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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): June 14, 2022

 

LIGHTJUMP ACQUISITION CORPORATION

(Exact Name of Registrant as Specified in Charter)

 

Delaware   001-39869   85-2402980
(State or Other Jurisdiction   (Commission File Number)   (IRS Employer
of Incorporation)  

  Identification No.)

 

2735 Sand Hill Road, Suite 110

Menlo Park, CA 94025

(Address of Principal Executive Offices) (Zip Code)

 

(650) 515-3930

(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 filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

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

 

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

 

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

 

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

 

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

 

Title of each class   Trading Symbol(s)   Name of each exchange on
which registered
Units, each consisting of one share of common stock and one-half of one redeemable warrant   LJAQU   The Nasdaq Stock Market LLC
Common stock, par value $0.0001 per share   LJAQ   The Nasdaq Stock Market LLC
Redeemable warrants, exercisable for shares of common stock at an exercise price of $11.50 per share   LJAQW   The Nasdaq Stock Market LLC

 

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

 

Emerging growth company

 

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

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

Business Combination Agreement

 

On June 14, 2022, LightJump Acquisition Corporation, a Delaware corporation (the “Registrant” or “SPAC”), Moolec Science Limited, a private limited company incorporated under the laws of England and Wales (the “Company”), Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg with its registered office at 17, Boulevard F.W. Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) under number B268440 (“Holdco”), and Moolec Acquisition, Inc., a Delaware corporation (“Merger Sub”) entered into a Business Combination Agreement (the “Business Combination Agreement”).

 

The Business Combination

 

Pursuant to the Business Combination Agreement, SPAC, Holdco, Merger Sub and the Company will enter into a business combination transaction pursuant to which, among other things, (a) pursuant to the Exchange Agreements, each of the Company Shareholders, effective on the Exchange Effective Time, will contribute its respective Company Ordinary Shares to Holdco in exchange for Holdco Ordinary Shares to be subscribed for by each such Company Shareholder (such contributions and exchanges of Company Ordinary Shares for Holdco Ordinary Shares, collectively, the “Exchange”), (b) as a result of the Exchange, the Company will become a wholly-owned subsidiary of Holdco, (c) immediately prior to the consummation of the Merger but after the Exchange Effective Time, each of the Company SAFE Holders will receive and become holders of issued and outstanding Holdco Ordinary Shares, in accordance with the applicable Company SAFE, (d) following the consummation of the Exchange, Merger Sub will merge with and into SPAC, with SPAC surviving such merger and becoming a direct wholly-owned subsidiary of Holdco (the “Merger”) and, in the context of the Merger, all SPAC Common Stock outstanding shall be converted into the right to receive the Merger Consideration in the form of Holdco Ordinary Shares pursuant to a share capital increase of Holdco, as set forth in this Agreement, and (e) in order to satisfy the Company’s obligations under that certain Consulting Agreement, dated June 18, 2021, by and between the Company and the Company’s Chief Financial Officer (“CFO”), CFO will be freely allotted an aggregate of 243,774 Holdco Ordinary Shares (the “CFO Free Shares”). Capitalized terms used but not defined herein shall have the respective meanings set forth in the Business Combination Agreement.

 

Upon the terms and subject to the conditions set forth in the Business Combination Agreement and the Exchange Agreements at the Exchange Effective Time, the Exchange will take place based on an exchange ratio of .66787343 used to determine the number of aggregate Holdco Shares valued at $10.00 per Holdco Share for which the aggregate Company Ordinary Shares will be exchanged (the “Exchange Consideration”). The valuation of the Company Ordinary Shares contributed to Holdco by the Company Shareholders against new Holdco Shares pursuant to the Exchange shall be deemed to be, as of the Exchange Effective Time, the sum of US$325,000,000.

 

Pursuant to the Exchange Agreements, each Company Shareholder has also agreed to not transfer any of its Company Ordinary Shares before the earlier to occur of the Exchange and the termination of the Business Combination Agreement pursuant to its terms.

 

In connection with the closing of the transactions contemplated by the Transaction Documents, including the Exchange and the Merger (the “Transactions”), each of Union Group Ventures Limited, THEO I SCSp and LightJump One Founders, LLC (“Sponsor”) has entered into a Backstop Agreement (the “Backstop Agreement”), guaranteeing, severally but not jointly, the funding of certain amounts as set forth therein.

 

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Conditions to Each Party’s Obligations

 

The obligation of the parties to consummate the Transactions are subject to the satisfaction or waiver of customary closing conditions at or prior to the Closing, including (i) Registrant shareholder, Company and Holdco approvals; (ii) issuance of statutory independent auditor reports regarding the contributions relating to the issuance of Holdco Shares under the Merger and the Exchange; (iii) issuance of a financial advisor opinion; (iv) absence of any law, rule, regulation, judgment, decree, executive order or award which is then in effect and has the effect of making the Transactions illegal or otherwise prohibiting consummation of the Transactions; (v) effectiveness of the registration statement on Form F-4 relating to Holdco Ordinary Shares and Holdco Warrants to be issued in the Merger; (vi) Nasdaq listing approval of the Holdco Ordinary Shares; (vii) execution and delivery of certain ancillary agreements, including the Registration Rights and Lock-Up Agreement; (viii) Registrant having at least $5,000,001 of net tangible assets and (x) an agreement for the issuance of the CFO Free Shares in a form acceptable to the CFO.

 

The obligations of Registrant to consummate the Transactions are subject to certain additional conditions at or prior to the Closing, including (i) the accuracy of certain representations and warranties of the Company, Holdco, and Merger Sub except, with respect to certain representations and warranties, where the failure of such representations and warranties to be true and correct does not result in a Company Material Adverse Effect or is not materially adverse to Holdco or Merger Sub, as applicable; (ii) the performance or compliance in all material respects with all agreements and covenants required by the Business Combination Agreement, with certain exceptions; (iii) the delivery to Registrant of certifications as to the satisfaction of the conditions; (iv) the absence of a Company Material Adverse Effect; (v) there being no Company Ordinary Shares or other Equity Interest of the Company outstanding other than Company Ordinary Shares and other Equity Interests that are subject to an Exchange Agreement; (vi) SPAC shall have received evidence to its satisfaction that any Company interested party transactions have been adequately addressed; and (vii) the execution and delivery of certain ancillary agreements.

 

The obligations of the Company to consummate the Transactions are subject to certain additional conditions at or prior to the Closing, including (i) the accuracy of certain representations and warranties of Registrant except, with respect to certain representations and warranties, where the failure of such representations and warranties to be true and correct does not result in a SPAC Material Adverse Effect; (ii) the performance or compliance in all material respects with all agreements and covenants required by the Business Combination Agreement; (iii) the Registrant’s delivery to the Company of certifications as to the satisfaction of the conditions; (iv) the absence of a SPAC Material Adverse Effect; (v) the execution and delivery of certain ancillary agreements.

 

Representations and Warranties

 

The Business Combination Agreement contains customary representations and warranties of the Company, Registrant, Holdco and Merger Sub relating to, among other things, their ability to enter into the Business Combination Agreement and the Ancillary Agreements to which they are party and their outstanding capitalization. The representations and warranties of the parties contained in the Business Combination Agreement will terminate and be of no further force and effect as of the closing of the Transactions.

 

Covenants

 

The Business Combination Agreement contains customary covenants of the parties, including, among others, covenants providing for (i) the operation of the parties’ respective businesses prior to consummation of the Transactions, (ii) the parties’ efforts to satisfy conditions to consummate the Transactions, (iii) Registrant, Company and Holdco preparing and Holdco filing a registration statement containing a proxy statement/prospectus for the purpose of soliciting proxies from Registrant’s shareholders to vote in favor of certain matters and registering under the Securities Act of 1933, as amended (the “Securities Act”) the Holdco Ordinary Shares to be issued in connection with the Merger, (iv) the protection of, and access to, confidential information of the parties and (v) the parties’ efforts to obtain necessary approvals from Governmental Authorities, if any. The covenants of the parties contained in the Business Combination Agreement will terminate and be of no further force and effect as of the Closing of the Transactions, except for those covenants that by their terms require performance after the Closing.

 

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Termination

 

The Business Combination Agreement may be terminated and the Transactions may be abandoned at any time prior to the date on which the Merger is effective in accordance with applicable laws (the “Merger Effective Time”), notwithstanding any requisite approval and adoption of the Business Combination Agreement and the Transactions by the shareholders of the Registrant, (i) by mutual written consent of Registrant and the Company; (ii) by either Registrant or the Company if the Merger Effective Time shall not have occurred prior to the later of (x) 5:00 p.m. (New York time) on July 12, 2022 and (y) the last day of the extended time period that the SPAC is able, under its organization documents, to consummate a business combination if SPAC successfully extends such date; (iii) by either Registrant or the Company if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling (whether temporary, preliminary or permanent) which has become final and non-appealable and has the effect of making consummation of the Transactions illegal or otherwise preventing or prohibiting consummation of the Transaction or the Merger; (iv) by either Registrant or the Company if any of the Registrant proposals shall fail to receive the requisite vote for approval at Registrant’s shareholders’ meeting; (v) by Registrant upon a breach of any representation, warranty, covenant or agreement set forth in the Business Combination Agreement on the part of the Company, Holdco or Merger Sub that remains uncured for more than 30 days after written notice of such breach is provided by Registrant to the Company, or if any representation or warranty of the Company, Holdco or Merger Sub shall have become untrue, in either case such that the conditions relating to representations and warranties and certain covenants and agreements would not be satisfied; and (vi) by the Company upon any breach of any representation, warranty, covenant or agreement set forth in the Business Combination Agreement on the part of Registrant that remains uncured for more than 30 days after written notice of such breach is provided by the Company to Registrant, or if any representation or warranty of Registrant shall have become untrue, in either case such that the conditions relating to representations and warranties and certain covenants and agreements would not be satisfied.

 

In the event that the Business Combination Agreement is terminated, all Transaction Expenses incurred in connection with the Business Combination Agreement, the Ancillary Agreements, and the Transactions shall be paid by the party incurring such Transaction Expenses. If the Transactions are consummated, (i) as promptly as practicable after the Closing, Holdco shall transfer or cause to be transferred to Sponsor or its designee an amount in cash equal to the Sponsor Advanced Funds so long as the unpaid SPAC Transaction Expenses as of the Closing do not exceed the applicable SPAC Transaction Expenses Cap; (ii) Holdco shall pay or cause to be paid, (x) the Company Transaction Expenses, (y) the EarlyBird Cash Fees, unless the Net Available Assets are equal to less than $200,000, then, in such event, Sponsor and Holdco shall pay 50% of all EarlyBird Cash Fees, and (z) the SPAC Transaction Expenses that are unpaid as of the Closing up to an amount not to exceed the SPAC Transaction Expenses Cap; and (iii) Sponsor shall pay or cause to be paid, (x) all unpaid SPAC Transaction Expenses in excess of the applicable Transaction Expenses Cap; (y) any expenses incurred by SPAC in its pursuit of potential acquisition or business targets other than the Company or that were not incurred by SPAC in connection with or in furtherance of the Transactions, other than the Sponsor Advanced Funds and (z) all Extension Amendment Fees. Within five (5) days following the six (6) month anniversary of the Closing, Holdco shall issue the EarlyBird Share Fees.

 

Certain Related Agreements

 

Backstop Agreement

 

Concurrently with the execution of the Business Combination Agreement, Union Group Ventures Limited, THEO I SCSp, UG Holdings, LLC and Sponsor entered into the Backstop Agreement (the “Backstop Agreement”), pursuant to which, among other things, the parties guaranteed, on a several (and not joint) basis, to backstop an aggregate amount equal to $10,000,000 after taking into account the EarlyBird Fee, conditioned upon Closing on the terms and subject to the conditions set forth in the Backstop Agreement.

 

A copy of the Backstop Agreement is filed as Exhibit 10.2 to this Current Report on Form 8-K (this “8-K”) and is incorporated herein by reference, and the foregoing description of the Backstop Agreement is qualified in its entirety by reference thereto.

 

Transaction Support Agreement

 

Concurrently with the execution of the Business Combination Agreement, SPAC, Sponsor, the Company, Holdco, certain Company Shareholders and the holders of the Original SAFEs (the “SAFE Holders”) and certain holders of SPAC Common Stock (the “SPAC Holders”) entered into a Transaction Support Agreement (the “Transaction Support Agreement”) pursuant to which, among other things, the Sponsor and the SPAC Investors have agreed with SPAC, Holdco, the Company and the Eligible Company Shareholders to (i) waive certain rights, and (ii) take certain actions to support the Transactions. Additionally, during the interim period (from June 14, 2022 until the earlier of (i) the Closing or (ii) termination of the Business Combination Agreement), each SPAC Investor has agreed not to transfer any Sponsor shares that she, he or it Beneficially Owns (as defined under Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) without the prior written consent of Holdco, with the exception of certain permitted transfers described in the Transaction Support Agreement. Each SAFE Holder has agreed to execute all documentation and perform all necessary actions reasonably required by the Company and/or Holdco as may be necessary or desirable in connection with the issuance by Holdco of Holdco Ordinary Shares to each SAFE Holder, substantially in accordance with the Original SAFE.

 

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The foregoing description of the Transaction Support Agreement is qualified in its entirety by reference to the full text of the Transaction Support Agreement, a copy of which is included as Exhibit 10.3 to this 8-K, and incorporated herein by reference.

 

Assignment, Assumption and Amendment to Warrant Agreement

 

In connection with the Merger, Holdco will assume the obligations of the Company under the Warrant Agreement (the “Warrant Agreement”) dated January 12, 2021, between the Company and Continental Stock Transfer & Trust Company (“CST”), as warrant agent, by executing an assumption and amendment to the Warrant Agreement with CST and the Company (the “SPAC Warrant Amendment and Assignment”).

 

A copy of the form of the SPAC Warrant Amendment and Assignment is filed as Exhibit 10.4 to this 8-K and is incorporated herein by reference, and the foregoing description of the form of the SPAC Warrant Amendment and Assignment is qualified in its entirety by reference thereto.

 

Registration Rights and Lock-Up Agreement

 

In connection with the closing of the Transactions, the Sponsor, certain other persons and entities holding SPAC Common Stock (the “Original Holders”), Holdco, the CFO and the Company Shareholders and SAFE Holders will enter into a Registration Rights and Lock-Up Agreement (the “Registration Rights and Lock-Up Agreement”) pursuant to which, among other things, the Sponsor, the Original Holders, the CFO and the Company Shareholders and SAFE holders shall have customary demand and piggyback registration rights in connection with the Holdco Ordinary Shares issued to them in the Merger or the Exchange. Additionally, the Holdco Ordinary Shares held by each party to the Registration Rights and Lock-Up Agreement will be subject to a lock-up until (i) the date that is 365 days from the Closing Date, and (ii) such date on which Holdco completes a liquidation, merger, share exchange or other similar transaction that results in all of the shareholders of Holdco having the right to exchange their Holdco Ordinary Shares for cash, securities or other property, provided that if the share price of the Holdco Ordinary Shares exceeds $12.00 per Holdco Ordinary Share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-day trading period, the parties to the Registration Rights and Lock-Up Agreement may transfer up to 50% of the Holdco Ordinary Shares subject to the Registration Rights and Lock-Up Agreement.

 

The foregoing description of the Registration Rights and Lock-Up Agreement is qualified in its entirety by reference to the full text of the form of Registration Rights and Lock-Up Agreement, a copy of which is included as Exhibit 10.5 to this 8-K, and incorporated herein by reference.

 

The descriptions of the Business Combination Agreement, the Exchange Agreements, the Transaction Support Agreement, the Backstop Agreement, the SPAC Warrant Amendment and Assignment, the Registration Rights and Lock-Up Agreement and the Transactions do not purport to be complete and are qualified in their entirety by the terms and conditions of the Business Combination Agreement, the form of Exchange Agreement, the Transaction Support Agreement, the Backstop Agreement, the form of SPAC Warrant Amendment and Assignment, and the form of the Registration Rights and Lock-Up Agreement filed as Exhibits 2.1, 10.1, 10.2, 10.3, 10.4 and 10.5, respectively. The Business Combination Agreement, the form of Exchange Agreement, the Backstop Agreement, the form of SPAC Warrant Amendment and Assignment , the Transaction Support Agreement and the form of the Registration Rights and Lock-Up Agreement have been included as an exhibit to this 8-K to provide investors with information regarding their respective terms. They are not intended to provide any other factual information about Registrant, the Company, or any other party to the Business Combination Agreement, the Exchange Agreements, the Backstop Agreement, the SPAC Warrant Amendment and Assignment, the Transaction Support Agreement, the Registration Rights and Lock-Up Agreement or any related agreement. In particular, the representations, warranties, covenants and agreements contained in the Business Combination Agreement, the Exchange Agreements, the Backstop Agreement, the Transaction Support Agreement, the SPAC Warrant Amendment and Assignment and the Registration Rights and Lock-Up Agreement, which were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to the Business Combination Agreement, the Exchange Agreements, the Backstop Agreement, the Transaction Support Agreement, the SPAC Warrant Amendment and Assignment and the Registration Rights and Lock-Up Agreement, are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreements, are subject to standards of materiality applicable to the contracting parties that may differ from those applicable to investors and security holders, and are modified in important part by the underlying disclosure schedules which are not filed publicly. Investors and security holders are not third-party beneficiaries under the Business Combination Agreement, the Exchange Agreements, the Backstop Agreement, the Transaction Support Agreement, the SPAC Warrant Amendment and Assignment or the Registration Rights and Lock-Up Agreement and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Business Combination Agreement, the Exchange Agreements, the Backstop Agreement, the Transaction Support Agreement, the SPAC Warrant Amendment and Assignment or the Registration Rights and Lock-Up Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Business Combination Agreement, the Exchange Agreements, the Backstop Agreement, the Transaction Support Agreement, the SPAC Warrant Amendment and Assignment or the Registration Rights and Lock-Up Agreement, which subsequent information may or may not be fully reflected in Registrant’s public disclosures.

 

Amendment to Business Combination Marketing Agreement

 

On January 8, 2020, the Registrant entered into that certain Business Combination Marketing Agreement (“BCMA”) with EarlyBirdCapital, Inc. (“EBC”). It is a condition to the consummation of the transactions contemplated by the Business Combination Agreement that Registrant and EBC enter into an amendment to the BCMA to provide for, among other things, a change in the compensation to be payable to EBC upon the Closing of the Business Combination. On June 14, 2022, the Registrant and EBC executed an amendment to the BCMA (the “Amendment”) whereby the Registrant shall pay to EBC (A) a Cash Fee at Closing equal to (i) 20% of the aggregate gross proceeds (up to a maximum of $3,830,000) held in the Trust Account (after redemptions and reduction of all additional payments included in the Trust Account to accommodate all extensions) and received by the Registrant in any financing in connection with the Business Combination regardless of the source of such funds, plus (ii) $1,000,000 and (B) in consideration of EBC introducing the Company to Registrant, Holdco shall issue to EBC a number of ordinary shares of Holdco equal to $2,000,000 divided by the lesser of (y) the volume weighted average price of Holdco’s ordinary shares for the ten trading days preceding the six month anniversary of the Closing and (z) $10.00, up to a maximum of 600,000 shares (the “Share Fee”). The Share Fee shall be issued to EBC within five business days of the six month anniversary of the Closing, and Holdco shall register the resale of the ordinary shares issued to EBC as promptly as practicable after their issuance. The Sponsor shall forfeit to Holdco for cancellation the same number of shares of common stock payable to EBC under such Share Fee. A copy of the Amendment is filed as Exhibit 10.6 to this 8-K and is incorporated herein by reference, and the foregoing description of the Amendment is qualified in its entirety by reference thereto.

 

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Item 7.01 Regulation FD Disclosure.

 

On June 15, 2022, SPAC and the Company issued a joint press release announcing the execution of the Business Combination Agreement, which is attached hereto as Exhibit 99.1 and incorporated by reference herein. The investor presentation dated June 2022 that SPAC and the Company have prepared for use in connection with the announcement of the Transactions is attached hereto as Exhibit 99.2 and incorporated by reference herein. A script of the management remarks made during the announcement conference call is attached hereto as Exhibit 99.3 and is incorporated by reference herein.

 

The information in this Item 7.01, including Exhibits 99.1, 99.2 and 99.3, shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwise be subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.

 

Additional Information and Where to Find It

 

In connection with the Transactions, Holdco which is expected to become the holding company of the Company and SPAC, is expected to file a registration statement on Form F-4 (the “Form F-4”) with the SEC that will include a proxy statement of SPAC that will also constitute a prospectus of Holdco. Each of SPAC, the Company and Holdco urge investors, shareholders and other interested persons to read, when available, the Form F-4, including the preliminary proxy statement/prospectus and amendments thereto and the definitive proxy statement/prospectus and documents incorporated by reference therein, as well as other documents filed with the SEC in connection with the Transactions, as these materials will contain important information about Holdco, the Company, SPAC and the Transactions. Such persons can also read SPAC’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, for a description of the security holdings of SPAC’s officers and directors and their respective interests as security holders in the consummation of the Transactions. When available, the definitive proxy statement/prospectus will be mailed to SPAC’s shareholders. Shareholders will also be able to obtain copies of such documents, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to: LightJump Acquisition Corporation, 2735 Sand Hill Road, Suite 110, Menlo Park, CA 94025.

 

Participants in Solicitation

 

SPAC, Holdco and the Company and their respective directors, executive officers and other members of their management and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of SPAC’s shareholders in connection with the Transactions. Investors and security holders may obtain more detailed information regarding the names, affiliations and interests of SPAC’s directors and executive officers in SPAC’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, which was filed with the SEC on April 12, 2022. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies of SPAC’s shareholders in connection with the Transactions will be set forth in the proxy statement/prospectus for the Transactions when available. Information concerning the interests of SPAC’s participants in the solicitation, which may, in some cases, be different than those of SPAC’s equity holders generally, will be set forth in the proxy statement/prospectus relating to the Transactions when it becomes available.

 

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Forward-Looking Statements

 

This 8-K contains certain forward-looking statements within the meaning of the federal securities laws, including statements regarding the benefits of the Transactions, the anticipated timing of the Transactions and the products offered by the Company and the markets in which it operates Forward-looking statements may be identified by the use of words such as "forecast," "intend," "seek," "target," “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Such forward-looking statements also include the expected gross cash proceeds from the transaction; expected future capitalization; the expected listing of the shares of Holdco and the closing of the transaction; the growth of Holdco’s business and its ability to realize expected results; the business model of Holdco relating to any partnerships, commercial contracts, regulatory approvals or patent filings; the viability of its growth and commercial strategy; the success, cost and timing of its product development abilities; and the advantages and potential of Holdco’s technology and products, including in comparison to competing technologies and products and trends and developments in the industry. Such statements are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 and are based on management’s belief or interpretation of information currently available. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this document, including, but not limited to: (i) the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect the price of SPAC’s securities, (ii) the risk that the transaction may not be completed by SPAC’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by SPAC, (iii) the failure to satisfy the conditions to the consummation of the Transactions, including the adoption of the Business Combination Agreement by the shareholders of SPAC, the satisfaction of the minimum trust account amount following redemptions by SPAC’s public shareholders and the receipt of certain governmental and regulatory approvals, (iv) the lack of a third party valuation in determining whether or not to pursue the Transactions, (v) the occurrence of any event, change or other circumstance that could give rise to the termination of the Business Combination Agreement, (vi) the impact of COVID-19 on the Company’s business and/or the ability of the parties to complete the Transactions; (vii) the effect of the announcement or pendency of the Transactions on the Company’s business relationships, performance, and business generally, (viii) risks that the Transactions disrupt current plans and operations of the Company and potential difficulties in the Company’s employee retention as a result of the Transactions, (ix) the outcome of any legal proceedings that may be instituted against the Company, Holdco or SPAC related to the Business Combination Agreement or the Transactions, (x) the ability to maintain the listing of SPAC’s securities on the NASDAQ Stock Market, (xi) the price of SPAC’s and the post-combination company’s securities may be volatile due to a variety of factors, including changes in the competitive and highly regulated industries in which the Company operates, variations in performance across competitors, changes in laws and regulations affecting the Company’s business and changes in the combined capital structure, (xii) the ability to implement business plans, forecasts, and other expectations after the completion of the Transactions, and identify and realize additional opportunities, (xiii) the risk of downturns and the possibility of rapid change in the highly competitive industry in which the Company operates, (xiv) the risk that the Company and its current and future collaborators are unable to successfully develop and commercialize the Company’s products, or experience significant delays in doing so, (xv) the risk that the post-combination company may never achieve or sustain profitability; (xvi) the risk that the post-combination company will need to raise additional capital to execute its business plan, which may not be available on acceptable terms or at all; (xvii) the risk that the post-combination company experiences difficulties in managing its growth and expanding operations, (xviii) the risk that third-parties suppliers and manufacturers are not able to fully and timely meet their obligations; (xix) the risk of product liability or regulatory lawsuits or proceedings relating to the Company’s products and services; (xxii) the risk that the Company is unable to secure or protect its intellectual property; and (xxiii) the risk that the post-combination company’s securities will not be approved for listing on the NASDAQ Stock Market or if approved, maintain the listing. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of SPAC’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, the registration statement on Form S-1 related to SPAC’s initial public offering, the proxy statement/prospectus discussed above and other documents filed by SPAC from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and Holdco, the Company and SPAC assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither Holdco, the Company nor SPAC gives any assurance that either Holdco, the Company or SPAC will achieve its expectations.

 

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No Offer or Solicitation

 

This 8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Transactions and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of SPAC, the Company or Holdco, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, or exemptions therefrom.

 

Item 9.01. Financial Statements and Exhibits

 

(d) Exhibits.

 

The Exhibit Index is incorporated by reference herein.

 

EXHIBIT INDEX

 

Exhibit No.   Description
2.1*   Business Combination Agreement dated as of June, 14, 2022, by and among SPAC, Company, Holdco, and Merger Sub
10.1   Form of Exchange Agreement
10.2  

Backstop Agreement dated as of June 14, 2022, by and among SPAC, Company, Holdco, UG Holdings, LLC, Union Group Ventures Limited, THEO I SCSp and Sponsor

10.3   Transaction Support Agreement dated as of June 14, 2022, by and among SPAC, Sponsor, the Company, Holdco, certain Company Shareholders, SAFE Holders and SPAC Holders
10.4   Form of SPAC Warrant and Assignment Agreement
10.5   Form of Registration Rights and Lock-Up Agreement
10.6  

Amendment to Business Combination Marketing Agreement, dated June 14, 2022, between SPAC and EarlyBirdCapital, Inc.

99.1   Joint Press Release of SPAC and the Company, dated June 15, 2022
99.2   Investor Presentation of SPAC and the Company, dated June 2022
99.3   Investor Conference Call Script dated June 15, 2022
104   Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

*Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished supplementally to the SEC upon request.

 

7

 

 

SIGNATURE

 

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

 

Dated: June 15, 2022

 

  LIGHTJUMP ACQUISITION CORP.
       
  By: /s/ Robert Bennett
    Name:  Robert Bennett
    Title: Chief Executive Officer

 

 

8

 

Exhibit 2.1

 

Execution Version

 

BUSINESS COMBINATION AGREEMENT

 

by and among

 

LIGHTJUMP ACQUISITION CORPORATION,

 

MOOLEC SCIENCE SA,

 

MOOLEC ACQUISITION, INC.,

 

AND

 

MOOLEC SCIENCE LIMITED,

 

Dated as of June 14, 2022

 

 

 

 

TABLE OF CONTENTS

 

    Page
     
ARTICLE I DEFINITIONS 2
     
Section 1.01 Certain Definitions 2
Section 1.02 Further Definitions 15
Section 1.03 Construction 17
     
ARTICLE II MERGER; POST-MERGER 18
     
Section 2.01 The Merger 18
Section 2.02 Pre-Merger Actions 18
Section 2.03 Closing; Merger Effective Time 18
Section 2.04 Effect of the Merger 19
Section 2.05 Articles; Organizational Documents 19
Section 2.06 Directors and Officers 20
Section 2.07 Tax Treatment of the Exchange and the Merger 20
Section 2.08 Withholding 20
     
ARTICLE III EXCHANGE 21
     
Section 3.01 Exchange of Securities 21
Section 3.02 Exchange Consideration 21
Section 3.03 Exchange of Certificates 22
Section 3.04 Stock Transfer Books 24
Section 3.05 SPAC Warrants 24
Section 3.06 Appraisal Rights 24
     
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY 25
     
Section 4.01 Organization and Qualification; Subsidiaries 25
Section 4.02 Organizational Documents 25
Section 4.03 Capitalization 26
Section 4.04 Authority Relative to this Agreement 27
Section 4.05 No Conflict; Required Filings and Consents 27
Section 4.06 Permits; Compliance 28
Section 4.07 Financial Statements 28
Section 4.08 Absence of Certain Changes or Events 30
Section 4.09 Absence of Litigation 30
Section 4.10 Employee Benefit Plans 30
Section 4.11 Labor and Employment Matters 32
Section 4.12 Real Property; Title to Assets 34
Section 4.13 Intellectual Property 35
Section 4.14 Taxes 37
Section 4.15 Environmental Matters 39
Section 4.16 Material Contracts 39
Section 4.17 Insurance 42
Section 4.18 Board Approval; Vote Required 42
Section 4.19 Certain Business Practices 42
Section 4.20 Product Warranty; Product Liability. 43

 

i

 

 

Section 4.21 Compliance with Regulatory Laws 43
Section 4.22 Interested Party Transactions 44
Section 4.23 Exchange Act 45
Section 4.24 Brokers 45
Section 4.25 Sanctions, Import Control, and Export Control Laws 45
Section 4.26 Exchange Agreements. 45
Section 4.27 Exclusivity of Representations and Warranties 46
     
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SPAC 46
     
Section 5.01 Corporate Organization 46
Section 5.02 SPAC Organizational Documents 47
Section 5.03 Capitalization 47
Section 5.04 Authority Relative to this Agreement 47
Section 5.05 No Conflict; Required Filings and Consents 48
Section 5.06 Compliance 48
Section 5.07 SEC Filings; Financial Statements; Sarbanes-Oxley 48
Section 5.08 Absence of Certain Changes or Events 50
Section 5.09 Absence of Litigation 50
Section 5.10 Board Approval; Vote Required 50
Section 5.11 Brokers 50
Section 5.12 SPAC Trust Fund 50
Section 5.13 Employees 51
Section 5.14 Taxes 51
Section 5.15 Listing 53
Section 5.16 Prior Business Operation 53
Section 5.17 SPAC Material Contracts 53
Section 5.18 Investment Company Act 53
Section 5.19 Proxy Statement/Prospectus and Registration Statement 53
Section 5.20 SPAC’s Investigation and Reliance 53
     
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF HOLDCO AND MERGER SUB 54
     
Section 6.01 Organization 54
Section 6.02 Organization Documents 54
Section 6.03 Capitalization 54
Section 6.04 Authority Relative to this Agreement 55
Section 6.05 No Conflict; Required Filings and Consents 55
Section 6.06 Compliance 56
Section 6.07 Board Approval; Vote Required 56
Section 6.08 No Prior Operations of Holdco or Merger Sub; Post-Closing Operations 56
Section 6.09 Brokers 56
Section 6.10 Proxy Statement/Prospectus and Registration Statement 56
Section 6.11 Tax Matters 57
     
ARTICLE VII CONDUCT OF BUSINESS PENDING THE MERGER 57
     
Section 7.01 Conduct of Business by the Company, Holdco and Merger Sub Pending the Merger 57
Section 7.02 Conduct of Business by SPAC Pending the Merger 61
Section 7.03 Claims Against Trust Account 62
Section 7.04 SPAC Public Filings 63

ii

 

 

ARTICLE VIII ADDITIONAL AGREEMENTS 63
     
Section 8.01 Proxy Statement; Registration Statement 63
Section 8.02 SPAC Shareholders’ Meetings 65
Section 8.03 Access to Information; Confidentiality 67
Section 8.04 Employee Matters 67
Section 8.05 Directors’ and Officers’ Indemnification 69
Section 8.06 Notification of Certain Matters 70
Section 8.07 Further Action; Reasonable Best Efforts 70
Section 8.08 Public Announcements 70
Section 8.09 Tax Matters 71
Section 8.10 Stock Exchange Listing 72
Section 8.11 Delisting and Deregistration 72
Section 8.12 Antitrust 72
Section 8.13 PCAOB Financials 73
Section 8.14 Backstop Agreement 73
Section 8.15 Exclusivity 74
Section 8.16 Trust Account 74
Section 8.17 Treatment of Interested Party Transactions 74
Section 8.18 EU Securities Regulation 75
Section 8.19 Opinion of the Financial Advisor 75
Section 8.20 SPAC Extension Proposal 75
     
ARTICLE IX CONDITIONS TO THE MERGER 76
     
Section 9.01 Conditions to the Obligations of Each Party 76
Section 9.02 Conditions to the Obligations of SPAC 77
Section 9.03 Conditions to the Obligations of the Company 78
     
ARTICLE X TERMINATION, AMENDMENT AND WAIVER 79
     
Section 10.01 Termination 79
Section 10.02 Notice of Termination; Effect of Termination 80
Section 10.03 Expenses 80
Section 10.04 Amendment 81
Section 10.05 Waiver 81
     
ARTICLE XI GENERAL PROVISIONS 81
     
Section 11.01 Notices 81
Section 11.02 Non-Survival of Representations, Warranties and Covenants 82
Section 11.03 Severability 82
Section 11.04 Entire Agreement; Assignment 83
Section 11.05 Parties in Interest; Non-Recourse 83
Section 11.06 Governing Law 83
Section 11.07 Waiver of Jury Trial 84
Section 11.08 Headings 84
Section 11.09 Counterparts 84
Section 11.10 Specific Performance 84
Section 11.11 Drafting of the Agreement 84
Section 11.12 Provision Respecting Legal Representation. 84 

 

iii

 

 

 

EXHIBITS  
   
EXHIBIT A Registration Rights and Lock-Up Agreement
   
EXHIBIT B-1 Amended and Restated SPAC COI
   
EXHIBIT B-2 Amended and Restated SPAC Bylaws
   
EXHIBIT C A&R Holdco Organizational Documents
   
EXHIBIT D SPAC Warrant Amendment and Assignment
   
  SCHEDULES
   
SCHEDULE A Company Knowledge Parties
   
  APPENDIXES
   
APPENDIX A Illustrative Capitalization Table
   
APPENDIX B Illustrative SPAC Transaction Expenses

 

iv

 

 

This BUSINESS COMBINATION AGREEMENT is made and entered into as of June 14, 2022 (this “Agreement”), by and among LightJump Acquisition Corporation, a Delaware corporation (“SPAC”), Moolec Science Limited, a private limited company incorporated under the laws of England and Wales (the “Company”), Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg, with its registered office at 17, Boulevard F.W. Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) under number B268440 (“Holdco”), and Moolec Acquisition, Inc., a Delaware corporation (“Merger Sub”). Each of SPAC, Holdco, the Company, and Merger Sub shall individually be referred to herein as a “Party” and, collectively, the “Parties”.

 

WHEREAS, SPAC is a special purpose acquisition company incorporated under the laws of Delaware for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities;

 

WHEREAS, each of Holdco and Merger Sub is an entity newly formed for the purposes of the transactions proposed herein, Holdco is wholly-owned by the Company Shareholders and Merger Sub is a direct wholly-owned subsidiary of Holdco;

 

WHEREAS, upon the terms and subject to the conditions of this Agreement and those certain individual Contribution and Exchange Agreements, each dated as of the date hereof (collectively, the “Exchange Agreements”), by and among Holdco, the Company and each of the Company Shareholders, and in accordance with the Companies Act 2006 (as amended from time to time, the “Companies Act”), the Luxembourg Law of 10 August 1915 on commercial companies (as amended from time to time, the “1915 Law”), and the Delaware General Corporation Law (as amended from time to time, the “DGCL”), SPAC, Holdco, Merger Sub and the Company will enter into a business combination transaction pursuant to which, among other things, (a) pursuant to the Exchange Agreements, each of the Company Shareholders, effective on the Exchange Effective Time, will contribute its respective Company Ordinary Shares to Holdco in exchange for Holdco Ordinary Shares to be subscribed for by each such Company Shareholder (such contributions and exchanges of Company Ordinary Shares for Holdco Ordinary Shares, collectively, the “Exchange”), (b) as a result of the Exchange, the Company will become a wholly-owned subsidiary of Holdco and the Company Shareholders will increase the number of issued and outstanding Holdco Ordinary Shares held by them, in accordance with the Exchange Agreements, (c) immediately prior to the consummation of the Merger, each of the Company SAFE Holders will receive and become holders of issued and outstanding Holdco Ordinary Shares, in accordance with the applicable Company SAFE, (d) following the consummation of the Exchange, Merger Sub will merge with and into SPAC, with SPAC surviving such merger and becoming a direct wholly-owned subsidiary of Holdco (the “Merger”) and, in the context of the Merger, all SPAC Common Stock outstanding shall be exchanged with Holdco for the right to receive the Merger Consideration in the form of Holdco Ordinary Shares pursuant to a share capital increase of Holdco, as set forth in this Agreement, and (e) in order to satisfy the Company’s obligations under that certain Consulting Agreement, dated June 18, 2021 (the “CFO Consulting Agreement”), by and between the Company and the Company’s Chief Financial Officer (“CFO”), , CFO will be freely allotted an aggregate of 243,774 Holdco Ordinary Shares (the “CFO Free Shares”);

 

1

 

 

WHEREAS, in connection with the Exchange and Merger, the Parties desire for Holdco to register with the SEC to become a publicly traded company;

 

WHEREAS, each of the Company Shareholders and Board of Directors of the Company (the “Company Board”) have unanimously (a) determined that the Transactions are in the best interests of the Company and the Company Shareholders and (b) approved this Agreement, the Transaction Documents to which the Company is or will be a party, and the Transactions;

 

WHEREAS, the Board of Directors of SPAC (the “SPAC Board”) has unanimously (a) determined that the Merger and the other Transactions are in the best interests of SPAC, (b) adopted a resolution approving this Agreement and declaring its advisability and approving the Merger and the other Transactions, and (c) recommended the approval and adoption of this Agreement, the Merger and the other Transactions by the shareholders of SPAC (the “SPAC Shareholders”);

 

WHEREAS, the Board of Directors of Holdco (the “Holdco Board”) has unanimously determined that the Transactions are in the best interests of Holdco and has approved this Agreement, the Transaction Agreements to which Holdco is or will be a party, and the Transactions;

 

WHEREAS, the Board of Directors of Merger Sub (the “Merger Sub Board”) has unanimously (a) determined that this Agreement, the Merger and the other Transactions are in the best interests of Merger Sub, (b) adopted a resolution approving this Agreement and declaring its advisability and approving the Merger and the other Transactions, and (c) recommended the approval and adoption of this Agreement and the Merger by Holdco (as the sole shareholder of Merger Sub);

 

WHEREAS, in connection with the Closing, SPAC, Holdco, Sponsor, each of the persons and entities listed on Exhibit A attached thereto and the Company Shareholders, Company SAFE Holders and CFO shall enter into a Registration Rights and Lock-Up Agreement (“Registration Rights and Lock-Up Agreement”) substantially in the form attached hereto as Exhibit A;

 

WHEREAS, contemporaneously with the execution of this Agreement, each of Union Group Ventures Limited, UG Holdings, LLC, THEO I SCSp and LightJump One Founders, LLC (“Sponsor”) has entered into a Backstop Agreement (the “Backstop Agreement”), guaranteeing, severally but not jointly, the funding of certain amounts as set forth therein;

 

WHEREAS, pursuant to the Backstop Agreement, immediately prior to the Closing, Sponsor agrees to transfer to UG Holdings, LLC (or its designated affiliate) 1,035,000 shares of SPAC Common Stock.

 

WHEREAS, for U.S. federal income Tax purposes, the Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a)(1)(A) of the Code by reason of Section 368(a)(2)(E) of the Code, and the Merger and the Exchange are being undertaken as part of a prearranged, integrated plan and are intended to qualify as exchanges described in Section 351 of the Code and the Treasury Regulations promulgated thereunder; and

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

 

ARTICLE I
DEFINITIONS

 

SECTION 1.01 Certain Definitions. For purposes of this Agreement:

 

Accounting Principles” means GAAP in case of SPAC and IFRS in case of the Company and Company Subsidiaries under the Financial Statements, in each case, as in effect from time to time.

 

affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person.

 

Ancillary Agreements” means the Exchange Agreements, the Registration Rights and Lock-Up Agreement, the Backstop Agreement, the Transaction Support Agreement and all other agreements, certificates and instruments executed and delivered by SPAC, Holdco, Merger Sub or the Company in connection with the Transactions and specifically contemplated by this Agreement.

 

Anti-Corruption Laws” means (a) the UK Bribery Act 2010, (b) the U.S. Foreign Corrupt Practices Act 1977, as amended, (b) anti-bribery legislation promulgated by the European Union and implemented by its member states, (c) legislation adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and (d) other similar laws, regulations, rules and guidance (having the force of law) of any jurisdiction applicable to SPAC, Holdco, Merger Sub or the Company concerning or relating to bribery or corruption.

 

2

 

 

Anti-Money Laundering Laws” means all laws, rules, regulations, and guidance (having the force of law) of any jurisdiction applicable to SPAC, Holdco, Merger Sub or the Company concerning terrorist financing or Money Laundering, including, without limitation, (a) the Money Laundering Control Act of 1986, (b) the USA PATRIOT Act, and (b) the Bank Secrecy Act.

 

Average SPAC Share Price” means the average of the volume weighted averages of the trading prices of the SPAC Common Stock on Nasdaq (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source mutually selected by the Parties) on each of the ten (10) consecutive trading days ending on (and including) the trading day that is three (3) trading days prior to the date of the Merger Effective Time.

 

Business Data” means all business information and data, including Personal Information (whether of employees, contractors, consultants, customers, consumers, or other persons and whether in electronic or any other form or medium) that is accessed, collected, used, processed, stored, shared, distributed, transferred, disclosed, destroyed, or disposed of by any of the Business Systems or otherwise in the course of the conduct of the business of the Company or any Company Subsidiaries.

 

Business Day” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings and on which banks are not required or authorized to close in the City of New York in the United States of America, in London, England or Luxembourg in the Grand Duchy of Luxembourg; 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.

 

Business Systems” means all Software, computer hardware (whether general or special purpose), electronic data processing, information, record keeping, communications, telecommunications, networks, interfaces, platforms, servers, peripherals, and computer systems, including any outsourced systems and processes, that are owned or used in the conduct of the business of the Company or any Company Subsidiaries.

 

Code” means the United States Internal Revenue Code of 1986, as amended.

 

Company Board Approval” means the Company Board resolutions approving and authorizing (a) this Agreement, the Transaction Documents to which the Company is or will be a party, and the Transactions, and (b) the Exchange Issuance.

 

Company IP” means, collectively, all Company-Owned IP and Company-Licensed IP.

 

Company-Licensed IP” means all Intellectual Property rights owned or purported to be owned by a third party and licensed to the Company or any Company Subsidiary or to which the Company or any Company Subsidiary otherwise has a right to use.

 

3

 

 

Company Material Adverse Effect” means any Effects that, individually or in the aggregate with all other Effects, (a) is or would reasonably be expected to be materially adverse to the business, condition (financial or otherwise), assets, liabilities or operations of the Company and the Company Subsidiaries taken as a whole or (b) does or would prevent, materially delay or materially impede the performance by the Company of its obligations under this Agreement or the consummation of the Exchange, Merger or any of the other Transactions; providedhowever, that none of the following shall be deemed to constitute, alone or in combination, or be taken into account in the determination of whether there has been or will be, a Company Material Adverse Effect: (i) any enactment of, change or proposed change in or change in the interpretation of any Law or Accounting Principles; (ii) Effects generally affecting the industries or geographic areas in which the Company or any of the Company Subsidiaries operate; (iii) any downturn in general economic conditions, including changes in the credit, debt, securities, financial or capital markets (including changes in interest or exchange rates, prices of any security or market index or commodity or any disruption of such markets); (iv) acts of war (whether or not declared), sabotage, civil unrest, terrorism, curfews, riots, demonstrations or public disorders, or any escalation or worsening of any such acts of war, sabotage, civil unrest, terrorism, curfews, riots, demonstrations or public disorders, or changes in global, national, regional, state or local political or social conditions; (v) any hurricane, tornado, flood, earthquake, natural disaster, or other acts of God; (vi) Effects arising from or relating to epidemics, pandemics, or disease outbreaks, including COVID-19 or any COVID-19 Measures; (vii) any actions taken or not taken by the Company or any of the Company Subsidiaries as specifically required by this Agreement or any Ancillary Agreement, (viii) the announcement or execution, pendency, negotiation or consummation of the Merger, the Exchange or any of the other Transactions (including the impact thereof on relationships with customers, suppliers, employees or Governmental Authorities); provided that this clause (viii) shall not apply in determining a Company Material Adverse Effect resulting from a breach of the representations and warranties set forth in Section 4.05; (ix) any failure by the Company or any of the Company Subsidiaries to meet any projections, forecasts, guidance, estimates, milestones, budgets or financial or operating predictions of revenue, earnings, cash flow or cash position, provided that this clause (ix) shall not prevent a determination that any change, event, or occurrence underlying such failure has resulted in a Company Material Adverse Effect; (x) any pending or initiated Action against the Company, any of the Company Subsidiaries or any of their respective officers or directors, in each case, arising out of or relating to the execution of this Agreement, any Ancillary Agreements or any of the Transactions (other than any Action (A) commenced by any Party to enforce its rights under this Agreement or any Ancillary Agreement to which it is a party or (B) resulting from or arising from a breach of the representations and warranties set forth in Section 4.05); (xi) any action taken by SPAC; or (xii) any actions taken, or failures to take action, or such other changes or events, in each case, which SPAC has specifically requested or to which it has specifically consented or which actions are specifically contemplated by this Agreement or any Ancillary Agreement, in each case, except in the cases of clauses (i) through (vi), to the extent that the Company and the Company Subsidiaries, taken as a whole, are disproportionately affected thereby as compared with other participants in the industries or geographic areas in which the Company and the Company Subsidiaries operate.

 

Company Ordinary Shares” means the Company’s ordinary shares, with a nominal value of £0.01 per share representing the entire issued share capital of the Company.

 

Company Organizational Documents” means the memorandum and articles of association of the Company, as amended, modified or supplemented from time to time, including as contemplated in Section 2.05(c).

 

Company-Owned IP” means all Intellectual Property rights owned or purported to be owned by the Company or any of the Company Subsidiaries.

 

Company Requisite Approvals” means the Company Board Approval.

 

Company SAFE” means each of the simple agreement for future equity by and between the Company and the Company SAFE Holder named therein (an “Original SAFE”) or any simple agreement for future equity between Holdco and that Company SAFE Holder issued in consideration for the contribution by the Company SAFE Holder of its rights in the Original SAFE to Holdco (in which case the Original SAFE will cease to be a “Company SAFE”) with such adjustments (if any) required under Luxembourg law.

 

Company SAFE Holder” means each Person that has entered into a Company SAFE.

 

Company Shareholders” means the holders of all of the Company Ordinary Shares and all other shares being Equity Interest as of immediately prior to the Exchange Effective Time.

 

Company Shareholders’ Agreements” means the shareholders’ agreements, put option agreements, pledge agreements and similar agreements entered into by and among the Company and one or more of the Company Shareholders, other than agreements entered into on or about the date hereof by the Company and one or more of the Company Shareholders in connection with any of the Transactions, each of which will expire on or prior to the Closing Date in accordance with the Termination Agreements.

 

4

 

 

Company Shareholders’ Agreements Liens” means the Liens under the Company Shareholders’ Agreements, each of which will expire on or prior to the Closing Date in accordance with the Termination Agreements.

 

Company Transaction Expenses” means the reasonable and documented Transaction Expenses of the Company or any of its affiliates, including, without limitation, (a) Transaction Expenses incurred in the negotiation and preparation of this Agreement, the Ancillary Agreements and the other documents contemplated hereby and thereby and the performance and compliance with all agreements and conditions contained herein and therein, (b) Transaction Expenses incurred in preparing and obtaining the PCAOB Financials, (c) Transaction Expenses incurred in connection with obtaining the consent or approval of any person or Governmental Authority in connection with the Transactions, (d) Transaction Expenses incurred in connection with the Transactions (including the formation of Holdco, Merger Sub and the structuring, negotiation and documentation of the Exchange and Merger) and (e) Transaction Expenses incurred in connection with obtaining the D&O Tail Policy. For the avoidance of doubt, the Parties acknowledge and agree that the Company Transaction Expenses include the fees, expenses and disbursements of legal counsel, auditors and accountants, due diligence expenses, advisory and consulting fees and expenses, and other third-party fees.

 

Competing Seller” means a person (including any financial investor or group of financial investors) actively engaged, directly or indirectly, in any one or more of the development, production, marketing, distribution and/or exploitation of any products and/or services, in each case other than the Company, the Company Shareholders and indirect equityholders or any Company Subsidiary.

 

Competing SPAC Transaction” means any merger or business combination between SPAC, on the one hand, and a Competing Seller, on the other hand.

 

Competing Transaction” means any (a) sale or transfer (except in the ordinary course of business consistent with past practices) of all or substantially all of the assets of the Company or any Company Subsidiary to any person or (b) merger or business combination between the Company or any Company Subsidiary, on the one hand, and any other person, on the other hand.

 

Confidential Information” means any information, knowledge or data concerning the businesses and affairs of the Company, the Company Subsidiaries, or any Suppliers or customers of the Company or any Company Subsidiaries or SPAC or its subsidiaries (as applicable) that is not already generally available to the public, including any Intellectual Property rights.

 

control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.

 

COVID-19” means the novel coronavirus known as SARS-CoV-2 or COVID-19, and any evolutions, mutations thereof or related or associated epidemics, pandemic or disease outbreaks.

 

COVID-19 Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, delay, shut down (including the shutdown of air cargo routes), closure, sequester, safety or similar Law, directive, guideline or recommendation promulgated by any Governmental Authority, in each case with or in response to COVID-19.

 

Dataroom” means that certain virtual dataroom named “Moolec Science Limited” and located on Intralinks.

 

Deferred Fees” shall mean the amount of deferred fees held in the Trust Account in connection with SPAC’s initial public offering payable to the underwriters or other advisors upon consummation of a business combination.

 

Disabling Devices” means undisclosed Software viruses, time bombs, logic bombs, trojan horses, trap doors, back doors, or other computer instructions, intentional devices or techniques that are designed to threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, maliciously encumber, hack into, incapacitate, infiltrate or slow or shut down a computer system or any component of such computer system, including any such device affecting system security or compromising or disclosing user data in an unauthorized manner.

 

5

 

 

Dissenting Shares” means the SPAC Common Stock outstanding immediately prior to the Merger Effective Time and held by a SPAC Shareholder who has not voted in favor of the Merger or consented thereto in writing and who has properly demanded appraisal for such SPAC Common Stock in accordance with Section 262 of the DGCL.

 

EarlyBird Amendment” means that certain amendment dated June 14, 2022 to the engagement letter between the SPAC and EarlyBirdCapital, Inc. (“EarlyBird”) dated January 8, 2020 (as amended from time to time, the “EarlyBird Engagement Letter”).

 

EarlyBird Cash Fees” means all cash fees and expenses payable to EarlyBird pursuant to the EarlyBird Engagement Letter.

 

EarlyBird Share Fees” means the shares of Holdco to be issued to EarlyBird pursuant to the EarlyBird Engagement Letter.

 

Effects” means, collectively, events, circumstances, changes and effects.

 

Employee” means any person employed by the Company or any Company Subsidiary.

 

Environmental Laws” means any Law relating to: (a) Releases or threatened Releases of Hazardous Substances or materials containing Hazardous Substances; (b) the presence, manufacture, refining, production, generation, handling, transport, use, treatment, recycling, storage, importing, labeling, testing, disposal, cleanup or control of Hazardous Substances or materials containing Hazardous Substances; (c) pollution or protection of the environment or natural resources; or (d) public health and safety or, as it relates to the handling of or exposure to Hazardous Substances, worker/occupational health and safety.

 

Equity Interest” means all shares of capital stock, common stock, preferred stock, units, ownership interests and any other equity ownership or participation in any Person, including all options, warrants, preemptive rights, calls, convertible securities, simple agreements to acquire future equity, conversion rights or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of any Person.

 

Exchange Effective Time” means the time on which the issuance of the new Holdco Ordinary Shares pursuant to the Holdco Delegate Resolutions is effective on the Closing Date, which shall be the effective time of the contribution and exchange of the Company Ordinary Shares held by the Company Shareholders and exchanged for Holdco Ordinary Shares, as applicable and as contemplated under the Exchange Agreements, and which shall occur immediately prior to the Merger Effective Time.

 

Exchange Ratio” means 0.66787343, the ratio used for determining the number of aggregate Holdco Ordinary Shares for which the aggregate Company Ordinary Shares shall be converted in accordance with Section 2.02(a).

 

Export Control Laws” means export control laws and regulations of any jurisdiction applicable to SPAC, Holdco, Merger Sub or the Company including the U.S. Export Administration Regulations, 15 C.F.R. §§ 730, et seq., as amended, and any other equivalent or comparable export control laws and regulations of other countries.

 

Extension Amendment to the SPAC COI” means an amendment to the SPAC COI to extend the date by which the SPAC must consummate the Transactions from July 12, 2022 to a date no later than 6 months after the date hereof.

 

Extension Amendment Fees” means all fees and expenses incurred by SPAC solely relating to the Extension Amendment to the SPAC COI.

 

6

 

 

GAAP” means generally accepted accounting principles as in effect in the United States from time to time.

 

Governmental Authority” means any U.S. federal, state, county or local or non-U.S. government, governmental, national, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body.

 

Hazardous Substance(s)” means: (a) any substance, material or waste which is regulated by, or for which liability or standards of conduct may be imposed under, any Environmental Law, including any substance, material or waste which is defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “solid waste,” “pollutant,” “contaminant,” “toxic substance,” “toxic waste” or other similar term or phrase under any Environmental Law; (b) petroleum and petroleum products, including crude oil and any fractions thereof; (c) natural gas, natural gas liquids, synthetic gas, and any mixtures thereof; (d) polychlorinated biphenyls, asbestos and asbestos-containing materials, urea formaldehyde, toxic mold, and radon; and (e) per- or polyfluoroalkyl substances.

