreement provided for a purchase price per share that is lower than the Share Purchase Price, other than to the extent any Other Subscriber has agreed to apply prior to the Closing Date all or a portion of its Purchase Price (as defined in any such Other Subscription Agreement) to the purchase of exchangeable notes of the Company, exchangeable on the Closing Date for Issuer Class A Shares at a discount to the Share Purchase Price) and (iii) agreements or forms thereof that have been publicly filed via the Commission’s EDGAR system, including filings made by either GMBT or the Issuer. The Other Subscription Agreements have not been amended in any material respect following the date of this Subscription Agreement and reflect the same Share Purchase Price and economic terms that are no more favorable in any material respect to any such Other Subscriber thereunder than the terms of this Subscription Agreement (other than the alternative settlement mechanics available to investment companies registered under the Investment Company Act or investors advised by an investment adviser subject to regulation under the Investment Advisers Act as contemplated by Section 2(b) hereof and other than to the extent any Other Subscriber has agreed to apply prior to the Closing Date all or a portion of its Purchase Price (as defined in the applicable Other Subscription Agreement) to the purchase of exchangeable notes of the Company, exchangeable on the Closing Date for Issuer Class A Shares at a discount to the Share Purchase Price).

 

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k. Except for such matters as have not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator 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.

l. The Issuer has not paid, and is not obligated to pay, any brokerage, finder’s or other commission or similar fee in connection with its issuance and sale of the Acquired Shares.

m. None of the Issuer, its subsidiaries or any of their affiliates, nor any person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any of the Acquired Shares under the Securities Act, whether through integration with prior offerings pursuant to Rule 502(a) of the Securities Act or otherwise.

4. GMBT Representations and Warranties. GMBT represents and warrants that:

a. GMBT has been duly incorporated and is validly existing as an exempted company in good standing under the laws of the Cayman Islands, with corporate power 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 GMBT and is enforceable against GMBT 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 and delivery by GMBT of this Subscription Agreement and the performance by GMBT of its obligations hereunder 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 GMBT pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which GMBT is a party or by which GMBT is bound or to which any of the property or assets of GMBT is subject, which would be reasonably expected to have, individually or in the aggregate, a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of GMBT (a “GMBT Material Adverse Effect”) or materially affect the legal authority of GMBT to comply in all material respects with the terms of this Subscription Agreement; (ii) result in a violation of the organizational documents of GMBT; or (iii) result in a 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 GMBT or any of its properties, except in the case of each of clause (i) and (iii), that would not be reasonably expected to have, individually or in the aggregate, a GMBT Material Adverse Effect or materially affect the legal authority of the Issuer to comply in all material respects with this Subscription Agreement.

 

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d. The authorized capital stock of GMBT consists of (i) 500,000,000 Class A ordinary shares, par value $0.0001 per share (“GMBT Class A Shares”), (ii) 50,000,000 Class B ordinary shares, par value $0.0001 per share (“GMBT Class B Shares” and together with GMBT Class A Shares, the “GMBT Common Stock”), and (iii) 5,000,000 preferred shares, par value $0.0001 per share (“GMBT Preferred Stock”). As of the date hereof (1) 34,500,000 GMBT Class A Shares are issued and outstanding, (2) 8,625,000 GMBT Class B Shares are issued and outstanding, and (3) no shares of GMBT Preferred Stock are issued and outstanding.

e. There are no securities or instruments issued by or to which GMBT is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Acquired Shares or (ii) the Issuer Class A Shares to be issued pursuant to any Other Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing Date.

f. GMBT is not required to obtain any 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 execution, delivery and performance by GMBT of this Subscription Agreement, other than the filing required by Section 11(m).

g. Except for such matters as have not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of GMBT, threatened against GMBT or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against GMBT.

h. Neither GMBT nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Acquired Shares and they are not being offered in a manner involving any offering under, or in a distribution in violation of, the Securities Act or any other applicable securities laws.