 

HMRC” means HM Revenue and Customs.

 

Holdco Board Approval” means one or several Holdco Board resolutions with respect to the approval of the Transaction and the Transaction Documents to which Holdco is or will be a party, including, for the avoidance of doubt, (a) the approval by the Holdco Board of the issuance on the Closing Date (and conditional on Closing) by a delegate of (i) new Holdco Ordinary Shares following the Merger as Merger Consideration, and (ii) the CFO Free Shares, both under the authorized share capital of Holdco and pursuant to the Holdco Delegate Merger Resolutions and (b) the issuance of new Holdco Ordinary Shares to the Company Shareholders as part of the Exchange, by a delegate under the authorized share capital of Holdco and pursuant to the Holdco Delegate Exchange Resolutions.

 

Holdco Delegate Exchange Resolutions” means the resolutions taken on the Closing Date by the delegate appointed by the Holdco Board pursuant to the Holdco Board Approval in order to issue on the Closing Date new Holdco Ordinary Shares in the context of the Exchange, under the authorized share capital of Holdco.

 

Holdco Delegate Merger Resolutions” means the resolutions taken on the Closing Date by the delegate appointed by the Holdco Board pursuant to the Holdco Board Approval in order to issue on the Closing Date (i) the Merger Consideration in the form of new Holdco Ordinary Shares and (ii) the CFO Free Shares.

 

Holdco Delegate Resolutions” means the Holdco Delegate Exchange Resolutions and the Holdco Delegate Merger Resolutions.

 

Holdco Ordinary Shares” means the ordinary shares of Holdco, each having a nominal value in US dollars of $0.01.

 

Holdco Organizational Documents” means the Articles of Association of Holdco as amended, modified or supplemented from time to time, including as contemplated by the Holdco Delegate Resolutions and the Holdco Shareholder Approval.

 

Holdco Requisite Approvals” means the Holdco Board Approval, the Holdco Delegate Resolutions and the Holdco Shareholder Approval, as applicable.

 

Holdco Shareholder Approval” means the approval of the extraordinary general meeting of the shareholders of Holdco, being the Company Shareholders, to be held in front of a Luxembourg notary prior to the Closing Date to inter alia implement the A&R Holdco Organizational Documents as contemplated by 2.05(b).

 

IFRS” means the International Financial Reporting Standards, as issued by the IFRS Foundation and the International Accounting Standards Board.

 

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Import Control Laws” means import control laws and regulations of any jurisdiction applicable to SPAC, Holdco, Merger Sub or the Company, including those administered by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement (19 U.S.C. §§ 1-4454 and 19 C.F.R. §§ 1-199), and any other equivalent or comparable import control laws and regulations of other countries.

 

Intellectual Property” means: (a) patents, patent applications and patent disclosures, together with all reissues, continuations, continuations-in-part, divisionals, revisions, extensions or reexaminations thereof; (b) trademarks and service marks, trade dress, logos, trade names, corporate names, brands, slogans, and other source identifiers, and all applications, registrations, and renewals in connection therewith, together with all of the goodwill associated with the foregoing; (c) copyrights, and other works of authorship (whether or not copyrightable), and moral rights, and registrations and applications for registration, renewals and extensions thereof; (d) trade secrets and know-how (including ideas, formulas, compositions, inventions (whether or not patentable or reduced to practice)), customer and supplier lists, improvements, protocols, processes, methods and techniques, research and development information, industry analyses, algorithms, architectures, layouts, drawings, specifications, designs, plans, methodologies, proposals, industrial models, technical data, financial and accounting data (including pricing and cost information), and all other data, databases and database rights; (e) Internet domain names and social media accounts; (f) rights of privacy and publicity and all other intellectual property or proprietary rights of any kind or description recognized under applicable Laws; (g) copies and tangible embodiments of any of the foregoing, in whatever form or medium; and (h) all legal rights arising from items (a) through (f), including the right to prosecute and perfect such interests and rights to sue, oppose, cancel, interfere, and enjoin based upon such interests, including such rights based on past infringement, if any, in connection with any of the foregoing.

 

Inventory” means all inventories of the Company and the Company Subsidiaries wherever located, including (if any) raw materials, goods consigned to vendors or subcontractors, works in process, finished goods, spare parts, goods in transit, and inventory on consignment.

 

knowledge” or “to the knowledge” of a person means in the case of the Company, the actual knowledge of the persons listed on Schedule A (each, a “Company Knowledge Party”) after reasonable inquiry, and in the case of SPAC, the actual knowledge of Robert Bennett, Eric Ver Ploeg and William Bunker, after reasonable inquiry.

 

Law” means any federal, national, state, county, municipal, provincial, local, foreign or multinational, statute, constitution, common law, ordinance, code, decree, order, judgment, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

 

Leased Real Property” means all real property leased, subleased, licensed or sublicensed by the Company or Company Subsidiaries as tenant, subtenant, licensee or sublicensee together with, to the extent leased, subleased, licensed, or sublicensed by the Company or Company Subsidiaries, all buildings and other structures, facilities or improvements located thereon and all easements, licenses, rights and appurtenances of the Company or Company Subsidiaries relating to the foregoing.

 

Lien” means any lien, security interest, mortgage, deeds of trust, pledge, adverse claim, usufruct, option, right of first refusal, right of first offer, charge, claim, equitable interest, easement, encroachment, lease or sublease, or restriction on the right to vote, sell, transfer or otherwise dispose of any capital stock, shares, or other voting securities, or similar encumbrance (other than those created under applicable securities Laws, and not including any license of Intellectual Property).

 

Merger Sub Organizational Documents” means the certificate of incorporation and bylaws of Merger Sub, in each case, as amended, modified or supplemented from time to time.

 

Misrepresentation” means an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.

 

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Money Laundering” means the acquisition, possession, use, conversion, transfer or concealment of the true nature of property of any description, and legal documents or instruments evidencing title to, or interest in, such property, knowing that such property is an economic advantage from criminal offenses, for the purpose of (a) concealing or disguising the illicit origin of the property or (b) assisting any person who is involved in the commission of the criminal offense as a result of which such property is generated, to evade the legal consequences of such actions.

 

Net Available Assets” means an amount, determined as of the Closing (or as of another specified time), equal to (i) the total amount of Trust Account Cash remaining as of the Redemption Closing Time plus (ii) the aggregate amount of any proceeds received by Holdco, SPAC or their respective subsidiaries in connection with any financing, funding, contribution or other amounts raised by the Parties prior to the Closing in connection with the transactions contemplated by this Agreement as a direct result of SPAC’s relationship with EarlyBird (including any funds received as a result of a sale of the securities of Holdco, SPAC or any of their respective subsidiaries); provided that the Net Available Assets shall be determined assuming (a) all payments required to be made to the holders of the SPAC Common Stock exercising Redemption Rights as of the Redemption Closing Time have been paid, (b) no SPAC Transaction Expenses or any EarlyBird Cash Fees have been paid from the Trust Account (and if any such amounts have previously been paid from the Trust Account, such payments shall be added back to Net Available Assets) and (c) no amounts have been funded pursuant to the obligations under the Backstop Agreement.

 

Nasdaq” means the Nasdaq Capital Market, the Nasdaq Global Market or the Nasdaq Global Select Market, as may be applicable.

 

Open Source Software” means any Software that is licensed pursuant to: (a) any license that is a license now or in the future approved by the open source initiative and listed at http://www.opensource.org/licenses, which licenses include all versions of the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL), the GNU Affero GPL, the MIT license, the Eclipse Public License, the Common Public License, the CDDL, the Mozilla Public License (MPL), the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), and the Sun Industry Standards License (SISL); or (b) any license to Software that is considered “free” or “open source software” by the open source foundation or the free software foundation.

 

Payment Spreadsheet” means a spreadsheet that shall be delivered by the Company to SPAC pursuant to Section 3.01(b) at least five (5) Business Days prior to the Closing (except as may otherwise be agreed in writing by the Company and SPAC), which shall set forth, (a) the initial allocation of the Exchange Consideration among the Company Shareholders, (b) the adjustment to the allocation of the Exchange Consideration described in (a) of this definition to account for the economic rights of certain Company Shareholders under the Company Shareholders’ Agreements, in accordance with the Exchange Agreements and Section 2.01 of the Company Disclosure Schedule, (c) any applicable share premium, and (d) the number of Holdco Ordinary Shares, as applicable, issuable to each Company Shareholder in connection with the Exchange.

 

PCAOB” means the Public Company Accounting Oversight Board and any division or subdivision thereof.

 

Permitted Liens” means: (a) such imperfections of title, easements, encumbrances, Liens or restrictions that, individually or in the aggregate, do not materially affect, impair or interfere with the use, ownership, value and maintenance of, or the access to any property affected thereby or the conduct of the business of the Company and/or the Company Subsidiaries; (b) materialmen’s, mechanics’, carriers’, workmen’s, warehousemen’s, repairmen’s, landlord’s and other similar Liens arising or incurred in the ordinary course of business to the extent relating to amounts not yet due and payable, or deposits to obtain the release of such Liens; (c) any Liens for Taxes due and not yet payable, or being contested in good faith; (d) zoning, entitlement, conservation restriction and other land use and environmental regulations promulgated by Governmental Authorities; (e) any Liens not created by the Company that affect the underlying fee interest of any leased real property, including master leases or ground leases and any set of facts that an accurate up-to-date survey would show; (f) non-exclusive licenses, sublicenses or other rights to Intellectual Property owned by or licensed to the Company or the Company Subsidiaries granted to any licensee in the ordinary course of business; (g) any non-monetary Liens, encumbrances and restrictions on real property (including easements, covenants, rights of way and similar restrictions of record) that individually or in the aggregate, do not materially affect, impair or interfere with the use, ownership, value and maintenance of or the access to any real property affected thereby or the conduct of the business of the Company and/or the Company Subsidiaries; (h) any Liens identified in the Financial Statements; or (i) any Liens on leases, subleases, easements, licenses, rights of use, rights to access and rights of way arising from the provisions of such agreements or benefiting or created by any superior estate, right or interest.

 

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person” means an individual, corporation, partnership, limited partnership, limited liability company, company, syndicate, person (including, without limitation, a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.

 

Personal Information” means (a) information related to an identified or identifiable individual (e.g., name, address telephone number, email address, financial account number, government-issued identifier), (b) any other data used or intended to be used or which reasonably allows one to identify, contact, or precisely locate an individual, including any internet protocol address or other persistent identifier, and (c) any other, similar information or data regulated by Privacy/Data Security Laws.

 

Privacy/Data Security Laws” means all laws governing the receipt, collection, use, storage, processing, sharing, security, disclosure, or transfer of Personal Information or the security of Company’s Business Systems or Business Data.

 

Products” mean any products, developed, manufactured, performed, licensed, sold, distributed, delivered or otherwise made available by or on behalf of the Company or any Company Subsidiary, from which the Company or any Company Subsidiary has derived previously, is currently deriving or is scheduled to derive revenue from the sale or provision thereof.

 

Prospectus Regulation” means the Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.

 

Redemption Closing Time” means the end of the day of the last day that the Redemption Rights can be exercised as set forth in the Proxy Statement/Prospectus.

 

Redemption Rights” means the redemption rights provided for in Article V, Section 3 of the SPAC COI.

 

Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping, disposing, or other release into or through the environment, and any abandonment or discarding of barrels, containers, or other closed receptacles containing any Hazardous Substance.

 

Representatives” means, with respect to any Person, such Person’s officers, directors, employees, accountants, consultants, legal counsel, agents, financial advisors, lenders, financing sources and other representatives.

 

Restricted Person” means: (a) any individual or entity that is a citizen or resident of, located in, or organized under the laws of, or acting for or on behalf of, a Sanctioned Country; (b) the government of any Sanctioned Country; (c) any government that is the subject or target of restrictions under Sanctions Law; or (d) any individual or entity that is, and/or any entity that is owned or controlled directly or indirectly by, or acts for or on behalf of individuals or entities that are designated, on any of the following lists, as updated, substituted, or replaced from time to time:

 

(i) the United Nations Security Council’s “Consolidated United Nations Security Council Sanctions List”;

 

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(ii) the lists of persons subject to Sanctions Laws, as administered by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”) including, but not limited to, OFAC’s “Specially Designated Nationals and Blocked Persons List,” the “Foreign Sanctions Evaders,” and the “Sectoral Sanctions Identifications List”;

 

(iii) the U.S. Department of Commerce, Bureau of Industry and Security’s “Entity List,” “Denied Persons List,” or “Unverified List”;

 

(iv) the U.S. Department of State’s list of debarred parties and lists of individuals and entities that have been designated pursuant to sanctions and/or non-proliferation statutes that it administers and related executive orders;

 

(v) the European Union Commission’s “Consolidated list of persons, groups and entities subject to EU financial sanctions” or individuals or entities that are listed in any Annex to EU Council Regulation 833/2014 (as amended);

 

(vi) Her Majesty’s Treasury of United Kingdom’s “Consolidated List of Financial Sanctions Targets in the UK”; and

 

(vii) any additional list promulgated, designated, or enforced by a Sanctions Authority.

 

Sanctionable Activity” means any condition or activity specifically identified under any Sanctions Laws that serves as a basis to designate any person described by such condition or engaged in such activity as a Restricted Person.

 

Sanctioned Country” means at any time, a country or territory that is the target of comprehensive economic or trade sanctions under Sanctions Laws. As of the date of this Agreement, Sanctioned Countries include Cuba, Iran, North Korea, Syria, Government of Venezuela, and the Crimea, Donetsk, and Luhansk regions of Ukraine.

 

Sanctions Authority” means (a) the United Nations Security Council; (b) the U.S. Department of the Treasury; (c) the U.S. Department of Commerce; (d) the U.S. Department of State; (e) the European Union Council and/or Commission (including any present or future member state of the European Union with jurisdiction over any Party); (f) Her Majesty’s Treasury of the United Kingdom; and (g) any other Governmental Authority with authority to enact Sanctions Laws in any country and/or territory with jurisdiction over any Party.

 

Sanctions Laws” means all economic, trade or financial sanctions Laws enacted, adopted, administered, imposed, or enforced from time to time by any Sanctions Authority.

 

Software” means all computer software (in object code or source code format), data and databases, and related documentation and materials.

 

SPAC COI” means the Amended and Restated Certificate of Incorporation of SPAC, as amended, modified or supplemented from time to time, including as contemplated by Section 8.20.

 

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SPAC Material Adverse Effect” means any Effects that, individually or in the aggregate with all other Effects, (a) is or would reasonably be expected to be materially adverse to the business, condition (financial or otherwise), assets, liabilities or operations of SPAC or (b) does or would prevent, materially delay or materially impede the performance by SPAC of its obligations under this Agreement or any of the Ancillary Agreements or the consummation of the Merger or any of the other Transactions; providedhowever, that none of the following shall be deemed to constitute, alone or in combination, or be taken into account in the determination of whether there has been or will be, a SPAC Material Adverse Effect: (i) any enactment of, change or proposed change in or change in the interpretation of any Law or Accounting Principles; (ii) Effects generally affecting the industries or geographic areas in which SPAC operates, (iii) any downturn in general economic conditions, including changes in the credit, debt, securities, financial or capital markets (including changes in interest or exchange rates, prices of any security or market index or commodity or any disruption of such markets); (iv) acts of war (whether or not declared), sabotage, civil unrest, terrorism, curfews, riots, demonstrations or public disorders, or any escalation or worsening of any such acts of war, sabotage, civil unrest, terrorism, curfews, riots, demonstrations or public disorders, or changes in global, national, regional, state or local political or social conditions; (v) any hurricane, tornado, flood, earthquake, natural disaster, or other acts of God; (vi) Effects arising from or relating to epidemics, pandemics, or disease outbreaks, including COVID-19 or any COVID-19 Measures; (vii) any actions taken or not taken by SPAC as specifically required by this Agreement or any Ancillary Agreement; (viii) the announcement or execution, pendency, negotiation or consummation of the Merger or any of the other Transactions (including the impact thereof on relationships with Governmental Authorities); provided that this clause (viii) shall not apply in determining a SPAC Material Adverse Effect resulting from a breach of the representations and warranties set forth in Section 5.05; (ix) any pending or initiated Action against SPAC or any of its officers or directors, in each case, arising out of or relating to the execution of this Agreement or the Transactions (other than any Action (A) commenced by any Party hereto to enforce its rights under this Agreement or any Ancillary Agreement to which it is a party or (B) resulting from or arising from a breach of the representations and warranties set forth in Section 5.05); (x) any action taken or not taken by the Company or any of the Company Subsidiaries; or (xi) any actions taken, or failures to take action, or such other changes or events, in each case, which the Company has specifically requested or to which it has specifically consented or which actions are specifically contemplated by this Agreement, in each case, except in the cases of clauses (i) through (vi), to the extent that SPAC is disproportionately affected thereby as compared with other participants in the industries or geographic areas in which SPAC operates.

 

SPAC Common Stock” means SPAC’s common stock, par value $0.0001 per share.

 

SPAC Extension Proposal” means the proposal to be submitted to the SPAC Shareholders pursuant to a definitive proxy statement filed by SPAC with the SEC and provided to the SPAC Shareholders for the purpose of amending the SPAC Organizational Documents to extend the time period for SPAC, to a date that is at least six months after the date hereof, to consummate a business combination.

 

SPAC Organizational Documents” means the SPAC COI, the bylaws of SPAC and the Trust Agreement, in each case as amended, modified or supplemented from time to time.

 

SPAC Proposals” means proposals made to the SPAC Shareholders pursuant to the SPAC Organizational Documents and applicable Law to approve and adopt (a) this Agreement and the Transactions, including the Merger, (b) the Extension Amendment to the SPAC COI and (c) any other proposals the Parties deem in good faith are necessary or desirable to effect the Transactions.

 

SPAC Shareholder Approvals” means (a) with respect to the Merger, the affirmative vote of a majority of the SPAC Shareholders who attend and vote at the SPAC Shareholders’ Meeting; and (b) with respect to any other Proposals proposed to the SPAC Shareholders, the requisite approval required under the SPAC Organizational Documents, the DGCL or other applicable Law.

 

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SPAC Transaction Expenses” means the reasonable and documented Transaction Expenses of SPAC or any of its affiliates, including (a) any and all Transaction Expenses incurred in the negotiation and preparation of this Agreement, the Ancillary Agreements and the other documents contemplated hereby and thereby and the performance and compliance with all agreements and conditions contained herein and therein, (b) the Sponsor Advanced Funds and (c) the preparation, printing and mailing of the Proxy Statement/Prospectus and the Registration Statement. For the avoidance of doubt, the Parties acknowledge and agree that the SPAC Transaction Expenses include the fees, expenses and disbursements of legal counsel, auditors and accountants, due diligence expenses, advisory and consulting fees and expenses, other third-party fees and any Deferred Fees. For the avoidance of doubt, the Parties acknowledge and agree that (i) any expenses incurred by SPAC in its pursuit of potential acquisition or business targets other than the Company or that were not incurred by SPAC in connection with or in furtherance of the Transactions, (ii) the EarlyBird Cash Fees, (iii) the EarlyBird Share Fees and (iv) the Extension Amendment Fees will not constitute SPAC Transaction Expenses (and will be paid pursuant to Section 10.03). For the avoidance of doubt, Appendix B sets forth an illustrative list of estimated SPAC Transaction Expenses.

 

SPAC Transaction Expenses Cap” means $3,000,000; provided that, for every $10.00 by which the amount equal to the (i) Net Available Assets minus (ii) the EarlyBird Cash Fees exceeds $10,000,000 (up to $25,000,000), the SPAC Transaction Expenses Cap shall be increased by $1.00. If the amount equal to the (i) Net Available Assets minus (ii) the EarlyBird Cash Fees is $25,000,000 or greater, then SPAC Transaction Expenses Cap means $4,500,000.

 

SPAC Unit” means a unit comprising one SPAC Common Stock and one SPAC Warrant.

 

SPAC Warrant Agreement” means that certain warrant agreement, dated as of January 12, 2021 by and between SPAC and the Trustee.

 

SPAC Warrants” means warrants to purchase SPAC Common Stock as contemplated under the SPAC Warrant Agreement, with each warrant exercisable for the number of SPAC Common Stock stated in the applicable SPAC Warrant at an exercise price per SPAC Common Stock of $11.50.

 

Sponsor Advanced Funds” means the amount equal to all contributions made by Sponsor to SPAC prior to the Closing to pay for expenses and fees of SPAC (not including the Extension Amendment Fees), including contributions deemed to be made by paying for such expenses and fees directly on SPAC’s behalf.

 

subsidiary” or “subsidiaries” of the Company, the Surviving Company, SPAC or any other person means an affiliate controlled by such person, directly or indirectly, through one or more intermediaries.

 

Supplier” means any person that supplies inventory or other materials or personal property, components, or other goods or services that are utilized in or comprise the Products of the Company or any of the Company Subsidiaries.

 

Tax” or “Taxes” means any and all federal, state, provincial, local and foreign income, profits, franchise, gross receipts, environmental, capital stock, shares, severances, stamp, payroll, sales, employment, unemployment, disability, use, real property, personal property, unclaimed property, withholding, excise, production, occupancy and other Taxes, VAT, duties or assessments of any nature whatsoever, whenever and wherever imposed, administered, collected or assessed directly or indirectly against or attributable directly or primarily to a company or any other person, together with all interest, fines, costs, charges, surcharges, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions.

 

Tax Return” means any returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns, as well as attachments thereto and amendments thereof) required to be supplied to a Tax authority relating to Taxes.

 

Termination Agreements” means those certain termination agreements entered into by the Company and one or more of the Company Shareholders and pursuant to which all the Company Shareholders’ Agreements and the Company Shareholders’ Agreements Liens will automatically expire on or prior to the Closing Date in accordance with the terms thereunder.

 

Transaction Documents” means this Agreement, including all Schedules and Exhibits hereto, the Company Disclosure Schedule, the Ancillary Agreements, and all other agreements, certificates and instruments executed and delivered by SPAC, Holdco, Merger Sub or the Company in connection with the Transactions and specifically contemplated by this Agreement.

 

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Transaction Expenses” means (a) all out-of-pocket fees, costs and expenses (including all fees, costs and expenses of outside counsel, accountants, investment bankers, experts and consultants to a Party and its affiliates and all fees, costs and expenses in connection with newly issued equity and/or debt financing in connection with the Transactions) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, review, negotiation, execution and performance of this Agreement and the other Transaction Documents and consummation of the Transactions, the Proxy Statement/Prospectus, the Registration Statement and the solicitation of the SPAC Shareholders and Company Shareholders and the preparation of any required filings or notices under applicable Antitrust Laws, if any, and (b) the premiums, commissions and other fees paid or payable in connection with obtaining any directors’ and officers’ “tail” insurance policy.

 

Transactions” means the transactions contemplated by the Transaction Documents, including the Exchange, the Merger and extension under the SPAC Extension Proposal.

 

Transfer Tax” means any sales, use, value-added, business, goods and services, transfer (including any stamp duty or other similar Tax chargeable in respect of any instrument transferring property), documentary, conveyancing or similar Tax or expense or any recording fee, in each case that is imposed as a result of the Transactions, together with any penalty, interest and addition to any such item with respect to such item; provided, however, for the avoidance of doubt, the term Transfer Tax shall not include any income Tax or similar Tax imposed on any direct or indirect equity holder of SPAC, the Company, any Company Subsidiary or Holdco.

 

Treasury Regulations” means the United States Treasury regulations issued pursuant to the Code.

 

Trust Account Cash” means the total amount of cash held in the Trust Account that was raised as a result of the initial public offering of the SPAC (not including any interest paid with respect to such cash or amounts contributed into the Trust Account from other transactions).

 

VAT” means value added Tax.

 

Worker” means any person who personally performs work for the Company but who is not in business on their own account or in a client/customer relationship.

 

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SECTION 1.02 Further Definitions. The following terms have the meaning set forth in the Sections set forth below: 

 

Defined Term

 

Location of Definition

1915 Law   Recitals
A&R Holdco Organizational Documents   § 2.05(b)
Action   § 4.09
Additional SEC Reports   § 7.04(a)
Agreement   Preamble
Antitrust Laws   § 8.12(a)
Blue Sky Laws   § 4.05(b)
DGCL   Recitals
Certificates   § 3.03(b)
CFO   Recitals
Claims   § 7.03
Closing   § 2.03(b)
Closing Date   § 2.03(b)
Companies Act   Recitals
Company   Preamble
Company Board   Recitals
Company Disclosure Schedule   Article IV
Company Permits   § 4.06
Company Plan   § 4.10(b)
Company Subsidiary   § 4.01(a)
Confidentiality Agreement   § 8.03(b)
Continuing Employees   § 8.04(a)
D&O Indemnified Party   § 8.05(a)
D&O Tail Policy   § 8.05(b)
Data Security Requirements   § 4.13(h)
Environmental Permits   § 4.15
ERISA   § 4.10(a)
ERISA Affiliate   § 4.10(c)
Exchange   Recitals
Exchange Act   § 4.23
Exchange Agent   § 3.03(a)
Exchange Agreements   Recitals
Exchange Auditor Report   § 9.01(d)
Exchange Consideration   § 3.02(a)(i)
Exchange Fund   § 3.03(a)
Exchange Issuance   § 2.02(a)
Holdco   Preamble
Holdco Board   Recitals
Holdco Warrant   § 3.05
Insurance Policies   § 4.17(a)
Intended Tax Treatment   § 2.07
IRS   § 4.10(b)
Issued Share Capital   § 4.03(a)

 

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Defined Term

 

Location of Definition

Lease   § 4.12(a)
Lease Documents   § 4.12(a)
Letter of Transmittal   § 3.03(b)
Material Contracts   § 4.16(a)
Merger   Recitals
Merger Auditor Report   § 9.01(d)
Merger Consideration   § 3.01(a)(i)
Merger Effective Time   § 2.03(a)
Merger Issuance   § 3.01(a)(i)
Merger Sub   Preamble
Merger Sub Board   Recitals
Merger Sub Common Stock   § 3.01(a)(iii)
Outside Date   § 10.01(b)
Owned Real Property   § 4.12(a)
Party   Preamble
PCAOB Financials   § 8.13
Plans   § 4.10(a)
Post-Signing Returns   § 8.09(c)(ii)(A)
Proxy Statement/Prospectus   § 8.01(a)
Redemption   § 8.01(a)
Registration Statement   § 8.01(a)
Remedies Exceptions   § 4.04
Representatives   § 8.03(a)
SEC   § 5.07(a)
Securities Act   § 5.07(a)
SPAC   Preamble
SPAC Board   Preamble
SPAC Material Contracts   § 5.17(a)
SPAC SEC Reports   § 5.07(a)
SPAC Shareholders   Recitals
SPAC Shareholders’ Meeting   § 8.01(a)
Surviving Company   § 2.01
Tail Period   § 8.05(b)
Terminating Company Breach   § 10.01(e)
Terminating SPAC Breach   § 10.01(e)
Trust Account   § 5.12
Trust Agreement   § 5.12
Trust Fund   § 5.12
Trustee   § 5.12

 

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SECTION 1.03 Construction. Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or words of similar import refer to this Agreement as a whole, including the schedules and exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause contained in this Agreement, (iv) the terms “Article,” “Section,” “Schedule” and “Exhibit” refer to the specified Article, Section, Schedule or Exhibit of or to this Agreement, (v) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”, (vi) the word “or” shall be disjunctive but not exclusive, (vii) references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto, (viii) references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation, (ix) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”, (x) references to “dollar”, “dollars” or “$” shall be to the lawful currency of the United States, and (xi) the word “shall” and the word “will” indicate a mandatory obligation.

 

(a) The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction shall be applied against any Party.

 

(b) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.

 

(c) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under the applicable Accounting Principles.

 

(d) Whenever this Agreement states that documents or other information have been “made available to” or “provided to” SPAC (including words of similar import), such words shall mean that such documents or information referenced shall have been posted in the Dataroom, or otherwise provided in writing to SPAC and its Representatives, at least two (2) days prior to the date hereof.

 

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ARTICLE II

MERGER; POST-MERGER

 

Section 2.01  The Merger.

 

Subject to the receipt of the Holdco Requisite Approvals on or before the Merger Effective Time, and upon the terms and conditions set forth in this Agreement, and in accordance with the DGCL, at the Merger Effective Time, Merger Sub shall be merged with and into SPAC. As a result of the Merger, the separate existence of Merger Sub shall cease and SPAC shall continue as the surviving company of the Merger (the “Surviving Company”). The consummation of the Exchange shall be a condition precedent to the consummation of the Merger.

 

Section 2.02  Pre-Merger Actions.

 

At the Exchange Effective Time, subject to the receipt of the Company Requisite Approvals, the Holdco Requisite Approvals and the delivery of the Exchange Auditor Report, and in accordance with the Holdco Delegate Resolutions;

 

(a)  all the issued Company Ordinary Shares held by the Company Shareholders shall be transferred and for purposes of the 1915 Law, contributed in kind to Holdco, free and clear of all Liens (other than the Company Shareholders’ Agreements Liens that will expire on or prior to the Closing Date), and the Company Shareholders shall subscribe for and, as consideration for the contribution, shall be issued, in accordance with the Exchange Ratio (save that the Holdco Ordinary Shares to be issued shall be reduced by the number of Holdco Ordinary Shares already held by the Company Shareholders immediately prior to the Exchange), the aggregate number of Holdco Ordinary Shares set forth in Section 2.02(a) of the Company Disclosure Schedule (the issuance of the Holdco Ordinary Shares pursuant to this Section 2.02 (the “Exchange Issuance”); provided, however, that no fractional Holdco Ordinary Shares shall be issued pursuant to the Exchange;

 

(b)  the Exchange Issuance shall be allocated among the Company Shareholders in accordance with the terms of the Payment Spreadsheet and Exchange Agreements;

 

(c)  each Company SAFE Holder shall have contributed all of its rights and obligations under each Original SAFE to Holdco in consideration for the issuance by Holdco of a simple agreement for future equity on substantively identical terms (mutatis mutandis) with such adjustments (if any) required under Luxembourg law. For Luxembourg law purposes, a Luxembourg independent auditor (réviseur d’entreprises) of Holdco shall have issued a report on the contributions in kind relating to the contribution of the Original SAFEs prepared in accordance with article 420-10 of the 1915 Law; and

 

(d)  each Company Shareholder shall cease to be the holder of such Company Ordinary Shares, subject to the submission of all filings required under Law (including any filings required to pay stamp duties), and Holdco will be recorded as the registered holder of all the Company Ordinary Shares so exchanged and transferred and will be the legal and beneficial owner thereof.

 

Section 2.03  Closing; Merger Effective Time.

 

(a)  Immediately prior to the Merger Effective Time but after the Exchange Effective Time, each Company SAFE Holder shall receive and become holders of issued and outstanding Holdco Ordinary Shares, in accordance with the Company SAFE.

 

(b)  Subject to the terms and conditions of this Agreement, at the Closing, SPAC shall cause a certificate of merger (the “Certificate of Merger”) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL in order to effectuate the Merger. The Merger shall become effective at such time as the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later time as may be agreed by the Company and SPAC in writing and specified in the Certificate of Merger in accordance with the DGCL (the effective time of the Merger being hereinafter referred to as the “Merger Effective Time”).

 

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(c)  On the date of the Merger Effective Time, a closing of the Transactions shall be effected remotely by the exchange of documents and signatures in PDF format by electronic mail. The Business Day on which the Merger Effective Time occurs shall be the “Closing Date” and the closing of the Transactions that occur on the Closing Date shall be referred to as the “Closing”.

 

(d)  On the date of the Merger Effective Time, immediately following the Merger, the Company’s CFO shall be allotted the CFO Free Shares.

 

Section 2.04  Effect of the Merger. At the Merger Effective Time, the effect of the Merger shall be as provided in the applicable provisions of the DGCL, the Certificate of Merger and as set forth in this Agreement, including Article III. Without limiting the generality of the foregoing, and subject thereto, at the Merger Effective Time, pursuant to the Merger, (a) all the property, rights, privileges, powers, franchises, licenses and authority of Merger Sub shall vest in SPAC as the Surviving Company, (b) all debts, liabilities, obligations, restrictions, disabilities and duties of Merger Sub shall vest in SPAC as the Surviving Company, (c) for purposes of the 1915 Law a contribution-in-kind of the SPAC Common Stock shall be made to Holdco by the SPAC Shareholders through the Merger against issue of the Merger Consideration by means of a share capital increase realized by Holdco under the authorized share capital (pursuant to the Holdco Delegate Merger Resolutions) by virtue of the foregoing and (d) for purposes of the 1915 Law a capitalization of freely distributable reserves shall be made by Holdco against the issue of the CFO Free Shares by means of a share capital increase realized by Holdco under the authorized share capital (pursuant to the Holdco Delegate Merger Resolutions) by virtue of the foregoing.

 

Section 2.05  Articles; Organizational Documents.

 

(a)  At the Merger Effective Time, (i) the SPAC COI, as in effect immediately prior to the Merger Effective Time, shall be amended and restated in the form of Exhibit B-1, attached hereto and, as so amended and restated, shall be the certificate of incorporation of the Surviving Company, until thereafter amended as provided by applicable Law, and (ii) the SPAC bylaws shall be amended and restated in the form of Exhibit B-2 attached hereto, and, as so amended and restated, shall be the bylaws of the Surviving Company until thereafter amended as provided by applicable Law.

 

(b)  Immediately prior to the consummation of the Merger and the Exchange, the general meeting of shareholders of Holdco shall amend and restate the Holdco Organizational Documents such that the Holdco Organizational Documents are in the form set forth on Exhibit C (“A&R Holdco Organizational Documents”), which A&R Holdco Organizational Documents shall remain in effect and shall otherwise not be amended, restated, modified or waived, in whole or in part, through the Closing, except to reflect the share capital increases following the adoption of the Holdco Delegate Merger Resolutions, as well as, as the case may be, the capital increase following the cash contribution as provided for under the Backstop Agreement, and the Holdco Delegate Exchange Resolutions and thereafter shall be the organizational documents of Holdco until amended as provided by applicable Law.

 

(c)  Immediately following the consummation of the Exchange, Holdco shall cause the Company to take such actions and make such filings as are necessary under the laws of its jurisdiction to amend and restate the Company Organizational Documents such that the Company Organizational Documents are in the form agreed to by the Parties. The Company Organizational Documents shall remain in effect and shall otherwise not be amended, restated, modified or waived, in whole or in part, through the Closing and thereafter shall be the organizational documents of the Company until amended as provided by applicable Law.

 

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Section 2.06  Directors and Officers.

 

(a)  The Parties shall cause the directors of the Company Board and the initial officers of the Company immediately following the Exchange Effective Time to be comprised of individuals to be mutually agreed upon by the Parties, each to hold office in accordance with the Company Organizational Documents.

 

(b)  The Parties shall cause and take action as necessary (including by obtaining the Holdco Requisite Approvals) to ensure that, immediately after the Closing,

 

(i)  the Holdco Board shall be comprised of at least seven (7) directors, which shall comprise of (A) five (5) individuals proposed for appointment by the Company at least five (5) Business Days prior to the Closing Date, (B) one (1) individual proposed for appointment by SPAC at least five (5) Business Days prior to the Closing Date (“SPAC Designee”), and (C) one (1) individual that is proposed for appointment by Union Acquisition Group (or a designated affiliate), but who shall be independent under NASDAQ requirements, each to hold office in accordance with the A&R Holdco Organizational Documents; and

 

(ii)  the Holdco Board shall be a declassified board with each director initially serving a term effective from the Closing until the first annual general meeting of the shareholders of Holdco held after the Closing.

 

(c)  The Parties shall cause the initial directors of the Surviving Company and the officers of Surviving Company as of immediately following the Merger Effective Time to be comprised of individuals to be mutually agreed upon by the Parties, each to hold office in accordance with the amended and restated memorandum and articles of association of the Surviving Company.

 

Section 2.07  Tax Treatment of the Exchange and the Merger. The Parties agree that for U.S. federal income Tax purposes (and, to the extent applicable, for state and local Tax purposes), (a) the Merger shall be treated as a “reorganization” within the meaning of Section 368(a)(1)(A) of the Code by reason of Section 368(a)(2)(E) of the Code and (b) the Merger and the Exchange are being undertaken as part of a prearranged, integrated plan and shall qualify as exchanges described in Section 351 of the Code and the Treasury Regulations promulgated thereunder (the “Intended Tax Treatment”). The Exchange and the Merger shall be completed in consecutive order such that the Exchange is completed before the Merger Effective Time.

 

Section 2.08  Withholding. Notwithstanding anything in this Agreement to the contrary, (a) Holdco shall be entitled to deduct and withhold from the Holdco Ordinary Shares issued as consideration in the Exchange, from the Merger Consideration issued in the Merger, and from any other consideration it issues in connection with this Agreement, such amounts as it is required to deduct and withhold with respect to the issuance of such consideration under the Code or any applicable provision of state, local or foreign Tax law, and (b) any other Party making payments pursuant to this Agreement and the Transactions shall be entitled to deduct and withhold from such payments such amounts as it is required to deduct and withhold pursuant to any applicable provision of U.S. federal, state, local or foreign Tax law; provided that in each case of clause (a) and (b), the Parties shall cooperate and use reasonable best efforts to reduce, minimize or eliminate any applicable withholding to the extent reasonably permitted under applicable Tax law. Without limiting the foregoing, Holdco may give effect to withholding hereunder by withholding any consideration issued in the form of Holdco Ordinary Shares or other consideration issued in kind, and then selling such portion of Holdco Ordinary Shares or other consideration issued in kind as it may determine and using the proceeds thereof to satisfy applicable withholding obligations and remitting such proceeds to applicable taxing authorities. To the extent that amounts are deducted or withheld under this Section 2.08, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been issued or paid to the person in respect of which such deduction and withholding was made, and Holdco or any other person deducting or withholding amounts hereunder shall disburse such deducted or withheld amounts to the applicable taxing authorities in accordance with applicable Laws.

 

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ARTICLE III
EXCHANGE

 

Section 3.01  Exchange of Securities.

 

(a)  At the Merger Effective Time, subject to Sections 3.03(h), 3.03(e) and 3.06, by virtue of the Merger and the Holdco Requisite Approvals, subject to the Merger Auditor Report, and without any further action on the part of SPAC, Merger Sub, Holdco or the Company or the holders thereunder:

 

(i)  each SPAC Common Stock issued and outstanding immediately prior to the Merger Effective Time (excluding the SPAC Common Stock to be cancelled in accordance with Section 3.01(b) and the Dissenting Shares) shall be exchanged with Holdco (which exchange, for purposes of the 1915 Law, shall include, for the avoidance of doubt, a contribution-in-kind of each such SPAC Ordinary Shares from the holders of SPAC Ordinary Shares to Holdco), against the issue by Holdco of new Holdco Ordinary Shares (such issuance, the “Merger Issuance”), under the authorized share capital of Holdco (pursuant to the Holdco Delegate Merger Resolutions) and subscribed by the contributing holders of SPAC Ordinary Shares by virtue of the Merger and in accordance with the 1915 Law for one validly issued and fully paid Holdco Ordinary Share (the “Merger Consideration”), delivered by Holdco in accordance with its obligations set forth in Section 3.03;

 

(ii)  As a result of the Merger, all SPAC Common Stock shall cease to be outstanding, shall be cancelled and shall cease to exist and (A) each certificate formerly representing each of the SPAC Common Stock and (B) each book-entry account formerly representing each of the uncertificated SPAC Common Stock shall thereafter, in case of both (A) and (B), only represent the Merger Consideration and the right, if any, to receive pursuant to Section 3.03(h) cash in lieu of fractional shares into which such SPAC Common Stock have been exchanged (and contributed-in-kind) pursuant to this Section 3.01 and any distribution or dividend pursuant to Section 3.03(c); and

 

(iii)  each share of common stock, par value $0.01 per share, of Merger Sub (the “Merger Sub Common Stock”) issued and outstanding immediately prior to the Merger Effective Time shall be converted into and exchanged for one (1) validly issued, fully paid and nonassessable ordinary share, par value $0.01 per share, of the Surviving Company.

 

(b)  Each SPAC Common Stock held in the SPAC’s treasury immediately prior to the Merger Effective Time, or held by Holdco or Merger Sub, will be cancelled without payment of any consideration therefor.

 

Section 3.02  Exchange Consideration.

 

(a)  As set forth in the Exchange Agreements:

 

(i)  The valuation of the Company Ordinary Shares transferred to Holdco and for purposes of the 1915 Law, contributed in kind by the Company Shareholders against new Holdco Ordinary Shares, as applicable, pursuant to the Exchange shall be deemed to be, as of the Exchange Effective Time, $325,000,000 (the “Exchange Consideration”). Appendix A sets forth an illustrative calculation of the capitalization of Holdco immediately following the consummation of the Transactions (assuming no Redemptions by the holders of SPAC Common Stock and excluding any Holdco Warrants).

 

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(ii)  The Exchange Consideration subscribed for by the Company Shareholders shall be paid in Holdco Ordinary Shares that shall be valued at $10.00 per Holdco Ordinary Share. The Holdco Ordinary Shares making up the Exchange Consideration shall be allocated among the Company Shareholders pursuant to Section 2.02 of the Company Disclosure Schedule and the Payment Spreadsheet.

 

(b)  At least five (5) Business Days prior to the Closing (except as may otherwise be agreed in writing by the Company and SPAC), (i) SPAC shall cause an authorized person of SPAC, solely in his or her capacity as such, to deliver to the Company a certificate certifying SPAC’s good faith estimate of the SPAC Transaction Expenses, including reasonable supporting materials for the amount of each item included in SPAC Transaction Expenses, and (ii) the Company shall cause an authorized officer of the Company, solely in his or her capacity as such, to deliver to SPAC a certificate setting forth: (i) the Company’s good faith estimate of the Company Transaction Expenses, including reasonable supporting materials for the amount of each item included in Company Transaction Expenses and (ii) the Payment Spreadsheet.

 

Section 3.03  Exchange of Certificates.

 

(a)  Exchange Agent. On the Closing Date (and after the Merger Effective Time and the consummation of the transactions contemplated by Section 3.01(a)(i), Section 3.01(a)(ii) and Section 3.01(a)(iii)), Holdco shall deposit with a bank or trust company that shall be designated by SPAC and is reasonably satisfactory to the Company (the “Exchange Agent”), for the benefit of the holders of SPAC Common Stock, for exchange in accordance with this Article III, the number of Holdco Ordinary Shares (in uncertificated form or book-entry form) sufficient to deliver the Merger Consideration consisting of the Holdco Ordinary Shares to be issued to the holders of SPAC Common Stock in the Merger pursuant to this Agreement. In addition, Holdco shall deposit, or cause to be deposited, with the Exchange Agent, as necessary from time to time after the Merger Effective Time, (i) any dividends or other distributions payable pursuant to Section 3.03(c) with respect to the Holdco Ordinary Shares issued pursuant to the Merger for any SPAC Common Stock with a record and payment date after the Merger Effective Time and prior to the surrender of such shares and (ii) cash in lieu of any fractional shares payable pursuant to Section 3.03(h) (all such Holdco Ordinary Shares and cash, together with the amount of any dividends or distributions contemplated pursuant to Section 3.03(c), being hereinafter referred to, collectively, as the “Exchange Fund”). Holdco shall cause the Exchange Agent pursuant to irrevocable instructions, to deliver the Merger Consideration out of the Exchange Fund in accordance with this Agreement. Except as contemplated by this Section 3.03 hereof, the Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest the cash portion of the Exchange Fund as directed by Holdco; provided that such investments shall be in obligations, funds or accounts typical for (including having liquidity typical for) transactions of this nature. To the extent that there are losses or any diminution of value with respect to such investments, or the Exchange Fund diminishes for any other reason below the level required to make prompt cash payment of any dividends or other distributions payable pursuant to Section 3.03(c) and any cash in lieu of any fractional shares payable pursuant to Section 3.03(h), Holdco shall promptly replace or restore the cash in the Exchange Fund lost through such investments or other events so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make such cash payments. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under this Section 3.03(a) shall be promptly returned to Holdco.

 

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(b)  Exchange Procedures. As promptly as practicable after the Merger Effective Time, Holdco shall use its reasonable best efforts to cause the Exchange Agent to mail to each holder of record of SPAC Common Stock entitled to receive the Merger Consideration pursuant to Section 3.01 a letter of transmittal, which shall be in a form reasonably acceptable to SPAC and the Company (the “Letter of Transmittal”) and shall specify (i) that delivery shall be effected, and risk of loss and title to the certificates evidencing such SPAC Common Stock (collectively, the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Exchange Agent; and instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within five (5) Business Days after the surrender to the Exchange Agent of all Certificates held by such holder for cancellation, together with a Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto and such other documents as may be required pursuant to such instructions, the holder of such Certificates shall be entitled to receive in exchange therefor, and Holdco shall cause the Exchange Agent to deliver (i) the Merger Consideration and (ii) an amount in immediately available funds (or, if no wire transfer instructions are provided, a check) equal to (A) any cash in lieu of fractional shares pursuant to Section 3.03(h) plus (B) any unpaid non-stock dividends and any other dividends or other distributions that such holder has the right to receive pursuant to Section 3.03(c) in accordance with the provisions of this Section 3.03, and the Certificates so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates. Until surrendered as contemplated by this Section 3.03, each Certificate entitled to receive a portion of the Merger Consideration in accordance with Section 3.01 shall be deemed at all times after the Merger Effective Time, as the case may be, to represent only the right to receive upon such surrender the Merger Consideration that such holder is entitled to receive in accordance with the provisions of Section 3.01.

 

(c)  Distributions with Respect to Unexchanged SPAC Common Stock. No dividends or other distributions declared or made after the Merger Effective Time with respect to the SPAC Common Stock with a record date after the Merger Effective Time shall be paid to the holder of any unsurrendered Certificate (if any) with respect to the SPAC Common Stock represented thereby until the holder of such Certificate (if any) shall surrender such Certificate (if any) in accordance with this Section 3.03. Subject to the effect of escheat, Tax or other applicable Laws, following surrender of any such Certificate (if any), SPAC shall pay or cause to be paid to the holder of the certificates (if any) representing SPAC Common Stock issued in exchange therefor, without interest, (i) promptly, but in any event within five (5) Business Days of such surrender, the amount of dividends or other distributions with a record date after the Merger Effective Time and theretofore paid with respect to such SPAC Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Merger Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such SPAC Common Stock.

 

(d)  Merger Consideration as Payment in Full. The Merger Consideration payable upon conversion of the SPAC Common Stock in accordance with the terms of this Section 3.03 shall be deemed to have been paid and issued in full satisfaction of all rights pertaining to such SPAC Common Stock.

 

(e)  Adjustments to Merger Consideration. The Merger Consideration shall be adjusted to reflect appropriately the effect of any stock split or share sub-division, reverse stock split or share consolidation, stock dividend or share capitalization, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to SPAC Common Stock occurring on or after the date hereof and prior to the Merger Effective Time.

 

(f)  Termination of Exchange Fund. Any portion of the Exchange Fund that remains undistributed to the holders of SPAC Common Stock with respect to the Merger Consideration for one year after the Merger Effective Time shall be delivered to Holdco, and any holders of SPAC Common Stock who have not theretofore complied with this Section 3.03 shall thereafter look only to Holdco for the Merger Consideration. Any portion of the Exchange Fund with respect to the Merger Consideration remaining unclaimed by holders of SPAC Common Stock, as may be applicable, as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any government entity shall, to the extent permitted by applicable Law, become the property of Holdco free and clear of any claims or interest of any person previously entitled thereto.

 

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(g)  No Liability. None of the Exchange Agent, SPAC, Holdco, Company, the Surviving Company or any of their respective affiliates shall be liable to any holder of SPAC Common Stock for any such SPAC Common Stock (or dividends or distributions with respect thereto) or cash delivered to a public official pursuant to any abandoned property, escheat or similar Law in accordance with this Section 3.03.

 

(h)  Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of Holdco Ordinary Shares will be issued, and any holder of SPAC Common Stock entitled to receive a fractional share of Holdco Ordinary Shares but for this Section 3.03 shall be entitled to receive a cash payment in lieu thereof, which payment shall be calculated by the Exchange Agent and shall represent such holder’s proportionate interest in a share of Holdco Ordinary Shares based on the Average SPAC Share Price.

 

(i)  Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact or an appropriate indemnity for lost share certificate by the person claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration, as the case may be, that such holder is otherwise entitled to receive pursuant to, and in accordance with, the provisions of Section 3.01.

 

Section 3.04  Stock Transfer Books. At the Merger Effective Time, following the recordation of the Transactions in the share records of Holdco, the register of members of SPAC shall be closed and there shall be no further registration of transfers of SPAC Common Stock thereafter on the records and registers of SPAC. From and after the Merger Effective Time, the holders of Certificates (if any) representing SPAC Common Stock outstanding immediately prior to the Merger Effective Time shall cease to have any rights with respect to such SPAC Common Stock, except as otherwise provided in this Agreement or by applicable Law. On or after the Merger Effective Time, any Certificates (if any) presented to the Exchange Agent or Holdco for any reason shall be converted into the Merger Consideration in accordance with the provisions of Section 3.01.

 

Section 3.05  SPAC Warrants. At the Merger Effective Time, each SPAC Warrant that is outstanding immediately prior to the Merger Effective Time shall, pursuant to the SPAC Warrant Agreement, cease to represent a right to acquire one (1) SPAC Common Stock and shall be converted in accordance with the terms of such SPAC Warrant Agreement, at the Merger Effective Time, into a right to acquire one Holdco Ordinary Share (a “Holdco Warrant” and collectively, the “Holdco Warrants”) on substantially the same terms as were in effect immediately prior to the Merger Effective Time under the terms of the SPAC Warrant Agreement. Each of the Parties shall take all lawful action to effect the aforesaid provisions of this Section 3.05, including by executing and delivering the amendment and assignment agreement to the SPAC Warrant Agreement substantially the form attached hereto as Exhibit D (the “SPAC Warrant Amendment and Assignment”).

 

Section 3.06  Appraisal Rights. Notwithstanding anything in this Agreement to the contrary, no Dissenting Shares will be converted into or represent a right to receive the Merger Consideration but instead the applicable SPAC Shareholder will only be entitled to such rights as are provided by the DGCL and, at the Merger Effective Time, such Dissenting Shares will no longer be outstanding, and will be cancelled and cease to exist, and the holders of such Dissenting Shares will cease to have any rights with respect thereto, except the rights set forth in Section 262 of the DGCL; provided, however, that all SPAC Common Stock held by SPAC Shareholders who will have failed to perfect or who effectively will have withdrawn or lost their rights to appraisal of such SPAC Common Stock will thereupon be deemed to have been converted, as of the Merger Effective Time, into the right to receive the Merger Consideration. SPAC will give Holdco, Merger Sub and the Company prompt notice of any demands received by SPAC for the exercise of rights to appraisal, attempted withdrawals of such demands, and any other instruments delivered pursuant to the DGCL and received by the Surviving Company relating to the SPAC Shareholders’ rights to appraisal with respect to the Merger.

 

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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

Except as set forth in the Company’s disclosure schedule (it being understood and agreed that information disclosed in any section of the Company Disclosure Schedule shall be deemed to be disclosed with respect to any other section of the Company Disclosure Schedule to which such disclosure would reasonably pertain or if its relevance to such other section is reasonably apparent on the face of such disclosure) delivered by Company in connection with this Agreement (the “Company Disclosure Schedule”), the Company hereby represents and warrants to SPAC, Holdco and Merger Sub as follows:

 

Section 4.01  Organization and Qualification; Subsidiaries.

 

(a)  The Company and each subsidiary of the Company (each, a “Company Subsidiary”) is a corporation or other organization duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization (insofar as such concept exists in such jurisdiction) and has the requisite corporate or other organizational power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted. Except as set forth on Section 4.01(a) of the Company Disclosure Schedule, the Company and each Company Subsidiary (i) has all necessary governmental approvals to own, lease and operate its properties and assets and to carry on its business as it is now being conducted, (ii) is duly qualified or licensed as a foreign corporation or other organization to do business where the character of the properties or assets owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary pursuant to applicable Law, and (iii) is in good standing, in each jurisdiction (insofar as such concept exists in such jurisdiction) where the character of the properties or assets owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except where the failure to have such governmental approval or be so qualified or licensed or in good standing would not have a Company Material Adverse Effect.

 

(b)  A true and complete list of all the Company Subsidiaries, together with the jurisdiction of organization or incorporation of each Company Subsidiary and the percentage of the outstanding capital stock of each Company Subsidiary owned by the Company and each other Company Subsidiary, in each case, as of the date hereof, is set forth in Section 4.01(b) of the Company Disclosure Schedule. Except with respect to the Company Subsidiaries, the Company does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for any equity or similar interest in, any other corporation, partnership, joint venture or business association or other entity.

 

Section 4.02  Organizational Documents. The Company has prior to the date of this Agreement made available to SPAC a complete and correct copy of the memorandums of association, articles of association, certificates of incorporation, certificates of formation, by-laws, operating agreements and equivalent organizational documents (including all Company Shareholders’ Agreements), as applicable, each as amended to date, of the Company and each Company Subsidiary. Such memorandums of association, articles of association, certificates of incorporation, certificates of formation, by-laws, operating agreements, registration statements and equivalent organizational documents (including all Company Shareholders’ Agreements) are in full force and effect. The Company and each Company Subsidiary is in all material respects in compliance with all the provisions of their respective memorandum of association, articles of association, certificates of incorporation, certificates of formation, by-laws, operating agreements, registration statements or equivalent organizational documents (including all Company Shareholders’ Agreements).

 

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Section 4.03  Capitalization.

 

(a)  As of the date hereof, the Company has an issued share capital of £486,619.15, divided into 48,661,915 shares of £0.01 per share, each fully paid-up (the “Issued Share Capital”). Set forth on Section 4.03(a) of the Company Disclosure Schedule is, with respect to each of the Company and each Company Subsidiary, (i) the identity of each Person who holds any shares of Equity Interest of the Company or of such Company Subsidiary and (ii) the amount, type and class of Equity Interest held by each such Person. Other than as set forth on Section 4.03(a) of the Company Disclosure Schedule, there are no other Equity Interests relating to the issued or unissued capital stock of the Company or any Company Subsidiary or obligating the Company or any Company Subsidiary to issue or sell any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary is a party to, or otherwise bound by, and neither the Company nor any Company Subsidiary has granted, any equity appreciation rights, participations, phantom equity or similar rights, other than the Company Shareholders’ Agreements Liens that will be terminated on or prior to the Closing Date. Other than pursuant to the Transaction Documents and the Company Shareholders’ Agreements that will be terminated on or prior to the Closing Date, there are no voting trusts, voting agreements, proxies, shareholder agreements or other similar agreements with respect to the voting or transfer of the Company Ordinary Shares or any of the equity interests or other securities of the Company or any of the Company Subsidiaries. The Company does not own any equity interests in any person, other than the Company Subsidiaries.

 

(b)  Other than pursuant to the Company Organizational Documents, the respective organizational documents of the Company Subsidiaries, the Company Shareholders’ Agreements, the Company Employee Share Plan or the Transaction Documents, there are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Company Ordinary Shares or any capital stock of any Company Subsidiary or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any person other than a Company Subsidiary.

 

(c)  Each outstanding share of capital stock of each Company Subsidiary is duly authorized, validly issued, fully paid and, except as set forth in Section 4.03(c) of the Company Disclosure Schedule, each such share is owned by the Company or another Company Subsidiary free and clear of all Liens, other than transfer restrictions under applicable Laws and their respective organizational documents.

 

(d)  The Company Shareholders collectively own directly and beneficially and of record, all the equity of the Company (which are represented by the issued Company Ordinary Shares). Except as set forth in Section 4.03(d) of the Company Disclosure Schedule and Company Shareholders’ Agreements Liens that will be terminated on or prior to the Closing Date, and except for the shares of the Company held by the Company Shareholders, no shares or other equity or voting interest of the Company, or options, warrants or other rights to acquire any such shares or other equity or voting interest, of the Company is authorized or issued.

 

(e)  All issued Company Ordinary Shares and all issued shares of capital stock or other equity securities (as applicable) of each Company Subsidiary have been issued and granted in compliance with (i) applicable securities Laws and other applicable Laws and (ii) any preemptive rights and other similar requirements set forth in applicable contracts to which the Company or any Company Subsidiary is a party.

 

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Section 4.04  Authority Relative to this Agreement. The Company has all necessary power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery by the Company of this Agreement and the Ancillary Agreements to which it is a party and the consummation by the Company of the Transactions have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement, each such Ancillary Agreement or to consummate the Transactions (other than the approval of the Exchange, the filing and recordation of appropriate documents as required by the Companies Act or other applicable Law, as the case may be, and approval of the amended and restated Company Organizational Documents by Holdco as the sole shareholder of the Company following the Exchange as contemplated by Section 2.05(c)). This Agreement and each such Ancillary Agreement have been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by SPAC, Holdco and Merger Sub, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights generally, by general equitable principles (the “Remedies Exceptions”). To the knowledge of the Company, no state, provincial, federal, domestic or foreign takeover statute is applicable to the Transactions, except as otherwise contemplated herein.

 

Section 4.05  No Conflict; Required Filings and Consents.

 

(a)  The execution and delivery by the Company of this Agreement and each Ancillary Agreement to which it is a party does not, and subject to receipt of the filing and recordation of documents in connection with the Merger and the Exchange, as required by the Companies Act or other applicable Law, and of the consents, approvals, authorizations or permits, filings and notifications contemplated by Section 4.05 of the Company Disclosure Schedule, the performance of this Agreement and each such Ancillary Agreement by the Company will not (i) conflict with or violate the memorandum of association, articles of association, certificate of incorporation or by-laws or any equivalent organizational documents of the Company or any Company Subsidiary, (ii) conflict with or violate any Law applicable to the Company or any Company Subsidiary or by which any property or asset of the Company or any Company Subsidiary is bound or affected, or (iii) result in any breach of or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien (other than any Permitted Lien) on any property or asset of the Company or any Company Subsidiary pursuant to, any Material Contract, except with respect to clauses (a)(ii) and (a)(iii) for any such conflicts, violations, breaches, defaults or other occurrences which would not have a Company Material Adverse Effect.

 

(b)  The execution and delivery by the Company of this Agreement and each Ancillary Agreement to which it is a party does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with or notification to, a Governmental Authority, other than as contemplated by Section 4.05(b) of the Company Disclosure Schedule, and except (i) for applicable requirements, if any, of the Securities Act, the Exchange Act, state securities or “blue sky” laws (“Blue Sky Laws”) and state takeover Laws, rules and regulations of Nasdaq, the notification requirements of applicable Antitrust Laws, if any, and filing and recordation of appropriate documents in connection with the Merger and the Exchange or other documents as required by the DGCL, the 1915 Law or the Companies Act, and (ii) as and where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, prevent or materially delay consummation of any of the Transactions or otherwise prevent the Company from performing its material obligations under this Agreement and each such Ancillary Agreement.

 

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Section 4.06  Permits; Compliance. Except as set forth in Section 4.06 of the Company Disclosure Schedule, each of the Company and the Company Subsidiaries is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Authority necessary for each of the Company or the Company Subsidiaries to own, lease and operate its properties or to carry on its business as it is now being conducted (including, without limitation, as applicable, all such permits, licenses, approvals, consents and other authorizations required by the Food and Drug Administration or any other federal, state, local or foreign agencies or bodies engaged in the regulation of food growing, production, development, manufacture, distribution, processing, or any other activities related to the business now operated by the Company and its Subsidiaries) (the “Company Permits”), except where the failure to have such Company Permits would not reasonably be expected to have a Company Material Adverse Effect. No suspension or cancellation of any of the Company Permits is pending or, to the knowledge of the Company, threatened in writing. Except as set forth in Section 4.06 of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary is in conflict with, or in default, breach or violation of, (a) any Law applicable to the Company or any Company Subsidiary or by which any property or asset of the Company or any Company Subsidiary is bound or affected, or (b) any Company Permit, except for any such conflicts, violations, breaches, defaults or other occurrences which would not have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received since its date of formation any written notices from any Governmental Authority alleging violation of any applicable Laws, except for any violations which would not, individually or in the aggregate, result in a Company Material Adverse Effect.

 

Section 4.07  Financial Statements.

 

(a)  The Company has made available to SPAC true and complete copies of (i) the audited consolidated financial statements as of June 30, 2021 and December 31, 2020 and from the period of January 1, 2021 through June 30, 2021 and from inception on August 21, 2020 through December 31, of the Company and the Company and (ii) the unaudited interim condensed consolidated financial statements as of December 31, 2021 and June 30, 2021 and from the period of July 1, 2021 through December 31, 2021 and from August 21, 2020 through December 30, 2020 of the Company and the Company Subsidiaries (collectively, the “Financial Statements”), which are attached as Section 4.07(a) of the Company Disclosure Schedule. Each of the Financial Statements (including the notes thereto) (i) was prepared in accordance with IFRS applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and (ii) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Company and the Company Subsidiaries as of the date thereof and for the period indicated therein, except as otherwise noted therein.

 

(b)  Except as and to the extent set forth on the Financial Statements, neither the Company nor any Company Subsidiary has any liability or obligation of a nature (whether accrued, absolute, contingent or otherwise) required to be reflected on a balance sheet prepared in accordance with the Accounting Principles except for (i) liabilities that were incurred in the ordinary course of business or in connection with the Transactions since December 31, 2021, (ii) obligations for future performance under any contract to which the Company or any Company Subsidiary is a party or (iii) any other liabilities and obligations which would not, individually or in the aggregate, result in a Company Material Adverse Effect.

 

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(c)  Since its date of formation, (i) neither the Company nor any Company Subsidiary nor, to the Company’s knowledge, any director, officer, employee, auditor, accountant or Representative of the Company or any Company Subsidiary, has received or otherwise had or obtained knowledge of any written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or their respective internal accounting controls, including any such written complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in questionable accounting or auditing practices, and (ii) there have been no internal investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, general counsel, the Company Board or any committee thereof.

 

(d)  To the knowledge of the Company, no employee of the Company or any Company Subsidiary has provided since its date of formation or is providing information to any law enforcement agency regarding the commission or possible commission of any crime under applicable Law. None of the Company, any Company Subsidiary or, to the knowledge of the Company, any officer, employee, contractor, subcontractor or agent of the Company or any such Company Subsidiary has discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against an employee of the Company or any Company Subsidiary in the terms and conditions of employment because of any act of such employee described in 18 U.S.C. sec. 1514A(a) or the Equality Act 2010 (as applicable).

 

(e)  The Company and each Company Subsidiary, individually or together with other Company Subsidiaries, maintains systems of internal control over financial reporting that are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the Accounting Principles, including policies and procedures sufficient to provide reasonable assurance: (i) that the Company and each Company Subsidiary maintains records that in reasonable detail accurately and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions of the Company and each Company Subsidiary are recorded as necessary to permit the preparation of financial statements in conformity with the Accounting Principles; (iii) that receipts and expenditures of the Company and each Company Subsidiary are being made only in accordance with authorizations of management and its board of directors; and (iv) regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and each Company Subsidiary that could have a material effect on its financial statements. The Company has delivered to SPAC a true and complete copy of any disclosure (or, if unwritten, a summary thereof) by any representative of the Company to the Company’s independent auditors since its date of formation and relating to any material weaknesses in internal controls and any significant deficiencies in the design or operation of internal controls that would adversely affect the ability of the Company or any Company Subsidiary to record, process, summarize and report financial data. The Company has no knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of the Company or any Company Subsidiaries. Since December 31, 2018, there have been no material changes in the Company’s or any of Company Subsidiary’s internal control over financial reporting.

 

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Section 4.08  Absence of Certain Changes or Events. To the knowledge of the Company, since December 31, 2021 and prior to the date of this Agreement, except as otherwise reflected in the Financial Statements, actions or omissions taken as a result of COVID-19 and COVID-19 Measures, or in connection with the Transactions or as expressly contemplated or permitted by this Agreement or any Ancillary Agreement, (a) the Company and the Company Subsidiaries have conducted their respective businesses in the ordinary course and in a manner consistent with past practice in all material respects, (b) the Company and the Company Subsidiaries have not sold, assigned or otherwise transferred any right, title, or interest in or to any of their material assets (including Intellectual Property and Business Systems) other than non-exclusive licenses or assignments or transfers in the ordinary course of business, (c) there has not been any Company Material Adverse Effect, and (d) none of the Company or any Company Subsidiary has taken any action that, if taken after the date of this Agreement, would constitute a material breach of any of the covenants set forth in Section 7.01.

 

Section 4.09  Absence of Litigation. Except as otherwise set forth in Section 4.09 of the Company Disclosure Schedule, as of the date hereof, there is no material litigation, proceeding, cause of action, lawsuit, audit, assessment or reassessment, petition, complaint, charge, grievance, prosecution, demand, hearing, written notice, inquiry, investigation, subpoena, summons, inspection, or administrative or other similar proceeding, mediation or arbitration (including any appeal or application for review) of any kind or nature, in law or in equity (an “Action”), pending or, to the knowledge of the Company, threatened in writing against the Company or any Company Subsidiary, or any property or asset of the Company or any Company Subsidiary, before any Governmental Authority where the losses or damages claimed against the Company or any Company Subsidiary exceed $250,000. As of the date hereof, neither the Company nor any Company Subsidiary nor any material property or asset of the Company or any Company Subsidiary is subject to any continuing material order of, consent decree, settlement agreement or other similar written agreement with, or, to the knowledge of the Company, continuing investigation by, any Governmental Authority, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority.

 

Section 4.10  Employee Benefit Plans.

 

(a)  Other than mandatory benefits or plans regarding Employers or Workers under applicable Law, Section 4.10(a) of the Company Disclosure Schedule sets forth a true and complete list of all material employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (“ERISA”)) and all other material bonus, stock option, stock purchase, restricted stock, equity or equity-based, incentive, deferred compensation, retiree medical or life insurance, retirement, pension, supplemental retirement, severance, retention, separation, change in control, health, welfare, fringe benefit, sick pay and vacation plans or arrangements or other material employee benefit plans, programs, ex gratia promises, policies, agreements or arrangements, whether or not subject to ERISA, whether formal or informal, whether written or oral, in each case which are maintained, sponsored by, or contributed to by (or for which there is an obligation to contribution to by) the Company or any Company Subsidiary for the benefit of any current or former employee, officer, director, individual independent contractor and/or consultant, or with respect to which the Company or any Company Subsidiary has or could incur any present or future liability (contingent or otherwise) (collectively, the “Plans”).

 

(b)  With respect to each Plan sponsored by the Company or any Company Subsidiary (each, a “Company Plan”), the Company has made available to SPAC, if applicable (i) a true and complete copy of the current plan document and all amendments thereto and each trust or other funding arrangement, (ii) copies of the most recent summary plan description and any summaries of material modifications, (iii) if applicable, a copy of the most recent filed Internal Revenue Service (“IRS”) Form 5500 annual report and accompanying schedules, (iv) copies of the most recently received IRS determination or opinion letter for each such Company Plan, and (v) any material non-routine correspondence from any Governmental Authority and any filing, reporting or any other documentation or correspondence to or with a Governmental Authority with respect to any Company Plan since its date of formation.

 

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(c)  None of the Plans is or was within the past six (6) years, nor does the Company, any Company Subsidiary nor any of their respective ERISA Affiliates have or reasonably expect to have any material liability or obligation under (i) a multiemployer plan (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA), or (ii) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA or any other plan that is subject to Title IV of ERISA. For purposes of this Agreement, “ERISA Affiliate” shall mean any trade, business or any person that, together with the Company or any Company Subsidiary, is treated as a “single employer” for purposes of Section 4001(b)(1) of ERISA and/or Section 414(b),(c), (m) or (o) of the Code.

 

(d)  Neither the execution and delivery of this Agreement nor the other Ancillary Agreements nor the consummation of the Transactions will or could reasonably be expected to (alone or in combination with any other event) (i) result in (A) an increase in the amount of compensation or benefits to or in respect of any current or former employee, officer, director, individual independent contractor or consultant; (B) any payment or benefit becoming due to or in respect of any current or former employee, officer, director, individual independent contractor and/or consultant; (C) the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable to or in respect of any current or former employee, officer, director, individual independent contractor or consultant; or (D) any increased or accelerated funding obligation with respect to any Plan; (ii) limit the right to merge, amend or terminate any Plan; or (iii) give rise to any “excess parachute payment” within the meaning of Section 280G of the Code or any corresponding or similar provision of any other applicable Law. Neither the Company nor any Company Subsidiary has any indemnity or gross-up obligation for any Taxes imposed under Section 4999 or Section 409A of the Code or any corresponding or similar provision of applicable Law or otherwise.

 

(e)  None of the Plans provide for, nor does the Company nor any Company Subsidiary have or reasonably expect to have any material liability or obligation to provide any post-employment or post-service health or welfare benefits or retiree medical or life insurance to any current or former employee, officer, director, individual independent contractor or consultant of the Company or any Company Subsidiary after termination of employment or service except (i) as set forth in any existing employment or severance agreement or (ii) as may be required under applicable Law, including under Section 4980B of the Code and Parts 6 and 7 of Title I of ERISA or similar applicable Law for which the covered individual pays the full cost of coverage.

 

(f)  In all material respects, (i) each Company Plan is and has been established, maintained and administered in accordance with its terms and in compliance with the requirements of all applicable Laws including, without limitation, as applicable, ERISA and the Code, and (ii) other than routine claims for benefits in the ordinary course of business, no actions, litigation, claims, lawsuits, audits, inquiries, arbitrations, investigations, or proceedings are pending or, to the knowledge of Company, threatened, from any Governmental Authority in connection with any Company Plan or by or on behalf of any participant in any Company Plan, or otherwise involving or relating to any Company Plan or the assets of any Company Plan or any trust thereunder or the plan sponsor or plan administrator of any Company Plan (acting in such individual’s capacity as plan sponsor or plan administrator).

 

(g)  Each Company Plan that is intended to be qualified under Section 401(a) of the Code or under similar applicable Law, if any, and any trust forming any part thereof, (i) has timely received a favorable determination letter from the IRS or other applicable Governmental Authority or (ii) is entitled to rely on a favorable opinion letter from the IRS or other applicable Governmental Authority, and to the knowledge of Company, nothing has occurred that would reasonably be expected to result in any revocation of, or an adverse material change to, such determination or opinion letter or otherwise adversely affect the qualified status of such plan or exempt status of such trust.

 

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(h)  Except as would not result in material liability to the Company and the Company Subsidiaries, taken as a whole, either individually or in the aggregate, (i) there has not been any non-exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code or under similar applicable Law) nor any reportable events (within the meaning of Section 4043 of ERISA or under similar applicable Law) with respect to any Plan to which such sections of ERISA or the Code or such similar applicable Law would apply, and (ii) there have been no acts or omissions by the Company or any Company Subsidiary with respect to any Plan that have given or could reasonably be expected to give rise to any fines, penalties, Taxes or related charges under ERISA, the Code or other applicable Law.

 

(i)  All material liabilities or expenses of the Company or any Company Subsidiary in respect of any Company Plan which have not been paid have been properly accrued on the Company’s or any Company Subsidiary’s most recent financial statements in compliance with the Accounting Principles. With respect to each Company Plan, all material contributions or payments (including all material employer contributions, employee salary reduction contributions, defined benefit plan contributions deferred under the Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. 116-136 (the “CARES Act”) and premium or benefit payments) that are due or are required to be made under the terms of any Company Plan or in accordance with applicable Laws have been made within the time periods prescribed by the terms of each such Company Plan, ERISA, the Code and applicable Laws, as the case may be, except as would not result in material liability to the Company, and all such contributions or payments that are not yet due or required to be made under the terms of any Company Plan or in accordance with applicable Laws have been properly accrued in accordance with the Accounting Principles, applied on a consistent basis, and reflected on the Company’s or any Company Subsidiary’s audited financial statements.

 

Section 4.11  Labor and Employment Matters.

 

(a)  As of the date hereof, except as would not be material to the Company or any Company Subsidiary, individually or in the aggregate, all compensation, including wages, commissions and bonuses, due and payable to all Employees of the Company and any Company Subsidiary for services performed on or prior to the date hereof have been paid in full (or accrued in full in the Company’s financial statements).

 

(b)  (i) Except as otherwise set forth in Section 4.11(b) of the Company Disclosure Schedule, there are no Actions pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary by any of their respective current or former Employees, independent contractors, applicants for employment, or any class of the foregoing, which Actions would be material to the Company and the Company Subsidiaries, taken as a whole; (ii) neither the Company nor any Company Subsidiary is, nor have been since its date of formation, a party to, bound by, or negotiating any collective bargaining agreement or other contract with a union, works council or labor organization applicable to persons employed by the Company or any Company Subsidiary, nor, to the knowledge of the Company, are there any activities or proceedings of any labor union to organize any such employees; (iii) there are no material unfair labor practice complaints pending against the Company or any Company Subsidiary before the National Labor Relations Board; and (iv) since its date of formation, there has never been, nor, to the knowledge of the Company, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting, or, to the knowledge of the Company, threatened, by or with respect to any employees of the Company or any Company Subsidiary.

 

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(c)  The Company and the Company Subsidiaries are and have been since its date of formation in compliance in all material respects with all applicable Laws relating to the employment, employment practices, employment discrimination, terms and conditions of employment, mass layoffs and plant closings, immigration, pay equity, workers’ compensation, family and medical leave, and occupational safety and health requirements, including those related to wages, hours, collective bargaining and the payment and withholding of Taxes and other sums as required by the appropriate Governmental Authority.

 

(d)  To the Company’s knowledge, the Company and the Company Subsidiaries are in all material respects in compliance with any Laws, recommendations or guidance issued by any applicable Governmental Authority relating in any way to the work of Employees and/or procedures for returning to work for Employees with respect to COVID-19.

 

(e)  Except as set forth in Section 4.11(e) of the Company Disclosure Schedule, to the Company’s knowledge, (i) no Employee, Worker or independent contractor of the Company or any Company Subsidiary is in violation of any term of any employment contract, consulting contract, non-disclosure agreement, common law non-disclosure obligation, noncompetition agreement, non-solicitation agreement, proprietary information agreement or any other agreement with a third party relating to confidential or proprietary information, intellectual property, competition, or related matters; and (ii) the continued employment by the Company and the Company Subsidiaries of their respective Employees, and the performance of the contracts with the Company and the Company Subsidiaries by their respective Workers and independent contractors, will not result in any such violation. Neither the Company nor any of the Company Subsidiaries has received any notice from a Governmental Authority alleging that any such violation has occurred since its date of formation.

 

(f)  All material contracts of employment between the Company and any Company Subsidiary and any person employed by the Company or any Company Subsidiary are terminable by giving the applicable minimum period of notice specified in applicable Law and neither the Company nor any Company Subsidiary is contractually obliged to make any material payment as a consequence of the termination of any such contract.

 

(g)  All material contracts of engagement between the Company and any Company Subsidiary and any person engaged by the Company or any Company Subsidiary are terminable by giving no more than one month’s notice and neither the Company nor any Company Subsidiary is contractually obliged to make any material payment as a consequence of the termination of any such contract.

 

(h)  To the Company’s knowledge, no person employed or engaged by the Company or any Company Subsidiary nor any person who was previously a person employed or engaged by the Company or any Company Subsidiary is entitled to:

 

(i)  any material accrued but unpaid holiday pay in respect of the relevant Group Company’s current or any previous holiday years; or

 

(ii)  any material accrued but untaken holiday leave in respect of the relevant Group Company’s previous holiday years.

 

(i)  To the Company’s knowledge, every person employed or engaged by the Company or any Company Subsidiary who requires permission to work in the relevant jurisdiction has current and appropriate permission to work in such jurisdiction.

 

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Section 4.12  Real Property; Title to Assets.

 

(a)  Section 4.12(a) of the Company Disclosure Schedule lists the street address of each parcel of Leased Real Property, and also identifies with respect to each Leased Real Property, each lease, sublease, license or other contractual arrangement under which such Leased Real Property is occupied or used (each, a “Lease”), including the date of and legal name of each of the parties to such Lease, and each guaranty, amendment, restatement, modification or supplement thereto (collectively, the “Lease Documents”) and lists all of the material real property owned by the Company or any Company Subsidiary (the “Owned Real Property”). True, correct and materially complete copies of all Lease Documents have been made available to SPAC.

 

(b)  The Leased Real Property and the Owned Real Property constitutes all material interests in real property currently used, occupied or held for use in connection with the business of the Company and/or Company Subsidiaries and necessary for the continued operation of the business of the Company and/or the Company Subsidiaries, as applicable. The Leased Real Property and the Owned Real Property, including all buildings, fixtures and other improvements constituting a part thereof, is in good operating condition, except for ordinary wear and tear, without material structural defects and is in all material respects suitable, sufficient and appropriate for its current and contemplated uses. No Leased Real Property is subject to any sublease, license or right of occupancy in favor of any third party.

 

(c)  The Company and/or the applicable Company Subsidiary has a valid, binding and enforceable, subject to the Remedies Exceptions, leasehold interest under each of the Leases, free and clear of all Liens other than Permitted Liens. Except as set forth in Section 4.12(c) of the Company Disclosure Schedule, the Company and the Company Subsidiaries have good and marketable title to all Owned Real Property, free and clear of all Liens, other than Permitted Liens. Each Lease is in full force and effect and is the valid, binding and enforceable, subject to the Remedies Exceptions, obligation of each party thereto in accordance with its terms. The Company and/or the applicable Company Subsidiary has accepted possession of each individual Leased Real Property and is currently occupying and using same in all material respects pursuant to the terms of the applicable Lease. None of the Company nor any of the Company Subsidiaries, nor to the Company’s knowledge, any other party to any Lease is in material breach or material violation of, or default under, any such Lease.

 

(d)  Except as set forth in Section 4.12(d) of the Company Disclosure Schedule, there are no contractual or legal restrictions that preclude or restrict the ability of the Company or any Company Subsidiary to use any Leased Real Property or Owned Party by such party for the purposes for which it is currently being used, except as would not, individually or in the aggregate, be material to the Company and the Company Subsidiaries, taken as a whole. There are no latent defects or adverse physical conditions affecting the Leased Real Property, and improvements thereon, other than those that would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole.

 

(e)  There do not exist any actual or, to the Company’s knowledge, threatened condemnation or eminent domain proceedings that affect any Leased Real Property or Owned Real Property or any part thereof, and none of the Company nor any of the Company Subsidiaries has received since its date of formation any written notice of the intention of any Governmental Authority in connection with any such condemnation or eminent domain proceedings of any Leased Real Property or Owned Real Property or any part thereof or interest therein.

 

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Section 4.13  Intellectual Property.

 

(a)  Section 4.13(a) of the Company Disclosure Schedule contains a true, correct and complete list of all of the following: (i) registered Intellectual Property rights and applications for registrations of Intellectual Property rights that are owned or purported to be owned by the Company and/or the Company Subsidiaries (showing in each case, as applicable, the filing date, date of issuance, expiration date and registration or application number, and jurisdiction); (ii) registered Intellectual Property rights and applications for registrations of Intellectual Property rights that are licensed to the Company and/or the Company Subsidiaries (showing in each case, as applicable, the filing date, date of issuance, expiration date and registration or application number, and jurisdiction); and (iii) all contracts or agreements to use any Company-Licensed IP, including for the Software or Business Systems of any other person, that are material to the business of the Company and/or the Company Subsidiaries as currently conducted (other than (x) unmodified, commercially available, “off-the-shelf” Software or (y) Software, Technology or Business Systems with a replacement cost or aggregate annual license and maintenance fees of less than $250,000). To the knowledge of the Company, the Company IP specified on Section 4.13(a) of the Company Disclosure Schedule constitutes all material Intellectual Property rights used in the operation of the business of the Company and the Company Subsidiaries and is sufficient for the conduct of such business as currently conducted and contemplated to be conducted as of the date hereof. To the knowledge of the Company, all actions required for the prosecution, maintenance and protection of the Company IP (including the payment of registry fees and taxes) have been taken by the Company on time.

 

(b)  Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or any one of the Company Subsidiaries solely and exclusively owns and possesses, free and clear of all Liens (other than Permitted Liens), all right, title and interest in the Company-Owned IP and has the right to use pursuant to a valid and binding written license of all Company-Licensed IP and Business Systems, including Software, in each case that are material to the business of the Company and the Company Subsidiaries. All material Company-Owned IP is subsisting and, to the knowledge of the Company, valid and enforceable and nothing has been done or omitted to be done which would or might result in any of it ceasing to be valid. No loss or expiration of any of the Company-Owned IP, or, to the Company’s knowledge, any of the Company-Licensed IP, is threatened in writing.

 

(c)  Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and each of its applicable Company Subsidiaries have taken and take commercially reasonable actions to maintain, protect, and enforce Intellectual Property rights, including the secrecy, confidentiality and value of its trade secrets and other Confidential Information in all material respects. To the knowledge of the Company or any of the Company Subsidiaries, neither the Company nor any Company Subsidiaries have disclosed any trade secrets or other Confidential Information that is material to the business of the Company and any applicable Company Subsidiaries to any other person other than pursuant to a written confidentiality agreement under which such other person agrees to maintain the confidentiality and protect such Confidential Information.

 

(d)  Except as otherwise set forth in Section 4.13(d) of the Company Disclosure Schedule (i) since its date of formation, there have been no claims properly filed and served, or threatened in writing (including email) to be filed, against the Company or any Company Subsidiary in any forum, by any person (A) contesting the validity, use, ownership, enforceability, patentability or registrability of any material Company IP, or (B) alleging any material infringement or misappropriation of, or other conflict with, any Intellectual Property rights of other persons (including any material demands or offers to license any Intellectual Property rights from any other person); (ii) to the Company’s knowledge, the operation of the business of the Company and the Company Subsidiaries (including the Products) has not and does not materially infringe, misappropriate or violate, any Intellectual Property rights of other persons; and (iii) to the Company’s knowledge, no other person has infringed, misappropriated or violated any material Company-Owned IP.

 

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(e)  To the extent required under applicable Law to assign or transfer to the Company or any Company Subsidiary all right, title and interest in and to any Intellectual Property, all persons who have contributed, created, conceived, or otherwise developed any Company-Owned IP have executed valid, written agreements with the Company or one of the Company Subsidiaries, pursuant to which such persons agreed to assign to the Company or the applicable Company Subsidiary all of their entire right, title, and interest in and to any Intellectual Property contributed, created, conceived or otherwise developed by such person in the course of and related to his, her or its relationship with the Company or the applicable Company Subsidiary. There are no outstanding Actions, and, to the Company’s knowledge, threatened Actions, for any compensation or other payments to such person in relation to any Company IP that such person has contributed, created, conceived or otherwise developed. To the Company’s knowledge, no employee, independent contractor, or agent of the Company or the Company Subsidiaries has misappropriated any material trade secrets of the Company or the Company Subsidiaries in the course of his or her performance as an employee, independent contractor, or agent, and no employee, independent contractor, or agent of the Company or the Company Subsidiaries is in material default or material breach of any material term of any employment agreement, nondisclosure agreement, assignment of invention agreement, or similar agreement or contract to the extent relating to the protection, ownership, development, use or transfer of Company IP.

 

(f)  To the Company’s knowledge, the Company and Company Subsidiaries have not used any Open Source Software or any modification or derivative thereof in a manner that would (i) grant or purport to grant to any other person any rights to or immunities under any of the Company IP, or (ii) require the Company or any Company Subsidiary to disclose or distribute the source code to any Business Systems or Product components, to license or provide the source code to any of the Business Systems or Product components for the purpose of making derivative works, or to make available for redistribution to any person the source code to any of the Business Systems or Product components at no or minimal charge.

 

(g)  The Company and/or one of the Company Subsidiaries owns, leases, licenses, or otherwise has the legal right to use all Business Systems, and such Business Systems are sufficient for the immediate and anticipated future needs of the business of the Company or any of the Company Subsidiaries as currently conducted by the Company and/or the Company Subsidiaries. The Company, on its behalf and on behalf of each of the Company Subsidiaries, maintains commercially reasonable disaster recovery and business continuity plans, procedures and facilities, and since January 1, 2019, there has not been any material failure with respect to any of the Business Systems that has not been remedied or replaced in all material respects.

 

(h)  The Company and each of the Company Subsidiaries comply in all material respects with (i) all applicable Privacy/Data Security Laws (including any data collected in connection with COVID-19 screening), (ii) any applicable privacy or other policies of the Company and/or the Company Subsidiary, respectively, concerning the collection, dissemination, storage or use of Personal Information, and (iii) except as would not have a Company Material Adverse Effect, all contractual commitments that the Company or any Company Subsidiary has entered into or is otherwise bound with respect to privacy and/or data security (collectively, the “Data Security Requirements”). The Company and the Company Subsidiaries have each implemented reasonable data security safeguards designed to protect the security and integrity of its Business Systems and any Business Data, including utilizing industry standard tools designed to prevent unauthorized access and the introduction of Disabling Devices. To the Company’s knowledge, since January 1, 2019, neither the Company nor any of the Company Subsidiaries has (x) experienced any data security breaches that were required to be reported under applicable Privacy/Data Security Laws or customer contracts; or (y) been subject to or received written notice of any audits, proceedings or investigations by any Governmental Authority or any customer, or received any material claims or complaints regarding the collection, dissemination, storage or use of Personal Information, or the violation of any applicable Data Security Requirements.

 

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Section 4.14  Taxes.

 

(a)  The Company and each of the Company Subsidiaries: (i) have duly and timely filed (taking into account any extension of time within which to file) all income Tax Returns and other material Tax Returns required to be filed by any of them as of the date hereof and all such filed Tax Returns are complete and accurate in all material respects; (ii) have timely paid all Taxes that are shown as due on such filed Tax Returns and any other material Taxes that the Company or any of the Company Subsidiaries are otherwise obligated to pay, except with respect to Taxes that are (whether or not such Taxes have been reported on any Tax Returns) not yet due and payable or are otherwise being contested in good faith, and no material penalties or charges are due with respect to the late filing of any Tax Return required to be filed by or with respect to any of them on or before the Closing; (iii) with respect to all material Tax Returns filed by or with respect to any of them, have not waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency; and (iv) do not have any deficiency, audit, examination, investigation or other proceeding in respect of a material amount of Taxes or material Tax matters pending or proposed or threatened in writing, for a Tax period which the statute of limitations for assessments remains open.

 

(b)  Neither the Company nor any Company Subsidiary is a party to, is bound by or has an obligation under any Tax sharing agreement, Tax indemnification agreement, Tax allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the sharing or ceding of credits or losses) or has a potential liability or obligation to any person as a result of or pursuant to any such agreement, contract, arrangement or commitment other than an agreement, contract, arrangement or commitment the primary purpose of which does not relate to Taxes.

 

(c)  None of the Company and the Company Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period or portion thereof ending on or prior to the Closing Date under Section 481(c) of the Code (or any corresponding or similar provision of state, local or foreign income Tax law); (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) prepaid amount received or deferred revenue accrued on or prior to the Closing Date; (v) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-United States income Tax law) in existence on or prior to the Closing Date; (vi) any use of an improper method of accounting use for any taxable period or portion thereof ending or ended on or prior to the Closing Date; or (vii) income arising or accruing prior to the Closing and includable after the Closing under Subchapter K, Section 951, 951A or 956 of the Code.

 

(d)  Each of the Company and the Company Subsidiaries has withheld and paid to the appropriate Tax authority all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any current or former employee, independent contractor, creditor, shareholder or other third party and has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes, including all reporting and record keeping requirements related thereto.

 

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(e)  Neither the Company nor any of the Company Subsidiaries has been a member of an affiliated group filing a consolidated, combined or unitary U.S. federal, state, local or foreign income Tax Return (other than a group comprised only of the Company and/or Company Subsidiaries).

 

(f)  Neither the Company nor any of the Company Subsidiaries has any material liability for the Taxes of any person (other than the Company and the Company Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.

 

(g)  Neither the Company nor any of the Company Subsidiaries has any request for a material ruling in respect of Taxes pending between the Company or any Company Subsidiary, on the one hand, and any Tax authority, on the other hand.

 

(h)  The Company has made available to SPAC in the Dataroom true, correct and complete copies of the U.S. federal income Tax Returns filed by the Company and the Company Subsidiaries for Tax years 2018, 2019 and 2020.

 

(i)  Neither the Company nor any of the Company Subsidiaries has within the last two (2) years distributed shares or stock of another person, or had its shares or stock distributed by another person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.

 

(j)  Neither the Company nor any of the Company Subsidiaries has engaged in or entered into a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2), or any corresponding or similar provision of state, local or non-United States Law.

 

(k)  Neither the IRS nor any other United States or non-United States taxing authority or agency has asserted in writing or, to the knowledge of the Company or any of the Company Subsidiaries, has threatened to assert against the Company or any Company Subsidiary any deficiency or claim for any Taxes or interest thereon or penalties in connection therewith, which is still pending or unresolved.

 

(l)  There are no Tax liens upon any assets of the Company or any of the Company Subsidiaries except for Permitted Liens.

 

(m)  None of the Company and the Company Subsidiaries has received written notice from a non-United States taxing authority that it has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized. None of the Company and the Company Subsidiaries has received written notice from a jurisdiction where it does not file Tax Returns that it is subject to Tax in that jurisdiction. None of the Company and the Company Subsidiaries has made an election under Section 965(h) of the Code.

 

(n)  Equity interests in the Company are not United States real property interests within the meaning of Section 897(c)(1) of the Code.

 

(o)  The Company is, and has been since its formation, treated as a foreign corporation for United States federal income Tax purposes.

 

(p)  Neither the Company nor any of the Company Subsidiaries has taken or agreed to take any action, and does not intend to or plan to take any action, or has any knowledge of any fact or circumstance that could reasonably be expected to prevent the Merger and the Exchange from qualifying for the Intended Tax Treatment.

 

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(q)  The Company and each Company Subsidiary has complied in all material respects with all statutory provisions, rules, regulations, orders and directions in respect of VAT under applicable Law, promptly submitted accurate returns, and maintained full and accurate VAT records, invoices, and other requisite documents as required by applicable Law.

 

(r)  Neither the Company nor any Company Subsidiary has been a party to, nor has otherwise been involved in, any transaction, scheme or arrangement (i) the main purpose of which was avoiding, deferring or reducing a liability to Tax or producing a loss for Tax purposes with no corresponding commercial or economic loss, or (ii) that is required to be disclosed to HMRC under any applicable Law for Taxes.

 

Section 4.15  Environmental Matters. Except as set forth in Section 4.15 of the Company Disclosure Schedule, or as would not have a Company Material Adverse Effect, (a) each of the Company and the Company Subsidiaries is and has been since January 1, 2019 in compliance with all applicable Environmental Laws; (b) each of the Company and the Company Subsidiaries has obtained and is in compliance with all permits, licenses, franchises, grants, exemptions, registrations, accreditations and other authorizations required under Environmental Laws (“Environmental Permits”) to own, lease and operate its properties and to carry on its business, and each such Environmental Permit is in full force and effect, free from breach by the Company and the Company Subsidiaries, and will not be adversely affected by the Transactions; (c) neither the Company nor any Company Subsidiary has received written notice from any Governmental Authority regarding any actual or alleged violation of, or liability under, any Environmental Law, the subject of which has not been fully resolved; (d) except for regulatory orders of general applicability, neither the Company nor any Company Subsidiary is subject to any order, writ, judgment, injunction, decree, determination or award applicable to it or with respect to its assets arising under Environmental Law under which any material obligation remains unsatisfied; (e) to the knowledge of the Company, none of the properties currently or formerly owned, leased or operated by the Company or any Company Subsidiary are contaminated with any Hazardous Substance in violation of applicable Environmental Laws as a result of any act or omission by the Company or any Company Subsidiary or in a manner that requires or would reasonably be expected to require reporting, investigation, remediation, monitoring or other response action by the Company or any Company Subsidiary pursuant to applicable Environmental Laws; (f) neither the Company nor any Company Subsidiary has handled, stored, transported, disposed of, arranged for or permitted the disposal of, or Released any Hazardous Substances, or owned or operated any property or facility, in a manner that has given or would reasonably be expected to give rise to material liability under any Environmental Law; (g) the Transactions will not result in any liabilities for site investigation or cleanup, or require the consent of any Person, pursuant to any so-called “transaction-triggered” or “responsible property transfer” requirements in any Environmental Laws; (h) neither the Company nor any Company Subsidiary has, either expressly or by operation of Law, assumed or undertaken any material liability, including any obligation for corrective or remedial action, of any other person relating to Environmental Laws.

 

Section 4.16  Material Contracts.

 

(a)  Section 4.16(a) of the Company Disclosure Schedule lists, as of the date of this Agreement, the following types of contracts and agreements to which the Company or any Company Subsidiary is a party, excluding for this purpose, any purchase orders submitted by customers (such contracts and agreements as are required to be set forth Section 4.16(a) of the Company Disclosure Schedule along with any Plan listed on Section 4.10(a) of the Company Disclosure Schedule being the “Material Contracts”):

 

(i)  except for any contracts or agreements by and between or among any of the Company and the Company Subsidiaries, each contract and agreement with consideration paid or payable to the Company or any of the Company Subsidiaries of more than $100,000 in the aggregate, in the prior or current fiscal year;

 

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(ii)  each contract and agreement with (A) the Company’s top 10 customers and Suppliers based on the aggregate amounts paid by or to the Company and the Company Subsidiaries in the 12-month period ending on December 31, 2021 or the 12-month period ending on March 31, 2022, and (B) the Company’s Suppliers of raw materials that are material to the production of the Company’s products and services (any of the customers referenced in the foregoing, the “Material Customers” and any of the Suppliers referenced in the foregoing, the “Material Suppliers”);

 

(iii)  except for any contracts or agreements by and between or among any of the Company and the Company Subsidiaries, all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contracts and agreements to which the Company or any Company Subsidiary is a party and that are material to the business of the Company;

 

(iv)  all contracts that provides for the formation, creation, operation, management or control of any joint venture or partnership (including any commercial partnership) with a third party (and any such third party, a “Material Partner”);

 

(v)  all management contracts (excluding contracts for employment), and contracts with other consultants, that are material to the business of the Company, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any Product of the Company or any Company Subsidiary to which the Company or any Company Subsidiary is a party, but excluding any such contracts entered into by the Company or any Company Subsidiary in the ordinary course of business;

 

(vi)  all (A) employment agreements pursuant to which an employee is entitled to receive base annual compensation in excess of $150,000; and (B) consulting agreements pursuant to which an independent contractor is entitled to receive annual payments in excess of $150,000; and (C) severance agreements that provide for mandatory or potential severance payments in excess of $150,000.

 

(vii)  except for contracts or agreements relating to trade receivables or by and between or among any of the Company and the Company Subsidiaries, all contracts and agreements evidencing indebtedness for borrowed money in an amount greater than $250,000;

 

(viii)  except for any contracts or agreements by and between or among any of the Company and the Company Subsidiaries, all material definitive partnership, joint venture or similar agreements;

 

(ix)  all contracts and agreements with any Governmental Authority to which the Company or any Company Subsidiary is a party, other than any Company Permits;

 

(x)  all collective bargaining agreements or other contracts with any union, works council or labor organization;

 

(xi)  all contracts and agreements that limit, or purport to limit, the ability of the Company or any Company Subsidiary to compete in any material respect in any line of business or with any person or entity or in any geographic area or during any period of time (including all contracts and agreements that restrict or limit the ability of the Company or any Company Subsidiary to sell, manufacture, develop, commercialize, test or research products (directly or indirectly through third parties), or to solicit any potential employee or customer in any manner that is material to the business of the Company and the Company Subsidiaries), in each case of the foregoing, excluding any non-solicitation provisions in contracts that are entered into by the Company or any Company subsidiary in the ordinary course of business consistent with past practices where such non-solicitation provision is not the primary reason for the contract and customary confidentiality agreements and agreements that contain customary confidentiality clauses;

 

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(xii)  all leases or master leases of personal property reasonably likely to result in annual payments of $150,000 or more in a 12-month period;

 

(xiii)  all contracts involving the use of any Company-Licensed IP and required to be listed in the Company Disclosure Schedule pursuant to Section 4.13(a)(ii);

 

(xiv)  all contracts or agreements under which the Company has agreed to purchase goods or services from a vendor, supplier or other person on a preferred supplier or “most favored supplier” basis, excluding customary exclusivity agreements or arrangements;

 

(xv)  except for any contracts or agreements by and between or among any of the Company and the Company Subsidiaries, contracts which involve the license or grant of rights to Company-Owned IP by the Company and/or the Company Subsidiaries, but excluding any nonexclusive licenses (or sublicenses) of Company-Owned IP granted to customers in the ordinary course of business;

 

(xvi)  any contract or agreement granting to any Person (other than the Company or any Company Subsidiaries) (A) a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests in the Company or any of the Company’s Subsidiaries or (B) the right to receive or earn milestones payments, royalties or other contingent payments based on any investigation, manufacture, research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events;

 

(xvii)  any contract or agreement involving any resolution, conciliation or settlement of any actual or threatened litigation, arbitration, claim or other dispute related to the business of the Company and the Company Subsidiaries (A) with any Governmental Authority, or (B) under which the Company or any Company Subsidiary has any material ongoing obligations; or

 

(xviii)  any contract or agreement requiring capital expenditures on behalf of the Company or any Company Subsidiary after the date of this Agreement in an amount in excess of $500,000 in any 12 month period.

 

(b)  Except as set forth in Section 4.16(b) of the Company Disclosure Schedule, or except as would not be material to the Company and the Company Subsidiaries, taken as a whole, (i) each Material Contract is a legal, valid and binding obligation of the Company or the Company Subsidiaries (subject to the Remedies Exception) and, to the knowledge of the Company, the other parties thereto, and neither the Company nor any Company Subsidiary is in breach or violation of, or default under, any Material Contract nor has any Material Contract been canceled by the other party; (ii) to the Company’s knowledge, no other party to any Material Contract is in breach or violation of, or default under, such Material Contract; and (iii) the Company and the Company Subsidiaries have not received any written or to the knowledge of the Company, oral claim of default under any such Material Contract. The Company has furnished or made available to SPAC true and materially complete copies of all Material Contracts, including amendments thereto that are material in nature, but excluding any Material Contracts in the form of individuals purchase or service orders.

 

(c)  Since December 31, 2021, no Material Customer, Material Supplier or Material Partner has notified the Company or any Company Subsidiary in writing (i) indicating that it intends to cease doing business with the Company or any Company Subsidiary, (ii) requesting or otherwise engaging in a material decrease in the volume of business from or to the Company or any Company Subsidiary, or (iii) requesting or otherwise engaging in a material change in pricing charged to or by the Company or any Company Subsidiary.

 

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Section 4.17  Insurance.

 

(a)  Section 4.17(a) of the Company Disclosure Schedule sets forth, with respect to each material insurance policy under which the Company or any Company Subsidiary is an insured (the “Insurance Policies”), a named insured or otherwise the principal beneficiary of coverage as of the date of this Agreement (i) the names of the insurer, the principal insured and each named insured, (ii) the policy number, (iii) the period, scope and amount of coverage and (iv) the premium most recently charged.

 

(b)  With respect to each Insurance Policy, except as would not have a Company Material Adverse Effect: (i) each policy is legal, valid, binding and enforceable in accordance with its terms (subject to the Remedies Exceptions) and, except for policies that have expired under their terms in the ordinary course, is in full force and effect; (ii) neither the Company nor any Company Subsidiary is in breach or default, and no event has occurred which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification, under the policy and (iii) to the knowledge of the Company, no insurer on the policy has been declared insolvent or placed in receivership, conservatorship or liquidation. The Company and the Company Subsidiaries hold policies of insurance required to be maintained by Material Contracts.

 

Section 4.18  Board Approval; Vote Required.

 

(a)  The Company Board Approval has been duly obtained by resolutions duly adopted by written consent and not subsequently rescinded or modified in any way.

 

(b)  The only vote of the holders of any class of shares in the Issued Share Capital or any governing body of the Company that is necessary to approve this Agreement and the Transactions is (i) the approval of Holdco, as sole shareholder of the Company following the Exchange, to amend and restate the Company Organizational Documents pursuant to Section 2.05(c); and (ii) the Company Board Approval. The Company Board Approval has been obtained.

 

Section 4.19  Certain Business Practices.

 

(a)  None of the Company, any Company Subsidiary or, to the Company’s knowledge, any directors, officers, agents or employees of the Company or any Company Subsidiary, has:

 

(i)  used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity;

 

(ii)  made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any applicable Anti-Corruption Laws; or

 

(iii)  made any payment in the nature of bribery.

 

(b)  The Company, any Company Subsidiary and, to the Company’s knowledge, their respective directors, officers, agents and employees, are and have been in compliance with Anti-Corruption Laws and Anti-Money Laundering Laws, including with regard to financial recordkeeping and reporting requirements in all jurisdictions in which the Company and any Company Subsidiary conducts business.

 

(c)  None of the Company, any Company Subsidiary, nor, to the Company’s knowledge, any of their respective directors, officers, agents or employees: (i) is or has been subject to any action, suit, claim, proceeding, prosecution, settlement, formal or informal notice, or investigation with respect to Anti-Corruption Laws or Anti-Money Laundering Laws; or (ii) made a voluntary, directed, or involuntary disclosure to any governmental authority or similar agency with respect to any alleged act or omission arising under or relating to any alleged noncompliance with Anti-Corruption Laws or Anti-Money Laundering Laws.

 

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(d)  The Company as well as its respective affiliates have instituted and maintain in effect policies and procedures reasonably designed to achieve compliance with Anti-Corruption Laws and Anti-Money Laundering Laws.

 

Section 4.20  Product Warranty; Product Liability.

 

(a)  Since its date of formation, there have been no claims exceeding the equivalent of $150,000 made, or to the knowledge of the Company, threatened in writing against the Company or any Company Subsidiary by a customer or any other person alleging that (i) such Product (A) did not comply with any express or implied warranty regarding such Product, (B) contained an unintended Hazardous Substance, or (C) was otherwise contaminated, adulterated, mislabeled, defective or improperly packaged or transported, or (ii) the Company, any Company Subsidiary or any of their licensees, distributors or agents breached any duty to warn, test, inspect or instruct of the risks, limitations, precautions or dangers related to the use, application, or transportation of any such Product.

 

(b)  Except as would not have a Company Material Adverse Effect, neither the Company nor any Company Subsidiary, nor, to the knowledge of the Company, any of its licensees, distributors, suppliers or agents has developed, manufactured, commercialized, produced, formulated, propagated, modified, customized, processed, distributed or sold any Product that did not comply with any express or implied warranty regarding such Product or that contained any unintended Hazardous Substance or that was otherwise adulterated, contaminated, mislabeled, defective, off-specification or improperly packaged or transported or that otherwise did not comply with applicable Law.

 

(c)  Since its date of formation, the Company and the Company Subsidiaries have in all material respects made all declarations and filings required by any Law or Company Permit for the handling and delivery to third parties of Products.

 

(d)  Since its date of formation, there have been no recalls, market withdrawals or replacements (voluntary or involuntary) with respect to any Product or any similar actions, investigations, written notices or written threats of recalls by any Governmental Entity with respect to any Product.

 

Section 4.21  Compliance with Regulatory Laws.

 

(a)  Except as would not result in a Company Material Adverse Effect, the Products are not and have not been adulterated or misbranded within the meaning of the applicable UK laws, Federal Fair Packaging and Label Act, Food Drug and Cosmetic Act, the U.S. Food and Drug Administration (the “FDA”), and their attendant regulations, and similar state and local food and drug laws, as the same may be amended. The Company Products are in compliance, and since its date of formation have been in compliance, in all material respects with (i) the applicable provisions of the applicable UK laws, the Federal Food, Drug, and Cosmetic Act, as amended, and the applicable regulations and requirements adopted by applicable UK regulatory agencies, the FDA, the thereunder, the applicable regulations and requirements adopted by the U.S. Department of Agriculture, all applicable statutes enforced by the U.S. Federal Trade Commission and the applicable regulations and requirements and any applicable requirements established by any other federal, state, county, city, local or foreign Governmental Bodies responsible for regulating food products (collectively, the foregoing Governmental Authorities, the “Food Authorities” and the foregoing Laws, rules, regulations and requirements, the “Food Laws”)), and (ii) all terms and conditions imposed in any Permits granted to the Company or any Company Subsidiary by any Food Authority. The foregoing includes any applicable good manufacturing practices and sanitation requirements, labeling and advertising requirements, requirements relating to food or color additives, food standards, product composition requirements, testing requirements or protocols, recordkeeping or reporting requirements, monitoring requirements, packaging (including co-packing and re-packing) requirements, laboratory controls, storage and warehousing procedures, shipping requirements, import and export requirements, supply chain security, food handling, and shelf-life requirements.

 

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(b) The Company has obtained all material Permits required by Food Authorities with respect to the conduct of the business operated by the Company and such Permits are in good standing as of the date hereof. Except as would not result in a Company Material Adverse Effect, the Company has maintained and retained accurate records with respect to the foregoing, as well as other records required to be kept by Food Authorities or as may be required under any agreement with third parties regarding the Company Products.

 

(c) None of the Company, the Company Products nor the facilities in which the Company Products are made or handled is subject to any warning letter, untitled letter or other adverse written correspondence or written notice from the FDA, Notice of Intended Enforcement by the USDA or other adverse written correspondence or written notice from the USDA (“Adverse Notice”), recall, investigation, penalty assessment or other compliance or enforcement action by any Food Authority or any other Governmental Authority having responsibility for the regulation of food products, beyond any Adverse Notices to which the Company responded and which are not reasonably expected to be material to the Company and its Subsidiaries. To the knowledge of the Company, none of the entities which manufacture, process, package, supply ingredients for or distribute the Company Products is subject to any such adverse action with regard to a Company Product or a facility that manufactures a Company Product, in each case, except as would not result in a Company Material Adverse Effect. In all material respects, the Company audits its suppliers for compliance with all regulations promulgated by Food Authorities to which such suppliers are subject in accordance with the rights granted under any third party agreements with such suppliers.

 

Section 4.22 Interested Party Transactions.  Except as set forth in Section 4.22 of the Company Disclosure Schedule and except for employment relationships and the payment of compensation, benefits and expense reimbursements and advances in the ordinary course of business and pursuant to any Plan, no director, officer or other affiliate of the Company or any Company Subsidiary (other than the Company or any Company Subsidiary), to the Company’s knowledge, has, directly or indirectly: (a) an economic interest in any person that furnishes or sells, services or Products that the Company or any Company Subsidiary furnishes or sells, or proposes to furnish or sell; (b) an economic interest in any person that purchases from or sells or furnishes to, the Company or any Company Subsidiary, any goods or services; (c) an economic interest in any person (other than the Company and the Company Subsidiaries) party to any contract or agreement disclosed in Section 4.16(a) of the Company Disclosure Schedule; or (d) any contractual or other arrangement with the Company or any Company Subsidiary, other than contracts or arrangements constituting Transaction Documents or customary indemnity arrangements (collectively the foregoing, the “Interested Party Transactions”); providedhowever, that ownership of no more than five percent (5%) of the outstanding voting stock of a publicly traded corporation shall not be deemed an “economic interest in any person” for purposes of this Section 4.22. As of the date of this Agreement, the Company and the Company Subsidiaries have not (i) extended or maintained credit, arranged for the extension of credit or renewed an extension of credit in the form of a personal loan to or for any director or executive officer (or equivalent thereof) of the Company.

 

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Section 4.23 Exchange Act; Proxy Statement/Prospectus and Registration Statement.

 

(a) Neither the Company nor any Company Subsidiary is currently (or has previously been) subject to the requirements of Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(b) None of the information relating to the Company supplied by the Company in writing for inclusion in the Proxy Statement/Prospectus or Registration Statement will, as of the date the Registration Statement is declared effective, as of the date the Proxy Statement/Prospectus (or any amendment or supplement thereto) is first mailed to the SPAC Shareholders, at the time of the SPAC Shareholders’ Meeting, or at the Merger Effective Time, contain any misstatement of a material fact or omission of any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading; providedhowever, that the Company makes no representation with respect to any forward-looking statements supplied by or on behalf of the Company for inclusion in, or relating to information to be included in the Proxy Statement/Prospectus or Registration Statement.

 

Section 4.24 Brokers. Except as set forth in Section 4.24 of the Company Disclosure Schedules, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of the Company or any Company Subsidiary.

 

Section 4.25 Sanctions, Import Control, and Export Control Laws.