i. A copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other document, if any, filed by GMBT with the Commission since its initial registration of GMBT Class A Shares and warrants (the “SEC Documents”) is available to the undersigned via the Commission’s EDGAR system. The SEC Documents, as of their respective filing dates, complied in all material respects with the applicable requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the applicable rules and regulations of the Commission promulgated thereunder; provided that GMBT makes no such representation or warranty with respect to the Warrant Accounting Matter (as defined below). None of the SEC Documents filed by GMBT under the Exchange Act (except to the extent that information contained in any SEC Document has been superseded by a later timely filed SEC Document) contained, when filed, 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 not misleading, in the case of any SEC Document that is a registration statement, or included, when filed, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the case of all other SEC Documents; provided, that GMBT makes no such representation or warranty with respect to the registration statement on Form F-4 filed by the Issuer, or the proxy statement/prospectus related thereto filed by the Issuer, with respect to the Transactions or any other information relating to the

 

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Company or any of its affiliates included in any SEC Document or filed as an exhibit thereto; provided further, that GMBT makes no such representation or warranty with respect to the accounting treatment of its warrants or other changes in accounting arising in connection with any required restatement of GMBT’s historical financial statements, or as to any deficiencies in disclosure (including with respect to financial statement presentation or accounting and disclosure controls) arising from the treatment of such warrants as equity rather than liabilities or other required changes in GMBT’s financial statements and SEC Documents, or any related disclosure, in the SEC Documents (the “Warrant Accounting Matter”). Except as described in the Current Report on Form 8-K filed by GMBT with the Commission on May 28, 2021, GMBT has timely filed each report, statement, schedule, prospectus, and registration statement that GMBT was required to file with the Commission since its inception. Other than with respect to the Registration Statement on Form F-4 filed by the Issuer, there are no material outstanding or unresolved comments in comment letters from the Staff of the Commission with respect to any of the SEC Documents.

j. GMBT has not paid, and is not obligated to pay, any brokerage, finder’s or other commission or similar fee in connection with the issuance and sale of the Acquired Shares, including, for the avoidance of doubt, any fee or commission payable to any shareholder or affiliate of the Issuer.

5. Subscriber Representations and Warranties. Subscriber represents and warrants that:

a. Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with the requisite entity power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

b. This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. This Subscription Agreement 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.

c. The execution, delivery and performance by Subscriber of this Subscription Agreement, including the consummation of the transactions contemplated hereby, (i) are fully consistent with Subscriber’s financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to Subscriber, (iii) have been duly authorized and approved by all necessary actions and (iv) are a fit, proper and suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Acquired Shares.

d. The execution and delivery by Subscriber of this Subscription Agreement, and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Acquired Shares and the consummation of the 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

 

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encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would be reasonably expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Subscriber, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to comply in all material respects with the terms of this Subscription Agreement; (ii) result in a violation of the organizational documents of Subscriber; or (iii) result in a 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 Subscriber’s properties that would be reasonably expected to have a Subscriber Material Adverse Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement.

e. Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A promulgated under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, and an “Institutional Account” as defined in FINRA Rule 4512(c), (ii) is acquiring the Acquired Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Acquired Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is independently a “qualified institutional buyer” (as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Acquired Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any other securities laws of the United States or any other jurisdiction. Subscriber has completed Schedule A following the signature page hereto and the information contained therein is accurate and complete. Subscriber is not an entity formed for the specific purpose of acquiring the Acquired Shares, unless Subscriber is a newly formed entity in which all of the equity owners are accredited investors and is an “institutional account” as defined by FINRA Rule 4512(c). Accordingly, Subscriber is aware that this offering of the Acquired Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J).

f. Subscriber understands that the Acquired Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Acquired Shares have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands that the Acquired 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 outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144 promulgated under the Securities Act, absent a change in law, receipt of regulatory no-action relief or an exemption, provided that all of the applicable conditions thereof have been met, or (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act, and that any certificates or book entry records representing the Acquired Shares shall contain a legend to such effect. Subscriber acknowledges that the Acquired Shares will not immediately be eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees

 