 

(a) None of the Company, any Company Subsidiary, nor, to the Company’s knowledge, any of their respective directors, officers, employees or agents is a Restricted Person.

 

(b) None of the Company, any Company Subsidiary, nor, to the Company’s knowledge, any of their respective directors, officers, employees or agents, is in violation of, or has violated since its date of formation, Sanctions Laws, Import Controls Laws, or Export Control Laws.

 

(c) None of the Company, any Company Subsidiary, nor to the Company’s knowledge, any of their respective directors, officers, employees or agents:

 

(i)   is or has been since its date of formation subject to any action, suit, claim, proceeding, prosecution, settlement, formal or informal notice, or investigation with respect to Sanctions Laws, Import Control Laws, or Export Control Laws; or

 

(ii) made since its date of formation a voluntary, directed, or involuntary disclosure to any governmental authority or similar agency with respect to any alleged act or omission arising under or relating to any alleged noncompliance with Sanctions Laws, Import Control Laws, or Export Control Laws.

 

(d) Any provision of this Section 4.25 shall not apply to any person if and to the extent that it is or would be unenforceable by or in respect of that person by reason of breach of any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or regulation implementing such Regulation in any member state of the European Union or the United Kingdom).

 

Section 4.26 Exchange Agreements.

 

Notwithstanding anything in this Article IV to the contrary, (a) each Exchange Agreement (subject to the Remedies Exception) is a legal, valid and binding obligation of the Company, Holdco and, to the knowledge of the Company, each of the Company Shareholders party thereto enforceable against such Persons in accordance with its terms, (b) neither the Company nor Holdco is in breach or violation of, or default under, any Exchange Agreement nor has any Exchange Agreement been terminated or canceled by any Company Shareholder, (c) no Company Shareholder is in breach or violation of, or default under, any Exchange Agreement and (d) the Company and Holdco have not received any written or, to the knowledge of the Company, oral claim of default under any such Exchange Agreement. The Company has furnished or made available to SPAC true and complete copies of all Exchange Agreements, including amendments thereto that are material in nature. The Company has not altered or amended any Exchange Agreement and no Company Shareholder has sought to or threatened in writing or, to the knowledge of the Company, otherwise threatened to renegotiate any Exchange Agreement or threatened non-performance under any Exchange Agreement, in each case, as to which such Company Shareholder is a party.

 

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Section 4.27 Exclusivity of Representations and Warranties. Except as otherwise expressly provided in this Article IV (as modified by the Company Disclosure Schedule), the Company hereby expressly disclaims and negates, any other express or implied representation or warranty whatsoever (whether at Law or in equity) with respect to the Company, its affiliates, and any matter relating to any of them, including their affairs, the condition, value or quality of the assets, liabilities, financial condition or results of operations, or with respect to the accuracy or completeness of any other information made available to SPAC, its affiliates or any of their respective Representatives by, or on behalf of, the Company, and any such representations or warranties are expressly disclaimed. Without limiting the generality of the foregoing, except as expressly set forth in this Agreement, neither the Company nor any other person on behalf of the Company has made or makes, any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to SPAC, its affiliates or any of their respective Representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of the Company (including the reasonableness of the assumptions underlying any of the foregoing), whether or not included in any management presentation or in any other information made available to SPAC, its affiliates or any of their respective Representatives or any other person, and that any such representations or warranties are expressly disclaimed.

 

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SPAC

 

Except as set forth in the SPAC SEC Reports (to the extent the qualifying nature of such disclosure is readily apparent from the content of such SPAC SEC Reports, but excluding any disclosures contained or referenced therein under the captions “Risk Factors,” “Forward-Looking Statements,” “Quantitative and Qualitative Disclosures About Market Risk,” and any other disclosures contained or referenced therein of information, factors, or risks that are predictive, cautionary, or forward-looking in nature) (it being acknowledged that nothing disclosed in such an SEC Report will be deemed to modify or qualify the representations and warranties set forth in Section 5.01, Section 5.03 and Section 5.04), SPAC hereby represents and warrants to the Company as follows:

 

Section 5.01 Corporate Organization.

 

(a) SPAC is a corporation duly incorporated, validly existing and in good standing under the laws of the state of Delaware and has the requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted. SPAC has all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where the failure to have such governmental approval or be so qualified or licensed and in good standing would not have a SPAC Material Adverse Effect.

 

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(b) SPAC does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for any equity or similar interest in, any corporation, partnership, joint venture, business association or other person.

 

Section 5.02 SPAC Organizational Documents. SPAC has heretofore furnished to the Company complete and correct copies of the SPAC Organizational Documents. The SPAC Organizational Documents are in full force and effect. SPAC is not in violation of any of the provisions of the SPAC Organizational Documents.

 

Section 5.03 Capitalization.

 

(a) As of the date hereof, the authorized share capital of SPAC consists of (i) 99,000,000 shares of common stock, par value $0.0001 per share and (ii) 1,000,000 preference shares, par value $0.0001 per share. As of the date of this Agreement, (A) 17,370,000 SPAC Common Stock are issued and outstanding (and 13,800,000 SPAC Common Stock are subject to Redemption Rights), (B) no preference shares are issued and outstanding, and (C) 6,900,000 redeemable SPAC Warrants to purchase 6,900,000 SPAC Common Stock and 4,210,000 private placement SPAC Warrants to purchase 4,210,000 SPAC Common Stock are issued and outstanding. Each SPAC Warrant entitles the holder to purchase one SPAC Common Stock at an exercise price of $11.50.

 

(b) All outstanding SPAC Common Stock and SPAC Warrants (i) are duly authorized, validly issued, fully paid and nonassessable, (ii) are not subject to any preemptive rights, (iii) have been issued and granted in compliance with all applicable securities Laws and other applicable Laws and (iv) were issued free and clear of all Liens other than transfer restrictions under applicable securities Laws and the SPAC Organizational Documents.

 

(c) Other than the SPAC Warrants, there are no options, warrants, preemptive rights, calls, convertible securities, conversion rights or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued shares of SPAC or obligating SPAC to issue or sell any shares of, or other equity interests in, SPAC. SPAC is not a party to, or otherwise bound by, and has not granted, any equity appreciation rights, participations, phantom equity or similar rights. There are no voting trusts, voting agreements, proxies, shareholder agreements or other agreements with respect to the voting or transfer of SPAC Common Stock or any of the equity interests or other securities of SPAC. SPAC does not own any equity interests in any person.

 

(d) Other than Redemption Rights, there are no outstanding contractual obligations of SPAC to repurchase, redeem or otherwise acquire any SPAC Common Stock or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any persons.

 

Section 5.04 Authority Relative to this Agreement. SPAC has all necessary corporate power and corporate authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party and, subject to obtaining the requisite consent of the SPAC Shareholders to approve the SPAC Proposals, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery by SPAC of this Agreement and the Ancillary Agreements to which it is a party and the consummation by SPAC of the Transactions have been duly and validly authorized by all necessary corporate action, including approval by the SPAC Board, and no other corporate proceedings on the part of SPAC is necessary to authorize this Agreement, each such Ancillary Agreement or to consummate the Transactions (other than the requisite consent of the SPAC Shareholders to approve the SPAC Proposals). This Agreement and each such Ancillary Agreement have been duly and validly executed and delivered by SPAC and, assuming due authorization, execution and delivery by the Company, Holdco and Merger Sub, constitutes a legal, valid and binding obligation of SPAC, enforceable against SPAC, in accordance with its terms subject to the Remedies Exceptions.

 

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Section 5.05 No Conflict; Required Filings and Consents.

 

(a) Subject to obtaining the requisite consent of the SPAC Shareholders to approve the SPAC Proposals, the execution and delivery by SPAC of this Agreement and each Ancillary Agreement to which it is a party does not, and the performance of this Agreement and each such Ancillary Agreement by SPAC will not, (i) conflict with or violate the SPAC Organizational Documents, (ii) assuming that all consents, approvals, authorizations and other actions described in  Section 5.05(b) have been obtained and all filings and obligations described in Section 5.05(b) have been made, conflict with or violate any Law, rule, regulation, order, judgment or decree applicable to SPAC or by which any of its property or assets is bound or affected, or (iii) result in any breach of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of SPAC pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which SPAC is a party or by which SPAC or any of its property or assets is bound or affected, except, with respect to clauses (a)(ii) and (a)(iii) for any such conflicts, violations, breaches, defaults or other occurrences which would not have a SPAC Material Adverse Effect.

 

(b) The execution and delivery by SPAC of this Agreement and each Ancillary Agreement to which it is a party does not, and the performance of this Agreement and each such Ancillary Agreement by SPAC will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except (i) for applicable requirements, if any, of the Securities Act, Exchange Act, Blue Sky Laws, stock exchange, HM Revenue and Customs and state takeover laws, and the notification requirements of applicable Antitrust Laws, if any, and the filing and recordation of appropriate Merger and Exchange documents, and (ii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, prevent or materially delay consummation of any of the Transactions or otherwise prevent SPAC from performing its material obligations under this Agreement and each such Ancillary Agreement.

 

Section 5.06 Compliance. SPAC is not or has not been in conflict with, or in default, breach or violation of, (a) any Law applicable to SPAC or by which any property or asset of SPAC is bound or affected, or (b) any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which SPAC is a party or by which SPAC or any property or asset of SPAC is bound. SPAC is in possession of all material franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Authority necessary for SPAC to own, lease and operate its properties or to carry on its business as it is now being conducted.

 

Section 5.07 SEC Filings; Financial Statements; Sarbanes-Oxley.

 

(a) SPAC has filed all forms, reports, schedules, statements and other documents, including any exhibits thereto, required to be filed by it with the Securities and Exchange Commission (the “SEC”) since January 12, 2021, together with any amendments, restatements or supplements thereto (collectively, the “SPAC SEC Reports”). SPAC has heretofore furnished to the Company true and correct copies of all amendments and modifications that have not been filed by SPAC with the SEC to all agreements, documents and other instruments that previously had been filed by SPAC with the SEC and are currently in effect. As of their respective dates, the SPAC SEC Reports (i) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act and the Sarbanes-Oxley Act, and the rules and regulations promulgated thereunder, and (ii) did not, at the time they were filed, or, if amended, as of the date of such amendment, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Each director and executive officer of SPAC has filed with the SEC on a timely basis all documents required with respect to SPAC by Section 16(a) of the Exchange Act and the rules and regulations thereunder.

 

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(b) Each of the financial statements (including, in each case, any notes thereto) contained in the SPAC SEC Reports was prepared in accordance with GAAP (applied on a consistent basis) and Regulation S-X and Regulation S-K, as applicable, throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC) and each fairly presents, in all material respects, the financial position, results of operations, changes in shareholders equity and cash flows of SPAC as at the respective dates thereof and for the respective periods indicated therein, (subject, in the case of unaudited statements, to normal and recurring year-end adjustments). SPAC has no off-balance sheet arrangements that are not disclosed in the SPAC SEC Reports. No financial statements other than those of SPAC are required by GAAP to be included in the consolidated financial statements of SPAC.

 

(c) Except as and to the extent set forth in the SPAC SEC Reports, SPAC has no liability or obligation of a nature (whether accrued, absolute, contingent or otherwise) required to be reflected on a balance sheet prepared in accordance with GAAP, except for liabilities and obligations arising in the ordinary course of SPAC’s business.

 

(d) SPAC is in compliance with the applicable listing and corporate governance rules and regulations of Nasdaq Capital Market.

 

(e) SPAC has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to SPAC and other material information required to be disclosed by SPAC in the reports and other documents that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to SPAC’s principal executive officer and its principal financial officer as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Such disclosure controls and procedures are effective in timely alerting SPAC’s principal executive officer and principal financial officer to material information required to be included in SPAC’s periodic reports required under the Exchange Act.

 

(f)   SPAC maintains systems of internal control over financial reporting that are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies and procedures sufficient to provide reasonable assurance: (i) that SPAC maintains records that in reasonable detail accurately and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP; (iii) that receipts and expenditures are being made only in accordance with authorizations of management and its board of directors; and (iv) regarding prevention or timely detection of unauthorized acquisition, use or disposition of its assets that could have a material effect on its financial statements. SPAC has delivered to the Company a true and complete copy of any disclosure (or, if unwritten, a summary thereof) by any representative of SPAC to SPAC’s independent auditors relating to any material weaknesses in internal controls and any significant deficiencies in the design or operation of internal controls that would adversely affect the ability of SPAC to record, process, summarize and report financial data. SPAC has no knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of SPAC. Since January 12, 2021, there have been no material changes in SPAC internal control over financial reporting.

 

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

 

(h) Neither SPAC (including any employee thereof) nor SPAC’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by SPAC, (ii) any fraud, whether or not material, that involves SPAC’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by SPAC or (iii) any claim or allegation regarding any of the foregoing.

 

(i)   As of the date hereof, there are no outstanding SEC comments from the SEC with respect to the SPAC SEC Reports. To the knowledge of SPAC, none of the SPAC SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.

 

Section 5.08 Absence of Certain Changes or Events. Since March 31, 2022, except as expressly contemplated by this Agreement, (a) SPAC has conducted its business in the ordinary course and in a manner consistent with past practice in all material respects and (b) there has not been any SPAC Material Adverse Effect.

 

Section 5.09 Absence of Litigation. There is no Action pending or, to the knowledge of SPAC, threatened against SPAC, or any property or asset of SPAC, before any Governmental Authority. Neither SPAC nor any material property or asset of SPAC is subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to the knowledge of SPAC, continuing investigation by, any Governmental Authority, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority.

 

Section 5.10 Board Approval; Vote Required.

 

(a) The SPAC Board has unanimously adopted by written consent and not subsequently rescinded or modified in any way, has duly (i) determined that this Agreement, the Ancillary Agreements to which SPAC is a party and the Transactions are fair to and in the best interests of SPAC and the SPAC Shareholders, (ii) approved this Agreement, the Ancillary Agreements to which SPAC is a party and the Transactions and declared their advisability and (iii) recommended that the SPAC Shareholders approve and adopt this Agreement, the Ancillary Agreements to which SPAC is a party and the Transactions, and directed that this Agreement, the Ancillary Agreements to which SPAC is a party and the Transactions, be submitted for consideration by the SPAC Shareholders at the SPAC Shareholders’ Meeting.

 

(b) The only votes of the holders of any class or series of shares of SPAC necessary to approve the Merger and the Transactions as contemplated by this Agreement are the SPAC Shareholder Approvals.

 

Section 5.11 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of SPAC.

 

Section 5.12 SPAC Trust Fund. As of the date of this Agreement, SPAC has no less than $138,025,662.14 in the trust fund established by SPAC for the benefit of its SPAC Shareholders (the “Trust Fund”) maintained in a trust account at Continental Stock Transfer & Trust Company (the “Trust Account”). The monies of such Trust Account are invested in United States Government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended, and held in trust by Continental Stock Transfer & Trust Company (the “Trustee”) pursuant to that certain Investment Management Trust Agreement, dated as of January 12, 2021, by and between SPAC and the Trustee (the “Trust Agreement”). The Trust Agreement has not been amended or modified and is valid and in full force and effect and is enforceable in accordance with its terms, subject to the Remedies Exceptions. SPAC has complied in all material respects with the terms of the Trust Agreement and is not in breach thereof or default thereunder and there does not exist under the Trust Agreement any event which, with the giving of notice or the lapse of time, would constitute such a breach or default by SPAC or the Trustee. There are no separate contracts, agreements, side letters or other understandings (whether written or unwritten, express or implied) (a) between SPAC and the Trustee that would cause the description of the Trust Agreement in the SPAC SEC Reports to be inaccurate in any material respect or (b) to the knowledge of SPAC, that would entitle any person (other than shareholders of SPAC who shall have elected to redeem their SPAC Common Stock pursuant to the SPAC Organizational Documents) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released except (i) to pay income and franchise Taxes from any interest income earned in the Trust Account and (ii) upon the exercise of Redemption Rights in accordance with the provisions of the SPAC Organizational Documents. As of the date hereof, there are no Actions pending or, to the knowledge of SPAC, threatened in writing with respect to the Trust Account. There are no claims, proceedings or other Actions pending with respect to, or against, the Trust Fund and, to the knowledge of SPAC, there are no events, circumstances or conditions that would reasonably result in any such claim, proceeding or other Action. Upon consummation of the Merger and notice thereof to the Trustee pursuant to the Trust Agreement, SPAC shall cause the Trustee to, and the Trustee shall thereupon be obligated to, release to SPAC as promptly as practicable, the Trust Funds in accordance with the Trust Agreement at which point the Trust Account shall terminate; providedhowever that the liabilities and obligations of SPAC due and owing or incurred at or prior to the Closing shall be paid as and when due, including all amounts payable (A) to SPAC Shareholders who shall have exercised their Redemption Rights, (B) with respect to filings, applications and/or other actions taken pursuant to this Agreement required under Law, (C) to the Trustee for fees and costs incurred in accordance with the Trust Agreement; (D) to third parties (e.g., professionals, printers, etc.) who have rendered services to SPAC in connection with its efforts to effect the Merger and (E) to underwriters to pay deferred underwriting fees incurred in connection with SPAC’s initial public offering. As of the date hereof, assuming the accuracy of the representations and warranties of the Company herein and the compliance by the Company with its respective obligations hereunder, SPAC has no reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to SPAC at the Closing.

 

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Section 5.13 Employees. Other than any officers of SPAC as described in the SPAC SEC Reports, SPAC has never employed any employees. Other than consultants and advisors retained in the ordinary course of business (including in connection with the Transactions) or as described in the SPAC SEC Reports, SPAC has never retained any contractors. Other than reimbursement of any out-of-pocket expenses incurred by SPAC’s officers and directors in connection with activities on SPAC’s behalf in an aggregate amount not in excess of the amount of cash held by SPAC outside of the Trust Account, SPAC has no unsatisfied material liability with respect to any employee, officer or director. SPAC has never and does not currently maintain, sponsor, contribute to or have any direct liability under any employee benefit plan (as defined in Section 3(3) of ERISA), nonqualified deferred compensation plan subject to Section 409A of the Code, bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, fringe benefit, sick pay and vacation plans or arrangements or other employee benefit plans, programs or arrangements. Neither the execution and delivery of this Agreement nor the other Ancillary Agreements nor the consummation of the Transactions will (i) result in any payment becoming due to any director, officer or employee of SPAC (other than payments received or deemed to be received by any of the foregoing persons in their capacity as SPAC equityholders), (ii) result in the acceleration of the time of payment or vesting of any such benefits, or (iii) give rise to any “excess parachute payment” within the meaning of Section 280G of the Code. There is no contract, agreement, plan or arrangement to which SPAC is a party which requires payment by any party of a Tax gross-up or Tax reimbursement payment to any person.

 

Section 5.14 Taxes.

 

(a) SPAC (i) has duly and timely filed (taking into account any extension of time within which to file) all income Tax Returns and other material Tax Returns required to be filed by it as of the date hereof and all such filed Tax Returns are complete and accurate in all material respects; (ii) has timely paid all Taxes that are shown as due on such filed Tax Returns and any other material Taxes that the SPAC is otherwise obligated to pay, except with respect to Taxes that are (whether or not such Taxes have been reported on any Tax Returns) not yet due and payable or are otherwise being contested in good faith, and no material penalties or charges are due with respect to the late filing of any Tax Return required to be filed by or with respect to it on or before the Closing; (iii) with respect to all material Tax Returns filed by or with respect to it, has not waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency; and (iv) does not have any deficiency, audit, examination, investigation or other proceeding in respect of a material amount of Taxes or material Tax matters pending or proposed or threatened in writing, for a Tax period which the statute of limitations for assessments remains open.

 

(b) SPAC is not a party to, bound by or has an obligation under any Tax sharing agreement, Tax indemnification agreement, Tax allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the sharing or ceding of credits or losses) or has a potential liability or obligation to any person as a result of or pursuant to any such agreement, contract, arrangement or commitment other than an agreement, contract, arrangement or commitment the primary purpose of which does not relate to Taxes.

 

(c) SPAC will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period or portion thereof ending on or prior to the Closing Date under Section 481(c) of the Code (or any corresponding or similar provision of state, local or foreign income Tax law); (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) prepaid amount received or deferred revenue accrued on or prior to the Closing Date; (v) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-United States income Tax law) in existence on or prior to the Closing Date; (vi) any use of an improper method of accounting use for any taxable period or portion thereof ending or ended on or prior to the Closing Date; or (vii) income arising or accruing prior to the Closing and includable after the Closing under Subchapter K, Section 951, 951A or 956 of the Code.

 

(d) SPAC has withheld and paid to the appropriate Tax authority all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any current or former employee, independent contractor, creditor, shareholder or other third party and has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes, including all reporting and record keeping requirements related thereto.

 

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(e) SPAC has not been a member of an affiliated group filing a consolidated, combined or unitary U.S. federal, state, local or foreign income Tax Return.

 

(f)   SPAC does not have any material liability for the Taxes of any person under Treasury Regulation section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.

 

(g) SPAC does not have any request for a material ruling in respect of Taxes pending between SPAC, on the one hand, and any Tax authority, on the other hand.

 

(h) SPAC has made available to the Company true, correct and complete copies of the U.S. federal income Tax Returns filed by SPAC for the 2020 Tax year.

 

(i)   SPAC has not within the last two (2) years distributed shares or stock of another person, or had its shares distributed by another person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.

 

(j)   SPAC has not engaged in or entered into a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2), or any corresponding or similar provision of state, local or non-United States Law.

 

(k) Neither the IRS nor any other United States or non-United States taxing authority or agency has asserted in writing or to the knowledge of SPAC, has threatened to asset against SPAC any deficiency or claim for any Taxes or interest thereon or penalties in connection therewith, which is still pending or unresolved.

 

(l)   There are no Tax liens upon any assets of SPAC except for Permitted Liens.

 

(m)   SPAC has not received written notice from a non-United States taxing authority that it has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized. SPAC has not received written notice from a jurisdiction where it does not file Tax Returns that it is subject to Tax in that jurisdiction. SPAC has not made an election under Section 965(h) of the Code.

 

(n) Equity interests in the SPAC are not United States real property interests within the meaning of Section 897(c)(1) of the Code.

 

(o) SPAC is, and has been since its formation, treated as a domestic corporation for United States federal income Tax purposes.

 

(p) SPAC has not taken or agreed to take any action, and does not intend to or plan to take any action, or has any knowledge of any fact or circumstance that could reasonably be expected to prevent the Merger and the Exchange from qualifying for the Intended Tax Treatment.

 

(q) SPAC has complied in all material respects with all statutory provisions, rules, regulations, orders and directions in respect of VAT under applicable Law, promptly submitted accurate returns, and maintained full and accurate VAT records, invoices, and other requisite documents as required by applicable Law.

 

(r)   SPAC has not been a party to, nor has otherwise been involved in, any transaction, scheme or arrangement (i) the main purpose, or one of the main purposes of which was avoiding, deferring or reducing a liability to Tax or producing a loss for Tax purposes with no corresponding commercial or economic loss, or (ii) that is required to be disclosed to HMRC under any applicable Law for Taxes.

 

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Section 5.15 Listing. The issued and outstanding SPAC Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Nasdaq Capital Market under the symbol “LJAQ”. The issued and outstanding SPAC Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Nasdaq Capital Market under the symbol “LJAQU”. The issued and outstanding SPAC Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Nasdaq Capital Market under the symbol “LJAQW”. As of the date of this Agreement, there is no Action pending or, to the knowledge of SPAC, threatened against SPAC by the Nasdaq Capital Market or the SEC with respect to any intention by such entity to deregister the SPAC Units, the SPAC Common Stock, or SPAC Warrants or terminate the listing of SPAC on the Nasdaq Capital Market. None of SPAC or any of its affiliates has taken any action in an attempt to terminate the registration of the SPAC Units, the SPAC Common Stock or the SPAC Warrants, under the Exchange Act.

 

Section 5.16 Prior Business Operation. SPAC has limited its activities in all material respects to those activities (a) contemplated in the prospectus of SPAC, dated as of January 12, 2021 and in the Form 10-K of SPAC, for the fiscal year ended December 31, 2021, or (b) otherwise necessary to consummate the Transactions.

 

Section 5.17 SPAC Material Contracts.

 

(a) The SPAC SEC Reports include true and complete copies of each “material contract” (as such term is defined in Regulation S-K of the SEC) to which SPAC is party (the “SPAC Material Contracts”).

 

(b) Each SPAC Material Contract is in full force and effect and, to the knowledge of SPAC, is valid and binding upon and enforceable against each of the parties thereto (subject to the Remedies Exception), except insofar as enforceability may be limited by the Remedies Exceptions. True and complete copies of all SPAC Material Contracts have been made available to the Company.

 

(c) The EarlyBird Amendment is in full force and effect and is valid and binding upon and enforceable against each of the parties thereto. A true and complete copy of the EarlyBird Amendment has been made available to the Company.

 

Section 5.18 Investment Company Act. SPAC is not an “investment company” or a person directly or indirectly “controlled” by or acting on behalf of an “investment company”, or required to register as an “investment company”, in each case within the meaning of the Investment Company Act of 1940.

 

Section 5.19 Proxy Statement/Prospectus and Registration Statement. None of the information relating to SPAC supplied by SPAC in writing for inclusion in the Proxy Statement/Prospectus or Registration Statement will, as of the date the Registration Statement is made effective, as of the date the Proxy Statement/Prospectus (or any amendment or supplement thereto) is first mailed to the SPAC Shareholders, at the time of the SPAC Shareholders’ Meeting, or at the Merger Effective Time, contain any misstatement of a material fact or omission of any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading; providedhowever, that SPAC makes no representation with respect to any forward-looking statements supplied by or on behalf of SPAC for inclusion in, or relating to information to be included in the Proxy Statement/Prospectus or Registration Statement.

 

Section 5.20 SPAC’s Investigation and Reliance. SPAC is a sophisticated purchaser and has made its own independent investigation, review and analysis regarding the Company and the Company Subsidiaries and the Transactions, which investigation, review and analysis were conducted by SPAC together with expert advisors, including legal counsel, that it has engaged for such purpose. SPAC and its Representatives have been provided with full and complete access to the Representatives, books and records of the Company and the Company Subsidiaries and other information that they have requested in connection with their investigation of the Company, the Company Subsidiaries and the Transactions. SPAC is not relying on any statement, representation or warranty, oral or written, express or implied, made by the Company, any of the Company Subsidiaries or their Representatives (including the Company Shareholders), except as expressly set forth in Article IV (as modified by the Company Disclosure Schedule). Neither the Company nor any of its shareholders, affiliates or Representatives shall have any liability to SPAC or any of its shareholders, affiliates or Representatives resulting from the use of any information, documents or materials made available to SPAC, whether orally or in writing, in any confidential information memoranda, the Dataroom or other “datarooms,” management presentations, due diligence discussions or in any other form in expectation of the Transactions. Neither the Company nor any of its shareholders, affiliates or Representatives is making, directly or indirectly, any representation or warranty with respect to any estimates, projections or forecasts involving the Company and the Company Subsidiaries.

 

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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF HOLDCO AND MERGER SUB

 

Each of Holdco and Merger Sub hereby represents and warrants to SPAC as follows:

 

Section 6.01 Organization. Each of Holdco and Merger Sub is a company duly organized, validly existing and in good standing (insofar as such concept exists in the relevant jurisdiction) under the laws of the jurisdiction of its incorporation and has the requisite corporate power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted.

 

Section 6.02 Organization Documents. Each of Holdco and Merger Sub has heretofore furnished to SPAC complete and correct copies of the Holdco Organizational Documents and Merger Sub Organizational Documents, respectively, as of the date of this Agreement. Each of the Holdco Organizational Documents and Merger Sub Organizational Documents are in full force and effect and neither Holdco nor Merger Sub is in violation of any of the provisions of such organizational documents.

 

Section 6.03 Capitalization.

 

(a) As of the date hereof, the share capital of Holdco consists of 5,000,000 Holdco Ordinary Shares, having a nominal value of $0.01 each. As of the date hereof, the Company Shareholders are the shareholders of Holdco.

 

(b) As of the date hereof, the authorized share capital of Merger Sub consists of 1,000 shares of Merger Sub Common Stock.

 

(c) The shares constituting the Merger Consideration being delivered by Holdco hereunder shall be duly and validly issued and fully paid, and each such share or other security shall be issued free and clear of preemptive rights and all Liens, other than transfer restrictions under applicable securities Laws and the A&R Holdco Organizational Documents. The Holdco Ordinary Shares constituting the Merger Consideration being delivered by Holdco hereunder will be issued in compliance with the 1915 Law and will not be subject to or give rise to any preemptive rights or rights of first refusal, other than those which are mandatorily applicable under the 1915 Law.

 

(d) Except as contemplated by this Agreement, the Holdco Organizational Documents and the Exchange Agreements and except as for the mandatory subscription rights provided for in the 1915 Law, (i) there are no other options, warrants, preemptive rights, calls, convertible securities, conversion rights or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital of Holdco or obligating Holdco to issue or sell any shares of, or other equity interests in, Holdco, (ii) Holdco is not a party to, or otherwise bound by, and Holdco has not granted, any equity appreciation rights, participations, phantom equity or similar rights and (iii) there are no voting trusts, voting agreements, proxies, shareholder agreements or other similar agreements with respect to the voting or transfer of the Holdco Ordinary Shares or any of the equity interests or other securities of Holdco. As of the date hereof, except for Merger Sub, Holdco does not own any equity interests in any person.

 

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Section 6.04 Authority Relative to this Agreement. Each of Holdco and Merger Sub have all necessary power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery of this Agreement and such Ancillary Agreements to which they are a party by each of Holdco and Merger Sub and the consummation by each of Holdco and Merger Sub of the Transactions have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of Holdco or Merger Sub are necessary to authorize this Agreement, each such Ancillary Agreement to which they are a party or to consummate the Transactions (other than (a) the filing and recordation of appropriate Merger and Exchange documents as required by DGCL and the 1915 Law, as the case may be, (b) the Holdco Shareholder Approval, (c) the Holdco Board resolutions approving the issuance on the Closing Date (and conditional on Closing) by a delegate of (A) the Merger Consideration and (B) new Holdco Ordinary Shares in the context of the Exchange; both pursuant to the Holdco Delegate Resolutions,, and (d) the Holdco Delegate Resolutions). This Agreement and each such Ancillary Agreement have been duly and validly executed and delivered by Holdco and Merger Sub and, assuming due authorization, execution and delivery by the Company and SPAC, constitutes a legal, valid and binding obligation of Holdco or Merger Sub, enforceable against Holdco or Merger Sub in accordance with its terms subject to the Remedies Exceptions.

 

Section 6.05 No Conflict; Required Filings and Consents.

 

(a) The execution and delivery by Holdco and Merger Sub of this Agreement and each Ancillary Agreement to which it is a party does not, and the performance of this Agreement and each such Ancillary Agreement by Holdco and Merger Sub will not, (i) conflict with or violate the Holdco Organizational Documents or Merger Sub Organizational Documents (as the case may be), (ii) assuming that all consents, approvals, authorizations and other actions described in Section 6.05 have been obtained and all filings and obligations described in Section 6.05 have been made, conflict with or violate any Law, rule, regulation, order, judgment or decree applicable to Holdco or Merger Sub or by which any of their respective property or assets is bound or affected or (iii) result in any breach of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of Holdco or Merger Sub pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which each of Holdco or Merger Sub is a party or by which Holdco or Merger Sub or any of their respective property or assets is bound or affected, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences which would not have or reasonably be expected to have a material adverse effect.

 

(b) The execution and delivery by Holdco and Merger Sub of this Agreement and each Ancillary Agreement to which it is a party does not, and the performance of this Agreement and each such Ancillary Agreement by Holdco or Merger Sub, as applicable, will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except (i) for applicable requirements, if any, of the Exchange Act, Blue Sky Laws and state takeover laws, the Antitrust Laws, if any, and filing and recordation of appropriate Merger and Exchange documents as required by DGCL and the 1915 Law, as the case may be and (ii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, prevent or materially delay consummation of any of the Transactions or otherwise prevent Holdco and Merger Sub from performing their respective material obligations under this Agreement and each such Ancillary Agreement.

 

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Section 6.06 Compliance. Neither Holdco nor Merger Sub is or has been in conflict with, or in default, breach or violation of, (a) any Law applicable to Holdco or Merger Sub or by which any property or asset of Holdco or Merger Sub is bound or affected, or (b) any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which Holdco or Merger Sub is a party or by which Holdco or Merger Sub or any property or asset of Holdco or Merger Sub is bound. Holdco and Merger Sub are in possession of all material franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Authority necessary for Holdco and Merger Sub to own, lease and operate their respective properties or to carry on their respective businesses as they are now being conducted.

 

Section 6.07 Board Approval; Vote Required.

 

(a) The Holdco Board has by resolutions duly adopted by written consent and not subsequently rescinded or modified in any way, duly (i) determined that this Agreement and the Transactions are in the best interests of Holdco and (ii) approved this Agreement and the Transactions and shall, on the Closing Date, cause the Holdco Delegate Resolutions to be issued.

 

(b) The only vote of the holders of any class or series of capital of Holdco that is necessary to approve this Agreement, the Exchange and the Transactions is the Holdco Shareholder Approval.

 

(c) Merger Sub Board has, by resolutions duly adopted by written consent and not subsequently rescinded or modified in any way, duly (i) determined that this Agreement and the Transactions are fair to and in the best interests of Merger Sub and Holdco (as the sole shareholder of Merger Sub), (ii) approved this Agreement and the Transactions and declared their advisability and (iii) recommended that Holdco (as the sole shareholder of Merger Sub) approve and adopt this Agreement and approve the Transactions and directed that this Agreement and the Transactions be submitted for consideration by Holdco (as the sole shareholder of Merger Sub).

 

(d) The only shareholder vote of Merger Sub that is necessary to approve this Agreement and the Transactions is the affirmative vote of the Holdco as sole shareholder of Merger Sub.

 

Section 6.08 No Prior Operations of Holdco or Merger Sub; Post-Closing Operations. Holdco and Merger Sub were formed for the sole purposes of entering into this Agreement and the Ancillary Agreements to which they are party and engaging in the Transactions. Since the date of the Holdco Organizational Documents, Holdco has not engaged in any business or activities whatsoever, nor incurred any liabilities, except in connection with this Agreement, the Ancillary Agreements or in furtherance of the Transactions and in connection with its incorporation and sale to the Company Shareholders. Since the date of the Merger Sub Organizational Documents, Merger Sub has not engaged in any business or activities whatsoever, nor incurred any liabilities, except in connection with this Agreement, the Ancillary Agreements or in furtherance of the Transactions. Neither Holdco nor Merger Sub has any employees or liabilities under any Plan.

 

Section 6.09 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of Holdco or Merger Sub.

 

SECTION 6.10   Proxy Statement/Prospectus and Registration Statement. None of the information relating to Holdco or Merger Sub supplied by Holdco or Merger Sub in writing for inclusion in the Proxy Statement/Prospectus or Registration Statement will, as of the date the Registration Statement is declared effective, as of the date the Proxy Statement/Prospectus (or any amendment or supplement thereto) is first mailed to the SPAC Shareholders, at the time of the SPAC Shareholders’ Meeting, or at the Merger Effective Time, contain any misstatement of a material fact or omission of any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading; providedhowever, that Holdco and Merger Sub make no representation with respect to any forward-looking statements supplied by or on behalf of Holdco or Merger Sub for inclusion in, or relating to information to be included in the Proxy Statement/Prospectus or Registration Statement.

 

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Section 6.11 Tax Matters. To the knowledge of Company, Holdco and the Merger Sub, there is no plan or intention to liquidate SPAC (including a liquidation for Tax purposes) following the Transactions.

 

ARTICLE VII
CONDUCT OF BUSINESS PENDING THE MERGER

 

Section 7.01 Conduct of Business by the Company, Holdco and Merger Sub Pending the Merger.

 

(a) The Company agrees that, between the date of this Agreement and the Closing or the earlier termination of this Agreement, except as (i) expressly contemplated or permitted by any other provision of this Agreement or any Ancillary Agreement, (ii) as set forth in Section 7.01(a) of the Company Disclosure Schedule, and (iii) as required by applicable Law (including COVID-19 Measures or as may be requested or compelled by any Governmental Authority), unless SPAC shall otherwise consent in writing, which consent shall not be unreasonably withheld, delayed or conditioned: (A) the Company shall, and shall cause the Company Subsidiaries to, conduct their business in all material respects in the ordinary course of business and in a manner consistent with past practice; provided that, in the case of actions that are taken (or omitted to be taken) reasonably in response to an emergency or urgent condition or conditions arising from COVID-19, the Company and the Company Subsidiaries shall not be deemed to be acting outside the ordinary course of business, so long as such actions or omissions are reasonably designed to (1) protect the health or welfare of the Company’s employees, directors, officers or agents or (2) comply with clause (B) of this Section 7.01, and in each case, the Company promptly notifies SPAC prior to taking such actions and reasonably takes into account the reasonable requests of SPAC in further acts or omissions of the Company with respect to such condition or conditions arising from COVID-19; and (B) the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries and shall use its commercially reasonable efforts to keep available the services of the current officers, key employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations.

 

(b) By way of amplification and not limitation, except as (x) expressly contemplated or permitted by any other provision of this Agreement or any Ancillary Agreement, (y) as set forth in Section 7.01(b) of the Company Disclosure Schedule, and (z) as required by applicable Law (including COVID-19 Measures or as may be requested or compelled by any Governmental Authority), the Company shall not, and shall cause each Company Subsidiary, Holdco and Merger Sub not to, between the date of this Agreement and the Closing or the earlier termination of this Agreement, directly or indirectly, do any of the following without the prior written consent of SPAC which consent shall not be unreasonably withheld, delayed or conditioned:

 

(i) amend or otherwise change its memorandum of association, articles of association, certificate of incorporation, by-laws or equivalent organizational documents;

 

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(ii) issue, sell, pledge, dispose of, grant or encumber, solicit, propose, negotiate with respect to, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (A) any shares of any class of capital stock of the Company or any Company Subsidiary, if any, (B) any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest) or (C) except in the ordinary course of business, any assets of the Company or any Company Subsidiary;

 

(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;

 

(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than redemptions of equity securities from former employees upon the terms set forth in the underlying agreements governing such equity securities;

 

(v) merge or consolidate with any other person or restructure, reorganize, dissolve or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;

 

(vi) acquire or invest (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporate partnership, other business organization, or any division thereof, in each case, for an aggregate purchase price that exceeds $500,000;

 

(vii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances, or intentionally grant any security interest in any of its assets, in each case, except in the ordinary course of business and consistent with past practice;

 

(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel abandon or allow to lapse or expire or otherwise dispose of any of its material assets, properties, licenses, operations, rights, production lines, businesses or interests therein, except for sales or other dispositions in the ordinary course of business consistent with past practice;

 

(ix) (A) increase the compensation or benefit payable to any current or former director, officer, employee or consultant of the Company or any Company Subsidiary, other than (1) health and welfare plan renewals in the ordinary course of business consistent with past practices or (2) increases in base salary or wage of employees in the ordinary course of business whose cash portion of the annual base salary or wage is not in excess of $200,000; (B) take any action to accelerate or commit to accelerate the funding, payment, or vesting of any compensation or benefits to any current or former director, officer, employee or consultant; (C) hire or otherwise enter into any employment or consulting agreement or arrangement with any person or terminate (other than for cause) any current or former director, officer, employee or consultant provider whose cash portion of the annual base salary or wage would exceed $200,000; or (D) enter into any new, or materially amend any existing employment or severance or termination agreement with any current or former director, officer, employee or consultant provider whose cash portion of the annual base salary or wage would exceed $200,000;

 

(x) adopt, enter into, materially amend and/or terminate any Plan or any plan, program, agreement, arrangement or policy for the current or future benefit of any current or former director, officer, employee, consultant or individual independent contractor that would be a Plan if it were in existence on the date hereof (including any existing employment or severance or termination agreement with any current or former director, officer, employee or consultant), except as may be required by applicable Law or health and welfare Plan renewals in the ordinary course of business and consistent with past practice;

 

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(xi) materially amend other than reasonable and usual amendments in the ordinary course of business, with respect to accounting policies or procedures, other than as required by the Accounting Principles;

 

(xii) make change or revoke any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, materially amend any Tax Returns or file claims for Tax refunds except in the ordinary course of business, enter into any closing agreement, waive or extend any statute of limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability;

 

(xiii)  materially amend or modify, or consent to the termination (excluding any expiration in accordance with its terms) of any Material Contract or materially amend or modify, waive, or consent to the termination (excluding any expiration in accordance with its terms) of the Company’s or any Company Subsidiary’s material rights thereunder, in each case in a manner that is adverse to the Company or any Company Subsidiary, taken as a whole, except in the ordinary course of business;

 

(xiv) intentionally permit any material item of Company IP to lapse or to be abandoned, invalidated, dedicated to the public, or disclaimed, or otherwise become unenforceable or fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and Taxes required to maintain and protect its interest in each and every material item of Company IP;

 

(xv) create or incur any Lien material to the Company, any Company Subsidiary, Holdco or Merger Sub other than Permitted Liens incurred in the ordinary course of business consistent with past practice;

 

(xvi) make any loans, advances, or guarantees in any person (other than the Company or any Company Subsidiaries);

 

(xvii) fail to make or authorize any budgeted capital expenditures or make or authorize any unbudgeted capital expenditures, in each case in excess of 10% of the aggregate amount of budgeted capital expenses;

 

(xviii) fail to pay or satisfy when due any material account payable or other material liability, other than in the ordinary course of business consistent with past practice or any such liability that is being contested in good faith by the Company or any Company Subsidiary or otherwise materially change the manner by which the Company or any Company Subsidiary manages its working capital;

 

(xix) fail to keep current and in full force and effect, or comply in all material respects with the requirements of any Company Permit issued to the Company or any Company Subsidiary by any Governmental Authority;

 

(xx) take any steps for liquidation, winding-up, freeze of proceedings, arrangements with creditors or similar action or proceeding by or in respect of the Company or any Company Subsidiary;

 

(xxi) take any actions or omit to take any actions that would, individually or in the aggregate, reasonably be expected to result in any of the conditions set forth in Article IX not being satisfied;

 

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(xxii) engage in any dealings or transactions (i) with any Restricted Person in violation of applicable laws; (ii) involving any Sanctionable Activity; or (iii) otherwise in violation of Sanction Laws, Export Control Laws or Import Control Laws; or

 

(xxiii) enter into any formal or informal agreement or otherwise make a binding commitment to do any of the foregoing.

 

(c) By way of amplification and not limitation, Holdco shall not, and the Company Shareholders or the Company, as the case may be, shall not permit Holdco to, between the date of this Agreement and the Closing or the earlier termination of this Agreement, directly or indirectly, except as expressly contemplated or permitted by any other provision of this Agreement, any Ancillary Agreements or as may be required by applicable Law (including as may be requested or compelled by any Governmental Authority), do any of the following without the prior written consent of SPAC which consent shall not be unreasonably withheld, delayed or conditioned:

 

(i) engage in any business or activity other than the consummation of the Exchange;

 

(ii) amend or otherwise change the Holdco Organizational Documents except for the A&R Holdco Organizational Documents or as otherwise required to implement the Exchange and issuance of Merger Consideration;

 

(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;

 

(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Holdco Ordinary Shares;

 

(v) issue, sell, pledge, dispose of, grant or encumber, or authorize, solicit, propose, or negotiate with respect to the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital or other securities of Holdco or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital, or any other ownership interest (including, without limitation, any phantom interest), of Holdco;

 

(vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Holdco;

 

(vii) amend any Exchange Agreement or any other agreement related to the Exchange;

 

(viii) permit any Company Shareholder who owns Holdco Ordinary Shares both prior to the Exchange and pursuant to the Exchange to transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or otherwise dispose of any Holdco Ordinary Shares, or recognize any such transfer, sale, lease, license, mortgage, pledge, surrender, encumbrances, divestment, cancellation, abandonment or other disposition of Holdco Ordinary Shares;

 

(ix) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any Company Ordinary Shares acquired pursuant to the Exchange and any such attempted action shall be null and void and Company will not inscribe any such transfer (of any kind as contemplated in this provision) in the shareholder register of Company;

 

(x) acquire or hold any equity securities or rights thereto in any person other than the Company, pursuant to the Exchange, and Merger Sub; or

 

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(xi) enter into any formal or informal agreement or otherwise make a binding commitment to do any of the foregoing.

 

Section 7.02 Conduct of Business by SPAC Pending the Merger.

 

(a) SPAC agrees that, between the date of this Agreement and the Closing or the earlier termination of this Agreement, except as expressly contemplated by any other provision of this Agreement or any Ancillary Agreement and as required by applicable Law (including as may be requested or compelled by any Governmental Authority), unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), the business of SPAC shall be conducted in the ordinary course of business and in a manner consistent with past practice and SPAC shall not, directly or indirectly, take any action that would reasonably be likely to materially delay or prevent the Transactions. By way of amplification and not limitation, except as expressly contemplated by any other provision of this Agreement or any Ancillary Agreement or as required by applicable Law (including as may be requested or compelled by any Governmental Authority), SPAC shall not, between the date of this Agreement and the Closing or the earlier termination of this Agreement, directly or indirectly, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned:

 

(i)   amend or otherwise change the SPAC Organizational Documents (other than in connection with a SPAC Extension Proposal, if any);

 

(ii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, shares, property or otherwise, with respect to any of its shares, other than pursuant to the Redemption Rights from the Trust Fund that are required pursuant to the SPAC Organizational Documents;

 

(iii)   reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the SPAC Common Stock or SPAC Warrants except for the Redemption Rights from the Trust Fund that are required pursuant to the SPAC Organizational Documents;

 

(iv)    issue, sell, pledge, dispose of, grant or encumber, or authorize, solicit, propose, or negotiate with respect to the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of shares or other securities of SPAC or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such shares, or any other ownership interest (including, without limitation, any phantom interest), of SPAC;

 

(v) reclassify, combine, split or subdivide, directly or indirectly, any of its shares (except pursuant to the Redemption Rights);

 

(vi) acquire (including, without limitation, by merger, consolidation, or acquisition of stock, shares or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or any material amount of assets or enter into any strategic joint ventures, partnerships or alliances with any other person;

 

(vii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances, or intentionally grant any security interest in any of its assets;

 

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(viii) make any change in any method of financial accounting or financial accounting principles, policies, procedures or practices, except as required by a concurrent amendment in GAAP or applicable Law made subsequent to the date hereof, as agreed to by its independent accountants;

 

(ix) make, change or revoke any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, waive or extend any statute of limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability;

 

(x) liquidate, dissolve, reorganize or otherwise wind up the business and operations of SPAC;

 

(xi) amend the Trust Agreement or any other agreement related to the Trust Account; or

 

(xii) enter into any formal or informal agreement or otherwise make a binding commitment to do any of the foregoing.

 

(b) From the date of this Agreement and the Closing or the earlier termination of this Agreement, SPAC shall use reasonable best efforts to maintain the EarlyBird Amendment in full force and effect (and SPAC shall not take any action to cause the EarlyBird Amendment not to be in full force and effect and shall not refrain from taking any commercially reasonable action to maintain the EarlyBird Amendment in full force and effect) and SPAC shall not amend or otherwise change the EarlyBird Engagement Letter without the prior written consent of the Company and any such amendment or change shall be in a form that is mutually agreeable to the SPAC and the Company. For the avoidance of doubt, nothing in this Agreement shall prevent, limit or restrict SPAC or its affiliates from taking all actions required to raise funds for the benefit of Parties (after the Closing), including by raising funds as contemplated by the EarlyBird Engagement Letter.

 

Section 7.03 Claims Against Trust Account. Each of Holdco, Merger Sub and the Company agrees that, notwithstanding any other provision contained in this Agreement, none of Holdco, Merger Sub or the Company does now have, and shall not at any time prior to the Merger Effective Time have, any claim to, or make any claim against, the Trust Fund, regardless of whether such claim arises as a result of, in connection with or relating in any way to, the business relationship between or among Holdco, Merger Sub, the Company and SPAC, this Agreement, or any other agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims against the Trust Fund are collectively referred to in this Section 7.03 as the “Claims”). Notwithstanding any other provision contained in this Agreement, each of Holdco, Merger Sub and the Company hereby irrevocably waives any Claim it may have, now or in the future and will not seek recourse against the Trust Fund for any reason whatsoever in respect thereof providedhowever, that the foregoing waiver will not limit or prohibit any of Holdco, Merger Sub or the Company from pursuing a claim against SPAC or any other person (a) for legal relief against monies or other assets of SPAC held outside of the Trust Account or for specific performance or other equitable relief in connection with the Transactions or (b) for damages for breach of this Agreement against SPAC (or any successor entity) in the event this Agreement is terminated for any reason and SPAC consummates a business combination transaction with another party. In the event that any of Holdco, Merger Sub or the Company commences any Claims against or involving the Trust Fund in violation of the foregoing, SPAC shall be entitled to recover from Holdco, Merger Sub or the Company, as applicable the associated reasonable legal fees and costs in connection with any such action, in the event SPAC prevails in such action or proceeding.

 

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Section 7.04 SPAC Public Filings.

 

(a) Between the date of this Agreement and the Closing or the earlier termination of this Agreement, SPAC will keep current and timely file all of the forms, reports, schedules, statements and other documents required to be filed by SPAC with the SEC, including all necessary amendments and supplements thereto, and otherwise comply in all material respects with applicable securities Laws (the “Additional SEC Reports”). All such Additional SEC Reports (including any financial statements or schedules included therein) (i) shall be prepared in all material respects in accordance with either the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations promulgated thereunder and (ii) will not, at the time they are filed, or, if amended, as of the date of such amendment, contain any Misrepresentation. As used in this Section 7.04, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC or Nasdaq. Any Additional SEC Reports which discuss or refer to this Agreement or the Transactions shall be subject to the prior review and approval of the Company (not to be unreasonably withheld, delayed or conditioned).

 

(b) Between the date of this Agreement and the Closing or the earlier termination of this Agreement, SPAC shall use its reasonable best efforts prior to the Merger to maintain the listing of the SPAC Units, the SPAC Common Stock and the SPAC Warrants on the Nasdaq Capital Market.

 

ARTICLE VIII
ADDITIONAL AGREEMENTS

 

Section 8.01 Proxy Statement; Registration Statement.

 

(a) As promptly as practicable after the execution and delivery of this Agreement and delivery of the PCAOB Financials, (i) Holdco, the Company and SPAC shall prepare and Holdco shall file with the SEC the proxy statement/prospectus (as amended or supplemented from time to time, the “Proxy Statement/Prospectus”) to be sent to the SPAC Shareholders relating to the general meeting of SPAC (the “SPAC Shareholders’ Meeting”) for the purpose of soliciting proxies from SPAC Shareholders for the matters to be acted upon at the SPAC Shareholders’ Meeting and providing the SPAC Shareholders an opportunity in accordance with the SPAC Organizational Documents to have their SPAC Common Stock redeemed (the “Redemption”) in conjunction with the shareholder vote on the SPAC Proposals and (ii) Holdco, the Company and SPAC shall prepare and Holdco shall file (and the Company and SPAC shall cause Holdco to file) with the SEC a registration statement on Form F-4 or such other applicable form as the Company and SPAC may agree (as amended or supplemented from time to time, the “Registration Statement”), in which the Proxy Statement/Prospectus will be included, in connection with the registration under the Securities Act of the Holdco Ordinary Shares and Holdco Warrants, in each case, to be issued in the Merger. Each Party shall use its reasonable best efforts to cause the Registration Statement and the Proxy Statement/Prospectus to comply with the applicable rules and regulations promulgated by the SEC, including providing any necessary opinions of counsel, to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing, and to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Each of Holdco, the Company and SPAC shall furnish all information as may be reasonably requested by the other Parties in connection with any such action and the preparation, filing and distribution of the Registration Statement and the Proxy Statement/Prospectus; providedhowever, that no Party shall use any such information for any purposes other than those contemplated by this Agreement unless such Party obtains the prior written consent of the other. SPAC also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the Transactions, and the Company shall furnish all information concerning the Company and the Company Subsidiaries as may be reasonably requested in connection with any such action; provided that, without the prior written consent of the Company, SPAC shall not use any such information for any purposes other than to obtain necessary state securities law or “Blue Sky” permits and approvals.

 

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(b) As promptly as practicable after the Registration Statement shall have become effective, SPAC shall use its reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to the SPAC Shareholders as of the record date for the SPAC Shareholders’ Meeting. No filing of, or amendment or supplement to, the Registration Statement or the Proxy Statement/Prospectus will be made (in each case including documents incorporated by reference therein) by SPAC, the Company or Holdco without providing the other with a reasonable opportunity to review and comment thereon and each Party shall give reasonable and good faith consideration to any comments made by any other Party and their counsel. Each of SPAC, the Company and Holdco will be given a reasonable opportunity to participate in the response to any SEC comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with SPAC, the Company or Holdco or their counsel in any discussions or meetings with the SEC. SPAC shall comply with all applicable rules and regulations promulgated by the SEC, any applicable rules and regulations of Nasdaq, SPAC Organizational Documents, and this Agreement in the preparation, filing and distribution of the Proxy Statement/Prospectus, any solicitation of proxies thereunder, the calling and holding of the SPAC Shareholders’ Meeting and the Redemption.

 

(c) If at any time prior to the Merger Effective Time, any information relating to SPAC, the Company or Holdco or any of their respective affiliates, directors or officers, should be discovered by SPAC, the Company or Holdco which should be set forth in an amendment or supplement to either the Registration Statement or the Proxy Statement/Prospectus, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the SPAC Shareholders.

 

(d) Each of SPAC, the Company and Holdco will advise the other Parties promptly after it receives any oral or written request by the SEC for amendment of the Proxy Statement/Prospectus or the Registration Statement, as applicable, or comments thereon and responses thereto, any oral or written comments or requests in relation to the SPAC Shareholders’ Meeting or the Redemption, or requests by the SEC for additional information and each Party will promptly provide the other with copies of any written communication between it or any of its Representatives, on the one hand, and the SEC, any state securities commission or their respective staffs, on the other hand, with respect to the Proxy Statement/Prospectus, the Registration Statement, the Exchange, the Merger, the SPAC Shareholders’ Meeting or the Redemption. SPAC, the Company and Holdco shall use their respective reasonable best efforts, after consultation with each other, to resolve all such requests or comments with respect to the Proxy Statement/Prospectus, the Registration Statement, the SPAC Shareholders’ Meeting or the Redemption, as applicable, as promptly as reasonably practicable after receipt thereof.