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that the Acquired Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Acquired Shares and may be required to bear the financial risk of an investment in the Acquired 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 Acquired Shares. For purposes of this Subscription Agreement, “Transfer” shall mean any direct or indirect transfer, redemption, disposition or monetization in any manner whatsoever, including, without limitation, through any derivative transactions.

g. Subscriber understands and agrees that Subscriber is purchasing the Acquired Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by GMBT, the Issuer or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of GMBT and the Issuer included in this Subscription Agreement.

h. Subscriber’s acquisition and holding of the Acquired 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.

i. In making its decision to subscribe for and purchase the Acquired Shares, Subscriber represents that it has relied solely upon its own independent investigation. Subscriber acknowledges and agrees that Subscriber has received, reviewed and understood the offering materials made available to it in connection with the Transactions and such information as Subscriber deems necessary in order to make an investment decision with respect to the Acquired Shares, including with respect to GMBT, the Issuer, the Company and the Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have (i) 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 Acquired Shares and (ii) conducted and completed its own independent due diligence with respect to the Transaction. Based upon such information as Subscriber has deemed appropriate, Subscriber has independently made its own analysis and decision to subscribe for and purchase the Acquired Shares. Subscriber further acknowledges that the information provided to Subscriber may change after the date hereof and the Issuer is under no obligation to inform Subscriber regarding any such changes, except to the extent such changes would reasonably be expected to cause the failure of the Issuer to satisfy a condition to Subscriber’s obligations at the Closing. Except for the representations, warranties and agreements of the Issuer and GMBT expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transaction, the Acquired Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer. 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, without limitation, the Issuer, GMBT, the Company, any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing), other than the representations and warranties of the Issuer contained in Section 3 of this Subscription Agreement, in making its investment or decision to invest in the Issuer.

 

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j. Subscriber became aware of this offering of the Acquired Shares solely by means of direct contact between Subscriber and GMBT, the Company or the Issuer, and the Acquired Shares were offered to Subscriber solely by direct contact between Subscriber and GMBT or the Issuer. Subscriber did not become aware of this offering of the Acquired Shares, nor were the Acquired Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Acquired Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any applicable securities laws.

k. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired Shares. Subscriber qualifies as a sophisticated institutional investor, experienced in private equity transactions, and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment, both in general and with regard to transactions in, and investment strategies involving, securities, including Subscriber’s investment in the Acquired Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision and Subscriber has made its own assessment and satisfied itself concerning relevant tax or other economic considerations relative to its purchase of the Acquired Shares. Accordingly, Subscriber acknowledges that the offering of the Acquired Shares meets the institutional account exemption under FINRA Rule 2111(b).

l. [Reserved.]

m. Alone, or together with any professional advisor(s), Subscriber has adequately analyzed and fully considered the risks of an investment in the Acquired Shares and determined that the Acquired 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.

n. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Acquired Shares or made any findings or determination as to the fairness of an investment in the Acquired Shares.

o. Subscriber is not (i) a person or entity named on any sanctions list maintained by (A) the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), including the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, (B) the European Union, (C) the United Nations Security Council, (D) the government of the United Kingdom, including HM Treasury, or (E) any individual European Union member state (collectively, “Sanctions Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on a Sanctions List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality

 

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thereof, of Cuba, Iran, North Korea, Sudan, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, United Nations or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, or the United Kingdom (collectively, “Sanctions Lists”), (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Subscriber”). Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001, as amended (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with sanctions programs administered by the United States, United Nations, European Union, or any individual European Union member state, the United Kingdom or any other relevant governmental authority, including for the screening of its investors against the Sanctions Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Acquired Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Subscriber.

p. Subscriber is not currently (and at all times through the 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 or any successor provision) acting for the purpose of acquiring, holding, voting or disposing of equity securities of the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).

q. If Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code, (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) 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 clauses (i), (ii) or (iii) 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 (collectively, “Similar Laws,” and together with the ERISA Plans, the “Plans”), then Subscriber represents and warrants that (1) neither the Issuer nor GMBT, nor any of their respective affiliates (the “Transaction Parties”) has provided investment advice or has otherwise acted as the Plan’s fiduciary with respect to its decision to acquire and hold the Acquired Shares, and none of the Transaction Parties is or shall at any time be the Plan’s fiduciary with respect to any decision to acquire and hold the Acquired 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 Subscriber’s investment in the Acquired Shares, and (2) its purchase of the Acquired Shares will not result in a non-exempt prohibited transaction under section 406 of ERISA or section 4975 of the Code, or any applicable Similar Law.

r. Subscriber has, and at the Closing will have, sufficient funds to pay the Purchase Price pursuant to Section 2(b)(i).