 

(e) Without limiting the generality of the foregoing, each of SPAC, the Company and Holdco shall cooperate with each other in the preparation of each of the Proxy Statement/Prospectus and the Registration Statement, and each of the Company and SPAC shall furnish Holdco with all information concerning it and its affiliates as the providing Party (after consulting with counsel) may deem reasonably necessary or advisable in connection with the preparation of the Proxy Statement/Prospectus or the Registration Statement, as applicable.

 

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(f) With respect to any SPAC Shareholder outreach in connection with the SPAC Shareholders’ Meeting, the Company and the Company Subsidiaries shall use their commercially reasonable efforts to provide to SPAC, and the Company and the Company Subsidiaries shall use their respective commercially reasonable efforts to cause their Affiliates and Representatives, including legal and accounting representatives, to provide to SPAC, all cooperation reasonably requested by SPAC that is customary in connection with SPAC Shareholder outreach for the SPAC Shareholders’ Meeting, which commercially reasonable efforts shall include, among other things, (i) furnishing SPAC promptly following SPAC’s request, with information reasonably available to it regarding the Company and the Company Subsidiaries (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and the Company Subsidiaries) customary for such outreach activities, (ii) causing each of their Representatives with appropriate seniority and expertise to participate in a reasonable number of meetings (including customary one-on-one meetings), presentations and due diligence sessions and drafting sessions in connection with such outreach activities, (iii) assisting with the preparation of marketing materials and similar documents required in connection with any such outreach activities, (iv) providing reasonable assistance to SPAC in connection with the preparation of pro forma financial information to be included in any marketing materials to be used in any outreach activities, and (v) cooperating with requests for due diligence to the extent customary and reasonable.

 

(g) SPAC, the Company and Holdco shall notify each other promptly of the time when the Registration Statement has become effective, of the issuance of any stop order or suspension of the qualification of the Holdco Ordinary Shares or Holdco Warrants issuable in connection with the Merger for offering or sale in any jurisdiction, or of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement/Prospectus or the Registration Statement or for additional information.

 

Section 8.02 SPAC Shareholders’ Meetings.

 

(a) SPAC shall call the SPAC Shareholders’ Meeting in accordance with the SPAC Organizational Documents and applicable Law for the purposes of voting upon the SPAC Proposals as promptly as practicable after the date on which the SEC has declared the Registration Statement effective for the purpose of voting solely upon the SPAC Proposals. SPAC shall consult with the Company in fixing the record date for the SPAC Shareholders’ Meeting and the date of the SPAC Shareholders’ Meeting, give notice to the Company of the SPAC Shareholders’ Meeting and allow the Company’s representatives and legal counsel to attend the SPAC Shareholders’ Meeting. Without the prior written consent of the Company (not to be unreasonably withheld, delayed or conditioned), the SPAC Proposals shall be the only matters (other than procedural matters) which SPAC shall propose to be acted on by the SPAC Shareholders at the SPAC Shareholders’ Meeting.

 

(b) Subject to this Section 8.02, SPAC shall include in the Proxy Statement/Prospectus the unanimous recommendation of the SPAC Board that the SPAC Shareholders vote in favor of the SPAC Proposals, shall otherwise use its reasonable best efforts to obtain the approval of the SPAC Proposals at the SPAC Shareholders’ Meeting, including by soliciting from its shareholders proxies as promptly as possible in favor of the SPAC Proposals, and shall take all other action necessary or advisable to secure the required vote or consent of its shareholders therefor and neither the SPAC Board nor any committee thereof shall withdraw or modify, or publicly propose or resolve to withdraw or modify, the recommendation of the SPAC Board that the SPAC Shareholders vote in favor of the SPAC Proposals (a “Change in Recommendation”). SPAC shall provide the Company with (a) updates with respect to the tabulated vote counts received by SPAC, (b) the right to demand postponement or adjournment of the SPAC Shareholders’ Meeting if, based on the tabulated vote count, SPAC will not receive the required approval of its shareholders of the SPAC Proposals; providedhowever, that SPAC shall not be permitted to postpone the SPAC Shareholders’ Meeting more than the earlier of (i) five (5) Business Days prior to the Outside Date and (ii) ten (10) days from the date of the first SPAC Shareholders’ Meeting without the prior written consent of the Company (not to be unreasonably withheld, delayed or conditioned), and (c) the right to review and comment on all communication sent to SPAC Shareholders, holders of SPAC Warrants and/or proxy solicitation firms.

 

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(c) Notwithstanding anything to the contrary contained in this Agreement, the SPAC Board may, at any time prior to, but not after, obtaining the SPAC Shareholder Approval, determined in good faith, after consultation with its outside legal counsel, make a Change in Recommendation in response to an Intervening Event (an “Intervening Event Change in Recommendation”) if the failure to take such action would be inconsistent with the fiduciary duties of the SPAC Board to the SPAC Shareholders under applicable Law, provided, that: (i) the Company shall have received written notice from SPAC of SPAC’s intention to make an Intervening Event Change in Recommendation at least three (3) Business Days prior to the taking of such action by SPAC (the “Intervening Event Notice Period"), which notice shall specify the applicable Intervening Event in reasonable detail, (ii) during the Intervening Event Notice Period and prior to making an Intervening Event Change in Recommendation, if requested by the Company, SPAC and its Representatives shall have negotiated in good faith with the Company and its Representatives regarding any revisions or adjustments proposed by the Company to the terms and conditions of this Agreement as would enable SPAC to proceed with its recommendation of this Agreement and the Transactions and not make such Intervening Event Change in Recommendation and (iii) if the Company requested negotiations in accordance with clause (ii), SPAC may make an Intervening Event Change in Recommendation only if the SPAC Board, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that the Company shall have, prior to the expiration of the three-Business Day period, offered in writing in a manner that would form a binding contract if accepted by SPAC (and the other applicable parties hereto), continues to determine in good faith that failure to make an Intervening Event Change in Recommendation would be inconsistent with its fiduciary duties to the SPAC Shareholders under applicable Law.

 

(d) Notwithstanding anything to the contrary contained in this Agreement, the SPAC Board may, at any time prior to, but not after, obtaining the SPAC Shareholder Approval, determined in good faith, based on the advice of its outside legal counsel, make a Change in Recommendation in response to a Superior Proposal (a “Superior Proposal Change in Recommendation”) if the SPAC Board determines after consultation with outside counsel that failure to take such action would be inconsistent with the fiduciary duties of the SPAC Board to the SPAC Shareholders under applicable Law, provided, that: (i) the Company shall have received written notice from SPAC of SPAC’s intention to make a Superior Proposal Change in Recommendation at least three (3) Business Days prior to the taking of such action by SPAC (the “Superior Proposal Notice Period”), which notice shall specify the Superior Proposal in reasonable detail, and (ii) if, prior to the expiration of the Superior Proposal Notice Period, the Company provides SPAC with a written proposal to adjust the terms and conditions of this Agreement, SPAC shall not make a Superior Proposal Change in Recommendation unless the SPAC Board, after considering in good faith such written proposal from the Company, continues to reasonably determine in good faith that such Superior Proposal continues to be a Superior Proposal and after consultation with outside counsel determines that failure to make a Superior Proposal Change in Recommendation would be reasonably likely to be inconsistent with its fiduciary duties to the SPAC Shareholders under applicable Law.

 

(e) For purposes hereof

 

(i)   An “Intervening Event” shall mean any material event, state of facts, development, change, circumstance, occurrence or effect thereof occurring or arising after the date of this Agreement with respect to the business, operations, financial condition or results of operations of the Company or Company Subsidiaries that is material to the Company and the Company Subsidiaries, taken as a whole, that (i) was not known to or reasonably foreseeable by the SPAC Board as of the date of this Agreement, and (ii) does not relate to any SPAC Acquisition Proposal.

 

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(ii) A “Superior Proposal” shall mean an unsolicited, bona fide written Competing SPAC Transaction that the SPAC Board reasonably determines in good faith (after consultation with its financial advisor and its outside legal counsel, and after taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, (i) is reasonably capable of being consummated in accordance with its terms and (ii) would, if consummated, be more favorable to the SPAC Shareholders from a financial point of view than the Transactions (including any adjustments proposed by the Company during the Superior Proposal Notice Period in accordance with Section 8.02); provided, that, for purposes of hereof, “Competing SPAC Transaction” shall be deemed to exclude any issuance, sale or acquisition of less than fifty percent (50%) of the shares of capital stock or other equity securities of the SPAC.

 

Section 8.03 Access to Information; Confidentiality.

 

(a) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement, the Company and SPAC shall (and shall cause their respective subsidiaries to): (i) provide to the other Party (and the other Party’s Representatives) reasonable access at reasonable times upon prior notice to the officers, employees, agents, properties, offices and other facilities of such Party and its subsidiaries and to the books and records thereof; provided, that such access shall not unreasonably interfere with the business and operations of SPAC and the Company; and (ii) furnish promptly to the other Party such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of such Party and its subsidiaries as the other Party or its Representatives may reasonably request. Notwithstanding the foregoing, neither the Company nor SPAC shall be required to provide access to or disclose information where the access or disclosure would jeopardize the protection of attorney-client privilege or contravene applicable Law (it being agreed that the Parties shall use their reasonable best efforts to cause such information to be provided in a manner that would not result in such jeopardy or contravention).

 

(b) All information obtained by the Parties pursuant to this Section 8.03 shall be kept confidential in accordance with the confidentiality agreement, dated January 12, 2022 (the “Confidentiality Agreement”), between SPAC and the Company.

 

(c) Notwithstanding anything in this Agreement to the contrary, each Party (and its Representatives) may consult any Tax advisor regarding the Tax treatment and Tax structure of the Transactions and may disclose to any other person, without limitation of any kind, the Tax treatment and Tax structure of the Transactions and all materials (including opinions or other Tax analyses) that are provided relating to such treatment or structure, in each case in accordance with the Confidentiality Agreement.

 

Section 8.04 Employee Matters.

 

(a) Holdco shall, or shall cause the Company, the Surviving Company and each of their respective subsidiaries, as applicable, to provide the employees of the Company and the Company Subsidiaries who remain employed immediately after the Closing (the “Continuing Employees”) to receive credit for purposes of eligibility to participate and vesting under any employee benefit plan, program or arrangement established or maintained by Holdco, the Company or the Surviving Company or any of their respective subsidiaries, other than any qualified or nonqualified defined benefit plan, for service accrued or deemed accrued prior to the Closing with the Company or any Company Subsidiary; providedhowever, that such crediting of service shall not operate to duplicate any benefit or the funding of any such benefit. In addition, Holdco shall use reasonable best efforts to (i) cause to be waived any eligibility waiting periods, any evidence of insurability requirements and the application of any pre-existing condition limitations under each of the employee benefit plans established or maintained by Holdco, the Company, the Surviving Company or any of their respective subsidiaries that cover the Continuing Employees or their dependents following the Closing and (ii) cause any eligible expenses incurred by any Continuing Employee and his or her covered dependents, during the portion of the plan year in which the Closing occurs, under those health and welfare Plans in which such Continuing Employee participates immediately prior to the Closing to be taken into account under those health and welfare benefit plans of Holdco, the Company, the Surviving Company or any of their respective subsidiaries in which such Continuing Employee participates following the Closing for purposes of satisfying all deductible, coinsurance, and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year. Following the Closing, Holdco shall, or shall cause the Company, the Surviving Company and each of their respective subsidiaries, as applicable, to honor all accrued but unused vacation and other paid time off of the Continuing Employees that existed immediately prior to the Closing.

 

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(b) Between the date of this Agreement and the Closing Date,

 

(i) the Company shall enter into employment agreements with the employees listed on Section 8.04(b) of the Company Disclosure Schedule and if such employment agreements provide for the cash portion of the annual base salary or wage in excess of $200,000, for such employment agreements shall be in a form mutually agreeable to the Company and SPAC (provided that SPAC shall not unreasonably withhold, delay or condition its approval with respect to any employment agreement if such employee’s compensation and benefits are not materially changed from the compensation and benefits provided to such employees prior to the Closing); and

 

(ii) the Company and SPAC shall cooperate to (i) cause Holdco to adopt and authorize a mutually agreeable equity incentive plan for the benefit of the employees of Holdco and its Subsidiaries after the Closing (the “Equity Incentive Plan”) and (ii) identify the initial recipient of awards and the terms of such awards to be awarded under the Equity Incentive Plan. Holdco shall use reasonable best efforts to obtain the approval of the Holdco Board of the Equity Incentive Plan as of the Closing and to, promptly after the Closing, grant the awards to the individuals identified pursuant to this Section 8.20 (including by taking any actions required to file registration statements on Form S-8 covering any such awards).

 

(c) Notwithstanding anything in this Section 8.04 to the contrary, nothing contained herein, whether express or implied, is or will be deemed to be an establishment, amendment or other modification of any Plan or any employee benefit plan, program, policy, agreement or arrangement of Holdco, the Company, the Surviving Company and each of their respective subsidiaries or affiliates, or shall prohibit or limit the right of Holdco, the Company, the Surviving Company and each of their respective subsidiaries or affiliates to amend, terminate or otherwise modify any Plan or other employee benefit plan, program, policy, agreement or arrangement. The Parties acknowledge and agree that all provisions contained in this Section 8.04 are included for their sole benefit, and that nothing in this Section 8.04, whether express or implied, shall create (i) any third party beneficiary or other rights in any other person, including any Continuing Employee, any participant in any Plan or employee benefit plan, program, policy, agreement or arrangement of Holdco, the Company, the Surviving Company and each of their respective subsidiaries or affiliates, or any dependent or beneficiary thereof, or (ii) any rights in such person to continued employment with Holdco, the Company, the Surviving Company or any of their respective subsidiaries or affiliates or to any particular term or condition of employment.

 

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SECTION 8.05 Directors’ and Officers’ Indemnification.

 

(a) To the fullest extent permitted under applicable Law, the A&R Holdco Organizational Documents shall contain provisions no less favorable with respect to indemnification, advancement or expense reimbursement than are set forth in the Company Organizational Documents and the SPAC Organizational Documents, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Closing Date in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Merger Effective Time, were directors, officers, employees, fiduciaries or agents of the Company or SPAC (each such individual, a “D&O Indemnified Party” and collectively, the “D&O Indemnified Parties”), unless such modification shall be required by applicable Law. Holdco and the Company agree that with respect to the provisions of the articles, bylaws, limited liability company agreements or other equivalent organizational documents of the Company Subsidiaries relating to indemnification, advancement or expense reimbursement, such provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Merger Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Closing Date, were directors, managers, officers, employees, fiduciaries or agents of such Company Subsidiary, unless such modification shall be required by applicable Law.

 

(b) Holdco shall obtain, fully pay the premium for, and maintain prior to the Closing a fully-paid “tail” insurance policy for a term of six (6) years from the Closing Date (the “D&O Tail Policy”, and the period for the D&O Tail Policy, the “Tail Period”) with terms and scope of coverage at least as favorable as the Company’s directors and officers insurance policy and SPAC’s directors and officers insurance policy covering those persons thereunder; providedhowever, that nothing in this Section 8.05 shall relieve Holdco or the Company of its other obligations under this Section 8.05, or allow Holdco or the Company to delay its performance of its obligations under this Section 8.05 and otherwise to provide indemnification for or make any expense advances with respect to the expenses of any claim for indemnification by a D&O Indemnified Party. Holdco shall maintain the D&O Tail Policy in full force and effect for the full term and comply with all obligations thereunder. Such D&O Tail Policy shall be non-cancellable and placed with the incumbent insurers using the policies that were in place as of the date of this Agreement (unless the incumbent insurers will not offer such policies in which case coverage for the Tail Period shall be placed with a substantially comparable insurer with the same or better terms, conditions, exclusions, retentions and limits of the expiring policies). Holdco will instruct the insurers and their brokers that they may communicate directly with the D&O Indemnified Party(ies) regarding such claim, and Holdco and the Company will provide the D&O Indemnified Party(ies) a copy of all insurance policies and coverage correspondence relating to any proceeding involving any D&O Indemnified Party upon request. The D&O Indemnified Parties are express and intended third-party beneficiaries of the provisions of this Section 8.05 and shall be entitled to independently enforce the terms hereof as if they were each a party to this Agreement.

 

(c) In the event Holdco, the Company, the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving company or entity in such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any person, then and in any such case proper provision shall be made so that the successors and assigns of Holdco, the Company, the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 8.05.

 

(d) Holdco shall cause (i) each of its directors to be compensated in substantially the same manner and in the same amount than its other directors and (ii) such compensation to be consistent with compensation of directors of substantially comparable companies, including with respect to size, listed on Nasdaq.

 

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SECTION 8.06 Notification of Certain Matters. The Company shall give prompt notice to SPAC, and SPAC shall give prompt notice to the Company, of any event which a Party becomes aware of between the date of this Agreement and the Closing (or the earlier termination of this Agreement in accordance with Article IX), the occurrence, or non-occurrence of which causes or would reasonably be expected to cause any of the conditions set forth in Article IX to fail. The failure by the Company or SPAC to give notice under this Section 8.06 shall not be deemed to be a breach under this Section 8.06, unless such breach is knowing and in any event shall not give rise to any additional damages above and beyond the breach of the underlying representation, warranty, covenant, condition or agreement, as the case may be.

 

SECTION 8.07 Further Action; Reasonable Best Efforts 

 

(a) Upon the terms and subject to the conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, appropriate action, and to do, or cause to be done, such things as are necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective the Transactions as soon as practicable, including, without limitation, using its reasonable best efforts to obtain all permits, consents, approvals, authorizations, qualifications and orders of Governmental Authorities and parties to contracts with the Company and the Company Subsidiaries as set forth in Section 4.05 necessary for the consummation of the Transactions and to fulfill the conditions to the Merger. In case, at any time after the Closing, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action.

 

(b) Each of the Parties shall keep each other apprised of the status of matters relating to the Transactions, including promptly notifying the other Parties of any communication it or any of its affiliates receives from any Governmental Authority relating to the matters that are the subject of this Agreement and permitting the other Parties to review in advance, and to the extent practicable consult about, any proposed communication by such Party to any Governmental Authority in connection with the Transactions. No Party shall agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry unless it consults with the other Parties in advance and, to the extent permitted by such Governmental Authority, gives the other Parties the opportunity to attend and participate at such meeting. Subject to the terms of the Confidentiality Agreement, the Parties will use reasonable best efforts to coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other Parties may reasonably request in connection with the foregoing. Subject to the terms of the Confidentiality Agreement, the Parties will provide each other with copies of all material correspondence, filings or communications, including any documents, information and data contained therewith, between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the Transactions. No Party shall take or cause to be taken any action before any Governmental Authority that is inconsistent with or intended to delay its action on requests for a consent or the consummation of the Transactions.

 

SECTION 8.08 Public Announcements. The initial press release relating to this Agreement shall be a joint press release the text of which has been agreed to by each of SPAC and the Company. Thereafter, between the date of this Agreement and the Closing Date (or the earlier termination of this Agreement in accordance with Article 10.01) unless otherwise prohibited by applicable Law or the requirements of the Nasdaq Capital Market, each of SPAC and the Company shall each use its reasonable best efforts to consult with each other before issuing any press release or otherwise making any public statements (including through social media platforms) with respect to this Agreement, the Merger or any of the other Transactions, and shall not issue any such press release or make any such public statement without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed).

 

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SECTION 8.09 Tax Matters.

 

(a) No Party has taken (or failed to take) any action or caused any action to be taken (or to fail to be taken) and will not take (or fail to take) any action or will cause any action to be taken (or to fail to be taken) (in each case other than any action provided for or prohibited by this Agreement), or has any knowledge of any fact or circumstance that could reasonably be expected to prevent the Merger and the Exchange from qualifying for the Intended Tax Treatment. Following the Merger, the Surviving Company shall, for at least six (6) months following the Closing Date, either (i) continue SPAC’s “historic business” (with the meaning of Treasury Regulations Section 1.368-1(d)(2)), or (ii) use a significant portion of SPAC’s “historic business assets” (within the meaning of Treasury Regulations Section 1.368-1(d)(3)) in a business. Within two (2) years following the Closing Date, the HoldCo shall not cause the Surviving Company to (i) dispose of more than 50% of the assets held by it at Closing pursuant to one or more distributions or other transfers where the Surviving Company does not receive an exchange of net value in such transfer, (ii) make any distribution or other transfer that fails to satisfy the requirements of Treasury Regulations Section 1.368-2(k)(1)(i) (in the case of a distribution), Treasury Regulations Section 1.368-2(k)(1)(ii) (in the case of a transfer other than a distribution), or (iii) otherwise take any action that would result in an actual or deemed liquidation of the Surviving Company for U.S. federal income tax purposes.

 

(b) Each Party agrees to act in good faith, consistent with the Intended Tax Treatment and will not take any position on any U.S. Tax Return or otherwise take any U.S. Tax reporting position inconsistent with the Intended Tax Treatment, unless otherwise required by a “determination” within the meaning of Section 1313 of the Code that the Intended Tax Treatment is not correct. For the avoidance of doubt, the preceding sentence shall not be interpreted to prevent a person from reporting transactions hereunder pursuant to other applicable non-recognition provisions of the Code, including under Section 368 of the Code (Section 368(a)(1)(F) of the Code), to the extent any such position is not, in and of itself, conflicting with the qualification of the transactions contemplated hereby for the Intended Tax Treatment.

 

(c) Tax Covenants.

 

(i) The Parties agree that this Agreement is a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2(g) and 1.368-3(a).

 

(ii) From the date of this Agreement to the Closing, (x) the Company shall and shall cause each of the Company Subsidiaries to, and (y) SPAC shall:

 

(A) prepare, in the ordinary course of business consistent with past practice (except as otherwise required by a change in applicable Law), and timely file all Tax Returns required to be filed by it on or before the Closing Date (“Post-Signing Returns”);

 

(B) deliver drafts of such material Post-Signing Returns to the other Party no later than ten (10) Business Days prior to the date (including extensions) on which such Post-Signing Returns are required to be filed;

 

(C) fully and timely pay all Taxes due and payable in respect of such Post-Signing Returns that are so filed;

 

(D) properly reserve (and reflect such reserve in its books and records and relevant financial statements), in the ordinary course of business consistent with past practice, for all Taxes payable by it for which no Post-Signing Return is due prior to the Closing Date; and

 

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(E) promptly notify the other Party of any material federal, state, local or foreign income or franchise, Action or audit pending or threatened in writing against or with respect to such Party or its subsidiaries in respect of any Tax matter.

 

(iii) Holdco acknowledges that any SPAC Shareholder who owns five percent (5%) or more of the ordinary shares of Holdco immediately after the Closing, as determined under Section 367 of the Code and the Treasury Regulations promulgated thereunder, may enter into (and cause to be filed with the IRS) a gain recognition agreement in accordance with Treasury Regulations Section 1.367(a)-8. Upon the written request of any such SPAC Shareholder made following the Closing Date, Holdco shall (i) use reasonable best efforts to furnish to such SPAC Shareholder such information as such SPAC Shareholder reasonably requests in connection with such SPAC Shareholder’s preparation of a gain recognition agreement, and (ii) use reasonable best efforts to provide such SPAC Shareholder with the information reasonably requested by such SPAC Shareholder for purposes of determining whether there has been a gain “triggering event” under the terms of such SPAC Shareholder’s gain recognition agreement, in each case, at the sole cost and expense of such requesting SPAC Shareholders.

 

(d) Transfer Taxes. Any Transfer Taxes incurred in connection with the Transactions shall be paid by HoldCo. The Parties shall reasonably cooperate to establish any available exemption from (or reduction in) any Transfer Tax.

 

SECTION 8.10 Stock Exchange Listing. The Company, Holdco and SPAC shall use their respective reasonable best efforts to cause the Holdco Ordinary Shares to be issued in exchange of the Company Ordinary Shares, the Merger Consideration, to be issued in the form of Holdco Ordinary Shares and Holdco Warrants and Holdco Ordinary Shares that will become issuable upon the exercise of the Holdco Warrants, to be approved for listing on Nasdaq, subject to official notice of issuance, as promptly as practicable after the date of this Agreement, and in any event prior to the Closing Date.

 

SECTION 8.11 Delisting and Deregistration. The Company, Holdco and SPAC shall use their respective reasonable best efforts to cause the SPAC Units, SPAC Common Stock and SPAC Warrants to be delisted from Nasdaq (or be succeeded by the respective Holdco securities) and to terminate its registration with the SEC pursuant to Sections 12(b), 12(g) and 15(d) of the Exchange Act (or be succeeded by Holdco) as of the Closing Date or as soon as practicable thereafter.

 

SECTION 8.12 Antitrust.

 

(a) To the extent required under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition or creation or strengthening of a dominant position through merger or acquisition, including the Laws of any jurisdiction or Governmental Authority outside of the United States (“Antitrust Laws”), each Party agrees to promptly (but in no event later than fifteen (15) days after the date hereof) make any required filing or application under Antitrust Laws, as applicable. The Parties agree to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to Antitrust Laws and to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods or obtain required approvals, as applicable under Antitrust Laws as soon as practicable, including by requesting early termination of any waiting periods thereunder.

 

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(b) Each Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the Transactions under any Antitrust Law, use its reasonable best efforts to: (i) cooperate in all respects with each other Party or its affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private person; (ii) keep the other Parties reasonably informed of any communication received by such Party or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private person, in each case regarding any of the Transactions; (iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private person, with any other person, and to the extent permitted by such Governmental Authority or other person, give a Representative or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences; (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto; and (v) use reasonable best efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the Transactions, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.

 

(c) No Party shall take any action that could reasonably be expected to adversely affect or materially delay the approval of any Governmental Authority of any required filings or applications under Antitrust Laws. The Parties further covenant and agree, with respect to a threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of the Parties to consummate the Transactions, to use reasonable best efforts to prevent or lift the entry, enactment or promulgation thereof, as the case may be. No Party shall permit any of its officers or any other Representatives or agents to participate in any pre-scheduled meeting with any Governmental Authority in respect of any filing, investigation or other inquiry relating to the Transactions unless it consults with the other part in advance and, to the extent permitted by such Governmental Authority, gives the other Party to attend and participate thereat.

 

SECTION 8.13 PCAOB Financials. The Company shall deliver true and complete copies of (i) the Financial Statements and (iv) the unaudited consolidated balance sheet of the Company and the consolidated Company Subsidiaries as of March 31, 2022, and the reviewed unaudited consolidated statements of income and cash flows of the Company and the consolidated Company Subsidiaries for the 3 month period then ended, in each case (a) prepared in accordance with the International Financial Reporting Standards issued by the International Accounting Standards Board and audited in accordance with the auditing standards of the PCAOB (collectively, the “PCAOB Financials”) not later than 60 days from the date hereof, unless otherwise extended with SPAC’s consent (which consent shall not be unreasonably withheld, conditioned or delayed).

 

SECTION 8.14 Backstop Agreement. Unless otherwise approved in writing by the Company, none of the Parties shall permit any material amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacement or termination of, the Backstop Agreement in any manner that would have an adverse impact to the consummation of the Transactions hereto or in a manner that would be adverse to any of the Parties. Each of the Parties shall use its respective reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Backstop Agreement on the terms and conditions described therein, including using its reasonable best efforts to enforce its rights under the Backstop Agreement to cause all parties thereto to pay to (or as directed by) the applicable amounts under the Backstop Agreement to the extent payable in accordance with its term.

 

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SECTION 8.15 Exclusivity.

 

(a) From and after the date hereof until the Closing or, if earlier, the valid termination of this Agreement in accordance with Section 10.01, but only to the extent not inconsistent with the fiduciary duties of the SPAC Board, (i) SPAC will not, and will direct its Representatives acting on its behalf not to, directly or indirectly, (A) initiate, seek, solicit, knowingly facilitate or encourage, submit an indication of interest for, any inquiries, proposals or offer to a Competing Seller relating to a Competing SPAC Transaction or (B) participate in any negotiations with a Competing Seller relating to a Competing SPAC Transaction; (ii) SPAC will, and will cause its Representatives to, (A) terminate immediately any negotiations with any Competing Seller relating to a Competing SPAC Transaction and (B) promptly advise the Company in writing of any proposal regarding a Competing SPAC Transaction involving a Competing Seller that it may receive (it being understood that SPAC will not be required to inform the Company of the identity of the person making such proposal or the material terms thereof);

 

(b) From and after the date hereof until the Closing or, if earlier, the valid termination of this Agreement in accordance with Section 10.01, the Company and each Company Subsidiary will not, and will direct their respective Representatives acting on their behalf not to, directly or indirectly, (i) initiate, seek, solicit, knowingly facilitate or encourage, submit an indication of interest for, any inquiries, proposals or offer from any person relating to a Competing Transaction, (ii) participate in any discussions or negotiations with any person regarding, or furnish or make available to any person any information relating to the Company or any Company Subsidiary with respect to, a Competing Transaction, other than to make such person aware of the provisions of this Section 8.15 or (iii) enter into any understanding, arrangement, agreement, agreement in principle or other commitment (whether or not legally binding) with any person relating to a Competing Transaction.

 

SECTION 8.16 Trust Account. As of the Merger Effective Time, the obligations of SPAC to dissolve or liquidate within a specified time period as contained in the SPAC Certificate of Incorporation will be terminated and SPAC shall have no obligation whatsoever to dissolve and liquidate the assets of SPAC by reason of the consummation of the Merger or otherwise, and no shareholder of SPAC shall be entitled to receive any amount from the Trust Account. At least 48 hours prior to the Merger Effective Time, SPAC shall provide notice to the Trustee in accordance with the Trust Agreement and shall deliver any other documents, opinions or notices required to be delivered to the Trustee pursuant to the Trust Agreement and cause the Trustee prior to the Merger Effective Time to, and the Trustee shall thereupon be obligated to, transfer all funds held in the Trust Account to SPAC (to be held as available cash on the balance sheet of SPAC, and to be used for working capital and other general corporate purposes of the business following the Closing) and thereafter shall cause the Trust Account and the Trust Agreement to terminate.

 

SECTION 8.17 Treatment of Interested Party Transactions. Prior to Closing,

 

(a) the Company shall deliver to SPAC fully executed Termination Agreements by and among the Company and the Company Shareholders, which Termination Agreement shall provide that, upon the Closing, no parties to the Termination Agreements shall have any further rights or obligations thereunder;

 

(b) the Company shall cause all Intellectual Property used in the business of the Company or any Company Subsidiary that is owned by, held in the name of or licensed to any equityholder, Affiliate or Representative of the Company (other than any Company Subsidiary) to be transferred to the Company prior to the Closing and shall otherwise take action as necessary to ensure that, immediately after the Closing, the Company or a Company Subsidiary will have good and valid title to, or valid license to or leasehold interests in, all Intellectual Property used in the business of the Company and the Company Subsidiaries, free and clear of any Liens other than Permitted Liens; and

 

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(c) the Company shall, and shall cause to be taken all actions necessary to, terminate as of the Closing all Interested Party Transactions, in each case without any further liability to the Company or any of the Company Subsidiaries to any Person; provided that the Company shall not be required to terminate any Interested Party Transactions that are on an arm’s length basis and are in the best interest of the Company to maintain outstanding.

 

SECTION 8.18 EU Securities Regulation. From and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement pursuant to Section 10.01, the Parties shall not make any offer of securities in the European Union in connection with the Transactions other than in accordance with the provisions of the Prospectus Regulation. In the event that the Parties, following consultation with their respective counsel, determine that a prospectus or a prospectus exemption document (as applicable) may be required to be published in accordance with the provisions of the Prospectus Regulation, each Party shall use its reasonable best efforts take such actions and do such things that such Party (after consultation with counsel) deems reasonably necessary or desirable, including the delivery or execution of any documents or instruments reasonably required or desirable in order for the Company to publish a prospectus or be exempted from the obligation to publish a prospectus or a prospectus exemption document (as applicable) under the Prospectus Regulation. Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to cooperate with each other in good faith in taking any actions or preparing or delivering any documents or instruments pursuant to the preceding sentence and to furnish the others with such information concerning it and its affiliates as the providing Party (after consulting with counsel) may deem reasonably necessary or advisable in connection the foregoing.

 

SECTION 8.19 Opinion of the Financial Advisor. If SPAC determines (in its sole discretion) that an opinion of an independent financial advisor is required for the consummation of the Transactions, SPAC shall use reasonable best efforts to engage a financial advisor to give an opinion substantially to the effect that, as of the date of such opinion and subject to the various assumptions made, procedures followed, matters considered, and limitations, qualifications and other matters considered in connection with the preparation of such opinion, the Merger Consideration to be received by the SPAC Shareholders in the Merger pursuant to this Agreement is fair, from a financial point of view, to the SPAC Shareholders.

 

Section 8.20 SPAC Extension Proposal. SPAC shall use its reasonable best efforts to take all actions necessary (including at the request of the Company) to obtain the approval of the SPAC Extension Proposal. In connection with obtaining the approval, SPAC will prepare, file and mail all required proxy materials to be sent to the SPAC Shareholders seeking approval of the SPAC Extension Proposal.

 

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ARTICLE IX
CONDITIONS TO THE MERGER

 

SECTION 9.01 Conditions to the Obligations of Each Party. The obligations of the Company, SPAC, Holdco and Merger Sub to consummate the Transactions, including the Merger and Exchange, are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of the following conditions:

 

(a) SPAC Shareholders’ Approval. The SPAC Proposals shall have been approved and adopted by the requisite affirmative vote of the shareholders of SPAC in accordance with the Proxy Statement/Prospectus, the proxy statement/prospectus filed with the SEC in connection with the Extension Amendment to the SPAC COI, DGCL, the SPAC Organizational Documents and the rules and regulations of the Nasdaq Capital Market.

 

(b) Company Requisite Approval. The Company Requisite Approvals shall have been obtained and delivered to SPAC in a form and substance reasonably acceptable to SPAC.

 

(c) Holdco Requisite Approvals. The Holdco Requisite Approvals shall have been obtained and delivered to SPAC in a form and substance reasonably acceptable to SPAC.

 

(d) Holdco Auditor Reports. A Luxembourg independent auditor (réviseur d’entreprises) of Holdco shall have issued (i) at or before the Merger Effective Time a report on the contributions in kind relating to the Merger Issuance prepared in accordance with article 420-10 of the 1915 Law (the “Merger Auditor Report”), and (ii) at or before the Exchange Effective Time, in accordance with the Exchange Agreements, a report on the contributions in kind relating to the Exchange Issuance prepared in accordance with article 420-10 of the 1915 Law (the “Exchange Auditor Report”).

 

(e) Regulatory Approvals.  (A) Any waiting period under any Antitrust Laws applicable to the Transactions shall have expired or been earlier terminated, and (B) all other consents of (or filings or registrations with) any Governmental Authority required in connection with the execution, delivery and performance of this Agreement set forth on Schedule 9.01 shall have been obtained.

 

(f) No Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law, rule, regulation, judgment, decree, executive order or award which is then in effect and has the effect of making the Transactions, including the Merger or Exchange, illegal or otherwise prohibiting consummation of the Transactions, including the Merger or Exchange.

 

(g) Registration Statement. The Registration Statement shall have been declared effective by the SEC under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for purposes of suspending the effectiveness of the Registration Statement shall have been initiated by the SEC and not withdrawn.

 

(h) Stock Exchange Listing. The Holdco Ordinary Shares shall have been approved for listing on Nasdaq, subject to official notice of issuance.

 

(i) SPAC Net Tangible Assets. SPAC shall have at least $5,000,001 of net tangible assets after giving effect to the amounts funded under the Backstop Agreement and following the exercise of Redemption Rights in accordance with the SPAC Organizational Documents.

 

(j) Fairness Opinion. The delivery of the Financial Advisor Opinion pursuant to Section 8.19.

 

(k) CFO Free Shares. The delivery of an agreement, which shall be in a form mutually agreeable to the Company and SPAC, between the CFO and the Company by which the CFO agrees that the issuance of the CFO Free Shares satisfies all obligations of the Company relating to the issuance of shares in the Company to the CFO under the CFO Consulting Agreement.

 

(l) Registration Rights and Lock-Up Agreement. All parties to the Registration Rights and Lock-Up Agreement shall have delivered, or cause to be delivered, copies of the Registration Rights and Lock-Up Agreement duly executed by all such parties.

 

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SECTION 9.02 Conditions to the Obligations of SPAC. The obligations of SPAC to consummate the Transactions, including the Merger, are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of the following additional conditions:

 

(a) Representations and Warranties.

 

(i) The representations and warranties of the Company contained in Section 4.01, Section 4.03, Section 4.04, Section 4.05, Section 4.24 and Section 4.26 shall each be true and correct in all respects as of the Exchange Effective Time, the Merger Effective Time and the Closing Date as though made on the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable), except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date. All other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving any effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the Exchange Effective Time, the Merger Effective Time and the Closing Date, as though made on and as of the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable), except (A) to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date and (B) where the failure of such representations and warranties to be true and correct (whether as of the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable) or such earlier date), taken as a whole, does not result in a Company Material Adverse Effect.

 

(ii) The representations and warranties of each of Holdco and Merger Sub in Section 6.01, Section 6.03, Section 6.04, Section 6.07(b) and Section 6.09 shall each be true and correct in all respects as of the Exchange Effective Time, the Merger Effective Time and the Closing Date as though made on the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable), except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date. All other representations and warranties of Merger Sub and Holdco contained in this Agreement shall be true and correct (without giving any effect to any limitation as to “materiality” or any similar limitation set forth therein) in all respects as of the Exchange Effective Time, the Merger Effective Time and the Closing Date, as though made on and as of the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable), except (A) to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date and (B) where the failure of such representations and warranties to be true and correct (whether as of the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable) or such earlier date), taken as a whole, would be materially adverse to Holdco or Merger Sub.

 

(b) Agreements and Covenants. The Company, Holdco and Merger Sub shall have performed or complied in all material respects with all agreements and covenants (other than Section 7.01(c)) required by this Agreement to be performed or complied with by it on or prior to the Exchange Effective Time and the Merger Effective Time, as applicable (including, for the avoidance of doubt and without limitation, Section 8.13); provided, that Holdco shall have performed or complied in all respects with the agreements and covenants set forth in Section 7.01(c).

 

(c) Officer Certificate. (i) The Company, Holdco and Merger Sub shall have delivered to SPAC a certificate, dated as of the date of the Merger Effective Time, signed by an officer of the Company, certifying as to the satisfaction of the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(d) and (ii) the Company, Holdco and Merger Sub shall have delivered to SPAC a certificate, dated as of the Exchange Effective Time, signed by an officer of the Company, certifying as to the satisfaction of the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(d).

 

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(d) No Company Material Adverse Effect. No Company Material Adverse Effect shall have occurred between the date of this Agreement and the Merger Effective Time and no Company Material Adverse Effect shall have occurred between the Merger Effective Time and the Exchange Effective Time.

 

(e) PCAOB Financials. The Company shall have delivered the PCAOB Financials as contemplated in Section 8.13.

 

(f) Capitalization. As of immediately prior to the Closing, there shall be no Company Ordinary Shares or other Equity Interest of the Company outstanding other than Company Ordinary Shares and other Equity Interests that are subject to an Exchange Agreement (which shall provide that security shall be either cancelled or converted into shares of Company Ordinary Shares to be transferred to Holdco in accordance with Section 3.02).

 

(g) Evidence of Related Party Transactions. SPAC shall have received evidence to its satisfaction that the actions contemplated in Section 8.17 have been taken.

 

(h) Delivery of Ancillary Agreements

 

(i) Employment Agreements. Each of the employees of the Company listed on 8.04(b) of the Company Disclosure Schedule shall have executed and delivered to the Company or Holdco employment agreements executed in compliance with Section 8.04(b) with such agreements being in full force and effect.

 

(ii) Warrant Amendment. Holdco shall have delivered to SPAC and Trustee, the SPAC Warrant Amendment and Assignment executed by Holdco.

 

(iii) Other Documents. Each of the Company, the Company Shareholders, Holdco, and Merger Sub shall have delivered, or caused to be delivered, each of the Ancillary Agreements to which such Person is a party and that, by its terms, is required to be executed and delivered at the Closing, in each case, duly executed by such Person.

 

SECTION 9.03 Conditions to the Obligations of the Company. The obligations of the Company to consummate the Transactions, including the Merger, are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of the following additional conditions:

 

(a) Representations and Warranties. The representations and warranties of SPAC contained in Section 5.01, Section 5.03, Section 5.04 and Section 5.11 shall each be true and correct in all respects as of the Exchange Effective Time, the Merger Effective Time and the Closing Date as though made on the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable), except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date. All other representations and warranties of SPAC contained in this Agreement shall be true and correct (without giving any effect to any limitation as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the Exchange Effective Time, the Merger Effective Time and the Closing Date, as though made on and as of the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable), except (i) to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date and (ii) where the failure of such representations and warranties to be true and correct (whether as of the Exchange Effective Time, the Merger Effective Time and the Closing Date (as applicable) or such earlier date), taken as a whole, does not result in a SPAC Material Adverse Effect.

 

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(b) Agreements and Covenants. SPAC shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Exchange Effective Time and the Merger Effective Time, as applicable.

 

(c) Officer Certificate. (i) SPAC shall have delivered to the Company a certificate, dated as of the Merger Effective Time, signed by the Chief Executive Officer of SPAC, certifying as to the satisfaction of the conditions specified in Section 9.03(a), Section 9.03(b) and Section 9.03(d) and (ii) SPAC shall have delivered to the Company a certificate, dated as of the Exchange Effective Time, signed by the Chief Executive Officer of SPAC, certifying as to the satisfaction of the conditions specified in Section 9.03(a), Section 9.03(b) and Section 9.03(d).

 

(d) No SPAC Material Adverse Effect. No SPAC Material Adverse Effect shall have occurred between the date of this Agreement and the Merger Effective Time and no SPAC Material Adverse Effect shall have occurred between the Merger Effective Time and the Exchange Effective Time.

 

(e) Delivery of Ancillary Agreements.

 

(i) Warrant Amendment. SPAC shall have delivered to Holdco and Trustee, the SPAC Warrant Amendment and Assignment executed by SPAC.

 

(ii) Other Documents. SPAC shall have delivered, or caused to be delivered, each of the Ancillary Agreements to which such Person is a party and that, by its terms, is required to be executed and delivered at the Closing, in each case, duly executed by such Person.

 

(f) Transfer of SPAC Common Stock. Sponsor shall have transferred to UG Holdings, LLC (or its designated affiliate) 1,035,000 shares of SPAC Common Stock, as contemplated in the Backstop Agreement.

 

ARTICLE X
TERMINATION, AMENDMENT AND WAIVER

 

SECTION 10.01 Termination. This Agreement may be terminated and the Merger and the other Transactions may be abandoned at any time prior to the Merger Effective Time, notwithstanding any requisite approval and adoption of this Agreement and the Transactions by the shareholders of the Company or the shareholders of SPAC, as follows:

 

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

 

(b) by either SPAC or the Company if the Merger Effective Time shall not have occurred prior to 5:00 p.m. (New York time) on the later of (i) the last day of the extended time period for SPAC to consummate a business combination if a SPAC Extension Proposal shall be approved at a relevant SPAC Shareholders’ Meeting and (ii) July 12, 2022 (the “Outside Date”); providedhowever, that this Agreement may not be terminated under this Section 10.01(b) by or on behalf of any Party that either directly or indirectly through its affiliates is in breach or violation of any representation, warranty, covenant, agreement or obligation contained herein and such breach or violation is the principal cause of the failure to satisfy a condition set forth in Article IX on or prior to the Outside Date;

 

(c) by either SPAC or the Company if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling (whether temporary, preliminary or permanent) which has become final and non-appealable and has the effect of making consummation of the Transactions, including the Merger, illegal or otherwise preventing or prohibiting consummation of the Transactions or the Merger;

 

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(d) by either SPAC or the Company if any of the SPAC Proposals shall fail to receive the requisite vote for approval at the SPAC Shareholders’ Meeting;

 

(e) by SPAC upon a breach of any representation, warranty, covenant or agreement on the part of the Company, Holdco or Merger Sub set forth in this Agreement, or if any representation or warranty of the Company, Holdco or Merger Sub shall have become untrue, in either case only if the conditions set forth in Section 9.02(a) and Section 9.02(b) would not be satisfied (“Terminating Company Breach”); provided that SPAC has not waived such Terminating Company Breach and SPAC is not then in material breach of any of its representations, warranties, covenants or agreements in this Agreement; provided further that, if such Terminating Company Breach is curable by the Company, Holdco or Merger Sub, SPAC may not terminate this Agreement under this Section 10.01(e) for so long as the Company, Holdco or Merger Sub continues to exercise its reasonable best efforts to cure such breach, unless such breach is not cured within thirty (30) days after written notice of such breach is provided by SPAC to the Company;

 

(f) by the Company upon a breach of any representation, warranty, covenant or agreement on the part of SPAC set forth in this Agreement, or if any representation or warranty of SPAC shall have become untrue, in either case only if the conditions set forth in Section 9.03(a) and Section 9.03(b) would not be satisfied (“Terminating SPAC Breach”); provided that the Company has not waived such Terminating SPAC Breach and the Company, Holdco or Merger Sub is not then in material breach of their representations, warranties, covenants or agreements in this Agreement; providedfurther, that, if such Terminating SPAC Breach is curable by SPAC, the Company may not terminate this Agreement under this Section 10.01(f) for so long as SPAC continues to exercise their reasonable best efforts to cure such breach, unless such breach is not cured within thirty (30) days after written notice of such breach is provided by the Company to SPAC; or

 

SECTION 10.02 Notice of Termination; Effect of Termination.

 

(a) The Party seeking to terminate this Agreement pursuant to Section 10.01 shall provide written notice of termination to the other Parties in accordance with Section 11.01 specifying the reason for such valid termination, and any such termination in accordance with Section 10.01 shall be effective immediately upon delivery of such written notice to the other Parties.

 

(b) In the event of the valid termination of this Agreement pursuant to Section 10.01, this Agreement shall forthwith become void, and there shall be no liability under this Agreement on the part of any Party, except that the provisions set forth in this Section 10.02, Article XI, and any corresponding definitions set forth in Article I  shall survive such termination; providedhowever, that nothing herein shall relieve any Party from any liability for any willful and material breach of this Agreement.

 

SECTION 10.03 Expenses.

 

(a) In the event that this Agreement is terminated in accordance with Section 10.01 above, all Transaction Expenses incurred in connection with this Agreement, the Ancillary Agreements and the Transactions shall be paid by the Party incurring such Transaction Expenses.

 

(b) If the Transactions are consummated:

 

(i) As promptly as practicable after the Closing, Holdco shall transfer or cause to be transferred to Sponsor or its designee an amount in cash equal to the Sponsor Advanced Funds; provided, that if the unpaid SPAC Transaction Expenses as of the Closing (including the Sponsor Advanced Funds) would exceed the applicable SPAC Transaction Expenses Cap, Holdco shall not be required to transfer the amount of such excess to Sponsor and such excess shall remain with Holdco and its subsidiaries.

 

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(ii) Holdco shall pay or cause to be paid, (x) the Company Transaction Expenses, (y) the EarlyBird Cash Fees (regardless of whether the SPAC Transaction Expenses Cap has been exceeded), provided that if Net Available Assets is equal to or less than $200,000, then each of Sponsor and Holdco shall pay 50% of all EarlyBird Cash Fees, and (z) all SPAC Transaction Expenses that are unpaid as of the Closing up to the SPAC Transaction Expenses Cap. Within five (5) days following the six (6) month anniversary of the Closing, Holdco shall issue the EarlyBird Share Fees.

 

(iii) Sponsor shall pay or cause to be paid, (x) all unpaid SPAC Transaction Expenses in excess of the applicable SPAC Transaction Expenses Cap (with the Sponsor Advance Funds being subject to Section 10.03(b)(i)), (y) any expenses incurred by SPAC in its pursuit of potential acquisition or business targets other than the Company or that were not incurred by SPAC in connection with or in furtherance of the Transactions, other than the Sponsor Advanced Funds (with Sponsor Advanced Funds being subject to Section 10.03(b)(i)) and (z) all Extension Amendment Fees.

 

SECTION 10.04 Amendment. This Agreement may be amended in writing by all Parties hereto at any time prior to the Merger Effective Time by action by or on behalf of the Parties’ respective board of directors; provided, however that after approval of this Agreement by the stockholders of the SPAC and Merger Sub, no amendment shall be made that requires a further vote of such stockholders without such further approval. This Agreement may not be amended except by an instrument in writing signed by each of the Parties.

 

SECTION 10.05 Waiver. At any time prior to the Merger Effective Time, (a) SPAC may in its sole discretion (i) extend the time for the performance of any obligation or other act of the Company, Holdco or Merger Sub, (ii) waive any inaccuracy in the representations and warranties of the Company, Holdco or Merger Sub contained herein or in any document delivered by the Company, Holdco or Merger Sub pursuant hereto and (iii) waive compliance with any agreement of the Company, Holdco or Merger Sub or any condition to its own obligations contained herein and (b) the Company may in its sole discretion (i) extend the time for the performance of any obligation or other act of SPAC, (ii) waive any inaccuracy in the representations and warranties of SPAC contained herein or in any document delivered by SPAC pursuant hereto and (iii) waive compliance with any agreement of SPAC or any condition to its own obligations contained herein. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the Party or Parties to be bound thereby.

 

ARTICLE XI
GENERAL PROVISIONS

 

SECTION 11.01 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by email or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 11.01):

 

if to SPAC:

 

LightJump Acquisition Corporation

2735 Sand Hill Road, Suite 110(2)

Menlo Park, CA 94025

Attn: Robert Bennett

Email: rbennett@lightjumpcapital.com

 

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

 

K&L Gates LLP

10100 Santa Monica Blvd.

Los Angeles, CA 90067

Attention: Leib Orlanski

Email: leib.orlanski@klgates.com

 

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

 

K&L Gates LLP

599 Lexington Avenue

New York NY 10022

Attention: Robert S. Matlin

Email: robert.matlin@klgates.com

 

if to the Company, Holdco or Merger Sub:

 

Moolec Science Limited

Innovation Centre, Gallows Hill

Warwick

CV34 6UW

United Kingdom

Attention: Gastón Paladini and Oscar Leon

Email: gaston@moolecscience.com

 

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

 

Linklaters LLP

1290 Avenue of the Americas

New York, NY 10104

Attention: Matthew Poulter and Pierre-Emmanuel Perais

Email: matthew.poulter@linklaters.com and pierre-emmanuel.perais@linklaters.com

 

SECTION 11.02 Non-Survival of Representations, Warranties and Covenants. The representations, warranties, obligations, agreements and covenants in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement shall terminate at the Closing (and there shall be no liability after the Closing in respect thereof), except in the case of fraud and that (a) this Article XI and any corresponding definitions included herein shall survive the Closing and (b) this Section 11.02  shall not limit any covenant, obligation or agreement contained herein that by its terms expressly applies or requires performance in whole or in part after the Closing and then only with respect to any breaches occurring after the Closing. Effective as of the Closing, in the case of fraud, there are no remedies available to the Parties with respect to any breach of the representations, warranties, obligations, covenants or agreements of the Parties, except, with respect to those obligations, covenants and agreements contained herein that by their terms apply or require performance in whole or in part after the Closing and the remedies that may be available under Section 11.10.

 

SECTION 11.03 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent possible.

 

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SECTION 11.04 Entire Agreement; Assignment. This Agreement and the Ancillary Agreements constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede, except for the Confidentiality Agreement, all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. Neither Party shall assign, grant or otherwise transfer the benefit of the whole or any part of this Agreement or any of the rights hereunder (whether pursuant to a merger, by operation of Law or otherwise) by any Party without the prior express written consent of the other Parties.

 

SECTION 11.05 Parties in Interest; Non-Recourse. This Agreement shall be binding upon and inure solely to the benefit of each Party, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, other than Section 8.05 (which is intended to be for the benefit of the persons covered thereby and may be enforced by such persons). For the avoidance of doubt, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such party. Except to the extent a named party to this Agreement (and then only to the extent of the specific obligations undertaken by such named party in this Agreement), (i) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor, sponsor or representative or Affiliate of any named party to this Agreement and (ii) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor, sponsor or representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, Holdco, Merger Sub, or SPAC under this Agreement or for any claim based on, arising out of, or related to this Agreement or the Transactions.

 

SECTION 11.06 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware applicable to contracts executed in and to be performed in that State, except to the extent mandatorily governed by the laws of the Grandy Duchy of Luxembourg or the United Kingdom, including the provisions relating to the Exchange. All legal actions and proceedings arising out of or relating to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware or, if (and only if) the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware (Complex Commercial Division) or, if (and only if) the Superior Court of the State of Delaware (Complex Commercial Division) declines to accept jurisdiction over a particular matter, any federal court sitting in the State of Delaware, and any appellate courts therefrom (collectively, the “Chosen Courts”), with regard to any such Action arising out of or relating to this Agreement and the transactions contemplated hereby. The Parties hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any Action arising out of or relating to this Agreement brought by any Party, and (b) agree not to commence any Action relating thereto except in the Chosen Courts, other than Actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in the State of Delaware as described herein. To the fullest extent permitted by applicable Law, each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. To the fullest extent permitted by applicable Law, each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action arising out of or relating to this Agreement or the Transactions, (x) any claim that it is not personally subject to the jurisdiction of the courts in the State of Delaware as described herein for any reason, (y) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (z) that (i) the Action in any such court is brought in an inconvenient forum, (ii) the venue of such Action is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.

 

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SECTION 11.07 Waiver of Jury Trial. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS. EACH OF THE PARTIES (A) CERTIFIES THAT 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 THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.07.

 

SECTION 11.08 Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.

 

SECTION 11.09 Counterparts. This Agreement may be executed and delivered (including executed manually or electronically via DocuSign or other similar services, and delivered by facsimile or portable document format (pdf) transmission) in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

SECTION 11.10 Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and, accordingly, that the Parties shall be entitled to an injunction or injunctions to prevent breaches and threatened breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof (including the Parties’ obligation to consummate the Transactions) in any Chosen Court without proof of actual damages or otherwise, in addition to any other remedy to which they are entitled at law or in equity as expressly permitted in this Agreement. Each of the Parties hereby further waives (i) any defense in any action for specific performance that a remedy at law would be adequate and (ii) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief.

 

SECTION 11.11 Drafting of the Agreement. Each Party acknowledges that such Party has had the opportunity to participate in the drafting of this Agreement and to review this Agreement with legal counsel of its choice, and there shall be no presumption that ambiguities shall be construed or interpreted against the drafting Party, and no presumptions shall be made or inferences drawn because of the inclusion of a term not contained in a prior draft of this Agreement or the deletion of a term contained in a prior draft of the Agreement.

 

Section 11.12 Provision Respecting Legal Representation.

 

(a) It is acknowledged by each of the Parties, on its own behalf and on behalf of its respective Representatives and Affiliates, that the Company, the Company Subsidiaries and the Company Shareholders have retained Linklaters LLP (the “Retained Counsel”) to act as their counsel in connection with the Transactions and that the Retained Counsel has not acted as counsel for any other Party in connection with the Transactions and that none of the other Parties has the status of a client of the Retained Counsel for conflict of interest or any other purposes as a result thereof. SPAC hereby agrees, on their own behalf and on behalf of its Representatives and Affiliates, that, in the event that a dispute arises after the Closing between SPAC, the Company and/or their Subsidiaries, on the one hand, and any Company Shareholder and/or any of their respective Affiliates, on the other hand, the Retained Counsel may represent such Company Shareholder and/or their respective Affiliates in such dispute even though the interests of such Company Shareholder or their respective Affiliates may be directly adverse to SPAC, Holdco, the Company or their respective Subsidiaries.

 

(b) It is acknowledged by each of the Parties, on its own behalf and on behalf of its respective Representatives and Affiliates, that SPAC, Sponsor and their respective Affiliates have retained K&L Gates LLP (the “Other Retained Counsel”) to act as their counsel in connection with the Transactions and that the Other Retained Counsel has not acted as counsel for any other Party in connection with the Transactions and that none of the other Parties has the status of a client of the Other Retained Counsel for conflict of interest or any other purposes as a result thereof. Each Party hereby agrees, on their own behalf and on behalf of their respective Representatives and Affiliates, that, in the event that a dispute arises after the Closing between any Party and/or their Subsidiaries or their respective Affiliates, on the one hand, and Sponsor and/or any of its Affiliates, on the other hand, the Other Retained Counsel may represent Sponsor and/or its Affiliates in such dispute even though the interests of Sponsor and/or any of its Affiliates may be directly adverse to SPAC, Holdco, the Company or their respective Subsidiaries. 

 

[Signature Page Follows.]

 

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IN WITNESS WHEREOF, SPAC, the Company, Holdco and Merger Sub have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

  LIGHTJUMP ACQUISITION CORPORATION
     
  By /s/ Robert M. Bennett
  Name: Robert M. Bennett
  Title: Chief Executive Officer
   
  Moolec Science Limited
     
  By /s/ Gastón Paladini
  Name: Gastón Paladini
  Title: Co-Chairman and Chief Executive Officer
   
  MOOLEC ACQUISITION, INC.
     
  By /s/ Gastón Paladini
  Name: Gastón Paladini
  Title: President
   
  MOOLEC SCIENCE SA
     
  By /s/ Gastón Paladini
  Name:  Gastón Paladini
  Title: Class A Director

 

[Signature Page to Business Combination Agreement]

 

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Exhibit A

 

Form of Registration Rights and Lock-Up Agreement

 

[Intentionally Omitted]

 

86

 

 

Exhibit B-1

 

Amended and Restated SPAC COI

 

[Intentionally Omitted]

 

87

 

 

Exhibit B-2

 

Amended and Restated SPAC Bylaws

 

[Intentionally Omitted]

 

88

 

 

Exhibit C

 

A&R Holdco Organizational Documents

 

[Intentionally Omitted]

 

89

 

 

Exhibit D

 

Form of SPAC Warrant Amendment and Assignment

 

[Intentionally Omitted]

 

90

 

 

Schedule A

 

Company Knowledge Parties

 

[Intentionally Omitted]

 

91

 

 

Appendix A
Illustrative Capitalization Table

 

[Intentionally Omitted]

 

92

 

 

Appendix B
Illustrative SPAC Transaction Expenses

 

[Intentionally Omitted]

 

93

 

 

Exhibit 10.1

 

Form of Contribution and Exchange Agreement

 

Dated [_____] 2022

 

[_____]

(the Contributor)

Moolec Science SA

(the Issuer)

Moolec Science Limited

(the Company)

 

Ref: L-311287

 

 

 

 

This agreement (including all schedules, the “Agreement”) is made on [_____] 2022 by and among:

 

(1)[_____], a [_____] company, with registered office at [_____], registered with [_____] under number [_____];

 

(the “Contributor”);

 

(2)Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg, with its registered office at 17, Boulevard F.W. Raiffeisen, L 2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) under number B268440;

 

(the “Issuer”); and

 

(3)Moolec Science Limited, a private limited company incorporated under the laws of England and Wales, with its registered office at Innovation Centre, Gallows Hill, Warwick, England, CV34 6UW, registered with the Companies House under number 12828514;

 

(the “Company”).

 

The Contributor, the Issuer and the Company are collectively referred to as the “Parties” and individually as a “Party”.

 

Whereas:

 

(A)The Contributor holds ordinary shares in the share capital of the Company (the “Contributed Shares”) as indicated in the table annexed as Schedule 1 to this Agreement.

 

(B)On the terms of a business combination agreement dated as of the date of this Agreement and entered into by and between, inter alios, the Company and the Issuer (the “BCA”), a copy of which is attached as Schedule 2 to this Agreement, it is proposed that all the shareholders of the Company holding ordinary shares of the Company’s issued share capital (the “Company Shareholders”) contribute all of their ordinary shares in kind to the Issuer in exchange for new ordinary shares, to be issued by the Issuer (the “Exchange”).

 

(C)The Contributor has agreed, subject to the Conditions (as defined in section 2 of this Agreement), to contribute the Contributed Shares to the Issuer against new ordinary shares to be issued by the Issuer in the numbers as set out in Schedule 3 and having the rights, terms and features set out in the articles of association of the Issuer, as agreed under the BCA (the “Issued Shares”), with effect on the Exchange Effective Time (as such term is defined in the BCA) (the “Exchange Effective Time”).

 

(D)The Contributor has agreed to pay for the Issued Shares by way of a contribution in kind which consists of the Contributed Shares (the “Contribution”). The Contribution includes all the rights, commitments and obligations, known or unknown, which can or could be attached to the Contributed Shares in any manner whatsoever.

 

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It is agreed as follows:

 

1Consent

 

The Contributor agrees to consent (“Contributor Consent”) to the Exchange and all the transactions contemplated under the BCA and the Transaction Documents (as defined in the BCA) to which the Contributor is a party, provided that (i) such Contributor Consent shall be expressly conditioned upon this Agreement and each Transaction Document to which Contributor is or will be a party being performed in accordance with the terms of such agreements, and to the extent the transactions contemplated by any such agreement referenced in this (i) is not performed in accordance with such agreement, the Contributor Consent shall automatically terminate, without further action of the Parties, and shall become null and void; (ii) the BCA and each of the other Transaction Documents not referenced in (i) above being performed in all material respects in accordance with the terms of such agreements and, to the extent the transactions contemplated by any such agreement referenced in this (ii) is not performed in all material respects in accordance with such agreement, the Contributor Consent shall automatically terminate, without further action of the Parties, and shall become null and void; (iii) the Parties will obtain Contributor’s prior written consent before effecting any proposed amendment, waiver or similar change to the BCA or any other Transaction Document that would reasonably be expected to adversely impact in any material respects the rights of the Contributor (it being understood that such consent shall be required in connection with any proposed change to the economic provisions and terms of such agreements that would adversely impact the Contributor or to the Outside Date (as defined in the BCA) and, to the extent such consent is not obtained, the Contributor Consent shall automatically terminate, without further action of the Parties, and shall become null and void, and (iv) to the extent the BCA is terminated for any reason or the transactions contemplated by the BCA are not consummated, the Contributor Consent shall automatically terminate, without further action of the Parties, and shall become null and void. The Contributor further consents, subject to the conditions set forth in this Section 1, to the contribution and exchange agreements entered into as of the date hereof by and among each of the other Company Shareholders, the Company and the Issuer, and the transactions contemplated thereby (the “Other Exchanges”) and agrees to execute and deliver (or cause to be executed and delivered) any consents required to be delivered to the Companies House together with the filing of the notification of the share transfers taking place in connection with the Other Exchanges.

 

2Conditions to the Contribution and Issuance of the Issued Shares

 

2.1The obligations of the Parties under clauses 3 and 4 of this Agreement are subject to the satisfaction or waiver (where permissible) of the conditions set forth in Sections 9.01 and 9.03 of the BCA, including, without limitation, the prior issuance by a Luxembourg independent auditor (réviseur d’entreprises) engaged by the Issuer, at or before the Exchange Effective Time, of a report on the contributions in kind relating the Exchange prepared in accordance with article 420-10 juncto article 420-23 (6) of the Luxembourg law on commercial companies dated 10 August 1915, as amended (the “Companies Law”) and in which it will be stated that the values arrived at by the application of the methods of valuation used to value all the shares of the Company to be contributed to the Issuer in the Exchange correspond at least to the number and nominal value and the share premium of the shares to be issued by the Issuer in consideration thereof (the “Conditions”).The Parties acknowledge that the Exchange shall occur on the Exchange Effective Time for all Company Shareholders simultaneously and the Issuer endeavours and commits on a reasonable best efforts basis to have the Conditions fulfilled to allow for the Contribution to occur as soon as possible on the Closing Date (as defined in the BCA).

 

2.2The Contributor hereby unconditionally and unequivocally waives, for all purposes and effects of law, all and any pre-emption rights which the Contributor may be entitled to under the Company’s memorandum and articles of association or under any applicable law or agreement, in connection with the proposed contribution in kind to the Issuer by the other shareholders of the Company of all their shares held in the issued share capital of the Company to occur simultaneously with the Exchange.

 

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3Contribution and Issuance of Issued Shares

 

3.1On the Exchange Effective Time and subject to the satisfaction or waiver (where permissible) of the Conditions:

 

(i)the Contribution shall be contributed to the Issuer (and recorded as share capital and share premium);

 

(ii)the Contribution shall be contributed in full and complete satisfaction of the issue and allotment to the Contributor of the Issued Shares by the Issuer;

 

(iii)the Issued Shares shall be issued by the Issuer and allotted to the Contributor;

 

(iv)the Issued Shares shall be issued and allotted in full and complete satisfaction of the Contribution;

 

(v)the Issued Shares shall be issued and allotted to the Contributor as fully paid shares; and

 

(vi)the Issuer shall register the Issued Shares in the name of the Contributor in the Issuer’s share register as at the date of issue being the Exchange Effective Time.

 

3.2The Contributor represents and warrants (i) that it is the sole lawful owner of the Contributed Shares and that, as of the Exchange Effective Time, the Contributor will be the only person entitled to and having power to dispose of the Contributed Shares, (ii) that the Contributed Shares are free of any lien, encumbrance, pre-emption rights or other similar rights, other than those rights that will have been duly waived prior to the Exchange Effective Time and, at the time of the Exchange Effective Time, will be freely transferable and/or assignable to the Issuer and not subject to any third party rights or other rights attached to the Contributed Shares by virtue of which any person may be entitled to demand that the Contributed Shares be transferred to him, and (iii) that any and all necessary consents for transfer that may be required under (a) any shareholder agreement existing between the Contributor and any other shareholders of the Company, (b) articles of association of the Company or (c) the laws of any applicable jurisdiction will have been complied with or waived (where permissible) prior to the Exchange Effective Time.

 

3.3The Contributor represents and warrants that the Contribution will not:

 

3.3.1conflict with or violate its organizational or governance documents; or

 

3.3.2conflict with or violate any Law (as defined in the BCA) applicable to the Contributor.

 

3.4The Contributor represents and warrants that there is no Action (as defined in the BCA) pending or threatened in writing against the Contributor or any property or asset of the Contributor that would prevent, materially delay or materially impede the performance by the Contributor of its obligations under this Agreement.

 

3.5The Contributor represents and warrants (i) that it has been provided with copies of all the Transaction Documents, including the contribution and exchange agreements entered into as of the date hereof by and among each other Company Shareholder, the Company and the Issuer and all other information that the Contributor has requested in connection with its review and investigation of the Transactions (as defined in the BCA) and (ii) that it approves of and agrees with the calculations set forth in each other Transaction Documents as of the date hereof.

 

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3.6The Contributor agrees, notwithstanding any rights or privileges the Contributor may have regarding the ability to Transfer (as defined below) any of the Contributed Shares pursuant to applicable Law (as defined in the BCA), the Company Organizational Documents (as defined in the BCA), or the Company Shareholders’ Agreements (as defined in the BCA), not to Transfer any of the Contributed Shares before the earlier of (i) one year from the date hereof and (ii) the implementation of the Exchange or termination of this Agreement in accordance with its terms. A Transfer or attempted Transfer of any Contributed Shares in breach of this clause 3.6 shall be null and void and have no effect towards the Company, and the Company shall refuse to record in the share register of the Company any Transfer or other transaction made on such Contributed Shares and to recognize in that case any right to third parties in or against the Company. For purposes of this clause 3.6, the “Transfer” of any Contributed Share shall mean the transfer of either or both of the legal and beneficial ownership in such Contributed Share, and/or the grant of an option or right to acquire either or both of the legal and beneficial ownership in such Contributed Share, and shall include: (i) any direction (by way of renunciation or otherwise) by a person entitled to an allotment or issue of any Contributed Share, that such Contributed Share be allotted or issued to some other person; (ii) any sale or other disposition of any legal or equitable interest in a Contributed Share (including any attached voting right) and whether or not by the registered holder thereof and whether or not for consideration or otherwise and whether or not effected by an instrument in writing; (iii) any grant or creation of a Lien (as defined in the BCA) over any Contributed Share; and (iv) any agreement, whether or not subject to any conditions, to do any of the foregoing.

 

3.7The Issuer represents and warrants that the Issued Shares issued to Contributor shall be validly issued in accordance with the Companies Law and the articles of association of the Issuer, free any lien, encumbrance, pre-emption rights or other similar rights, other than those rights under the applicable organizational or governance documents of Issuer or that will have been duly waived prior to the Exchange Effective Time.

 

3.8The Issuer represents and warrants that the issuance of the Issued Shares to Contributor will not:

 

3.8.1conflict with or violate its organizational or governance documents; or

 

3.8.2conflict with or violate any Law (as defined in the BCA) applicable to the Issuer.

 

3.9Each of the Company and Issuer represents and warrants that there is no Action (as defined in the BCA) pending or threatened in writing against such Party or any property or asset of such Party that would prevent, materially delay or materially impede the performance by such Party of its obligations under this Agreement.

 

3.10Each of the Company and Issuer represents and warrants, as applicable, that it has provided to the Contributor (i) all values used in the calculation of the number of Issued Shares to be issued to Contributor, including all values set out in Schedule 3 and (ii) the opportunity to (a) consult with such Party regarding such values, and (b) propose such reasonable changes or alterations to such values (or to the calculation of such values) for such Party to approve, such approval not to be unreasonably withheld.

 

3.11The Issuer undertakes to enact the notarial deed confirming the share capital increase of the Issuer (acte de constat d’augmentation de capital) by way of contribution in kind of the Contributed Shares within one month after the subscription of the Issued Shares by the Contributor, in accordance with article 420-23 of the Companies Law.

 

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4Power of attorney and commitments

 

4.1Subject to the rights of the Contributor set forth in sections 1 and 5, the Contributor hereby instructs, authorises and empowers any director of the Issuer or any director of the Company, or any lawyer or employee at Linklaters LLP or JTC Group, each of them acting individually and with full power of substitution, as the Contributor’s true and lawful agent and attorney-in-fact to, provided that, in any case and for the avoidance of doubt, not in a way that would reasonably be expected to negatively impact the rights of the Contributor:

 

4.1.1subscribe for the Issued Shares in exchange for the Contribution in the name and on behalf of the Contributor, in full compliance with the terms of this Agreement and without prejudice to the Contributor’s rights set forth in sections 4.4 and 4.5 below;

 

4.1.2register, in the name and on their behalf, the transfer of the Contribution in the share register of the Company and the issuance of the Issued Shares in the share register of the Issuer, and perform any and all publication, filing or registration formalities that may be necessary in relation with the Contribution and issuance of the Issued Shares;

 

4.1.3subject to the rights of the Contributor set forth in sections 4.4 and 4.5, determine, in accordance with Schedule 3 hereof and the other Transaction Documents (as defined in the BCA), the final value of the Contribution, the amount of Issued Shares and the final amount of share premium of the Issuer to be recorded in the accounts of the Issuer as a result of the Exchange.

 

4.2Each Party hereby commits to use its reasonable efforts to:

 

4.2.1take all actions and do such things that are reasonably necessary to be taken by such Party to facilitate and effect the Exchange, the Exchange Issuance (as defined under the BCA), the Merger Issuance (as defined under the BCA), the Merger (as defined under the BCA), the restatement of the articles of association of the Company, the amendment and restatement of the articles of association of the Issuer, and any other transaction contemplated under the BCA (the “BCA Transactions”);

 

4.2.2as applicable, attend or have a suitable proxy attend, any meeting or any adjourned meeting of the general meeting of shareholders of the Company convened for the purpose of implementing any of the BCA Transactions, waive any convening formalities, vote in the name and on behalf of the Contributor on any resolution submitted to said meeting, sign any documents, shareholder proxy, written consent or resolutions, delegate under his own responsibility the present proxy to another representative and, in general, do whatever seems appropriate or useful in connection with the said meeting; and

 

4.2.3take such actions and do such things that are reasonably required of such Party to agree or amend the form, terms and conditions of, to certify any and all documents as certified true copies and to make, sign, execute and do, and all such deeds, instruments, share registers, agreements, applications, forms, declarations, confirmations, notices, acknowledgements, letters, certificates, minutes, powers-of-attorney, general assignments, and any other documents relating to and required or desirable to implement the BCA Transactions by such Party promising ratification.

 

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4.3The Contributor hereby commits to provide the Issuer and/or Company, promptly upon reasonable request from the Issuer and/or Company, as applicable, all documents and information which are reasonably required for the purpose of complying with applicable anti-money laundering laws and regulations (including without limitation the Luxembourg law of 12 November 2004 on the fight against money laundering and the financing of terrorism as amended) in the context of the implementation of the BCA Transactions or that would be required from a notary residing in the Grand Duchy of Luxembourg for the same purposes.

 

4.4Each of the Issuer and the Company hereby commits, as applicable, to (i) review and consult with the Contributor on all constituent values and calculations relevant to the economic benefit to be received by the Contributor in connection with the consummation of this Agreement and the BCA Transactions and not otherwise provided to the Contributor as of the date hereof, including all values set out on Schedule 3 (the “Issued Shares Calculations”); (ii) provide the Contributor with a copy of such Issued Shares Calculations within two (2) calendar days of the determination of such Issued Shares Calculations, but in any event, not later than ten (10) calendar days prior to the Closing (as such term is defined in the BCA); and (iii) allow the Contributor to propose changes or alterations to the Issued Shares Calculations subject to the approval of the Issuer and/or the Company, as applicable, for such Party to approve, such approval not to be unreasonably withheld.

 

4.5Each of the Issuer and the Company hereby commits, as applicable, to provide to the Contributor as soon as available and in event prior to Closing: (i) a draft of any Holdco Requisite Approvals (as defined in the BCA), relevant for the consummation of this Agreement, and (ii) the Exchange Auditor Report (as defined in the BCA) on the contributions in kind relating to the Exchange Issuance (as defined in the BCA); it being understood that in relation to the matters set forth in point (i) above, the Contributor may propose changes or alterations subject to the approval of the Issuer and/or the Company, as applicable, for such Party to approve, such approval not to be unreasonably withheld.

 

5Release

 

5.1For and in consideration of the consideration to be received by the Contributor in the Exchange and the benefits to the Contributor of entering into this Agreement and the Company entering into the BCA, from and after the Exchange Effective Time, the Contributor hereby releases, acquits and forever discharges the Issuer, the Company, their respective affiliates and their respective present, former and future officers, directors, attorneys, agents, representatives, trustees, and employees and each of their respective heirs, executors, administrators, successors and assigns (each a “Released Party”), of and from any and all manner of action or actions, cause or causes of action, demands, rights, damages, debts, dues, sums of money, accounts, reckonings, costs, expenses, responsibilities, covenants, contracts, controversies, agreements and claims whatsoever, whether known or unknown, of every name and nature, both in law and in equity (each a “Claim”), which the Contributor or its heirs, executors, administrators, successors or assigns (each a “Releasor Party”) ever had, now has, or hereafter may have or shall have against any Released Party arising out of any matters, causes, acts, conduct, claims, circumstances or events occurring or failing to occur or conditions existing at or prior to the Exchange Effective Time. In executing this release, each Releasor Party acknowledges and intends that it shall be effective as a bar to each and every one of the Claims.

 

(i)Notwithstanding the foregoing, each Releasor Party retains, and does not release, his, her or its rights and interests (i) under the terms of this Agreement or the Transaction Documents (as defined in the BCA) and (ii) with respect to any Releasor Party that is an employee or director of the Company, (x) for any compensation or benefit for services rendered to the Company that remain unpaid or unawarded, (y) for any rights under any agreement entered into with the Company in connection with such Releasor Party’s employment with the Company or (z) for any rights to indemnification or advancement of expenses that such Releasor Party has under the terms of any of the Company Organizational Documents.

 

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(ii)Each Releasor Party expressly consents that this release shall be given full force and effect as of the Exchange Effective Time according to each and all of its express terms and provisions, including those relating to existing or future unknown and unsuspected Claims, notwithstanding any Law that expressly limits the effectiveness of a release of future, unknown, unsuspected or unanticipated claims, the benefit of any such Law being hereby expressly waived by the Contributor.

 

(iii)Each Releasor Party acknowledges that after the Exchange Effective Time it may hereafter discover facts different from or in addition to those now known or believed to be true, and it expressly agrees to assume the risk of the possible discovery of additional or different facts. Each Releasor Party also agrees that this release shall be and remain effective in all respects regardless of such additional or different facts or the discovery thereof. Each Releasor Party understands that he or she has the right to consult with counsel and has had a reasonable opportunity to do so to further comprehend this release.

 

5.2The Contributor hereby commits to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further other documents, acts, instruments, and assurances as may reasonably be required or necessary to give effect to the release under clause 5.1, as the case may be, and to reiterate any such release, when requested by a Released Party.

 

6Restrictive covenants

 

(a)The Contributor acknowledges that it may be in possession of non-public, confidential or proprietary documents, information and knowledge concerning the Issuer, the Company, the Company Subsidiaries (as defined in the BCA) and their respective businesses (such information, the “Confidential Information”) and hereby agrees to keep all Confidential Information confidential (except for disclosures required by law or required to be made to regulatory authorities).

 

(b)The Contributor hereby agrees that it shall not directly or indirectly, make any derogatory or disparaging statement or communication regarding the Issuer, the Company or its affiliates or employees. The foregoing shall not be violated by exercising protected legal rights to the extent that such rights cannot be waived by agreement or from providing truthful statements in response any legal process or required governmental testimony or filings.

 

(c)The covenants and undertakings contained in this Section 6 relate to matters that are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6 would cause irreparable injury to the Issuer, the Company and the Company Subsidiaries (as defined in the BCA), the amount of which will be impossible to estimate or determine and that cannot be adequately compensated through monetary damages. Accordingly, the aggrieved party shall be entitled to all equity remedies in addition to any other remedy available to such party.

 

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(d)The Contributor acknowledges that the restrictions in this Section 6 constitute a material inducement to the Issuer and the Company to enter into this Agreement and consummate the Transaction, are reasonable in scope and are adequately supported by consideration to be received by the Company Shareholder in connection with the BCA Transactions. The Issuer and the Company have a reasonable, necessary and legitimate business interest in protecting the assets and relationships and the foregoing covenants are reasonable and necessary to protect these legitimate business interests.

 

(e)If any court of competent jurisdiction in a final non appealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6 is unreasonable, then a lesser time period, geographical area, business limitation or other relevant feature that is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable Party.

 

(f)The covenants contained in this and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

 

7Termination

 

This Agreement shall automatically terminate upon termination of the BCA in accordance with its terms. Without limiting the preceding sentence, termination of the BCA shall be confirmed and notified in accordance with section 8 hereof by the Company to the Issuer and Contributor at the latest five (5) calendar days following such termination. In addition, the Contributor shall have the right to terminate this Agreement if the Transactions (as defined in the BCA) have not been consummated by the Outside Date (as defined in the BCA) by providing written notice to the other Parties; provided, however, that this Agreement may not be terminated by or on behalf of any Party that either directly or indirectly is in breach or violation of any representation, warranty, covenant, agreement or obligations contained herein and such breach of violation is the principal reason giving rise to such Party’s right to terminate this Agreement.

 

8Notices

 

All notices, requests, permissions, waivers and other communications hereunder shall be in writing in the English language and shall be deemed to have been duly given if signed by the respective persons giving them (in the case of a company, the signature shall be by an officer thereof) and delivered to the relevant address or email address (as applicable) as the relevant Party may have notified the other in writing, by:

 

(i)hand;

 

(ii)deposited in the mail (registered, return receipt requested), properly addressed and postage prepaid; or

 

(iii)email.

 

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9Entire Agreement – Amendments

 

This Agreement contains the entire understanding of the parties hereto with respect to the subject matter contained herein, supersedes and cancels all prior agreements with respect hereto and may be amended only by a written instrument executed by the parties or their respective successors or assigns. The section and clause headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

10Invalidity

 

If any of the provisions of this Agreement is held invalid or unenforceable, and unless the invalidity or unenforceability thereof does substantial violence to the underlying intent and sense of the remainder of this Agreement, such invalidity or unenforceability shall not affect in any way the validity or enforceability of any other provisions of this Agreement except the invalidated or unenforceable provision. In the event any provision is held invalid or unenforceable, the Parties shall attempt to agree on a valid and enforceable provision which shall be a reasonable substitute for such invalid or unenforceable provision in the light of the content of this Agreement and, on so agreeing, shall incorporate such substitute provision in this Agreement.

 

11Counterparts and Signatures

 

This Agreement may be executed in one or more counterparts. A set of counterparts, containing the signatures of all the Parties hereto, shall between them constitute one single agreement.

 

Each Party shall receive and keep a copy of the original in due evidence of this Agreement, the original being kept with the Issuer.

 

12Governing Law and Jurisdiction

 

Except for any provisions concerning the transfer of the Contributed Shares of the Company to the Issuer, this Agreement and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg. The transfer of the Contributed Shares of the Company or any other related shares or securities created under the laws of England and Wales shall be governed by the laws of England and Wales.

 

The Parties irrevocably agree that the courts of Luxembourg City (Grand Duchy of Luxembourg) have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement.

 

This Agreement has been entered into the day and year first above written.

 

[signature page follows]

 

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SIGNATURE PAGE

 

   
   
Moolec Science SA 
   
By:  
Title:  

 

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Moolec Science Limited 
   
By:  
Title:  

 

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[_____] 
By:  
Title:  
   

 

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Schedule 1 – Contributed Shares

 

Contributor Contributed Shares
[_____] [_____] ordinary shares in Moolec Science Limited

 

 

 

 

 

 

 

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Schedule 2 – Business Combination Agreement

 

[attached]

 

 

 

 

 

 

 

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Schedule 3 – Issued Shares

 

[attached]

 

 

 

 

 

 

 

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Exhibit 10.2

 

Execution Version

 

BACKSTOP AGREEMENT

 

This BACKSTOP AGREEMENT (this “Agreement”) is made as of this June 14, 2022 by and between (i) LightJump One Founders, LLC, a Delaware limited liability company (“Sponsor”) (ii) Union Group Ventures Limited, a company limited by shares incorporated under the laws of the British Virgin Islands (“UGVL”), (iii) Theo I SCSp, a special limited partnership (société en commandite spéciale) governed by the laws of the Grand Duchy of Luxembourg, having its registered office at 30, Boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg register of commerce and companies (registre de commerce et des sociétés) under number B 257706 (“Theo”, and together with UGVL, “Owners”), (iv) LightJump Acquisition Corporation (“SPAC”), a Delaware corporation, (v) Moolec Science Limited, a private limited company incorporated under the laws of England and Wales (“Target”), (vi) Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg, with its registered office at 17, Boulevard F.W. Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) under number B268440 (“Holdco”) and (vii) UG Holdings, LLC, a limited liability company incorporated under the laws of the state of Delaware (“UG Holdings”). Each of Sponsor, UGVL, Theo, SPAC, Target, Holdco and UG Holdings is herein referenced as a “Party” and collectively, the “Parties.”

 

WHEREAS, Sponsor is a controlling stockholder of SPAC, which was organized for the purpose of acquiring, through a merger, capital stock exchange, asset acquisition or other similar business combination, an operating business;

 

WHEREAS, Owners own equity in Target;

 

WHEREAS, this Agreement is being entered into concurrently and in connection with that certain business combination agreement (as it may be amended from time to time, the “Acquisition Agreement”), dated as of the date hereof, pursuant to which the Owners and other shareholders of Target shall exchange their equity in Target with equity of Holdco and, thereafter, SPAC will merge with and into a wholly-owned subsidiary of Holdco, with SPAC stockholders receiving shares of Holdco (and an indirect ownership interest in Target) in exchange for their securities in SPAC as a result of such merger (collectively the foregoing, the “Business Combination”). Capitalized terms not otherwise defined herein shall have the same meaning ascribed to such terms in the Acquisition Agreement;

 

WHEREAS, (i) Owners are the beneficial owners of a majority of the outstanding securities of Target and, as such, desire to complete the Business Combination and (ii) Sponsor is a controlling stockholder of SPAC and, as such, desires to complete the Business Combination;

 

WHEREAS, to facilitate the closing of the Business Combination (the “Closing”) under the Acquisition Agreement, if (i) the Net Available Assets (as defined in the Acquisition Agreement) determined as of the Redemption Closing Time (as defined in the Acquisition Agreement) minus (ii) the aggregate amount of the EarlyBird Fees (as defined in the Acquisition Agreement) is less than $10,000,000 (the “Minimum Cash Amount”), each of Sponsor, UGVL and Theo has agreed to, on a several (and not joint) basis in accordance with the percentage set forth across each such person’s name on Exhibit A (the “Applicable Percentage”), backstop an aggregate amount up to the Minimum Cash Amount in accordance with the terms and conditions set forth herein;

 

 

 

 

NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

 

Article I. The Backstop Agreements

 

Section 1.01 Backstop Amount

 

(a)On the date that is two (2) Business Days prior to the date of the Redemption Closing Time, Sponsor and SPAC shall send a notice to each Owner (the “Notice”) specifying: (i) SPAC’s good faith estimate of the amount of the Net Available Assets; (ii) based on such estimates, the amount (if any) by which such Net Available Assets is less than the Minimum Cash Amount (such difference as specified in the Notice, the “Backstop Amount”), provided that the Backstop Amount shall not be greater than the Minimum Cash Amount; and (iii) whether Sponsor will exercise the Election (as defined below), and if Sponsor opts to exercise such Election, the amount of Sponsor’s Contribution Commitment (as defined below) that Sponsor shall elect to have Owners fund (such amount, the “Election Amount”).

 

(b)Subject to the terms and conditions set forth herein, if the Backstop Amount as specified in the Notice is a positive amount, then, immediately prior to the Closing, each of Sponsor, UGVL and Theo hereby agrees to contribute to SPAC such Party’s Applicable Percentage of the Backstop Amount (with respect to such Party, such Party’s “Contribution Commitment”).

 

(c)Each of Sponsor and Owners may make their Contribution Commitment (and any Owner Percentage contributed as a result of Sponsor’s exercise of the Election) (the person making such Contribution Commitment, including any Owner Percentage of the Election amount, the (“Contributor”) in any combination of the following:

 

(i)in cash in immediately available funds contributed to Holdco immediately prior to Closing, provided that such funding shall be subject to Section 1.01(d);

 

(ii)by arranging for and obtaining written commitments with SPAC Stockholder seeking to exercise their Redemption Rights (collectively, the “Redeeming Stockholders”) to reverse such exercise (“Redemption Reversals”) such that Owners or Sponsor, as applicable, shall pay to such Redeeming Stockholders an amount in cash equal to the value of such Redeeming Stockholders’ SPAC Common Stock (with such SPAC Common Stock being valued at $10.00 per share) in exchange for the transfer of such Redeeming Stockholders’ right, title and interest in such SPAC Common Stock to the Owners; provided that, such Redemption Reversal commitments shall be effective (and the Contributor may elect to its Contribution Commitment pursuant to this Section 1.01(c)(ii) only) if the applicable Redeeming Stockholder agrees in writing to deliver to each Contributor, as soon as practicable after the Closing Date, evidence that the SPAC Common Stock to be transferred to such Owner were transferred in book-entry form to the name of such Contributor (or its designee in accordance with delivery instructions), free and clear of any Liens (other than those arising under applicable securities laws), in the name of such Contributor (or its designee in accordance with its delivery instructions), as of immediately prior to the Closing; and

 

(iii)by arranging for and obtaining written commitments from Redeeming Stockholders to exercise Redemption Reversals (subject to the limitations in the manner contemplated by Section 1.01(c)(ii)) in exchange for such Contributor’s guarantee of payment or other agreed form of consideration to be agreed by such Contributor and such Redeeming Stockholders.

 

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(d)At the Closing, with respect to any Contributor’s contribution that is made in cash pursuant to Section 1.01(c)(i), Holdco will issue a number of Holdco ordinary shares with value equal to such Contributor’s Contribution Commitment, with each Holdco ordinary share being valued at $10.00 per share. To the extent any Contributor is entitled to receive Holdco ordinary shares pursuant to this Section 1.01(d), each party hereto will take all necessary and required steps and execute any reasonable requested documentation required to effect the issuance. As soon as possible after the Closing Date, Holdco shall deliver to each Contributor evidence of the issuance of such Holdco ordinary shares issued pursuant to the foregoing. For illustrative purposes and as an example, if (i) the Contributors are required to contribute $10,000,000, (ii) Sponsor makes the Election with respect to the full amount its Contribution Commitment and (iii) each Owner desires to make its contributions, which means the Contribution Commitment plus its Owner Percentage of the Election Amount, in cash only, then each Owner shall receive Holdco ordinary shares with respect to $2,500,000 of cash contributions plus the Owner Percentage of the Election Amount of cash contributions and each Owner shall receive SPAC Common Stock from the SPAC Sponsor with respect to the Election Amount contributed in accordance with Section 1.02.

 

Section 1.02 Election

 

(a)Notwithstanding anything to the contrary in Section 1.01, but subject to this Section 1.02, Sponsor shall be able to elect (the “Election”) to have Owners fund all or any portion of Sponsor’s Contribution Commitment. Sponsor’s exercise of its Election is subject to the following terms and conditions:

 

(i)If Sponsor exercises its Election, Sponsor shall only be required to (A) fund an amount in cash equal to the amount of its Contribution Commitment minus the Election Amount in order to satisfy its Contribution Commitment and (B) transfer to each Owner the Transferred Shares (as defined below) as consideration. For the avoidance of doubt, if Sponsor has elected for Owners to fund all of Sponsor’s Contribution Commitment, Sponsor shall not be required to fund any cash in respect of its Contribution Commitment; and

 

(ii)If Sponsor exercises its Election, (A) each Owner shall be required to fund 50% (or another percentage as mutually agreed to between Owners prior to the Closing, with such percentage herein referenced as the “Owner Percentage”) of the Election Amount in accordance with Section 1.01(b) immediately prior to the Closing, and such amount shall be deemed to be added to such Owner’s Contribution Commitment (required to be funded by such Owner pursuant to Section 1.01(a)) and (B) immediately prior to the Closing, Sponsor will transfer to each Owner a number of SPAC Common Stock equal to (x) Sponsor’s Contribution Commitment for which the Election has been made, divided by (y) $10.00, multiplied by (z) such Owner’s Owner Percentage (the “Transferred Shares”). For the avoidance of doubt, the Transferred Shares will be in addition to any Holdco ordinary shares or SPAC Common Stock that each Owner may receive pursuant to Section 1.01(c) with respect to the funding of such Owner’s Contribution Commitment (including such Owner’s Owner Percentage of the Election Amount). Each party will take all necessary and required steps and execute any reasonable requested documentation required to effect the issuance.

 

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(b)Each of Sponsor and SPAC shall execute any reasonable requested documentation required to effect the foregoing transfer. As soon as possible after the Closing Date, SPAC shall deliver to each Owner (A) evidence that the Transferred Shares were transferred in book-entry form, free and clear of any Liens (other than those arising under applicable securities laws), in the name of such Owner (or its designee in accordance with its delivery instructions), as of immediately prior to the Closing and (B) any other reasonably requested evidence showing such Owner as the owner of the Transferred Shares on and as of the Closing. Owners agree not to exercise, and hereby irrevocably waives, any right of redemption that such Owner may have with respect to any SPAC Common Stock that it may acquire under this Agreement.

 

(c)Each of the parties hereby agree that the below are examples illustrating the application of Sections 1.01 1.02:

 

(i)if (A) the Contributors are required to contribute $10,000,000, (ii) Sponsor makes the Election with respect to the full amount its Contribution Commitment and (iii) each Owner arranges for $3,000,000 of contributions to be made by Reversal Commitments pursuant to Section 1.01(c)(ii) or (iii) and makes $2,000,000 of contributions in cash, each Owner shall receive $3,000,000 worth of SPAC Common Stock from the Redeeming Stockholders (valued at $10.00/share), $2,000,000 worth of Holdco ordinary shares pursuant to Section 1.01(d) and $2,500,000 worth of SPAC Common Stock from Sponsor pursuant to this Section 1.02;

 

(ii)if (A) the Contributors are required to contribute $10,000,000, (ii) Sponsor makes the Election with respect to the full amount its Contribution Commitment and (iii) each Owner makes the entire $5,000,000 of contributions in cash, each Owner shall receive $5,000,000 worth of Holdco ordinary shares pursuant to Section 1.01(d) and $2,500,000 worth of SPAC Common Stock from Sponsor pursuant to this Section 1.02; and

 

(iii)if (A) the Contributors are required to contribute $10,000,000, (ii) Sponsor makes the Election with respect to the full amount its Contribution Commitment and (iii) each Owner arranges for $1,000,000 of contributions to be made by Reversal Commitments pursuant to Section 1.01(c)(ii) or (iii) and makes $4,000,000 of contributions in cash, each Owner shall receive $1,000,000 worth of SPAC Common Stock from the Redeeming Stockholders (valued at $10.00/share) pursuant to Section 1.01(c)(ii) or (iii), $4,000,000 worth of Holdco ordinary shares pursuant to Section 1.01(d); and $2,500,000 of SPAC Common Stock from Sponsor pursuant to this Section 1.02.

 

Section 1.03 Conditions to the Parties’ Obligations

 

(a)The transactions contemplated by this Agreement are conditioned on the substantially simultaneous occurrence of the Closing. All conditions precedent to the Closing as set forth in the Acquisition Agreement shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Closing but subject to satisfaction or waiver thereof). In the event that the Parties have funded the Contribution Commitments or transferred the Transferred Shares pursuant to the terms of this Agreement and the Closing does not occur within two (2) Business Days of such funding and transfer, each of the Parties shall cause such contributions, funding, and transfers to be voided, returned and otherwise unwound with no liability to any Party; provided that such voiding, return or unwinding does not terminate any Party’s obligations under this Agreement unless this Agreement is otherwise validly terminated in accordance with the terms of this Agreement.

 

(b)There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or regulation enjoining or prohibiting the consummation of the transactions contemplated herein.

 

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Section 1.04 Certain Acknowledgements and Agreements

 

(a)Each of Holdco, Target, and Owners (collectively, the “Owner Parties”) agrees that it shall not allege the failure of any closing condition based on the SPAC’s Redemption obligations, its payment of any SPAC Transaction Expenses or the amount of cash held by the SPAC at the Closing, any breach by SPAC or Sponsor of the Acquisition Agreement relating to the foregoing or seek to terminate the Acquisition Agreement for any failures relating to any of the foregoing (whether such failure occurs by any particular date or otherwise) in the event that any of the Owner Parties breaches its obligations under this Agreement.

 

(b)Each of Sponsor, the SPAC (collectively, the “Sponsor Parties”) agrees that it shall not allege the failure of any closing condition based on any breach by Target of the Acquisition Agreement relating to the foregoing or seek to terminate the Acquisition Agreement for any failures relating to any of the foregoing (whether such failure occurs by any particular date or otherwise) in the event that any of the Sponsor Parties breaches its obligations under this Agreement.

 

(c)Owners hereby agrees that neither of them, nor any of their respective affiliates, nor any person or entity acting on their respective behalf or pursuant to any understanding with either Owner, shall, directly or indirectly, engage in any hedging activities or execute any Short Sales (as defined below) with respect to the securities of SPAC prior to the Closing or the earlier termination of this Backstop Agreement in accordance with its terms. “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.

 

(d)While Owners or Target controls the operations of Holdco, such Party shall cause Holdco to take the actions required of Holdco under the terms of this Agreement. While Sponsor controls the operations of SPAC, Sponsor shall cause SPAC to take the actions required of SPAC under the terms of this Agreement.

 

Section 1.05 The UG Holdings Shares

 

In accordance with Section 9.03(f) of the Acquisition Agreement, concurrently with the Closing, Sponsor shall have transferred to UG Holdings, LLC (or its designated affiliate) 1,035,000 shares of SPAC Common Stock owned by the Sponsor.

 

Article II. Sponsor And SPAC Representations And Warranties

 

Each of Sponsor and SPAC hereby represents and warrants to Owners on the date hereof and as of the Closing that:

 

Section 2.01 Organization

 

Such Party is duly formed in the jurisdiction of its organization and has the requisite corporate power and authority to execute, deliver and carry out the terms of this Agreement and to consummate the transactions contemplated hereby.

 

Section 2.02 Authority; Non-Contravention

 

This Agreement has been validly authorized, executed and delivered by such Party and assuming the due authorization, execution and delivery thereof by the other parties hereto, is a valid and binding agreement enforceable in accordance with its terms, subject to the general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally. The execution, delivery and performance of this Agreement by such Party does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any organizational document governing such Party or any other agreement, contract or instrument to which such Party is a party which would prevent such Party from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which such Party is subject.

 

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Section 2.03 Governmental Approvals

 

All consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings with any governmental or other authority on the part of such Party required in connection with the consummation of the transactions contemplated in the Agreement have been or shall have been obtained prior to and be effective as of the Closing.

 

Section 2.04 No Brokers

 

No broker, investment banker, financial advisor, finder or other person has been retained by or is authorized to act on behalf of such Party that will be entitled to any fee or commission for which Holdco or Owners will be liable in connection with the execution of this Agreement or the consummation of the transactions contemplated hereby.

 

Section 2.05 No Litigation

 

There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or threatened against or affecting such Party or any of such Party’s properties or rights that affects or would reasonably be expected to affect such Party’s ability to consummate the transactions contemplated by this Agreement, nor is there any decree, injunction, rule or order of any governmental authority or arbitrator outstanding against such Party or any of such Party’s properties or rights that affects or would reasonably be expected to affect such Party’s ability to consummate the transactions contemplated by this Agreement.

 

Section 2.06 Securities Law Compliance

 

In connection with the offer, sale and delivery of the Transferred Shares in the manner contemplated by this Agreement, no registration under the Securities Act is required for the offer and sale of the Transferred Shares by SPAC to Owners. The Transferred Shares (i) were not offered to Owners by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.

 

Section 2.07 Transferred Shares

 

The Transferred Shares are validly issued, fully paid and on transfer will be free of pre-emptive rights and clear of any Liens or other restrictions on transfer of title, (other than those arising under applicable securities laws).

 

Article III. Representations and Warranties of the Owners

 

Each of the Owner Parties hereby represents and warrants to SPAC and Sponsor on the date hereof and as of the Closing that:

 

Section 3.01 Organization

 

Such Party is duly incorporated, validly existing and in good standing in the jurisdiction of its incorporation. Such Party has the requisite corporate power and authority to execute, deliver and carry out the terms of this Agreement and to consummate the transactions contemplated hereby.

 

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Section 3.02 Authority; Non-Contravention

 

This Agreement has been validly authorized, executed and delivered by such Party and assuming the due authorization, execution and delivery thereof by the other parties hereto, is a valid and binding agreement enforceable in accordance with its terms, subject to the general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally. The execution, delivery and performance of this Agreement by such Party does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any organizational document governing such Owner Party or any other agreement, contract or instrument to which such Party is a party which would prevent such Party from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which such Party is subject.

 

Section 3.03 Governmental Approvals

 

All consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings with any governmental or other authority on the part of such Party required in connection with the consummation of the transactions contemplated in the Agreement have been or shall have been obtained prior to and be effective as of the Closing.

 

Section 3.04 Sophisticated Parties

 

Such Party is sophisticated in financial matters and is able to evaluate the risks and benefits attendant to the purchase of SPAC Common Stock.

 

Section 3.05 No Brokers

 

No broker, investment banker, financial advisor, finder or other person has been retained by or is authorized to act on behalf of such Party that will be entitled to any fee or commission for which SPAC or Sponsor will be liable in connection with the execution of this Agreement or the consummation of the transactions contemplated hereby.

 

Section 3.06 Securities Law Compliance

 

Such Party has been advised that the offer and sale of the SPAC Common Stock by Sponsor has not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any other securities laws and, therefore, none of the SPAC Common Stock to be transferred to such Party at the Closing (if applicable) can be resold unless they are registered under the Securities Act and applicable securities laws or unless an exemption from such registration requirements is available. Such Party understands that the Transferred Shares will be considered to be “restricted securities” under the Securities Act, and that, therefore, such Party will not be eligible to use Rule 144 promulgated under the Securities Act for at least one year after “Form 10” information relating to the Business Combination has been filed with the SEC. Such Party is acquiring the SPAC Common Stock for such Party’s own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof. Such Party represents that it is an “accredited investor” as such term is defined in Rule 501 of Regulation D, promulgated under the Securities Act, and that such Party is not subject to the “Bad Actor” disqualification, as such terms is defined in Rule 506 of Regulation D, promulgated under the Securities Act. Each Owner acknowledges that SPAC and Sponsor may possess or have access to material non-public information which has not been and will not be communicated to Owners.

 

Article IV. Miscellaneous

 

Section 4.01 Termination

 

This Agreement shall terminate on the earlier of (i) the mutual written agreement of all of the Parties, and (ii) the date the Acquisition Agreement is terminated pursuant to the terms and conditions thereof; provided that nothing herein will relieve any Party from liability for any willful and material breach hereof prior to the time of termination, and each Party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach.

 

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Section 4.02 Counterparts; Electronic Mail

 

This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. This Agreement or any counterpart may be executed via electronic mail, and any such executed electronic mail copy shall be treated as an original.

 

Section 4.03 Governing Law

 

This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of Delaware. Each of the Parties hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall, to the fullest extent applicable, be brought and enforced first in the chancery courts located in the City of Wilmington, Delaware, then to such other court in the State of Delaware as appropriate and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the Parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.

 

Section 4.04 Remedies Cumulative

 

Each of the Parties acknowledges and agrees that, in the event of any breach of any covenant or agreement contained in this Agreement by another Party, money damages may be inadequate with respect to any such breach and the non-breaching Party may have no adequate remedy at law. It is accordingly agreed that each of the Parties shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to seek injunctive relief and/or to compel specific performance to prevent breaches by the other Party or Parties of any covenant or agreement of such other Party contained in this Agreement. Accordingly, each of the Parties hereby agrees to waive (i) any requirement for the posting of any bond in connection with such request for an injunction, (ii) its right to assert any counterclaims and (iii) its right to assert set-off as a defense.

 

Section 4.05 Severability

 

If any term, provision or covenant of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions and covenants of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

 

Section 4.06 Binding Effect; Assignment

 

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and permitted assigns.

 

Section 4.07 Headings

 

The descriptive headings of the Sections hereof are inserted for convenience only and do not constitute a part of this Agreement.

 

Section 4.08 Entire Agreement; Changes in Writing

 

This Agreement constitutes the entire agreement among the Parties and supersedes and cancels any prior agreements, representations and warranties, whether oral or written, among the Parties relating to the transaction contemplated hereby. Neither this Agreement nor any provision hereof may be changed or amended orally, but only by an agreement in writing signed by all of the Parties.

 

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Section 4.09 Further Assurances

 

If at any time any of the Parties shall consider or be advised that any further documents or actions are necessary or desirable to fund the Contribution Commitment or to vest, perfect or confirm of record or otherwise the rights, title or interest in or to the Transferred Shares or under or otherwise pursuant to this Agreement, the Parties shall execute and deliver such further documents or take such actions and provide all assurances and to take and do all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in or to the Transferred Shares or under or otherwise pursuant to this Agreement.

 

Section 4.10 Waiver of Claims Against Trust

 

(a)Reference is made to the final prospectus of SPAC, filed with the Securities and Exchange Commission on January 12, 2021 (the “Prospectus”). Each Owner Party warrants and represents that it has read the Prospectus and understands that SPAC has established a trust account containing the proceeds of its initial public offering (“IPO”) and from certain private placements (collectively, with interest accrued from time to time thereon, the “Trust Fund”) for the benefit of SPAC’s public stockholders and certain parties (including the underwriters of the IPO) and that, except for a portion of the interest earned on the amounts held in the Trust Fund, SPAC may disburse monies from the Trust Fund only under limited circumstances as set forth in the Prospectus.

 

(b)For and in consideration of SPAC’s and Sponsor’s execution of this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Owner Party hereby agrees that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Fund or distributions therefrom, or make any claim against, the Trust Fund, regardless of whether such claim arises as a result of, in connection with or relating in any way to, any proposed or actual business relationship between SPAC or Sponsor, on one hand, and any Owner Party, on the other hand, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Claims”). Each Owner Party hereby irrevocably waives any Claims it may have against the Trust Fund (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, contracts or agreements with SPAC or Sponsor and will not seek recourse against the Trust Fund (including any distributions therefrom) for any reason whatsoever (including, without limitation, for an alleged breach of this Agreement). Each Owner Party agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by SPAC and Sponsor to induce it to enter in this Agreement, and each Owner Party further intends and understands such waiver to be valid, binding and enforceable under applicable law. This Section 5.10 (Waiver of Claims against Trust) shall survive the termination of this Agreement for any reason.

 

[Signature page follows]

 

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth on the first page of this Agreement.

 

  Union Group Ventures Limited
     
  By: /s/ Oscar Alejandro León Bentancor
  Name: Oscar Alejandro León Bentancor
  Title: Sole Director
     
  Theo Partners S.á r.l
on behalf of THEO I SCSp as its general partner
     
  By: /s/ Federico Trucco
  Name:  Federico Trucco
  Title: Director
     
  By: /s/ Guillermo Reekstin
  Name: Guillermo Reekstin
  Title: Director
     
  LightJump One Founders, LLC
     
  By: /s/ Robert M. Bennett
  Name: Robert M. Bennett
  Title: Chief Executive Officer
     
  LightJump Acquisition Corporation
     
  By: /s/ Robert M. Bennett
  Name: Robert M. Bennett
  Title: Chief Executive Officer
     
  Moolec Science Limited
     
  By: /s/ Gastón Paladini
  Name: Gastón Paladini
  Title: Director
     
  Moolec Science SA
     
  By: /s/ Gastón Paladini
  Name: Gastón Paladini
  Title: Class A Director
     
  UG Holdings, LLC
     
  By: /s/ Kyle P. Bransfield
  Name: Kyle P. Bransfield
  Title: Member

 

[Signature Page to Backstop Agreement]

 

 

 

 

Exhibit A

Applicable Percentage

 

Entity   Applicable
Percentage
 
Sponsor    50%
UGVL    25%
Theo    25%

 

 

 

 

Exhibit 10.3

 

Execution Version

 

TRANSACTION SUPPORT AGREEMENT

 

This TRANSACTION SUPPORT AGREEMENT, dated as of June 14, 2022 (this “Agreement”), is by and among (a) Moolec Science Limited, a private limited company incorporated under the laws of England and Wales (the “Company”), (b) Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg with its registered office at 17, Boulevard F.W. Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) under number B268440 (“Holdco”), (c) LightJump Acquisition Corporation, a Delaware corporation (“SPAC”), (d) LightJump One Founders, LLC, a Delaware limited liability company (“Sponsor”), (e) the undersigned investors in SPAC (the “Investors”, and together with the Sponsors, the “SPAC Holders”), (f) Theo I SCSp, a special limited partnership (société en commandite spéciale) governed by the laws of the Grand Duchy of Luxembourg, having its registered office at 30, Boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg register of commerce and companies (registre de commerce et des sociétés) under number B257706 represented by its managing general partner, Theo Partners S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 30, Boulevard Royal, L-2449 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B256649 (“Theo”) and (g) Serenity Traders Ltd. a British Virgin Islands limited company (“LOSA Group” and together with Theo, the “SAFE Holders”). Capitalized terms used herein shall have the respective meanings given to them in this Agreement, including Section 5 hereunder, or if not defined herein, in that certain Business Combination Agreement entered into on or about the date hereof by and among SPAC, the Company, Holdco and Moolec Acquisition, Inc. a Delaware corporation (“Merger Sub”) (as amended and/or restated from time to time, the “BCA”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the BCA.

 

WHEREAS, concurrently with the entry into this Agreement, SPAC, the Company, Holdco and Merger Sub are entering into the BCA, which provides for, among other things, a business combination among SPAC, the Company, Holdco and Merger Sub pursuant to which, among other things, the Company, Holdco and each of the holders of all of the Company’s ordinary shares and all other shares being equity interest as of immediately prior to the Exchange (as defined below) (“Company Shareholders”) is a party to those certain Contribution and Exchange Agreements, dated as of June 14, 2022 (the “Exchange Agreements”), pursuant to which, on the terms and subject to the conditions set forth therein, the Company Shareholders will contribute their shares of Company Ordinary Shares to Holdco in exchange for Holdco Ordinary Shares to be subscribed for by the Company Shareholders (the “Exchange”) with the Company becoming a wholly-owned subsidiary of Holdco following the consummation of such exchanges and the Company Shareholders will increase the number of issuer and outstanding Holdco Ordinary Shares held by them;

 

WHEREAS, following the consummation of the Exchange, Merger Sub will merge with and into SPAC, with SPAC surviving such merger and becoming a direct wholly-owned subsidiary of Holdco (the “Merger”) and the SPAC Common Stock and SPAC Warrants shall be exchanged for Holdco Ordinary Shares and Holdco Warrants, respectively;

 

 

 

WHEREAS, as of the date hereof, the SPAC Holders own beneficially and of record those Sponsor Shares (as defined in Section 5 hereunder) and Private Warrants (as defined in Section 5 hereunder) set forth opposite such SPAC Holder’s name as set forth on Schedule A hereto;

 

WHEREAS, the SAFE Holders have entered into simple agreements for future equity between each SAFE Holder and the Company dated as of December 28, 2021 (each an “Original SAFE”) which entitles the SAFE Holders to shares of the Company following the Transactions.