 

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s. Other than pursuant to any agreement by and among the Subscriber, GMBT and/or the Issuer, Subscriber has not entered into a binding commitment to sell or otherwise transfer the Acquired Shares.

t. [Reserved.]

u. Subscriber agrees that none of (i) the Other Subscribers pursuant to the Other Subscription Agreements entered into in connection with the offer and sale of Issuer Class A Shares (including the controlling persons, members, officers, directors, partners, agents or employees of any such Other Subscribers) or (ii) any other party to the Combination Agreement, including any such party’s representatives, affiliates or any of its or their control persons, officers, directors or employees, that is not a party hereto, shall be liable to Subscriber pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Acquired Shares.

6. Additional Subscriber Agreement. Subscriber hereby agrees that, from the date of this Subscription Agreement until the Closing Date, neither Subscriber nor any person or entity acting on behalf of Subscriber or pursuant to any understanding with Subscriber will engage in any Short Sales with respect to securities of GMBT. For purposes of this Section 6, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under 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, (a) nothing herein shall prohibit other entities under common management with Subscriber that have no knowledge of this Subscription Agreement or of Subscriber’s participation in the transactions contemplated hereby (including Subscriber’s controlled affiliates and/or affiliates) from entering into any Short Sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, this Section 6 shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Acquired Shares covered by this Subscription Agreement and (c) this Section 6 shall not apply to any transaction by and among the Subscriber, GMBT and/or the Issuer.

7. Registration Rights.

a. The Issuer agrees that, within thirty (30) calendar days after the Closing, the Issuer will use its commercially reasonable efforts to file with the Commission (at the Issuer’s sole cost and expense) a registration statement registering the resale of the Acquired Shares (the “Registration Statement”), and to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earliest of (i) the 90th calendar day (or 135th calendar day if the Commission notifies the Issuer that it will “review” the Registration Statement) following the Closing and (ii) the 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 “Effective Date”);

 

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provided, however, that the Issuer’s obligations to include the Acquired Shares in the Registration Statement are contingent upon Subscriber furnishing in writing to the Issuer such information regarding Subscriber, the securities of the Issuer held by Subscriber and the intended method of disposition of the Acquired Shares as shall be reasonably requested by the Issuer to effect the registration of the Acquired 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 during any customary blackout or similar period or as permitted hereunder. The Issuer shall provide a draft of the Registration Statement to Subscriber at least two (2) Business Days in advance of its anticipated initial filing date; provided that Subscriber agrees to keep confidential the receipt of such Registration Statement and the information contained therein until filed with the Commission. 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 Acquired Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Acquired Shares which is equal to the maximum number of Acquired Shares as is permitted by the Commission. In such event, the number of Acquired Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. Upon notification by the Commission that the Registration Statement has been declared effective by the Commission, within two (2) Business Days thereafter, the Issuer shall file the final prospectus under Rule 424 of the Securities Act. In no event shall Subscriber be identified as a statutory underwriter in the Registration Statement unless requested by the Commission.

b. At its expense the Issuer shall:

(i) 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 applicable 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, until the earliest of the following: (1) Subscriber ceases to hold any Acquired Shares or (2) the date all Acquired Shares held by Subscriber may be sold without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 promulgated under the Securities Act 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), as applicable, and three (3) years from the Effective Date of the Registration Statement.

(ii) advise Subscriber within two (2) Business Days:

(1) when a Registration Statement or any amendment thereto has become effective;

(2) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for such purpose;

 

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(3) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Acquired Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

(4) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in the Registration Statement or prospectus so that, as of such date, the Registration Statement or prospectus does not contain any untrue statement of material fact or omit to state a material fact 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.