 

WHEREAS, in order to induce SPAC, Holdco, the Company, Merger Sub and the Company Shareholders to enter into the BCA and the Exchange Agreements, as applicable, and consummate the Transactions, each of the SPAC Holders, Holdco, SPAC and the Company desire to enter into this Agreement and agree to certain matters as set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein and in the BCA, the receipt and sufficiency of which is hereby acknowledged, each SPAC Holder hereby agrees, severally and not jointly, with SPAC, Holdco and the Company as follows:

 

1. Voting Obligations. From the date hereof until the earlier of (i) the Closing or (ii) termination of the BCA in accordance with Article X thereof (such period, the “Interim Period”), such SPAC Holder, in his, her or its capacity as a holder of Sponsor Shares, severally and not jointly, agrees irrevocably and unconditionally that, at each SPAC Shareholders’ Meeting, at any other meeting of the SPAC Shareholders (whether annual or special and whether or not an adjourned or postponed meeting, however called and including any adjournment or postponement thereof), in connection with any written consent of the SPAC Shareholders and in connection with any similar vote or consent of the holders of Private Warrants in their capacities as such, including in each of the SPAC Proposals, such SPAC Holder shall, and shall cause any other holder of record of any of such SPAC Holder’s Sponsor Shares to:

 

(a) when such meeting is held, appear at such meeting or otherwise cause the SPAC Holder’s Sponsor Shares to be counted as present thereat for the purpose of establishing a quorum;

 

(b) vote (or duly and promptly execute and deliver an action by written consent), or cause to be voted at such meeting (or cause such consent to be duly and promptly executed and delivered with respect to), all of such SPAC Holder’s Sponsor Shares he, she or it is entitled to vote at the SPAC Shareholders’ Meeting in favor of each SPAC Proposal and any other matters reasonably necessary or reasonably requested by the Company for the consummation of the Transactions; and

 

(c) vote (or duly and promptly execute and deliver an action by written consent), or cause to be voted at such meeting (or cause such consent to be duly and promptly executed and delivered with respect to), all of such SPAC Holder’s Sponsor Shares against any Competing SPAC Transaction and any other action that would reasonably be expected to impede, interfere with or materially delay or postpone the consummation of, or otherwise adversely affect, any of the Transactions, or result in a material breach of any representation, warranty, covenant or other obligation or agreement of SPAC, under the BCA.

 

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The obligations of the SPAC Holders in this Section 1 shall apply whether or not the SPAC Board or other governing body or any committee, subcommittee or subgroup thereof recommends any of the SPAC Proposals and whether or not such board or other governing body, committee, subcommittee or subgroup thereof changes, withdraws, withholds, qualifies or modifies, or publicly proposes to change, withdraw, withhold, qualify or modify, the SPAC Board’s recommendation to its stockholders.

 

2. Waiver of Certain Rights. On behalf of herself, himself, itself and its affiliates:

 

(a) each SPAC Holder hereby irrevocably and unconditionally agrees not to (i) demand that SPAC redeem its Sponsor Shares in connection with the Transactions or (ii) otherwise participate in any such redemption by tendering or submitting any of its Sponsor Shares for redemption;

 

(b) each SPAC Holder hereby irrevocably and unconditionally (i) waives any rights for working capital loans, if any, made by it or its affiliates or on its behalf or on behalf of its affiliates to SPAC or any of its affiliates to be converted into warrants exercisable for securities of SPAC, Holdco or any of their affiliates or their successors and assigns and (ii) agrees that no such loans, if any, shall be converted into such warrants or any such other securities;

 

(c) each SPAC Holder hereby agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against SPAC, Holdco, Merger Sub, the Company or any of their respective successors or directors (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (ii) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the BCA. Each SPAC Holder hereby irrevocably and unconditionally waives, and agrees not to assert, exercise or perfect (or attempt to exercise, assert or perfect), any rights of appraisal or rights to dissent from any applicable transactions contemplated by the BCA or appraisal or dissenters’ rights that it may at any time have under applicable Laws, including Section 262 of the DGCL; and

 

(d) each SPAC Holder hereby consents to the publication and disclosure in the Proxy Statement and Registration Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents or communications provided by the Company to any Governmental Authority of such Sponsor’s identity and beneficial ownership of Sponsor Shares and the nature of such Sponsor’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by the Company, a copy of this Agreement. Sponsor will promptly provide any information reasonably requested by Company for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).

 

3. Reasonable Best Efforts. During the Interim Period, each SPAC Holder (i) shall, and shall cause its affiliates to, use reasonable best efforts to take, or cause to be taken, all actions to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate the Transactions on the terms and subject to the conditions set forth in the BCA and (ii) shall not, and shall cause its affiliates not to, take any action that would reasonably be expected to prevent or materially delay the satisfaction of any of the conditions to the Transactions set forth in Article IX of the BCA.

 

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4. Transfer Restrictions.

 

(a) Interim Period. During the Interim Period, each SPAC Holder shall not, and shall cause any other holder of record of any of such SPAC Holder’s Sponsor Shares not to, Transfer (as defined below) any Sponsor Shares that she, he or it Beneficially Owns (as defined below) without the prior written consent of Holdco; provided, however, that the foregoing sentence shall not apply to the following (each, a “Permitted Transfer”):

 

(i) Transfers of Sponsor Shares or any security convertible into or exercisable or exchangeable for Sponsor Shares as a bona fide gift or gifts, or to a charitable organization;

 

(ii) Transfers of Sponsor Shares to a trust, or other entity formed for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of any Investor or any other person with whom such Investor has a relationship by blood, marriage or adoption not more remote than first cousin;

 

(iii) If the undersigned is an individual, Transfers by will or intestate succession upon the death of any Investor;

 

(iv) Transfers of Sponsor Shares by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement;

 

(v) in the case of Sponsor, (A) Transfers to a corporation, partnership, limited liability company, trust, syndicate, association or other business entity that controls, is controlled by or is under common control or management with such Sponsor and (B) distributions of Sponsor Shares to partners, limited liability company members or equityholders who control such Sponsor;

 

(vi) Transfers to SPAC or the officers, directors or affiliates of SPAC or a SPAC Holder;

 

(vii) in the event of SPAC’s liquidation;

 

(viii) by virtue of the laws of the jurisdiction of formation of Sponsor or Sponsor’s limited liability company agreement, limited partnership agreement or equivalent organizational document, upon dissolution of such Sponsor; and

 

(ix) the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the transfer of Sponsor Shares or any securities convertible into or exercisable or exchangeable for Sponsor Shares during the Interim Period;

 

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provided, that in the case of any Transfer or distribution pursuant to Section 4(a)(i) through Section 4(a)(viii), each donee, distributee or other transferee shall agree in writing, in form and substance reasonably satisfactory to the applicable SPAC Holder, the Company and the Holdco to be bound by the provisions of this Agreement.

 

(b) Notwithstanding anything to the contrary contained herein, the SPAC Holders shall not Transfer any SPAC Holder’s Sponsor Shares that would result in such SPAC Holder holding an amount of Sponsor Shares that is less than the Sponsor Shares’ portion of the Forfeited Warrants.

 

(c) Any Transfer in violation of the provisions of this Section 4 shall be null and void ab initio and be of no force or effect.

 

(d) Any person who acquires Sponsor Shares pursuant to a Permitted Transfer in compliance with this Agreement shall subsequently be permitted to Transfer such Sponsor Shares pursuant to a Permitted Transfer made in compliance with this Agreement.

 

5. Definitions. As used herein, the following terms shall have the respective meanings set forth below:

 

(a) Beneficially Own” has the meaning given to such term under Rule 13d-3 of the Exchange Act.

 

(b) Sponsor Shares” means each of the SPAC Common Stock held by the Investors or the Sponsors.

 

(c) Private Warrants” means each of the SPAC Warrants held by the Investors or the Sponsor.

 

(d) “Transfer” means to, directly or indirectly, sell, offer to sell, transfer, assign, pledge, encumber, hypothecate, or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any interest owned by a person or any interest (including a beneficial interest) in, or the ownership, control or possession of, any interest owned by a person.

 

6. Entire Agreement; Assignment; Amendment. This Agreement and the other agreements referenced herein constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise) by any party without the prior express written consent of the other parties hereto. This Agreement may be amended in writing by all parties hereto by an instrument in writing signed by each of the parties hereto.

 

7. Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

5

 

 

8. Counterparts. This Agreement may be executed and delivered (including by facsimile or portable document format (pdf) transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

9. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent possible.

 

10. Governing Law; Venue; Waiver of Jury Trial. Sections 11.06 and 11.07 of the BCA are incorporated herein by reference, mutatis mutandis.

 

11. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by email or by registered or certified mail (postage prepaid, return receipt requested) to (a) if to SPAC or any Sponsor, the address for SPAC in accordance with the terms of Section 11.01 of the BCA, (b) if to the Company or Holdco, the address for the Company or Holdco in accordance with the terms of Section 11.01 of the BCA and (c) if to the Investors, the address set forth in such Investor’s signature block hereto.

 

12. Termination. This Agreement shall automatically terminate on the earliest of: (a) the valid termination of the BCA (in which case this Agreement shall be of no force and effect) and (b) the mutual written agreement of the parties hereof; provided, that no such termination shall relieve any party hereto from any liability resulting from its pre-termination breach of this Agreement.

 

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13. Representations and Warranties. Each SPAC Holder hereby represents and warrants (severally and not jointly as to herself, himself or itself only) to SPAC, Holdco and the Company as follows: (a) if such person is not an individual, it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within such person’s corporate, limited liability company or other organizational powers and have been duly authorized by all necessary corporate, limited liability company or other organizational actions on the part of such person; (b) if such person is an individual, such person has full legal capacity, right and authority to execute and deliver this Agreement and to perform its obligations hereunder; (c) such SPAC Holder is the record and beneficial owner (as defined in the Securities Act) of, and has good title to, all of such SPAC Holder’s Sponsor Shares, and there exist no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Sponsor Shares (other than transfer restrictions under the Securities Act) affecting any such Sponsor Shares Parent Securities, other than Liens pursuant to (i) this Agreement, (ii) the Sponsor Organizational Documents, (iii) the BCA, (iv) Registration Rights and Lock-Up Agreement or (v) any applicable securities Laws. Such SPAC Holder’s Sponsor Shares are the only equity securities in Sponsor owned of record or beneficially by such SPAC Holder on the date of this Agreement, and none of such SPAC Holder’s Sponsor Shares are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Sponsor Shares. Other than the Private Warrants, such Sponsor does not hold or own any rights to acquire (directly or indirectly) any equity securities of Holdco or any equity securities convertible into, or which can be exchanged for, equity securities of Holdco, (d) this Agreement has been duly executed and delivered by such person and, assuming due authorization, execution and delivery by the other parties to this Agreement, this Agreement constitutes a legally valid and binding obligation of such person, enforceable against such person in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies); (e) the execution and delivery of this Agreement by such person does not, and the performance by such person of its obligations hereunder will not require any consent or approval that has not been given or other action that has not been taken by any third party, in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by such person of its obligations under this Agreement; and (f) there are no Actions pending against such Sponsor, or to the knowledge of such Sponsor threatened against such Sponsor, before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such Sponsor of its, his or her obligations under this Agreement.

 

14. Equitable Adjustments. If, and as often as, there are any changes in SPAC, Holdco, the Sponsor Shares, the Private Warrants, the Holdco Ordinary Shares or the Holdco Warrants by way of stock split, stock dividend, combination or reclassification, or through merger, consolidation, reorganization, recapitalization or business combination, or by any other means, equitable adjustment shall be made to the provisions of this Agreement as may be required so that the rights, privileges, duties and obligations hereunder shall continue with respect to SPAC, Holdco, the Sponsor Shares, the Private Warrants, the Holdco Ordinary Shares or the Holdco Warrants each as so changed.

 

15. Stop Transfer Order; Legend. Each SPAC Holder hereby authorizes SPAC and Holdco to maintain a copy of this Agreement at either the executive office or the registered office of SPAC. In furtherance of this Agreement, each SPAC Holder hereby authorizes and will instruct SPAC and Holdco, promptly after the date hereof, to enter, or cause its transfer agent to enter, a stop transfer order with respect to all of such SPAC Holder’s Sponsor Shares with respect to any Transfer not permitted hereunder and to include the following legend on any certificates or other instruments representing (or any notice given pursuant to the Laws of the State of Delaware in respect of) such SPAC Holder’s Sponsor Shares: “THE SHARES OF STOCK OR OTHER SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VOTING AND TRANSFER RESTRICTIONS PURSUANT TO THAT CERTAIN TRANSACTION SUPPORT AGREEMENT, DATED AS OF JUNE 14, 2022, BY AND AMONG MOOLEC SCIENCE LIMITED, A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES, Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg, LightJump Acquisition Corporation, a Delaware corporation, LIGHTJUMP ONE FOUNDERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY and certain other PERSONS partY thereto. ANY TRANSFER OF SUCH SHARES OF STOCK OR OTHER SECURITIES IN VIOLATION OF THE TERMS AND PROVISIONS OF SUCH TRANSACTION SUPPORT AGREEMENT SHALL BE NULL AND VOID AB INITIO AND HAVE NO FORCE OR EFFECT WHATSOEVER.”

 

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16. Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and, accordingly, that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof (including the parties’ obligation to consummate the Transactions) in any court of the United States located in the State of Delaware without proof of actual damages or otherwise, in addition to any other remedy to which they are entitled at law or in equity as expressly permitted in this Agreement. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief.

 

17. Interpretation. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. Wherever this Agreement uses “it”, “its” or derivations thereof to refer to a natural person, such references shall be deemed references to “her”, “him” or “his”, as applicable.

 

18. Updates to Schedule A; Admission of New SPAC Holders. During the Interim Period, each SPAC Holder shall promptly notify SPAC of any increase, decrease or other change in the number of Sponsor Shares or Private Warrants held by or on behalf of such SPAC Holder (for the avoidance of doubt, each SPAC Holder acknowledges and agrees that Section 4(a) prohibits all Transfers of its Sponsor Shares, other than Permitted Transfers, during the Interim Period). From and after the Closing, each SPAC Holder shall promptly notify Holdco of any increase, decrease or other change in the number of Sponsor Shares or Private Warrants held by or on behalf of such SPAC Holder, including as a result of a Transfer in compliance with this Agreement. Promptly following each such notification, SPAC or Holdco (as applicable) shall update Schedule A to reflect the applicable changes as they relate to Sponsor Shares or Private Warrants (in the case of an Interim Period change) or Sponsor Shares (in the case of a post-Closing change), and provide a copy of such updated Schedule A to each of the parties hereto, and such updated Schedule A shall control for all purposes of this Agreement (unless and until it is later updated in accordance with this Section 18). Any such update to Schedule A pursuant to this Section 18 shall not be deemed an amendment to this Agreement for purposes of Section 6.

 

19. Termination of Existing Registration Rights Agreement. Prior to Closing, in connection with the entry into the Registration Rights and Lock-Up Agreement, SPAC shall cause to be terminated all existing registration rights agreements entered into between SPAC and any other party, including the Sponsor. No parties to any such terminated registration rights agreements shall have any further rights or obligations thereunder.

 

20. Further Assurances. Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment, transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof and as may be reasonably requested in writing by another party hereto. By way of amplification and not limitation, each SAFE Holder agrees, as soon as practicable after the date hereof and reasonably in advance of the Exchange Effective Time, to execute all documentation and perform all necessary actions reasonably required by the Company and/or Holdco as may be necessary or desirable in connection with the issuance by Holdco of Holdco Ordinary Shares to each SAFE Holder, substantially in accordance, in all material respects, with the Original SAFE (including, without limitation, executing a power of attorney, providing reasonably requested documents and information required for complying with applicable Law, attending or having a suitable proxy attend any meetings of the shareholders of Holdco and assigning or transferring each SAFE Holder’s rights under the Original SAFE to Holdco).

 

[Signature pages follow]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

  MOOLEC SCIENCE LIMITED
   
  By /s/ Gastón Paladini
  Name:  Gastón Paladini
  Title: Co-Chairman and Chief Executive Officer
     
  Moolec Science SA
   
  By /s/ Gastón Paladini
  Name: Gastón Paladini
  Title: Director
     
  LIGHTJUMP ACQUISITION CORPORATION
   
  By /s/ Robert M. Bennett 
  Name: Robert M. Bennett
  Title: Chief Executive Officer
     
  LIGHTJUMP ONE FOUNDERS, LLC
   
  By /s/ Robert M. Bennett
  Name: Robert M. Bennett
  Title: Chief Executive Officer

 

[Signature Page to Transaction Support Agreement]

 

 

 

  SAFE HOLDERS
   
  THEO Partners S.á R.L
  on behalf of THEO I SCSp as its general Partner
     
  By /s/ Federico Trucco 
  Name:  Federico Trucco               
  Title: Director
     
  By /s/ Guillermo Reekstin 
  Name: Guillermo Reekstin
  Title: Director
     
  SERENITY TRADERS LTD.
     
  By /s/ Mauricio Zachrisson 
  Name: Mauricio Zachrisson
  Title: Director

 

[Signature Page to Transaction Support Agreement]

 

 

 

  INVESTORS
     
  /s/ Robert M. Bennett
  Name: Robert M. Bennett
  Address:
   
   
   

 

 

[Signature Page to Transaction Support Agreement]

 

 

 

SCHEDULE A

 

SPAC Holder   Sponsor Shares   Private Warrants
LightJump One Founders, LLC   3,450,000 4,210,000
Robert M. Bennett(1)   3,450,000 4,210,000

 

 

(1)Includes the shares held by LightJump One Founders, LLC, an entity controlled by Robert M. Bennett.

 

 

 

 

 

Exhibit 10.4

 

FORM OF ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT

 

This Assignment, Assumption and Amendment Agreement (this “Agreement”) is made as of [●], 2022, by and among LightJump Acquisition Corporation, a Delaware corporation (the “Company”), Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg with its registered office at 17, Boulevard F.W. Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) under number B268440 (“Holdco”) and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”). Capitalized terms used herein but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Existing Warrant Agreement (as defined herein).

 

WHEREAS, the Company and the Warrant Agent are parties to that certain Warrant Agreement, dated as of January 12, 2021, and filed with the United States Securities and Exchange Commission on January 20, 2021 (the “Existing Warrant Agreement”);

 

WHEREAS, pursuant to the Existing Warrant Agreement, the Company issued (a) 4,210,000 warrants to LightJump One Founders, LLC (collectively, the “Private Warrants”) to purchase shares of common stock of the Company, par value $0.0001 per share (“Common Stock”) simultaneously with the closing of the Company’s initial public offering (the “Public Offering”) (including the full exercise of the underwriters’ over-allotment option), at a purchase price of $1.00 per Private Warrant, with each Private Warrant being exercisable for one share of Common Stock and with an exercise price of $11.50 per share, and (b) 6,900,000 warrants to public investors in the Public Offering (collectively, the “Public Warrants”) to purchase shares of Common Stock, with each Public Warrant being exercisable for one share of Common Stock and with an exercise price of $11.50 per share;

 

WHEREAS, all of the Warrants are governed by the Existing Warrant Agreement;

 

WHEREAS, on June 14, 2022, a business combination agreement was entered into by and among the Company, Holdco, Moolec Science Limited, a private limited company incorporated under the laws of England and Wales (the “Target”) and Moolec Acquisition, Inc., a Delaware corporation (“Merger Sub”), as may be amended from time to time (the “Business Combination Agreement”);

 

WHEREAS, Holdco, the Target and each of the Target’s shareholders (the “Target Shareholders”) have entered into those certain individual Contribution and Exchange Agreements, each dated as of June 14, 2022, as any of them may have been amended on or about the date hereof (collectively, the “Exchange Agreements”), pursuant to which the Target Shareholders will contribute their respective shares in the Target to Holdco in exchange for ordinary shares of Holdco (“Holdco Ordinary Shares”);

 

WHEREAS, pursuant to the Business Combination Agreement, Merger Sub will merge with and into the Company, with the Company surviving such merger as a direct wholly-owned subsidiary of Holdco (the “Merger”) and, in the context of such Merger, all Common Stock outstanding immediately prior to the Merger Effective Time (as defined in the Business Combination Agreement) shall be exchanged with Holdco for the right to receive Holdco Ordinary Shares pursuant to a share capital increase of Holdco, as set forth in the Business Combination Agreement;

 

WHEREAS, upon consummation of the Merger, as provided in Section 4.5 of the Existing Warrant Agreement, each of the issued and outstanding Warrants will no longer be exercisable for shares of Common Stock but instead will be exercisable (subject to the terms and conditions of the Existing Warrant Agreement as amended hereby) for Holdco Ordinary Shares;

 

WHEREAS, the board of directors of the Company has determined that the consummation of the transactions contemplated by the Business Combination Agreement will constitute a Business Combination (as defined in Section 3.2 of the Existing Warrant Agreement);

 

 

 

WHEREAS, in connection with the Merger, the Company desires to assign all of its right, title and interest in the Existing Warrant Agreement to Holdco and Holdco wishes to accept such assignment; and

 

WHEREAS, Section 9.8 of the Existing Warrant Agreement provides that the Company and the Warrant Agent may amend the Existing Warrant Agreement without the consent of any registered holders for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained therein or adding or changing any other provisions with respect to matters or questions arising under the Existing Warrant Agreement as the Company and the Warrant Agent may deem necessary or desirable and that the Company and the Warrant Agent deem shall not adversely affect the interest of the registered holders.

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:

 

1. Assignment and Assumption; Consent.

 

1.1. Assignment and Assumption. The Company hereby assigns to Holdco all of the Company’s right, title and interest in and to the Existing Warrant Agreement (as amended hereby) as of the Merger Effective Time (as defined in the Business Combination Agreement). Holdco hereby assumes, and agrees to pay, perform, satisfy and discharge in full, as the same become due, all of the Company’s liabilities and obligations under the Existing Warrant Agreement (as amended hereby) arising from and after the Merger Effective Time.

 

1.2. Consent. The Warrant Agent hereby consents to the assignment of the Existing Warrant Agreement by the Company to Holdco pursuant to Section 1.1 hereof effective as of the Merger Effective Time, the assumption of the Existing Warrant Agreement by Holdco from the Company pursuant to Section 1.1 hereof effective as of the Merger Effective Time, and to the continuation of the Existing Warrant Agreement in full force and effect from and after the Merger Effective Time, subject at all times to the Existing Warrant Agreement (as amended hereby) and to all of the provisions, covenants, agreements, terms and conditions of the Existing Warrant Agreement and this Agreement.

 

2. Amendment of Existing Warrant Agreement. The Company and the Warrant Agent hereby amend the Existing Warrant Agreement as provided in this Section 2, effective as of the Merger Effective Time, and acknowledge and agree that the amendments to the Existing Warrant Agreement set forth in this Section 2 are necessary or desirable and that such amendments do not adversely affect the interests of the registered holders:

 

2.1. Preamble. The preamble on page one of the Existing Warrant Agreement is hereby amended by deleting “LightJump Acquisition Corporation, a Delaware corporation, with offices at 2735 Sand Hill Road, Suite 110, Menlo Park, CA 94025” and replacing it with “Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg with its registered office at 17, Boulevard F.W. Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) under number B268440”. As a result thereof, all references to the “Company” in the Existing Warrant Agreement shall be references to Holdco rather than the Company.

 

2.2. Recitals. The recitals on page one of the Existing Warrant Agreement are hereby deleted in their entirety and replaced with the following recitals:

 

WHEREAS, on January 12, 2021, LightJump Acquisition Corporation (“LightJump”) received a binding commitment (“Subscription Agreement”) from LightJump One Founders, LLC (“Initial Shareholder”) to purchase up to an aggregate of 4,210,000 Warrants (the “Private Warrants”), upon consummation of the Public Offering (as defined herein); and

 

WHEREAS, LightJump consummated an initial public offering (the “Public Offering”) of 12,000,000 units, each such unit comprised of one share of common stock of LightJump, par value $.0001 per share (“Common Stock”), and one-half of one warrant, where each warrant entitles the holder to purchase one share of Common Stock at a price of $11.50 per share, subject to adjustment as described herein, and, in connection therewith, issued and delivered 6,900,000 warrants (“Public Warrants” and together with the Private Warrants, the “SPAC Warrants”) to the public investors in connection with the Public Offering; and

 

2

 

WHEREAS, LightJump has filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-1, as amended, File Nos. 333-251435 and 333-251960 (the “Registration Statement”), for the registration, under the Securities Act of 1933, as amended (“Act”) of, among other securities, the Public Warrants; and

 

WHEREAS, LightJump, the Company, Moolec Acquisition, Inc., a Delaware corporation (“Merger Sub”), and Moolec Science Limited, a private limited company incorporated under the laws of England and Wales (the “Target”), are parties to that certain Business Combination Agreement, dated as of June 14, 2022 (as amended and/or restated from time to time, the “Business Combination Agreement”), which, among other things, provides for the merger of Merger Sub with and into LightJump with LightJump surviving such merger as a wholly owned subsidiary of the Company (the “Merger”), and, as a result of the Merger, all Common Stock shall be exchanged for the right to receive ordinary shares of the Company (“Company Ordinary Shares”); and

 

WHEREAS, on or about the closing of the business combination, pursuant to the terms of the Business Combination Agreement, the Company, LightJump and the Warrant Agent entered into an Assignment, Assumption and Amendment Agreement (the “Warrant Assumption Agreement”), pursuant to which LightJump assigned its rights and obligations under this Agreement to the Company and the Company assumed LightJump’s right and obligations under this Agreement from LightJump; and

 

WHEREAS, pursuant to the Business Combination Agreement, the Warrant Assumption Agreement and Section 4.5 of this Agreement, effective as of the Merger Effective Time (as defined in the Business Combination Agreement), each of the issued and outstanding SPAC Warrants were no longer exercisable for shares of Common Stock but instead became exercisable (subject to the terms and conditions of this Agreement) for Company Ordinary Shares (each a “Warrant” and collectively, the “Warrants”); and

 

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and

 

WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and

 

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:”

 

2.3. Reference to Company Ordinary Shares. All references in the Existing Warrant Agreement (including all Exhibits thereto) to: (i) “Common Stock” shall mean “Company Ordinary Shares” with a nominal value of $0.01 per share, (ii) “stockholders” shall mean “shareholders”, (iii) “amended and restated certificate of incorporation” shall mean “articles of association”, (iv) “par value” shall mean “nominal value”, and (v) “convertible preferred stock” shall mean “convertible preferred equity certificates.”

 

3

 

2.4. Form of Warrants. The first sentence of Section 2.1 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

 

“Each Warrant shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board of Directors or Chief Executive Officer.”

 

2.5. Detachability of Warrants. Section 2.5 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

 

“[INTENTIONALLY OMITTED]”

 

Except that the defined term “Business Day” set forth therein shall be retained for all purposes of the Existing Warrant Agreement.

 

2.6. Post-IPO Warrants and Working Capital Warrants.

 

2.6.1. Section 2.6 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

 

“2.6 Private Warrant Attributes. The Private Warrants will be issued in the same form as the Public Warrants but they (i) will be redeemable by the Company and (ii) may be exercised for cash or on a cashless basis at the Company’s option, in either case as long as they are held by the initial purchasers or their permitted transferees (as prescribed in Section 5.6 hereof). Once a Private Warrant is transferred to a holder other than an affiliate or permitted transferee, it shall be treated as a Public Warrant hereunder for all purposes.”

 

2.6.2. All references to “Working Capital Warrants” in the Existing Warrant Agreement (including all Exhibits thereto) shall be deleted.

 

2.6.3. Section 2.7 of the Existing Warrant Agreement is hereby deleted in its entirety. All references to “Post- IPO Warrants” in the Existing Warrant Agreement (including all Exhibits thereto) shall be deleted.

 

2.7. Warrant Price. The last sentence of Section 3.1 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

 

“The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days; provided, that the Company shall provide at least twenty (20) days’ prior written notice of such reduction to registered holders of the Warrants, provided further that any such reduction shall be applied consistently to all of the Warrants, and provided further that the Warrant Price shall not be less than the nominal value of the underlying Company Ordinary Shares.”

 

2.8. Duration of Warrants. The first sentence of Section 3.2 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

 

“A Warrant may be exercised only during the period commencing on the date of the consummation of the transactions contemplated by the Business Combination Agreement (a “Business Combination”), and terminating at 5:00 p.m., New York City time on the earlier to occur of: (i) the date that is five (5) years after the date on which the Business Combination is completed, (ii) the Redemption Date as provided in Section 6.2 of this Agreement, or (iii) the liquidation of the Company (the “Expiration Date”).”

 

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2.9. Valid Issuance. Section 3.3.3 of the Existing Warrant Agreement is hereby deleted and replaced with the following: “All Company Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement and the Articles of Association of the Company, following the necessary updates to the shareholder register of the Company, shall be validly issued and fully paid.”

 

2.10. Adjustments in Exercise Price. Section 4.4 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

 

“Whenever the number of Company Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in Sections 4.1 and 4.2 above, the Warrant Price, which shall correspond to at least the nominal value of the Company Ordinary Shares underlying the Warrant, shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of Company Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of Company Ordinary Shares so purchasable immediately thereafter; provided, however, that neither the Warrant Price nor the exercise price of a Warrant shall be less than the nominal value of the underlying Company Ordinary Shares.”

 

2.11. Private Warrants. Section 5.6 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

 

“5.6 Private Warrants. The Warrant Agent shall not register any transfer of Private Warrants until after the consummation of the Business Combination, except for transfers (i) among the initial shareholders or to the initial shareholders’ or the Company’s officers, directors, consultants or their affiliates, (ii) to holder’s shareholders or members upon the holder’s liquidation, in each case if the holder is an entity, (iii) by bona fide gift to a member of the holder’s immediate family or to a trust, the beneficiary of which is the holder or a member of the holder’s immediate family, in each case for estate planning purposes, (iv) by virtue of the laws of descent and distribution upon death, (v) pursuant to a qualified domestic relations order, (vi) to the Company for no value for cancellation in connection with the consummation of the Business Combination, (vii) in connection with the consummation of the Business Combination by private sales at prices no greater than the price at which the Private Warrants were originally purchased, (viii) in the event that, subsequent to the consummation of the initial Business Combination, the Company completes a liquidation, merger, share exchange or other similar transaction which results in all of the Company’s shareholders having the right to exchange their Company Ordinary Shares for cash, securities or other property, in each case (except for clauses (vi) or (viii) or with the Company’s prior written consent) on the condition that prior to such registration for transfer, the Warrant Agent shall be presented with written documentation pursuant to which each transferee or the trustee or legal guardian for such transferee agrees to be bound by the transfer restrictions contained in this section and any other applicable agreement the transferor is bound by.”

 

2.12. Reservation of Company Ordinary Shares. Section 7.3 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

 

“The Company shall at all times reserve and keep available an authorized share capital that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.”

 

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2.13. Notices.

 

2.13.1. Section 9.2 of the Existing Warrant Agreement is hereby amended in part to change the delivery of notices to the Company to the following:

 

Moolec Science SA

17, Boulevard F.W. Raiffeisen,

L-2411 Luxembourg

Email: gaston@moolecscience.com

 

in each case, with copies to:

 

Linklaters LLP

1290 Avenue of the Americas

New York, NY 10104

Attention: Matthew Poulter and Pierre-Emmanuel Perais

Email: matthew.poulter@linklaters.com and pierre-emmanuel.perais@linklaters.com

 

2.13.2. Section 9.2 of the Existing Warrant Agreement is hereby further amended in part to delete references to K&L Gates LLP, 10100 Santa Monica Boulevard, 8th Floor, Los Angeles, California 90067, Attn.: Leib Orlanski, Esq.

 

2.14. Currency. A new Section 9.11 is hereby inserted as follows:

 

“9.11 Currency. Unless otherwise specified in this Agreement, all references to currency, monetary values and dollars set forth herein shall mean U.S. dollars (USD) and all payments hereunder shall be made in U.S. dollars (USD).”

 

2.15. Warrant Certificate. Exhibit A to the Existing Warrant Agreement is hereby amended by deleting Exhibit A in its entirety and replacing it with a new Exhibit A attached hereto.

 

3. Miscellaneous Provisions.

 

3.1. Effectiveness of Warrant. Each of the parties hereto acknowledges and agrees that the effectiveness of this Agreement shall be expressly subject to the occurrence of the Exchange (as defined in the Business Combination Agreement) and the Merger and shall automatically be terminated and shall be null and void if the Business Combination Agreement shall be terminated for any reason.

 

3.2. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.

 

3.3. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

6

 

3.4. Applicable Law. The validity, interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to conflict of law principles that would result in the application of the substantive laws of another jurisdiction. The parties hereby agree that any action, proceeding or claim against a party arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.

 

3.5. Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.

 

3.6. Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. Signatures to this Agreement transmitted by electronic mail in PDF form, or by any other electronic means designed to preserve the original graphic and pictorial appearance of a document (including DocuSign), will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures.

 

3.7. Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.

 

3.8. Reference to and Effect on Agreements; Entire Agreement.

 

3.8.1. Any references to “this Agreement” in the Existing Warrant Agreement will mean the Existing Warrant Agreement as amended by this Agreement. Except as specifically amended by this Agreement, the provisions of the Existing Warrant Agreement shall remain in full force and effect.

 

3.8.2. This Agreement and the Existing Warrant Agreement, as modified by this Agreement, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.

 

[Remainder of page intentionally left blank.]

 

7

 

IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed as of the date first above written.

 

  LIGHTJUMP ACQUISITION CORPORATION
     
 

By

  Name: Robert M. Bennett
  Title: Chief Executive Officer
   
  MOOLEC SCIENCE SA
     
 

By

  Name: Gastón Paladini
  Title: Class A Director
   
  CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
     
  By  
  Name:  
  Title:  

 

[Signature Page to Assignment, Assumption and Amendment Agreement]

 

 

 

EXHIBIT A

 

FORM OF WARRANT CERTIFICATE

 

See attached.

 

 

 

NUMBER

________-

 

(SEE REVERSE SIDE FOR LEGEND)

THIS WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO THE EXPIRATION DATE (DEFINED BELOW)

  WARRANTS

 

MOOLEC SCIENCE, S.A.

CUSIP [●]

WARRANT

 

THIS CERTIFIES THAT, for value received is the registered holder of a warrant or warrants (the “Warrant(s)”) of Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg with its registered office at 17, Boulevard F.W. Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) (the “Company”), expiring at 5:00 p.m., New York City time, on the five year anniversary of the consummation of the Business Combination (as such term is defined in the Warrant Agreement (defined below)) (the “Business Combination”), to purchase one fully paid ordinary share, par value $0.01 per share (“Shares”), of the Company for each Warrant evidenced by this Warrant Certificate. The Warrant entitles the holder thereof to purchase from the Company, commencing on the date that is thirty days after the Company’s completion of an initial Business Combination, such number of Shares of the Company at the Warrant Price (as defined below), upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of Continental Stock Transfer & Trust Company (the “Warrant Agent”), but only subject to the conditions set forth herein and in the Warrant Agreement between the Company and Continental Stock Transfer & Trust Company. In no event will the Company be required to net cash settle any warrant exercise. The term “Warrant Price” as used in this Warrant Certificate refers to the price per Share at which Shares may be purchased at the time the Warrant is exercised. The initial Warrant Price per Ordinary Share for any Warrant is equal to $11.50 per share. The Warrant Agreement provides that upon the occurrence of certain events, the Warrant Price and the number of Shares purchasable hereunder, set forth on the face hereof, may, subject to certain conditions, be adjusted.

 

No fraction of a Share will be issued upon any exercise of a Warrant. If the holder of a Warrant would be entitled to receive a fraction of a Share upon any exercise of a Warrant, the Company shall, upon such exercise, round up to the nearest whole number the number of Shares to be issued to such holder.

 

Upon any exercise of the Warrant for less than the total number of full Shares provided for herein, there shall be issued to the registered holder hereof or the registered holder’s assignee a new Warrant Certificate covering the number of Shares for which the Warrant has not been exercised.

 

Warrant Certificates, when surrendered at the office or agency of the Warrant Agent by the registered holder in person or by attorney duly authorized in writing, may be exchanged in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants.

 

Upon due presentment for registration of transfer of the Warrant Certificate at the office or agency of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any applicable tax or other governmental charge.

 

The Company and the Warrant Agent may deem and treat the registered holder as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the registered holder, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.

 

This Warrant does not entitle the registered holder to any of the rights of a shareholder of the Company.

 

The Company reserves the right to call the Warrant at any time prior to its exercise with a notice of call in writing to the holders of record of the Warrant, giving at least 30 days’ notice of such call, at any time while the Warrant is exercisable, if the last sale price of the Shares has been at least $18.00 per share (the “Redemption Trigger Price”) on each of 20 trading days within any 30 trading day period (the “30-day trading period”) commencing after the Warrants become exercisable and ending on the third business day prior to the date on which notice of such call is given and if, and only if, there is a current registration statement in effect with respect to the Shares underlying the Warrants commencing five business days prior to the 30-day trading period and continuing each day thereafter until the date of redemption. The call price of the Warrants is to be $0.01 per Warrant. Any Warrant either not exercised or tendered back to the Company by the end of the date specified in the notice of call shall be canceled on the books of the Company and have no further value except for the $0.01 call price.

 

 

 

SUBSCRIPTION FORM

 

To Be Executed by the Registered Holder in Order to Exercise Warrants

 

The undersigned Registered Holder irrevocably elects to exercise Warrants represented by this Warrant Certificate, and to purchase the Ordinary Shares issuable upon the exercise of such Warrants, and requests that Certificates for such shares shall be issued in the name of

 

 

(PLEASE TYPE OR PRINT NAME AND ADDRESS)

 

 

 

 

 

 

(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)

 

and be delivered to ______________________________________________________________________

(PLEASE PRINT OR TYPE NAME AND ADDRESS)

 

and, if such number of Warrants shall not be all the Warrants evidenced by this Warrant Certificate, that a new Warrant Certificate for the balance of such Warrants be registered in the name of, and delivered to, the Registered Holder at the address stated below:

 

Dated: _____________________

___________________________________________
  (SIGNATURE)
  ___________________________________________
   
 

__________________________________________

(ADDRESS)

  ___________________________________________
   
 

__________________________________________

(TAX IDENTIFICATION NUMBER)

 

 

 

ASSIGNMENT

 

To Be Executed by the Registered Holder in Order to Assign Warrants

 

For Value Received, _______________________ hereby sell, assign, and transfer unto

 

 

(PLEASE TYPE OR PRINT NAME AND ADDRESS)

 

 

 

 

 

 

(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)

 

and be delivered to _______________________________________________________________________

(PLEASE PRINT OR TYPE NAME AND ADDRESS)

 

______________________ of the Warrants represented by this Warrant Certificate, and hereby irrevocably constitute and appoint _________________________________ Attorney to transfer this Warrant Certificate on the books of the Company, with full power of substitution in the premises.

 

Dated: _________________________

___________________________________________
  (SIGNATURE)

 

The signature to the assignment of the Subscription Form must correspond to the name written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever, and must be guaranteed by a commercial bank or trust company or a member firm of the NYSE American, Nasdaq, New York Stock Exchange, Pacific Stock Exchange, or Chicago Stock Exchange.

 

 

 

 

 

Exhibit 10.5

 

FORM OF REGISTRATION RIGHTS AND LOCK-UP AGREEMENT1

 

THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT, dated as of [●], 2022, (this “Agreement”), is made and entered into by and among Moolec Science SA, a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg, with its registered office at 17, Boulevard F.W. Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (Registre de Commerce et des Sociétés, Luxembourg) under number B268440 (the “Company”), LightJump One Founders, LLC, a Delaware limited liability company (“Sponsor”), each of the persons and entities listed on Exhibit A hereto (each, a “SPAC Holder” and collectively, the “SPAC Holders”), and each of the persons and entities listed on Exhibit B hereto (each, a “Moolec Shareholder” and collectively, the “Moolec Shareholders”) and each of the persons and entities listed on Exhibit C hereto (each, a “Moolec SAFE Holder” and collectively, the “Moolec SAFE Holders) and Jose López Lecube, Moolec’s Chief Financial Officer (“Moolec CFO” and collectively with the Moolec SAFE Holders and the Moolec Shareholders, the “Moolec Holders” and the Moolec Holders collectively with Sponsor and each SPAC Holder and any other person or entity who hereafter becomes a party to this Agreement, each a “Holder” and collectively the “Holders”).

 

RECITALS

 

WHEREAS, the Company is party to that certain Business Combination Agreement, dated as of June 14, 2022 (the “BCA”), by and among the Company, LightJump Acquisition Corporation, a Delaware corporation (“SPAC”), Moolec Science Limited, a private limited company incorporated under the laws of England and Wales (“Moolec”) and Moolec Acquisition, Inc., a Delaware corporation (“Merger Sub”), pursuant to which, among other things, on or about the date hereof, Merger Sub will merge with and into SPAC (with SPAC being the surviving entity and a direct wholly-owned subsidiary of the Company) in exchange for SPAC’s shareholders receiving ordinary shares of the Company (the “Ordinary Shares”);

 

WHEREAS, the Company is a party to those certain Contribution and Exchange Agreements, dated as of June 14, 2022 by and among the Company, Moolec and each of the Moolec Shareholders (the “Contribution and Exchange Agreements”), pursuant to which, on the terms and subject to the conditions set forth therein, the Moolec Shareholders will contribute their shares of Moolec to the Company in exchange for Ordinary Shares (the “Exchange”), with Moolec becoming a wholly-owned subsidiary of the Company following the consummation of such exchanges;

 

WHEREAS, Moolec is a party to those certain Simple Agreements for Future Equity, each dated as of December 28, 2021 (the “Moolec SAFE Agreements”) by and between Moolec and each of the Company SAFE Holders, pursuant to which, immediately before the consummation of the Merger (as defined below), on the terms and subject to the conditions set forth therein, each of the Moolec SAFE Holders will receive and become holders of issued and outstanding Ordinary Shares;

 

WHEREAS, following the consummation of the Exchange, Merger Sub will merger with and into SPAC, with SPAC surviving such merger and becoming a direct wholly-owned subsidiary of the Company (the “Merger”) and all outstanding common stock of the SPAC shall be exchanged with the Company for the right to receive Ordinary Shares pursuant to a share capital increase of the Company, on the terms and subject to the conditions set forth in the BCA; and

 

WHEREAS, following the consummation of the Exchange, Moolec CFO will be allotted an aggregate of 243,774 Ordinary Shares;

 

WHEREAS, in connection with the transactions contemplated by the BCA, the Contribution and Exchange Agreements and the Moolec SAFE Agreements, the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration rights with respect to certain securities of the Company, as set forth in this Agreement.

 

 

1Subject to adjustment if Backstop is activated.

 

 

 

 

NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Article I
DEFINITIONS

 

1.1 Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:

 

Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or Chief Financial Officer of the Company, after consultation with counsel to the Company, (a) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any Misstatement, (b) would not be required to be made at such time if the Registration Statement were not being filed, and (c) the Company has a bona fide business purpose for not making such information public.

 

Affiliate” shall mean, with respect to a specified Person, each other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified; provided that no Holder shall be deemed an Affiliate of any other Holder solely by reason of an investment in, or holding of Ordinary Shares (or securities convertible or exchangeable for share of Ordinary Shares) of, the Company. As used in this definition, “control” (including with correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of voting securities or by contract or other agreement).

 

Agreement” shall have the meaning given in the Preamble.

 

Aggregate Blocking Period” shall have the meaning given in Section 2.4.

 

Board” shall mean the Board of Directors of the Company.

 

“BCA” shall have the meaning given in the Recitals hereto.

 

Change in Control” shall mean the transfer (whether by tender offer, merger, share purchase, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons of the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of outstanding voting securities of the Company (or surviving entity) or would otherwise have the power to control the board of directors of the Company or to direct the operations of the Company.

 

Claims” shall have the meaning given in subsection 4.1.1.

 

Closing Date” shall mean the date of this Agreement.

 

Commission” shall mean the Securities and Exchange Commission.

 

Company” shall have the meaning given in the Preamble.

 

Company Shelf Takedown Notice” shall have the meaning given in subsection 2.1.3.

 

“Contribution and Exchange Agreements” shall have the meaning given in the Recitals hereto.

 

Demand Registration” shall have the meaning given in subsection 2.2.1.

 

DR Demanding Holders” shall mean the applicable Holders having the right to make, and actually making, a written demand for the Registration of Registrable Securities pursuant to subsection 2.2.1.

 

2

 

 

DR Requesting Holder” shall have the meaning given in subsection 2.2.1.

 

Effectiveness Deadline” shall have the meaning given in subsection 2.1.1.

 

Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.

 

Form F-1 Shelf” shall have the meaning given in subsection 2.1.1.

 

Form F-3 Shelf” shall have the meaning given in subsection 2.1.2.

 

Holders” shall have the meaning given in the Preamble hereto.

 

Maximum Number of Securities” shall have the meaning given in subsection 2.2.4.

 

Minimum Amount” shall have the meaning given in subsection 2.1.3.

 

Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of any Prospectus and any preliminary Prospectus, in the light of the circumstances under which they were made) not misleading.

 

Moolec shall have the meaning given in the Recitals hereto.

 

Moolec CFO shall have the meaning given in the Preamble hereto.

 

Moolec Holder shall have the meaning given in the Preamble hereto.

 

Moolec Holder Lock-Up Ordinary Shares” shall have the meaning given in subsection 5.1.2

 

Moolec Holder Lock-Up Period” shall have the meaning given in subsection 5.1.2.

 

Moolec SAFE Holder shall have the meaning given in the Preamble hereto.

 

Moolec Shareholder” shall have the meaning given in the Preamble hereto.

 

Ordinary Shares shall mean the ordinary shares of the Company.

 

Permitted Transferees” shall mean a person or entity to whom the Holders are permitted to Transfer such Registrable Securities prior to the expiration of the (a) SPAC Holder Lock-Up Period, with respect to the SPAC Holder Lock-Up Ordinary Shares owned by the Sponsor and SPAC Holders or (b) Moolec Holder Lock-Up Period, with respect to the Ordinary Shares owned by the Moolec Holders, pursuant to Section 5.2 of this Agreement (with respect to the Moolec Holder Lock-Up Period) and Section 5.3 of this Agreement (with respect to the SPAC Holder Lock-Up Period) and any other applicable agreement between the Holders and/or the Company, and to any transferee thereafter.

 

Piggyback Registration” shall have the meaning given in subsection 2.3.1.

 

Prior Agreement” shall have the meaning given in the Recitals hereto.

 

Pro Rata” shall have the meaning given in subsection 2.2.4.

 

Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.

 

3

 

 

Registrable Security” shall mean (a) any Ordinary Shares issued to a Holder pursuant to the terms of the BCA (including the Ordinary Shares issued or issuable upon the exercise of any other equity security issued to a Holder pursuant to the terms of the BCA), (b) any Warrant held by any SPAC Holder or its affiliates, including any warrants to purchase Ordinary Shares of the Company outstanding immediately after the Closing as a result of the BCA and the transactions contemplated thereunder (after giving effect to the SPAC Warrant Amendment and Assignment (as defined in the BCA) and all securities underlying such Warrants and (c) any other equity security of the Company issued or issuable with respect to any such Ordinary Share referred to in the foregoing clause (a) or such Warrants or securities referred to in the foregoing clause (b) by way of a share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (ii) such securities shall have been otherwise transferred, new certificates for such securities not bearing (or book entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; (iv) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) (but with no volume or other restrictions or limitations); or (v) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

 

Registration” shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.

 

Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:

 

(a)all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which the Ordinary Shares are then listed;

 

(b)fees and expenses of compliance with securities or blue-sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

 

(c)printing, messenger, telephone, delivery and road show or other marketing expenses;

 

(d)reasonable fees and disbursements of counsel for the Company;

 

(e)reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and

 

(f)reasonable fees and expenses of one (1) legal counsel selected by (i) the majority-in-interest of the DR Demanding Holders initiating a Demand Registration, (ii) the majority-in-interest of the SUO Demanding Holders initiating a Shelf Underwritten Offering, or (iii) the majority-in-interest of participating Holders under Section 2.3 if the Registration was initiated by the Company for its own account or that of a Company shareholder other than pursuant to rights under this Agreement, in each case to be registered for offer and sale in the applicable Registration.

 

Registration Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

 

Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

 

Shelf Takedown Notice” shall have the meaning given in subsection 2.1.3.

 

4

 

 

Shelf Underwritten Offering” shall have the meaning given in subsection 2.1.3.

 

“SPAC” shall have the meaning given in the Recitals hereto.

 

“SPAC Holder” shall have the meaning given in the Preamble hereto.

 

SPAC Holder Lock-Up Period” shall have the meaning given in subsection 5.1.1.

 

SPAC Holder Lock-Up Ordinary Shares” shall mean, with respect to the Sponsor and SPAC Holders, the number of Ordinary Shares set forth opposite such Holder’s name in Exhibit D attached hereto.

 

Sponsor“ shall have the meaning given in the Preamble hereto.

 

SUO Demanding Holders” shall mean the applicable Holders having the right to make, and actually making, a written demand for a Shelf Underwritten Offering of Registrable Securities pursuant to subsection 2.1.3.

 

SUO Requesting Holder” shall have the meaning given in subsection 2.1.3.

 

“Transfer” shall mean to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any interest owned by a person or any interest (including a beneficial interest) in, or the ownership, control or possession of, any interest owned by a person.

 

Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.

 

Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

 

Warrants” shall mean the private and public warrants of the Company.

 

Article II
REGISTRATIONS

 

2.1 Shelf Registration.

 

2.1.1 The Company shall, as soon as practicable, but in any event within thirty (30) days after the Closing Date, file a Registration Statement under the Securities Act to permit the public resale of all the Registrable Securities held by the Holders from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and conditions specified in this subsection 2.1.1 and shall use its reasonable best efforts to cause such Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than sixty (60) calendar days following the filing deadline (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended to ninety (90) calendar days after the filing deadline if the Registration Statement is reviewed by, and receives comments from, the Commission. The Registration Statement filed with the Commission pursuant to this subsection 2.1.1 shall be on a shelf registration statement on Form F-1 (a “Form F-1 Shelf”) or such other form of registration statement as is then available to effect a registration for resale of such Registrable Securities, covering such Registrable Securities, and shall contain a Prospectus in such form as to permit any Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this subsection 2.1.1 shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders. The Company shall use its reasonable best efforts to cause a Registration Statement filed pursuant to this subsection 2.1.1 to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available (including to use its reasonable best efforts to add Registrable Securities held by Permitted Transferees) or, if not available, that another Registration Statement is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to this subsection 2.1.1, but in any event within five (5) business days of such date, the Company shall notify the Holders of the effectiveness of such Registration Statement. When effective, a Registration Statement filed pursuant to this subsection 2.1.1 (including the documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any Prospectus contained in such Registration Statement, in the light of the circumstances under which such statement is made).

 

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2.1.2 The Company shall use its reasonable best efforts to convert the Form F-1 Shelf filed pursuant to subsection 2.1.1 to a shelf registration statement on Form F-3 (a “Form F-3 Shelf”) as promptly as practicable after the Company is eligible to use a Form F-3 Shelf and have the Form F-3 Shelf declared effective as promptly as practicable and to cause such Form F-3 Shelf to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities.

 

2.1.3 At any time and from time to time following the effectiveness of the shelf registration statement required by subsection 2.1.1 or subsection 2.1.2, any Holder may request to sell all or a portion of their Registrable Securities in an underwritten offering that is registered pursuant to such shelf registration statement (a “Shelf Underwritten Offering”) provided that such Holder(s) reasonably expects to sell Registrable Securities yielding aggregate gross proceeds in excess of $10,000,000 from such Shelf Underwritten Offering (such amount of Registrable Securities, as applicable, the “Minimum Amount”). All requests for a Shelf Underwritten Offering shall be made by giving written notice to the Company (the “Shelf Takedown Notice”). Each Shelf Takedown Notice shall specify the approximate number of Registrable Securities proposed to be sold in the Shelf Underwritten Offering and the expected price range (net of underwriting discounts and commissions) of such Shelf Underwritten Offering. Within five (5) business days after receipt of any Shelf Takedown Notice, the Company shall give written notice of such requested Shelf Underwritten Offering to all other Holders of Registrable Securities (the “Company Shelf Takedown Notice”) and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Shelf Underwritten Offering (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Shelf Underwritten Offering, a “SUO Requesting Holder”) shall so notify the Company of its intent to participate in such Shelf Underwritten Offering, in writing, within five (5) business days after the receipt by such Holder of the Company Shelf Takedown Notice. Upon receipt by the Company of any such written notification from a SUO Requesting Holder(s) to the Company, subject to the provisions of subsection 2.2.4, the Company shall include in such Shelf Underwritten Offering all Registrable Securities of such SUO Requesting Holder(s). The Company shall enter into an underwriting agreement in customary form for such Shelf Underwritten Offering by the Company with the managing Underwriter or Underwriters selected by the Holders after consultation with the Company and shall take all such other reasonable actions as are requested by the managing Underwriter or Underwriters in order to expedite or facilitate the disposition of such Registrable Securities. In connection with any Shelf Underwritten Offering contemplated by this subsection 2.1.3, subject to Section 3.3 and Article IV, the underwriting agreement into which each Holder and the Company shall enter shall contain representations, covenants, indemnities and other rights and obligations in customary form for such Shelf Underwritten Offering by the Company. Any Shelf Underwritten Offering effected pursuant to this subsection 2.1.3 shall be counted as a Registration for purposes of the limit on the number of Registrations that can be effected under Section 2.2 hereof.

 

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2.2 Demand Registration.