Notwithstanding anything to the contrary set forth herein, the Issuer shall not, when so advising Subscriber of such events, provide Subscriber with any material, nonpublic information regarding the Issuer other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (1) through (4) above constitutes material, nonpublic information regarding the Issuer;

(iii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement as soon as reasonably practicable;

(iv) upon the occurrence of any event contemplated above, 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 Acquired 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;

(v) use its commercially reasonable efforts to cause all Acquired Shares to be listed on each securities exchange or market, if any, on which the Issuer Class A Shares issued by the Issuer have been listed;

(vi) use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Acquired Shares contemplated hereby;

(vii) if requested by Subscriber, remove the restrictive legend described in in Section 2(b)(ii) (or instruct its transfer agent to so remove such legend) from the Acquired Shares if (1) the Registration Statement is and continues to be effective under the Securities Act, (2) such Acquired Shares are sold or transferred pursuant to Rule 144 (if the transferor is not an affiliate of the Issuer and subject to all applicable requirements of Rule 144 being met), or (3) such Acquired Shares are eligible for sale under Rule 144, 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) as to the Acquired Shares and without volume or manner-of-sale restrictions; provided that Subscriber shall have timely provided customary representations and other documentation reasonably acceptable to the Issuer, its counsel and/or its transfer agent in connection therewith (the “Representations”). Any fees (with respect to the transfer agent, Issuer’s

 

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counsel or otherwise) associated with the issuance of any legal opinion required by the Issuer’s transfer agent or the removal of such legend shall be borne by the Issuer. If a legend is no longer required pursuant to the foregoing, the Issuer will, no later than five (5) Business Days following the delivery by Subscriber to the Issuer or the transfer agent (with notice to the Issuer) of the Representations, remove the restrictive legend related to the book entry account holding the Acquired Shares and make a new, unlegended book entry for the Acquired Shares; and

c. Notwithstanding anything to the contrary in this Subscription Agreement, the Issuer shall be entitled to delay or postpone the filing and/or 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, would require additional disclosure by the Issuer in the Registration Statement of material information that (x) the Issuer has a bona fide business purpose for keeping confidential or (y) cannot be immediately provided, 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, 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 two (2) occasions or for more than sixty (60) consecutive calendar days, or more than ninety (90) total calendar days, in each case during any twelve-month period. Upon receipt by Subscriber 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 Acquired Shares under the Registration Statement 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 the disclosure of which is otherwise required by law or subpoena (in which case Subscriber shall use commercially reasonable efforts to give advance written notice to the Issuer of any such disclosure). 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 Acquired Shares in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Acquired Shares shall not apply (1) to the extent Subscriber is required to retain a copy of such prospectus (x) in order to comply with applicable legal, regulatory, self-regulatory or fiduciary requirements or (y) in accordance with a bona fide pre-existing document retention policy or (2) to copies stored electronically on archival servers as a result of automatic data back-up.

 

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d. Subscriber may deliver written notice (an “Opt-Out Notice”) to the Issuer requesting that Subscriber not receive notices from the Issuer otherwise required by this Section 7; 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 7(d)) 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 immediately upon its availability.

e. The Issuer shall, notwithstanding any termination of this Subscription Agreement, indemnify, defend and hold harmless, to the extent permitted by law, Subscriber (to the extent a seller under the Registration Statement), the officers, directors and agents of Subscriber, and each person who controls 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 any and all out-of-pocket losses, claims, damages, liabilities, costs (including, without limitation, reasonable and documented attorneys’ fees incurred in connection with defending any of the foregoing) and expenses (collectively, “Losses”), as incurred, that arise out of or are 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 any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information regarding Subscriber furnished in writing to the Issuer by Subscriber expressly for use therein or Subscriber has omitted a material fact from such information or otherwise violated the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder; provided, however, that the indemnification contained in this Section 7(e) shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the Issuer. 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 Acquired Shares by Subscriber.

f. Subscriber shall, severally and not jointly, indemnify and hold harmless, to the extent permitted by law, 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, (i) arising out of or 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 (ii) 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, with respect to (i) and/or (ii), to the extent, but only to the extent, that such untrue or alleged untrue statements or omissions or alleged omissions are

 

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based upon information regarding Subscriber furnished in writing to the Issuer by Subscriber expressly for use therein; provided, however, that the indemnification contained in this Section 7(f) shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of Subscriber. In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Acquired 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 Acquired Shares by Subscriber.

g. Any person entitled to indemnification hereunder shall (1) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (2) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation

8. [Reserved.]

9. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) such date and time as the Combination Agreement is validly terminated in accordance with the terms therein, (b) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement, (c) at the election of Subscriber, on or after the “Outside Date” as defined in the Combination Agreement (as such Outside Date may be amended or extended from time to time) or (d) two years from the Effective Date of the Registration Statement; provided, that nothing herein will relieve any party from liability for any Willful Breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover out-of-pocket losses, liabilities or damages arising from such breach. The Issuer shall notify in writing Subscriber of the termination of the Combination Agreement promptly after the termination of such agreement. For purposes hereof, “Willful Breach” means a material breach that is a consequence of an act undertaken or a failure to act by the breaching party hereto with the knowledge that the taking of such act or such failure to act would, or would reasonably be expected to, constitute or result in a breach of this Subscription Agreement.

 

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10. Trust Account Waiver. Subscriber acknowledges that GMBT is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving GMBT and one or more businesses or assets. Subscriber further acknowledges that, as described in GMBT’s prospectus relating to its initial public offering, dated January 19, 2021 (the “Prospectus”), available at www.sec.gov, substantially all of GMBT’s assets consist of the cash proceeds of GMBT’s initial public offering and private placements of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of GMBT, its public stockholders and the underwriters of GMBT’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to GMBT to pay its obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of GMBT entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, Subscriber, on behalf of itself and its representatives, hereby irrevocably waives any and all right, title and interest, or any claim of any kind they have or may have in the future arising out of this Subscription Agreement, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Subscription Agreement; provided, however, that nothing in this Section 10 shall be deemed to limit any Subscriber’s right, title, interest or claim to the Trust Account by virtue of such Subscriber’s record or beneficial ownership of securities of GMBT acquired by any means, including but not limited to any redemption right with respect to any such securities of GMBT.

11. Miscellaneous.

a. (i) The obligation of the Issuer to sell the Acquired Shares hereunder is subject to the satisfaction or waiver of the Other Holders’ preemptive rights contained in the Other Subscription Agreements. The Issuer shall promptly offer the Other Holders the ability to subscribe for additional Acquired Shares consistent with such preemptive rights, or seek waivers thereof. The parties agree that if the Other Holders exercise such preemptive rights, the number of Acquired Shares hereunder and corresponding Purchase Price shall be reduced to the extent necessary to comply with the Other Subscription Agreements.

(ii) Notwithstanding anything herein to the contrary, this Subscription Agreement shall not become effective until each of the parties (other than the Company or GMBT, as applicable) to each Company Transaction Support Agreement (as defined in the Combination Agreement) shall have entered into one or more agreements that approve, consent to or otherwise waive any rights in connection with, or would provide for the approval of, consent to or waiver of any rights in connection with, the Subscription contemplated herby.

b. Each party hereto acknowledges that the other parties hereto will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, Subscriber agrees to promptly notify the Issuer if any of the acknowledgments, understandings, agreements, representations and warranties made by such party as set forth herein are no longer accurate (subject to any qualification as to materiality applicable thereto).

 

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c. Each of the Issuer, GMBT, and Subscriber 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 to the extent required by law or by regulatory bodies.

d. Notwithstanding anything to the contrary in this Subscription Agreement, prior to the Closing, without the prior consent of the Issuer, Subscriber may not transfer or assign all or any portion of its rights under this Subscription Agreement other than to its controlled affiliates or any fund or account managed by the same investment manager as Subscriber; provided, that such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Subscription Agreement, makes the representations and warranties in Section 5 and completes Schedule A hereto. In the event of such a transfer or assignment, Subscriber shall immediately update Schedule B to provide the information required therein.

e. All of the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing. For the avoidance of doubt, if for any reason the Closing does not occur immediately prior to or substantially concurrently with the consummation of the Company Merger, all representations, warranties, covenants and agreements of the parties hereunder shall survive the consummation of the Company Merger and remain in full force and effect.

f. The Issuer may request from Subscriber such additional information as the Issuer may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Acquired Shares, and Subscriber shall provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures; provided, that the Issuer agrees to keep any such information provided by Subscriber confidential except to the extent such disclosure is required by applicable law, at the request of the Staff of the Commission or regulatory agency or under the regulations of the NASDAQ, in which case the Issuer shall provide Subscriber with prior written notice of such disclosure.

g. 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.

h. 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.

i. 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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j. This Subscription Agreement may be executed in counterparts (including by electronic means), all of which shall be considered one and the same agreement and shall become effective when signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.

k. Each party shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein; provided, however, that the Issuer shall reimburse Subscriber for its attorneys’ fees incurred in connection with the transactions contemplated by this Subscription Agreement..

l. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or telecopied, sent by overnight mail via an internationally recognized 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) upon receipt of an electronic answerback or confirmation when so delivered by telecopy (to such number specified below or another number or numbers as such person may subsequently designate by notice given hereunder), (iii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iv) five (5) 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:

(i) if to Subscriber, to such address or addresses set forth on the signature page hereto;

(ii) if to GMBT, BVI Merger Sub, Issuer, or Cayman Merger Sub (in the case of the latter two at or after the SPAC Merger Effective Time (as defined in the Combination Agreement)) to:

Queen Gambit’s Growth Capital

55 Hudson Yards, 44th Floor

New York, NY 10001

Attention: Victoria Grace

Email: victoria@queensgambitspac.com

with a required copy to (which copy shall not constitute notice):

Vinson & Elkins L.L.P.

1001 Fannin Street, Suite 2500

Houston, TX 77002

Attention: Ramey Layne; Brenda Lenahan

Email: rlayne@velaw.com; blenahan@velaw.com; and

(iii) if to the Issuer or Cayman Merger Sub (before the SPAC Merger Effective Time (as defined in the Combination Agreement)), to:

Swvl Inc.

The Offices 4, One Central

Dubai, United Arab Emirates

 

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Attention: Mostafa Kandil, Chief Executive Officer

Email: mk@swvl.com

with a required copy to (which copy shall not constitute notice):

Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

Attention: O. Keith Hallam, III; Nicholas A. Dorsey; Richard Hall

Email: khallam@cravath.com; ndorsey@cravath.com; rhall@cravath.com

m. 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 New York, without giving effect to the principles of conflicts of law thereof.

THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, THE SUPREME COURT OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF NEW YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF 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 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 NEW YORK 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 11(l) 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

 

24


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 11(m).

n. [Reserved.]

o. 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 GMBT and the Issuer (not to be unreasonably withheld, conditioned or delayed); provided, that any rights (but not obligations) of a party under this Subscription Agreement may be waived, in whole or in part, by such party on its own behalf without the prior consent of any other parties.

p. The parties agree that irreparable damage would occur if any provision of this Subscription Agreement were not performed in accordance with the terms hereof, and accordingly, that the parties and the third-party beneficiaries hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Subscription Agreement or to enforce specifically the performance of the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 11(m), in addition to any other remedy to which any party or any third-party beneficiary hereto is entitled at law or in equity.

12. Non-Reliance and Exculpation. 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, without limitation, the Issuer, GMBT or the Company, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), other than the statements, representations and warranties of the Issuer expressly contained in Section 3 of this Subscription Agreement, in making its investment or decision to invest in the Issuer. Subscriber acknowledges and agrees that none of (i) any Other Subscriber pursuant to this Subscription Agreement or any Other Subscription Agreement related to the private placement of the Acquired Shares (including any Other Subscriber’s affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), (ii) any other party to the Combination Agreement (other than the Issuer) or (iii) any affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the Issuer, the Company or any other party to the Combination Agreement (other than the Issuer) shall be liable (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor, the Company or any other person or entity), whether in contract, tort or otherwise, or have any liability or obligation, to Subscriber, any person claiming through such Subscriber, or to any other investor, pursuant to this Subscription Agreement or any Other Subscription Agreement related to the private placement of the Acquired Shares, the negotiation hereof or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby or thereby, for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Acquired Shares or the Transactions.

[Signature pages follow.]

 

25


IN WITNESS WHEREOF, each of the GMBT, Issuer, and Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date first written above.

 

Queen’s Gambit Growth Capital
By:  

 

  Name:
  Title:
Pivotal Holdings Corp
By:  

 

  Name:
  Title:

Signature Page to

Subscription Agreement


SUBSCRIBER:

 

Signature of Subscriber:

 

By: ____________________________________

Name:

Title:

Name of Subscriber:

 

(Please print. Please indicate name and
capacity of person signing above)

 

Name in which securities are to be registered

(if different):

Email Address: ____________________
Subscriber’s EIN: _______________
Address:

 

 

Attn: _________________________________
Telephone No.: __________________________
Facsimile No.: __________________________
Aggregate Number of Acquired Shares subscribed for: ___________
Aggregate Purchase Price: $____________

You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in the Closing Notice.

Signature Page to

Subscription Agreement


SCHEDULE A

ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER

This Schedule must be completed by Subscriber and forms a part of the Subscription Agreement to which it is attached. Capitalized terms used and not otherwise defined in this Schedule have the meanings given to them in the Subscription Agreement. Subscriber must check the applicable box in either Part A or Part B below and the applicable box in Part C below.

 

A.

QUALIFIED INSTITUTIONAL BUYER STATUS

(Please check the applicable subparagraphs):

 

Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (a “QIB”)).

 

Subscriber is subscribing for the Acquired Shares as a fiduciary or agent for one or more investor accounts, and each owner of such accounts is a QIB.

*** OR ***

 

B.

INSTITUTIONAL ACCREDITED INVESTOR STATUS

(Please check the applicable subparagraphs):

Subscriber is an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and has checked below the box(es) for the applicable provision under which Subscriber qualifies as such:

 

Subscriber is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, corporation, Massachusetts or similar business trust, limited liability company or partnership not formed for the specific purpose of acquiring the securities of the Issuer being offered in this offering, with total assets in excess of $5,000,000.

 

Subscriber is a “private business development company” as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.

 

Subscriber is a “bank” as defined in Section 3(a)(2) of the Securities Act.

 

Subscriber is a “savings and loan association” or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity.

 

Subscriber is a broker or dealer registered pursuant to Section 15 of the Exchange Act.

 

Subscriber is an “insurance company” as defined in Section 2(a)(13) of the Securities Act.

 

Subscriber is an investment company registered under the Investment Company Act of 1940.

 

Schedule A-1


Subscriber is a “business development company” as defined in Section 2(a)(48) of the Investment Company Act of 1940.

 

Subscriber is a “Small Business Investment Company” licensed by the U.S. Small Business Administration under either Section 301(c) or (d) of the Small Business Investment Act of 1958.

 

Subscriber is a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, and such plan has total assets in excess of $5,000,000.

 

Subscriber is an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such act, which is one of the following.

 

 

A bank;

 

 

A savings and loan association;

 

 

An insurance company; or

 

 

A registered investment adviser.

 

Subscriber is an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 with total assets in excess of $5,000,000.

 

Subscriber is an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 that is a self-directed plan with investment decisions made solely by persons that are accredited investors.

 

Subscriber is a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered by the Issuer in this offering, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the Securities Act.

*** AND ***

 

Schedule A-2


C.

AFFILIATE STATUS

(Please check the applicable box)

SUBSCRIBER:

 

is:

 

is not:

an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer or acting on behalf of an affiliate of the Issuer.

This page should be completed by the Subscriber

and constitutes a part of the Subscription Agreement.

 

Schedule A-3