 

2.2.1 Request for Registration. Subject to the provisions of subsection 2.2.5 and Sections 2.4 and  3.4 hereof and provided that the Company does not have or ceases to have an effective Registration Statement pursuant to subsection 2.1.1 covering Registrable Securities, (a) the Sponsor and SPAC Holders that hold at least a majority in interest of the then-outstanding number of Registrable Securities held by the Sponsor and SPAC Holders and (b) the Moolec Holders that hold at least a majority in interest of the then-outstanding number of Registrable Securities held by the Moolec Holders may make a written demand for Registration of all or part of their Registrable Securities on (i) Form F-1, or such other form of registration statement as is then available to effect a registration for resale of such Registrable Securities, covering such Registrable Securities or (ii) if available, Form F-3, which in the case of either clause (i) or (ii), may be a shelf registration statement filed pursuant to Rule 415 under the Securities Act, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”). The Company shall, promptly following the Company’s receipt of a Demand Registration, notify, in writing all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “DR Requesting Holder”) shall so notify the Company, in writing, within five (5) business days after the receipt by the Holder of the notice from the Company. For the avoidance of doubt, to the extent a DR Requesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.2, but is not the Holder who exercises such Demand Registration rights, the exercise by such DR Requesting Holder of its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Upon receipt by the Company of any such written notification from a DR Requesting Holder(s) to the Company, subject to subsection 2.2.4 below, such DR Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and the Company shall effect, as soon thereafter as practicable, but not more than forty five (45) days immediately after the Company’s receipt of the Demand Registration, the Registration of all Registrable Securities requested by the DR Demanding Holders and DR Requesting Holders pursuant to such Demand Registration. The Company shall not be obligated to effect more than (a) an aggregate of three (3) Registrations pursuant to a Demand Registration or a Shelf Underwritten Offering initiated by the Sponsor and/or the SPAC Holders, and (b) an aggregate of three (3) Registrations pursuant to a Demand Registration or a Shelf Underwritten Offering initiated by the Moolec Holders, in each case under subsection 2.1.3 or this subsection 2.2.1 with respect to any or all Registrable Securities; providedhowever, that a Registration shall not be counted for such purposes unless a Registration Statement that may be available at such time has become effective and all of the Registrable Securities requested by the DR Demanding Holders and the DR Requesting Holders (or in the case of a Shelf Underwritten Offering, the SUO Demanding Holders and the SUO Requesting Holders) to be registered on behalf of the DR Demanding Holders and the DR Requesting Holders (or in the case of a Shelf Underwritten Offering, the SUO Demanding Holders and the SUO Requesting Holders) in such Registration have been sold, in accordance with Section 3.1 of this Agreement.

 

2.2.2 Effective Registration. Notwithstanding the provisions of subsection 2.2.1 above or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (a) the Registration Statement filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission and (b) the Company has complied with all of its obligations under this Agreement with respect thereto; providedfurther, that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or any other governmental agency, the Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the DR Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, but in no event later than five (5) days after the removal, rescission or other termination of such stop order or injunction, of such election; providedfurther, that the Company shall not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration by the same DR Demand Holder becomes effective or is subsequently terminated.

 

2.2.3 Underwritten Offering. Subject to the provisions of subsection 2.2.4 and Sections 2.4 and  3.4 hereof, if a majority-in-interest of the DR Demanding Holders so advise the Company as part of their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such DR Demanding Holder or DR Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.2.3, subject to Section 3.3 and Article IV, shall enter into an underwriting agreement in customary form with the Company and the Underwriter(s) selected for such Underwritten Offering by the majority-in-interest of the DR Demanding Holders initiating the Demand Registration.

 

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2.2.4 Reduction of Underwritten Offering. In the event of a Demand Registration that is to be an Underwritten Offering or a Shelf Underwritten Offering, and if the managing Underwriter or Underwriters, in good faith, advises the Company and, in the case of a Demand Registration, the DR Demanding Holders and the DR Requesting Holders (if any) (or in the case of a Shelf Underwritten Offering, the SUO Demanding Holders and the SUO Requesting Holders (if any)), in writing that, in its opinion, the dollar amount or number of Registrable Securities that the DR Demanding Holders and the DR Requesting Holders (if any) (or in the case of a Shelf Underwritten Offering, the SUO Demanding Holders and the SUO Requesting Holders (if any)) desire to sell, taken together with all other Ordinary Shares or other equity securities that the Company desires to sell for its own account and the Ordinary Shares, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in such Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows: (a) first, the Registrable Securities of the DR Demanding Holders and the DR Requesting Holders (if any) (or in the case of a Shelf Underwritten Offering, the SUO Demanding Holders and the SUO Requesting Holders (if any)) (pro rata based on the respective number of Registrable Securities that each DR Demanding Holder and DR Requesting Holder (if any) (or in the case of a Shelf Underwritten Offering, the SUO Demanding Holders and the SUO Requesting Holders (if any)) has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the DR Demanding Holders and DR Requesting Holders (or in the case of a Shelf Underwritten Offering, the SUO Demanding Holders and the SUO Requesting Holders) have requested be included in such Underwritten Registration (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (b) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (a), the Ordinary Shares or other equity securities that the Company desires to sell for its own account, which can be sold without exceeding the Maximum Number of Securities; and (c) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (a) and (b), the Ordinary Shares or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.

 

2.2.5 Demand Registration Withdrawal. A DR Demanding Holder or a DR Requesting Holder in the case of a Demand Registration (or a SUO Demanding Holder or a SUO Requesting Holder in the case of a Shelf Underwritten Offering) shall have the right to withdraw all or a portion of its Registrable Securities included in a Demand Registration pursuant to subsection 2.2.1 or a Shelf Underwritten Offering pursuant to subsection 2.1.3 for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of its intention to so withdraw at any time prior to (a) in the case of a Demand Registration not involving an Underwritten Offering or a Shelf Underwritten Offering, the effectiveness of the applicable Registration Statement or (b) in the case of any Demand Registration involving an Underwritten Offering or any Shelf Underwritten Offering, prior to the pricing of such Underwritten Offering or Shelf Underwritten Offering; providedhowever, that upon withdrawal by a majority-in-interest of the DR Demanding Holders initiating a Demand Registration (or in the case of a Shelf Underwritten Offering, withdrawal of an amount of Registrable Securities included by the Holders in such Shelf Underwritten Offering, in their capacity as SUO Demanding Holders, being less than the Minimum Amount), the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement or complete the Underwritten Offering, as applicable. The Company shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration or a Shelf Underwritten Offering prior to and including its withdrawal under this subsection 2.2.5; provided, that upon withdrawal by a majority-in-interest of the DR Demanding Holders initiating a Demand Registration (or in the case of a Shelf Underwritten Offering, withdrawal of an amount of Registrable Securities included by the Holders in such Shelf Underwritten Offering, in their capacity as SUO Demanding Holders, being less than the Minimum Amount), such Registration shall be counted towards the limit on Registrations set forth in subsection 2.2.1.

 

2.3 Piggyback Registration.

 

2.3.1 Piggyback Rights. If, at any time on or after the date the Company consummates the transactions contemplated by the BCA, the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of stockholders of the Company, other than a Registration Statement (a) filed in connection with any employee share option or other benefit plan, (b) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (c) for an offering of debt that is convertible into equity securities of the Company, (d) for a dividend reinvestment plan, (e) filed pursuant to subsection 2.1.1, (f) filed pursuant to Section 2.2, or (g) filed in connection with any business combination or acquisition involving the Company, then the Company shall give written notice of such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not less than twenty (20) days before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution (including whether such registration will be pursuant to a shelf registration statement), and the proposed price and name of the proposed managing Underwriter or Underwriters, if any, in such offering, (B) describe such Holders’ rights under this Section 2.3 and (C) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within ten (10) days after receipt of such written notice (such Registration a “Piggyback Registration”). The Company shall, in good faith, cause such Registrable Securities identified in a Holder’s response noticed described in the foregoing sentence to be included in such Piggyback Registration and shall use its reasonable best efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering, if any, to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.3.1 to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company or Company shareholder(s) for whose account the Registration Statement is to be filed included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.3.1, subject to Section 3.3 and Article IV, shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company or Company shareholder(s) for whose account the Registration Statement is to be filed. For purposes of this Section 2.3, the filing by the Company of an automatic shelf registration statement for offerings pursuant to Rule 415(a) that omits information with respect to any specific offering pursuant to Rule 430B shall not trigger any notification or participation rights hereunder until such time as the Company amends or supplements such Registration Statement to include information with respect to a specific offering of Registrable Securities (and such amendment or supplement shall trigger the notice and participation rights provided for in this Section 2.3).

 

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2.3.2 Reduction of Piggyback Registration. If a Piggyback Registration is to be an Underwritten Offering and the managing Underwriter or Underwriters, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that, in its opinion, the dollar amount or number of the Ordinary Shares that the Company desires to sell, taken together with (a) the Ordinary Shares, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (b) the Registrable Securities as to which registration has been requested pursuant Section 2.3 hereof, and (c) the Ordinary Shares, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum Number of Securities, then:

 

2.3.2.1 if the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (a) first, the Ordinary Shares or other equity securities that the Company desires to sell for its own account, which can be sold without exceeding the Maximum Number of Securities; (b) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (a), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.3.1 hereof, Pro Rata, which can be sold without exceeding the Maximum Number of Securities; and (c) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (a) and (b), the Ordinary Shares, if any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other shareholders of the Company, which can be sold without exceeding the Maximum Number of Securities; and

 

2.3.2.2 if the Registration is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration (a) first, the Ordinary Shares or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (b) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (a), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.3.1 hereof, Pro Rata, which can be sold without exceeding the Maximum Number of Securities; (c) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (a) and (b), the Ordinary Shares or other equity securities that the Company desires to sell for its own account, which can be sold without exceeding the Maximum Number of Securities; and (d) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (a), (b) and (c), the Ordinary Shares or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.

 

2.3.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw all or any portion of its Registrable Securities in a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw such Registrable Securities from such Piggyback Registration prior to (a) in the case of a Piggyback Registration not involving an Underwritten Offering or Shelf Underwritten Offering, the effectiveness of the applicable Registration Statement or (b), in the case of any Piggyback Registration involving an Underwritten Offering or any Shelf Underwritten Offering, prior to the pricing of such Underwritten Offering or Shelf Underwritten Offering. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. The Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to and including its withdrawal under this subsection 2.3.3.

 

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2.3.4 Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.3 hereof shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.2 hereof or a Shelf Underwritten Offering effected under subsection 2.1.3.

 

2.4 Restrictions on Registration Rights. If (a) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of, a Company initiated Registration and provided that the Company has delivered written notice to the Holders prior to receipt of a Demand Registration pursuant to subsection 2.2.1 and it continues to actively employ, in good faith, all reasonable efforts to cause the applicable Registration Statement to become effective; (b) the Holders have requested an Underwritten Registration and the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or (c) in the good faith judgment of the Board such Registration would be seriously detrimental to the Company and the Board concludes as a result that it is essential to defer the filing of such Registration Statement at such time, then in each case the Company shall furnish to such Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is therefore essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing for a period of not more than thirty (30) days; providedhowever, that the Company shall not defer its obligation in this manner more than once in any twelve (12)-month period (the “Aggregate Blocking Period”). Notwithstanding anything to the contrary contained in this Agreement, no Registration shall be effected or permitted and no Registration Statement shall become effective, with respect to any Registrable Securities held by any Holder, until after the expiration of the (a) SPAC Holder Lock-Up Period, with respect to the SPAC Holder Lock-Up Ordinary Shares owned by the Sponsor and SPAC Holders or (b) Moolec Holder Lock-Up Period, with respect to the Ordinary Shares owned by the Moolec Holders.

 

Article III
COMPANY PROCEDURES

 

3.1 General Procedures. If the Company is required to effect the Registration of Registrable Securities, the Company shall use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:

 

3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;

 

3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;

 

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3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;

 

3.1.4 prior to any public offering of Registrable Securities, but in any case no later than the effective date of the applicable Registration Statement, use its reasonable best efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company or otherwise and do any and all other acts and things that may be necessary or advisable, in each case, to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; providedhowever, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

 

3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed no later than the effective date of such Registration Statement;

 

3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

 

3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of any request by the Commission that the Company amend or supplement such Registration Statement or Prospectus or the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or Prospectus the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to amend or supplement such Registration Statement or Prospectus or prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued, as applicable;

 

3.1.8 advise each Holder of Registrable Securities covered by such Registration Statement, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any Prospectus forming a part of such registration statement has been filed;

 

3.1.9 at least five (5) business days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel, and not to file any such Registration Statement or Prospectus, or amendment or supplement thereto, to which any such Holder or Registrable Securities shall have reasonably objected on the grounds that such Registration Statement or Prospectus or supplement or amendment thereto, does not comply in all material respects with the requirements of the Securities Act or the rules and regulations thereunder;

 

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3.1.10 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event or the existence of any condition as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, or in the opinion of counsel for the Company it is necessary to supplement or amend such Prospectus to comply with law, and then to correct such Misstatement or include such information as is necessary to comply with law, in each case as set forth in Section 3.4 hereof, at the request of any such Holder promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus shall not include a Misstatement or such Prospectus, as supplemented or amended, shall comply with law;

 

3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate in the preparation of any Registration Statement, each such Prospectus included therein or filed with the Commission, and each amendment or supplement thereto, and will give each of them such access to its books and records and such opportunities to discuss the business, finances and accounts of the Company and its subsidiaries with its officers, directors and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of such Holders’ and such Underwriters’ respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act, and will cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; providedhowever, that if requested by the Company, such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;

 

3.1.12 obtain a “cold comfort” letter (including a bring-down letter dated as of the date the Registrable Securities are delivered for sale pursuant to such Registration) from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders and any Underwriter;

 

3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders and any Underwriter;

 

3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;

 

3.1.15 otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and to make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations thereunder, including Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);

 

3.1.16 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $10,000,000 its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and

 

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3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, including causing the officers and directors of the Company to enter into customary “lock-up agreements,” in connection with such Registration.

 

3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.

 

3.3 Participation in Underwritten Offerings.

 

3.3.1 No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (a) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by the Company and (b) completes and executes all customary questionnaires, power of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements.

 

3.3.2 The Company will use its commercially reasonable efforts to ensure that no Underwriter shall require any Holder to make any representations or warranties to or agreements with the Company or the Underwriters other than representations, warranties or agreements regarding such Holder and such Holder’s intended method of distribution and any other representation required by law, and if, despite the Company’s commercially reasonable efforts, an Underwriter requires any Holder to make additional representation or warranties to or agreements with such Underwriter, such Holder may elect not to participate in such Underwritten Offering (but shall not have any claims against the Company as a result of such election). Any liability of such Holder to any Underwriter or other person under such underwriting agreement shall be limited to an amount equal to the proceeds (net of expenses and underwriting discounts and commissions) that it derives from such registration.

 

3.4 Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, or in the opinion of counsel for the Company it is necessary to supplement or amend such Prospectus to comply with law, each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement or including the information counsel for the Company believes to be necessary to comply with law (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice such that the Registration Statement or Prospectus, as so amended or supplemented, as applicable, will not include a Misstatement and complies with law), or until it is advised in writing by the Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than thirty (30) days, determined in good faith by the Board to be necessary for such purpose; provided, that each day of any such suspension pursuant to this Section 3.4 shall correspondingly decrease the Aggregate Blocking Period available to the Company during any twelve (12)-month period pursuant to Section 2.4 hereof. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 3.4.

 

3.5 Covenants of the Company. As long as any Holder shall own Registrable Securities, the Company hereby covenants and agrees at all times while it shall be a reporting company under the Exchange Act, to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings. The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Ordinary Shares held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.

 

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Article IV
INDEMNIFICATION AND CONTRIBUTION

 

4.1 Indemnification.

 

4.1.1 The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, partners, shareholders or members, employees, agents, investment advisors and each person who controls such Holder (within the meaning of the Securities Act and Exchange Act) from and against all losses, claims, damages, liabilities and expenses (including attorneys’ fees), joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, “Claims”), to which any such Holder or other persons may become subject, insofar as such Claims arise out of or are based on any untrue or alleged untrue statement of any material fact contained in any Registration Statement, Prospectus or preliminary Prospectus, free-writing prospectus or similar document or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such Holder or other person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such Claim; except insofar as the Claim or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such filing in reliance upon and in conformity with information furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act and Exchange Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.

 

4.1.2 In connection with any Registration Statement in which a Holder of Registrable Securities is participating, the Company may require that, as a condition to including any Registrable Securities in any Registration Statement, the Company shall have received an undertaking reasonably satisfactory to it from such Holder, to indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act and Exchange Act) from and against any Claims, to which any the Company or such other persons may become subject, insofar as such Claims arise out of or are based on any untrue statement of any material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information furnished in writing by such Holder expressly for use therein; providedhowever, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act and Exchange Act) to the same extent as provided in the foregoing with respect to indemnification of the Company and the Company shall use its commercially reasonable efforts to ensure that no Underwriter shall require any Holder of Registrable Securities to provide any indemnification other than that provided hereinabove in this subsection 4.1.2, and, if, despite the Company’s commercially reasonable efforts, an Underwriter requires any Holder of Registrable Securities to provide additional indemnification, such Holder may elect not to participate in such Underwritten Offering (but shall not have any claim against the Company as a result of such election).

 

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

 

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4.1.4 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, partners, shareholders or members, employees, agents, investment advisors or controlling person of such indemnified party and shall survive the Transfer of Registrable Securities.

 

4.1.5 If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Claims, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Claims (a) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Registrable Securities or (b) if the allocation provided by clause (a) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (a) above but also to reflect the relative fault of the indemnifying party or parties on the other hand in connection with the statements or omissions that resulted in such Claims, as well as any other relevant equitable considerations; providedhowever, that the liability of any Holder or any director, officer, employee, agent, investment advisor or controlling person thereof under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.14.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.

 

4.1.6 The indemnification required by this Section 4.1 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred.

 

4.1.7 The indemnities provided in this Section 4.1 herein shall survive the Transfer of any Registrable Securities by such Holder.

 

Article V
LOCK-UP

 

5.1 Transfer Restrictions.

 

5.1.1 Except as permitted by Section 5.3, the Sponsor and the SPAC Holders shall not Transfer such Ordinary Shares beneficially owned or owned of record by such Sponsor or SPAC Holder (”SPAC Holder Lock-Up Ordinary Shares”) shall not Transfer any Ordinary Shares beneficially owned or owned of record by such Sponsor or SPAC Holder until the earliest of: (i) the date that is 365 days from the date hereof, which, for the avoidance of doubt, shall not be a date prior to the consummation of the business combination between SPAC and Merger Sub under the terms of the BCA, and (ii) such date on which the Company completes a liquidation, merger, share exchange or other similar transaction that results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property, provided that if the share price of Ordinary Shares exceeds $12.00 per Ordinary Share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-day trading period, the Sponsor and the SPAC Holders may Transfer up to 50% of the SPAC Holder Lock-Up Ordinary Shares; and except as permitted by Section 5.3, the Sponsor and the SPAC Holders shall not Transfer such Warrants beneficially owned or owned of record by such Sponsor or SPAC Holder until the date that is 30 days from the date hereof, which for the avoidance of doubt, shall not be a date prior to the consummation of the business combination between SPAC and Merger Sub under the terms of the BCA (the “SPAC Holder Lock-Up Period”).

 

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5.1.2 Except as permitted by Section 5.2, the Moolec Holders shall not Transfer any Ordinary Shares beneficially owned or owned of record by such Moolec Holder (the “Moolec Holder Lock-Up Ordinary Shares”) until the earliest of: (i) the date that is 365 days from the date hereof, which, for the avoidance of doubt, shall not be a date prior to the consummation of the business combination between SPAC and Merger Sub under the terms of the BCA, and (ii) such date on which the Company completes a liquidation, merger, share exchange or other similar transaction that results in all of the Company’s stockholders having the right to exchange their Ordinary Shares for cash, securities or other property, provided that if the share price of Ordinary Shares exceeds $12.00 per Ordinary Share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-day trading period, the Moolec Holders may Transfer up to 50% of the Moolec Holder Lock-Up Ordinary Shares (the “Moolec Holder Lock-Up Period”).

 

5.2 Moolec Holder Lock-Up Period Exceptions. The provisions of subsections 5.1.2 shall not apply to:

 

5.2.1 transactions relating to Ordinary Shares acquired by the Holders in open market transactions;

 

5.2.2 Transfers of Ordinary Shares or any security convertible into or exercisable or exchangeable for Ordinary Shares as a bona fide gift or gifts, or to a charitable organization;

 

5.2.3 if the Holder is an individual, Transfers of Ordinary Shares to a trust, or other entity formed for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of such Holder or any other person with whom such Holder has a relationship by blood, marriage or adoption not more remote than first cousin;

 

5.2.4 if the Holder is an individual, Transfers by will or intestate succession upon the death of such Holder;

 

5.2.5 the Transfer of Ordinary Shares by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement;

 

5.2.6 if the Holder is a corporation, partnership (whether general, limited or otherwise), limited liability company, trust or other business entity, (i) Transfers to another corporation, partnership, limited liability company, trust, syndicate, association or other business entity that controls, is controlled by or is under common control or management with the Holder, and (ii) distributions of Ordinary Shares to its partners, limited liability company members, equity holders or shareholders of the Holder;

 

5.2.7 Transfers (i) to the Company or the Company’s officers, directors or their affiliates and (ii) to the officers, directors or affiliates of the undersigned;

 

5.2.8 bona fide pledges of Ordinary Shares as security or collateral in connection with any borrowing or the incurrence of any indebtedness by any Holder, provided that the aggregate number of Ordinary Shares that can be pledged by any Holder cannot exceed 25% of the total Ordinary Shares beneficially owned by such Holder; provided, further, that any Holder who is subject to any pre-clearance and trading policies of the Company must also comply with any additional restrictions on the pledging of Ordinary Shares imposed on such Holder by the Company’s policies;

 

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5.2.9 pursuant to a bona fide third-party tender offer, merger, share sale, recapitalization, consolidation or other transaction involving a Change in Control of the Company, provided that in the event that such tender offer, merger, recapitalization, consolidation or other such transaction is not completed, the Ordinary Shares subject to this Agreement shall remain subject to this Agreement; or

 

5.2.10 the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the transfer of Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares during the SPAC Holder Lock-Up Period and the Moolec Holder Lock-Up Period, as applicable.

 

provided, that in the case of any Transfer or distribution pursuant to subsections 5.2.2 through 5.2.7 each donee, distributee or other transferee shall agree in writing, in form and substance reasonably satisfactory to the Company, to be bound by the provisions of this Agreement.

 

5.3 SPAC Holder Lock-Up Period Exceptions. The provisions of subsection 5.1.1 shall not apply to:

 

5.3.1 Transfers to the Sponsor, the SPAC Holders and SPAC’s officers, directors, employees, consultants or their affiliates;

 

5.3.2 Transfers to the stockholders, partners or members of any of the Sponsor or the SPAC Holders upon such Sponsor’s or SPAC Holder’s liquidation;

 

5.3.3 Transfers by bona fide gift to a member of any Sponsor’s or SPAC Holder’s immediate family or to a trust, the beneficiary of which is the relevant Sponsor or SPAC Holder, or a member of the Sponsor’s or the SPAC Holder’s immediate family for estate planning purposes;

 

5.3.4 Transfers by virtue of the laws of descent and distribution upon death of a SPAC Holder; or

 

5.3.5 Transfers pursuant to a qualified domestic relations order binding on the Sponsor or the SPAC Holders.

 

provided, that in the case of any Transfer or distribution pursuant to subsections 5.3.1 through 5.3.5, each donee, distributee or other transferee shall agree in writing, in form and substance reasonably satisfactory to the Company, to be bound by the provisions of this Agreement.

 

Article VI
MISCELLANEOUS

 

6.1 Notices. Any notice or communication under this Agreement must be in writing and given by (a) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (b) delivery in person or by courier service providing evidence of delivery, or (c) transmission by hand delivery, electronic mail, telecopy, telegram or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail, telecopy, telegram or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: [●], Attention: [●], Email: [●] and, if to any Holder, at such Holder’s address or electronic mail address as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 6.1.

 

6.2 Assignment; No Third Party Beneficiaries.

 

6.2.1 This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.

 

6.2.2 Prior to the expiration of the (a) SPAC Holder Lock-Up Period, with respect to the SPAC Holder Lock-Up Ordinary Shares owned by the Sponsor and SPAC Holders or (b) Moolec Holder Lock-Up Period, with respect to the Ordinary Shares owned by the Moolec Holders, no Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, except as permitted in Section 5.2 or Section 5.3, as applicable, of this Agreement. For the avoidance of doubt, the duties and obligations of each Moolec Holder hereunder (including those rights that are personal to such Moolec Holder) may be assigned or transferred in whole or in part to one or more affiliates or any direct or indirect partners, member or equity holders of such Holder (it being understood that no such transfer shall reduce any rights of such Moolec Holder or such transferee) including when transferred in accordance with the terms of subsection 5.2.6.

 

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6.2.3 This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the applicable Holders, which shall include Permitted Transferees.

 

6.2.4 This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 6.2 hereof.

 

6.2.5 No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (a) written notice of such assignment as provided in Section 6.1 hereof and (b) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any Transfer or assignment made other than as provided in this Section 6.2 shall be null and void.

 

6.3 Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced.

 

6.4 Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT (I) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED IN AND TO BE PERFORMED IN THAT STATE, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION AND (II) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE ANY STATE OR FEDERAL COURT SITTING IN THE STATE OF DELAWARE.

 

EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

 

6.5 Amendments and Modifications. Upon the written consent of the Company and the Holders of at least a majority in interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; providedhowever, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of Ordinary Shares, in a manner that is adverse and different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.

 

6.6 Other Registration Rights. Other than pursuant to the terms of the Subscription Agreements, the Company represents and warrants that no person, other than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration filed by the Company for the sale of securities for its own account or for the account of any other person. Further, the Company represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions among the parties thereto and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.

 

6.7 Term. This Agreement shall terminate upon the date as of which all of the Registrable Securities have been sold pursuant to a Registration Statement (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the Commission)). The provisions of Article IV shall survive any termination.

 

[Signature Pages Follow]

 

18

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

  COMPANY:
   
  Moolec Science SA
   
  By:
  Name:  Gastón Paladini
  Title: Class A Director

 

[Signature Page to Registration Rights and Lock-Up Agreement]

 

 

 

 

  SPONSOR:
   
  LightJump One Founders
   
  By:
  Name:  Robert M. Bennett
  Title: Chief Executive Officer

 

[Signature Page to Registration Rights and Lock-Up Agreement]

 

 

 

 

  SPAC HOLDERS:
 
  By:
  Name:  Robert M. Bennett

 

[Signature Page to Registration Rights and Lock-Up Agreement]

 

 

 

 

  MOOLEC SHAREHOLDERS:
   
  BG Farming Technologies Ltd.
   
  By:                        
  Name:  
  Title:  

 

  Union Group Ventures Ltd.
   
  By:              
  Name:  
  Title:  

 

  Bioceres Crop Solutions Corp.
   
  By:

              

  Name:  
  Title:  

 

[Signature Page to Registration Rights and Lock-Up Agreement]

 

 

 

 

  MOOLEC SAFE HOLDERS:
     
  THEO I SCSp
     
  By:           
  Name:  
  Title:  
     
  Serenity Traders LTD.
     
  By:  
  Name:  
  Title:  

 

[Signature Page to Registration Rights and Lock-Up Agreement]

 

 

 

 

  MOOLEC CFO
   
  By:              
  Name: 

 

[Signature Page to Registration Rights and Lock-Up Agreement]

 

 

 

 

EXHIBIT A

 

List of SPAC Holders

 

Name
Robert M. Bennett

 

 

 

 

EXHIBIT B

 

List of Moolec Shareholders

 

Name
BG Farming Technologies Ltd.
Union Group Ventures Ltd.
Bioceres Crop Solutions Corp.

 

 

 

 

EXHIBIT C

 

List of Moolec SAFE Holders

 

Name
THEO I SCSp
Serenity Traders LTD.

 

 

 

 

EXHIBIT D

 

SPAC Holder Lock-Up Ordinary Shares

 

Name of Holder   Number of SPAC Holder Lock-Up Ordinary Shares 
LightJump Acquisition Corporation   [●]
LightJump One Founders   [●]
Robert M. Bennett   [●]
Total   [●]

 

 

 

 

Exhibit 10.6

 

LightJump Acquisition Corp.

2735 Sand Hill Road, Suite 110

Menlo Park, CA 94025

 

June 14, 2022

 

EarlyBirdCapital, Inc.

366 Madison Avenue

New York, NY 10017

 

Ladies and Gentlemen:

 

Reference is made to that certain Business Combination Marketing Agreement, dated January 8, 2020 (“BMCA”), between LightJump Acquisition Corp. (“LJ”) and EarlyBirdCapital, Inc. (“EBC”).

 

On the date hereof, LJ is concurrently entering into a business combination agreement (as amended, the “BCA”) with Moolec Science Limited (the “Target”), Moolec Science SA (“Holdco”) and Moolec Acquisition, Inc. (“Merger Sub”). It is a condition to the consummation of the transactions contemplated by the BCA (the “Closing”) that LJ and EBC enter into an amendment to the BCMA (this “BCMA Amendment”) providing for, among other things, a change in the compensation to be payable to EBC upon the Closing.

 

Accordingly, the parties to the BCMA agree to amend the BCMA as follows:

 

1. Section 1(b) of the BCMA is hereby deleted in its entirety and replaced with the following:

 

(b) As compensation for the foregoing services, the Company will pay to the Advisor and/or its designees an amount in cash (the “Cash Fee”) equal to (i) 20% of the aggregate gross proceeds (up to a maximum of $3,830,000) (x) held in the Trust Account (defined below) calculated on the day of the redemption deadline indicated in the proxy statement to be filed by LJ in connection with the Business Combination, after first taking into account (A) payment to holders of shares of common stock sold in the IPO who duly exercised their redemption rights in connection with the Business Combination and then reducing the amount held in the Trust Account by (B) any additional payments included in the Trust Account to accommodate any extension of the time period for the Company to consummate a Business Combination (and not paid to redeeming holders pursuant to the immediately preceding clause (A)) and (y) received by the Company in any financing in connection with a Business Combination regardless of the source of such funds, plus (ii) $1,000,000.

 

 

 

 

2. Section 1(c) of the BCMA is hereby deleted in its entirety and replaced with the following:

 

(c) In addition to the Cash Fee, in consideration of the Advisor introducing Moolec Science Limited (the “Target”) to the Company, Moolec Science SA, which is expected to list on Nasdaq following the Closing (“Holdco”) shall issue to Advisor a number of shares of common stock of Holdco (the “Share Fee” and together with the Cash Fee, the “Fee”) equal to $2,000,000 divided by the lesser of (i) the volume weighted average price of Holdco’s ordinary shares for the ten trading days preceding the six month anniversary of the closing of a Business Combination (“Closing”) and (ii) $10.00, up to a maximum of 600,000 shares. Holdco shall register the resale or the ordinary shares issued to the Advisor hereunder as promptly as practicable after their issuance; provided that if the Advisor’s other ordinary shares of Holdco are included on a registration statement filed by Holdco prior to such time, the shares payable for the Share Fee shall be included on such earlier filed registration statement to the extent possible. LightJump One Founders LLC, the Company’s sponsor, agrees to forfeit to Holdco for cancellation the same number of shares of common stock payable to EBC as the Share Fee.

 

3. Section 1(d) of the BCMA is hereby deleted in its entirety and replaced with the following:

 

(d) The Cash Fee shall be due and payable to the Advisor on the Closing by wire transfer from the Trust Account and/or, with the Advisor’s consent, other sources of funding. The Share Fee shall be issued to the Advisor within five business days of the six month anniversary of the Closing. If a proposed Business Combination is not consummated for any reason, no Fee shall be due or payable or issuable to the Advisor hereunder.

 

4. Section 1(e) of the BCMA is hereby deleted in its entirety.

 

5. This BCMA Amendment shall terminate and be of no further force or effect, ab initio, upon termination of the BCA in accordance with its terms.

 

6. The BCMA shall remain in full force and effect except as expressly amended by this BCMA Amendment. Subject to Section 5 above, upon the execution and delivery hereof, the BCMA shall thereupon be deemed to be amended as hereinabove set forth as fully and with the same effect as if the amendments made hereby were originally set forth in the BCMA, and this BCMA Amendment and the BCMA shall henceforth be read, taken and construed as one and the same instrument.

 

7. This BCMA Amendment shall be construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of laws principles thereof.

 

8. Holdco shall be a third party beneficiary to the agreements made hereunder between LJ, EBC and LightJump One Founders LLC and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if Holdco were a party hereto.

 

[Remainder of Page Intentionally Left Blank]

 

2

 

 

If the foregoing correctly sets forth the understanding between EBC and LJ with respect to the foregoing, please so indicate your agreement by signing in the place provided below, at which time this BCMA Amendment shall become a binding contract.

 

  LIGHTJUMP ACQUISITION CORP.
   

  By: /s/ Robert M. Bennett      
    Name: Robert M. Bennett   
    Title: Chief Executive Officer

 

AGREED AND ACCEPTED BY:

 

EARLYBIRDCAPITAL, INC.  
 

 
By: /s/ David Nussbaum  
  Name: David Nussbaum  
  Title: Chairman  

 

LIGHTJUMP ONE FOUNDERS LLC (solely with respect to its agreement to forfeit for cancellation a number of shares equal to the Share Fee)  
 

 
By: /s/ Robert M. Bennett  
  Name: Robert M. Bennett  
  Title: Chief Executive Officer  

 

[Signature Page to BCMA Amendment]

 

3

 

 

AGREED AND ACCEPTED BY:

 

Moolec Science SA  
 

 
By: /s/ Gastón Paladini  
  Name: Gastón Paladini  
  Title: Class A Director  

 

[Signature Page to BCMA Amendment]

 

4

 

 

Exhibit 99.1

 

 

Moolec Science, a Pioneer in Molecular Farming and

Food Ingredient Technology, to List on Nasdaq Through Business Combination with LightJump Acquisition Corp.

 

Moolec Science Ltd. (“Moolec”) and LightJump Acquisition Corp. (“LightJump”), a special purpose acquisition company, have entered into a definitive business combination agreement. The transaction sets Moolec’s proforma equity value at $504 million, assuming no redemptions from shareholders of LightJump. Upon closing, the combined company is expected to be listed on Nasdaq under the ticker symbol “MLEC”.

 

Moolec, a science-based food ingredient company, focuses on developing real animal proteins in plants using Molecular Farming, a scalable, affordable, and sustainable technology which is the production of animal proteins using plants as small factories. The company’s product portfolio and pipeline leverages the agronomic efficiency of broadly used target crops, like soybeans and peas. Moolec targets the fast-growing alternative proteins market trend.

 

Moolec holds a growing international patent portfolio for its Molecular Farming technology. Its first two products – plant-based dairy ingredient chymosin and nutritional oil GLA, both using safflower as a carrier crop - have achieved regulatory clearance and seed inventory scale-up activities were conducted in 2022, accelerating the development of soy and pea-based products designed to replace meat.

 

Moolec is backed by Nasdaq-listed Bioceres Crop Solutions Corp. (NASDAQ: BIOX), a fully integrated provider of crop productivity solutions enabling the transition to a carbon neutral agriculture; Theo I, a life sciences venture capital enterprise; and Union Group, a private equity management firm.

 

Moolec expects to become the first Molecular Farming FoodTech company to be listed on Nasdaq Exchange as a category creator of the alternative protein landscape focused on this technology. The transaction is expected to close in the second half of 2022.

 

United Kingdom – June 15, 2022Moolec Science Ltd. (“Moolec Science”, “Moolec”), a science-based food ingredient company; and LightJump Acquisition Corp. (Nasdaq: LJAQ; “LightJump”), a publicly traded special purpose acquisition company, announced today the entry into a definitive agreement for a business combination that would result in Moolec Science SA (the “Company”), a newly created affiliate of Moolec incorporated in Luxembourg, becoming a publicly listed company. Pursuant to the transactions contemplated by the business combination agreement, Moolec and LightJump will ultimately become wholly-owned subsidiaries of the Company (the “Combined Company”). The transaction is expected to be completed in the second half of 2022 and upon closing the Company is expected to be listed on Nasdaq under the ticker symbol “MLEC”.

 

 

 

 

Moolec is a Molecular Farming pioneer in the new food industry that uses plants to produce real animal proteins. Molecular Farming enables the synthesis of real animal proteins’ DNA in any seed crop, carefully selecting each protein for its ability to add value in terms of a targeted functionality trait such as clotting, taste, texture, or nutritional value. The resulting proteins can then be used as ingredients in consumer food products providing tastier, more functional, and affordable animal-free protein alternatives.

 

Molecular Farming is unique in its ability to capitalize on the scale that extensive agriculture entails to achieve affordability. It is also cost efficient because it leverages biology, using plants and their inputs – sun, water, and soil – as small factories for the production of animal proteins. The plants are grown through traditional farming practices that result in economies of scale through high productivity volume production.

 

The Company´s first two products are Chymosin SPC, a bovine protein expressed in safflower that has curdling applications in the cheese industry, and gamma-linoleic acid (GLA), a nutritional oil technology sourced from Bioceres Crop Solutions. Both products have been cleared by regulatory authorities and the Company is currently ramping up seed inventories. Upon completion of corner stone milestones in these two products, Moolec has accelerated product development efforts to widen its technology reach, by using the two crops that are most broadly used as protein alternatives – soy and peas – to develop actual meat proteins.

 

In addition, Moolec’s Molecular Farming platform has the potential to modify and enhance other plants using animal proteins, which could allow the Company to possibly consider other market opportunities. Such possible market opportunities include milk, egg, chicken and fish replacements, or other alternative biomaterials and cosmetics.

 

“Moolec Science is a category creator in the alternative protein landscape. Our Molecular Farming technology focuses on providing real animal proteins without using any animals, based on the genetic engineering of seeds to produce proteins the same way animals do,” said Gastón Paladini, Chief Executive Officer and Co-Founder. “As fourth generation of a family business that is one of the largest meat players in the Southern Cone, I have first-hand knowledge of the challenges faced by the industry. Moolec´s goal is to use science in food to overcome current global food security issues, building a more sustainable, resilient, and equitable food system.”

 

“LightJump Acquisition Corp. is excited to be partnering with Moolec Science, a FoodTech pioneer in Molecular Farming,” said Robert Bennett, Chief Executive Officer of LightJump Acquisition Corp. “We believe Moolec’s differentiated technology platform will be able to address the worldwide growing demand for animal proteins, while delivering them at a small fraction of the cost and environmental impact of existing approaches. We are committed to working alongside Moolec’s outstanding management team to support its expansion plans and its transition to becoming a Nasdaq-listed company.”

 

“Bioceres Crop Solutions’ mission is to develop and bring to market technologies that can help agriculture transition towards carbon neutrality. We want to do this while increasing productivity, so that protecting our planet does not come at a cost to farmers or consumers. In this quest, we have developed unique technologies for drought tolerance and biologically enhanced nutrition, protection, and health for several major crops. Now, this is only part of the answer. Preserving resources is also about doing more with what is currently being produced, and here is where molecular farming is very powerful. Moolec is leading this life sciences’ category by engineering soybeans and other crops to directly produce key animal proteins, getting us a step closer to where we need to be,” said Federico Trucco, Bioceres Crop Solutions’ CEO.

 

2

 

 

 

Transaction Overview

 

The Moolec Science LightJump Acquisition Corp. business combination sets the Company’s proforma equity value at $504 million. As a result of the transaction, the Combined Company is expected to be funded with $138 million cash held in LightJump’s trust account, assuming no LightJump shareholders exercise their redemption rights at closing and before payment of transaction expenses. In addition, LightJump has entered into a backstop agreement with entities affiliated with Moolec to guarantee a minimum of $10 million at closing.

 

Under the terms of the proposed transaction: (i) the current shareholders of Moolec will contribute all of their shares of Moolec to the Company in exchange for ordinary shares of the Company and (ii) LightJump will merge with a newly formed wholly owned subsidiary of the Company and LightJump’s ordinary shares and warrants will be exchanged for ordinary shares and warrants of the Company. This will result in Moolec and LightJump being wholly owned subsidiaries of the Company.

 

Cash proceeds raised in connection with the transaction will primarily be used to accelerate the commercialization of late-stage products, Chymosin and GLA; expansion of R&D & Regulatory Approval efforts for the existing product pipeline; funding for team expansion and general corporate expenses; and organic & inorganic growth opportunities.

 

The boards of directors of LightJump and Moolec have approved the proposed transaction. Completion of the proposed transaction is subject to shareholder approval of LightJump and other customary closing conditions, including a registration statement being declared effective by the U.S. Securities and Exchange Commission (the “SEC”). The transaction is expected to be completed in the second half of 2022.

 

On June 8, 2022, LightJump Acquisition Corp. filed with the SEC a preliminary proxy statement in connection with a proposal to extend the date by which LightJump must consummate a business combination.

 

Additional information about the proposed transaction, including a copy of the business combination agreement and investor presentation, will be provided in a Current Report on Form 8-K to be filed by LightJump Acquisition Corp. with the SEC and available at www.sec.gov. In addition, LightJump intends to file a proxy statement/registration statement which will form part of the Form F-4 to be filed by the Company with the SEC (the “Form F-4”) and will file other documents regarding the proposed transaction with the SEC.

 

3

 

 

 

Advisors

 

EarlyBird Capital, a boutique investment bank, acted as financial advisor to LightJump. Linklaters LLP acted as legal counsel to Moolec, and K&L Gates LLP acted as legal counsel to LightJump in the transaction.

 

Investor Conference Call Information

 

Moolec Science and LightJump Acquisition Corp. will host a joint investor conference call to discuss the proposed transaction today, June 15, 2022 at 8:30 am ET. To listen to the prepared remarks via webcast, please visit www.lightjumpcap.com/investor-conference-call-video. A replay of the call will be available at the same link as well as on LightJump Acquisition Corp.’s website at www.lightjumpcap.com through September 30, 2022, at 11:59 pm ET.

 

About LightJump Acquisition Corp.

 

LightJump is a Delaware blank check company incorporated on July 28, 2020 formed for the purpose of entering into a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more target businesses. For more information, visit www.lightjumpcap.com/lightjump-acquisition-corp.

 

About Moolec Science

 

Moolec is a science-based ingredient company focused on producing real animal proteins in plants through Molecular Farming, a disruptive technology in the alternative protein landscape. Its purpose is to upgrade taste, nutrition, and affordability of alternative protein products while building a more sustainable and equitable food system. The company’s technological approach aims to have the cost structure of plant-based solutions with the organoleptic properties and functionality of animal-based ones. Moolec’s technology has been under development for more than a decade and is known for pioneering the production of a bovine protein in a crop for the food industry. Moolec is run by a diverse team of Ph.Ds and Food Insiders, and operates in the United States, Europe, and South America. For more information, visit www.moolecscience.com.

 

4

 

 

 

Forward Looking Statements

 

This press release contains “forward-looking statements.” Forward-looking statements may be identified by the use of words such as “forecast,” “intend,” “seek,” “target,” “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. For example, statements concerning the following include forward looking statements: the growth of Moolec’s business and its ability to realize expected results; the business model of Moolec relating to any partnerships, commercial contracts, regulatory approvals or patent filings; the viability of its growth and commercial strategy; financial projections; the success, cost and timing of its product development abilities; the advantages and potential of Moolec’s technology and products, including in comparison to competing technologies and products; trends and developments in the industry; the addressable market; the contemplated transaction among Moolec and LightJump; Moolec’s addressable market; and the potential effects of the business combination among Moolec and LightJump. Such forward-looking statements with respect to performance, prospects, revenues, and other aspects of the business of Moolec or LightJump are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Although we believe that we have a reasonable basis for each forward-looking statement contained in this press release, we caution you that these statements are based on a combination of facts and factors, about which we cannot be certain. These factors include, but are not limited to: (1) the inability to complete the transactions contemplated by the proposed business combination, resulting in the Combined Company with the expectation to be listed on Nasdaq; (2) the inability to recognize the anticipated benefits of the proposed business combination, which may be affected by, among other things, competition, and the ability of the combined business to grow and manage growth profitably; (3) the inability to successfully retain or recruits officers, key employees, or directors following the proposed business combination; (4) effects on LightJump’s public securities’ liquidity and trading; (5) the market’s reaction to the proposed business combination; (6) the lack of a market for LightJump’s securities; (7) Moolec’s and LightJump’s financial performance following the proposed business combination; (8) costs related to the proposed business combination; (9) changes in applicable laws or regulations; (10) the possibility that LightJump or Moolec may be adversely affected by other economic, business, and/or competitive factors; (11) the risk that Moolec is unable to successfully develop and commercialize Moolec’s products or services or experience significant delays; (12) the risk of product liability or regulatory lawsuits relating to Moolec’s products and services; (13) the risk that Moolec is unable to secure or protect its intellectual property; (14) the ability to maintain the listing of LightJump’s securities on Nasdaq and (15) the ability for the Company’s securities to be approved for listing on Nasdaq or if approved, maintain the listing. The foregoing list of factors is not complete or exhaustive. You should carefully consider the foregoing factors as well as other risks and uncertainties described in the “Risk Factors” section of LightJump’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and in the final prospectus of LightJump related to its initial public offering filed with the SEC. You should also carefully consider the other risks and uncertainties indicated from time to time in documents filed or to be filed with the SEC by LightJump and the Form F-4 and proxy statement to be filed with the SEC by the Company and LightJump. Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws. Accordingly, you should not put undue reliance on these statements.

 

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Important Additional Information Regarding the Transaction Will Be Filed With the SEC

 

In connection with the proposed transaction, the Company is expected to file a registration statement on Form F-4 with the SEC that will include a prospectus with respect to the Company’s securities to be issued in connection with the proposed transaction and a proxy statement with respect to the shareholder meeting of LightJump Acquisition Corp. to vote on the proposed transaction. Shareholders of LightJump Acquisition Corp. and other interested persons are encouraged to read, when available, the Form F-4, including the preliminary proxy statement/prospectus and amendments thereto and the definitive proxy statement/prospectus and documents incorporated by reference therein as well as other documents to be filed with the SEC in connection with the proposed transaction because these documents will contain important information about LightJump Acquisition Corp., Moolec Science, and the proposed transaction. After the registration statement is declared effective, the definitive proxy statement/prospectus to be included in the registration statement will be mailed to shareholders of LightJump Acquisition Corp. as of a record date to be established for voting on the proposed transaction. Once available, shareholders of LightJump Acquisition Corp. will also be able to obtain a copy of the F-4, including the proxy statement/prospectus, and other documents filed with the SEC without charge, by directing a request to: 101 Natoma St., 2F, San Francisco, CA 94105. The preliminary and definitive proxy statement/prospectus to be included in the registration statement, once available, can also be obtained, without charge, at the SEC’s website www.sec.gov.

 

Participants in the Solicitation

 

The Company and Moolec Science and their respective directors and executive officers may be considered participants in the solicitation of proxies with respect to the potential transaction described in this communication under the rules of the SEC. Information about the directors and executive officers of LightJump Acquisition Corp. and their ownership is set forth in LightJump Acquisition Corp. ’s filings with the SEC, including its Form 10-K for the year ended December 31, 2020 and subsequent filings under section 16 of the Exchange Act or on Form 10-Q. Additional information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of LightJump Acquisition Corp.’s shareholders in connection with the potential transaction will be set forth in the registration statement containing the preliminary proxy statement/prospectus when those are filed with the SEC. These documents are available free of charge at the SEC’s website at www.sec.gov or by directing a request to: 101 Natoma St., 2F, San Francisco, CA 94105.

 

No Offer or Solicitation

 

This communication is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the potential transaction and does not constitute an offer to sell or a solicitation of an offer to buy any securities of Company or Moolec Science, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act.

 

Moolec Science Media Contacts

 

Catalina Jones

comms@moolecscience.com

 

Edmond Lococo

MoolecPR@icrinc.com

 

Moolec Science and LightJump Acquisition Corp. Investor Contact:

 

Michael Bowen, ICR, LLC

MoolecIR@icrinc.com

 

 

6

 

 

Exhibit 99.2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit 99.3

 

 

CORPORATE PARTICIPANTS 

 

Robert Bennett, Chairman and Chief Executive Officer, LightJump Acquisition Corp.

 

Kyle P. Bransfield, Chief Executive Officer and Co-Founder, Union Acquisition Group

 

Federico Trucco, Chief Executive Officer, Bioceres Group

 

Gastón Paladini, Chief Executive Officer and Co-Founder, Moolec Science

 

Amit Dhingra, Chief Science Officer, Moolec Science

 

José López Lecube, Chief Financial Officer, Moolec Science

 

PRESENTATION

 

Robert Bennett

 

Hi, this is Robert Bennett from LightJump Acquisition Corp. I’d like to introduce our presenters.

 

Myself, I am the sponsor from LightJump Acquisition Corp, the SPAC that is sponsoring the transaction. I’m Chairman and CEO. We also have Kyle Bransfield, CEO and Co-Founder of Union Acquisition Group; Federico Trucco, CEO of Bioceres Group; Gastón Paladini, CEO and Co-Founder of Moolec Science; José López Lecube, CFO of Moolec Science; and Amit Dhingra, CSO of Moolec Science.

 

Moving to Chart 39, I’m Robert Bennett the CEO of LightJump Acquisition Corp SPAC. We are a SPAC trading on the Nasdaq with $138 million in the trust. We’re a team of entrepreneurs, venture, and private equity professionals, and have a talented group of independent directors with public company experience.

 

Moving to Chart 40, when we raised our IPO round, our four pillars of investment thesis presented to our SPAC investors included what we feel is the most important pillar; that of finding a company that was truly a category creator. We define this as a Company with very large market opportunity, defensible moats, and a unique and differentiated business model.

 

We were excited to be presented the opportunity that Moolec Science offers. We see an unsustainable future of feeding the growing human population, with the highly inefficient cycle of animal slaughter. Moolec Science develops real animal proteins in plants using molecular farming, a scalable, cost effective, and resource efficient technology.

 

The Company is pioneering the future of alternative-protein ingredient production through a cost efficient, environmentally friendly, and humane approach by growing them in common grow crops like soybeans and peas, and they are supported by a highly respected agtech company, Bioceres. We feel that Moolec Science offers a highly unique category creator opportunity to the public markets.

 

One of Moolec Science's key partners is Union Acquisition Group. I’m pleased to introduce Kyle Bransfield who will be discussing Unions unique role in the transaction.

 

 

 

 

 

 

Kyle P. Bransfield

 

Thanks, Bob.

 

This is Kyle Bransfield, the Founder of Union Acquisition Group. We are a global, public, and private markets investor, and a repeat SPAC sponsor. Our first business combination was with Bioceres Crop Solutions, and so we are intimately aware of Moolec and all of its strengths in the public market.

 

We have deep expertise in agriculture, agtech, technology, food tech, and wellness. As I mentioned, we’re a repeat SPAC sponsor, but we’re also active in the public markets with regard to managing SPAC portfolios.


We have a proven track record. Bioceres is a top performer in de-SPACs (phon) over the past five years, with a trading stock price of about $14, and a consensus analyst price target of approximately $25, representing the potential upside of about 250% above our initial valuation and our business combination.


We are tremendously excited about the opportunity to take Moolec public. It’s a business that we’ve been involved with for many, many years. I’m a Board member of Bioceres Crop Solutions, and have tracked the development of the asset since I joined the Board during the de-SPAC of Union Acquisition Corp.

 

We are thrilled to be a part of a business that is a category creator in the public markets. We think there is a tremendous opportunity to develop an asset that changes the world and provides a sustainable solution to the food security globally.

 

I’d like to pass it off to Federico Trucco. Thank you.

 

Federico Trucco

 

Thanks, Kyle, and hello to everyone.

 

I am Federico Trucco, CEO of Bioceres, a company that we like to introduce as an ecosystem builder in the life sciences.

 

Bioceres dates to 2001, when a group of 23 friends, all innovative farmers, got together to finance technologies for agriculture that were not being advanced by industry leaders. Among these founding farmers was my father, a champion of the conservation agriculture movement in Latin America. I joined the group back in 2005 as a research leader, being myself, a biochemist trained in crop sciences, and have been in my current position of Group CEO since 2011.

 

Bioceres’ mission is about originating high impact technologies in four different verticals: agtech, food tech, bio-materials, and precision wellness and health.

 

Our most advanced company is called Bioceres Crop Solutions, which is today listed under the BIOX ticker in Nasdaq. Like Moolec today, and as referenced by Kyle, BIOX was listed via a SPAC combination process.

 

BIOX’s mission is to develop and bring to market technologies to help agriculture transition towards carbon neutrality. How can we produce more with less? Increasing productivity is key to the preservation of environmental resources. In this quest, we have developed unique technologies for drought tolerance and nutrient use efficiencies in major crops.

 

Now, preserving resources is not just about the sustainable intensification of agriculture. It is also about doing more with what is currently produced, and here is where molecular farming is key.

 

If, as being done by Moolec, in the soybeans we produce, we can already partition organic carbon into animal proteins, and in doing so avoid animal intermediation, then we can meaningfully re-shape food production systems, preserving natural resources while improving the affordability of animal-protein dietary needs.

 

Bob?

 

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Robert Bennett

 

Thanks, Federico.

 

Moving to Chart 4. From a transaction overview perspective, Moolec will be rolling 100% of their equity into the transaction valued at a $325 million enterprise value, assuming no redemptions, going forward proforma equity value of the enterprise will be $504 million, of which existing Moolec Science shareholders will receive 65% of the equity.

 

Moving to Chart 5. This slide models various redemption scenarios of the transaction. Of note is that the Moolec Science controlling shareholder group has entered into a $10 million cash backstop agreement with LightJump that will be drawn upon in a high redemption situation. This is further evidence of the supportive nature of Moolec Science’s shareholders and gives LightJump a high comfort level in the transaction.

 

I’d like to introduce Gastón Paladini, the CEO, to tell the story of Moolec Science.

 

Gastón Paladini

 

Thank you, Bob, Kyle, and Federico. I am Gastón Paladini, CEO and Founder of Moolec Science.

 

Moving on to Chart 11 now. Let me start by giving a quick overview of the present context.

 

Organizations agree that the population is expected to grow up to 10 billion people in 2050. If that´s the case, current crop production would need to double to support the demand, mainly because of a feed to food conversion efficiency. To add on top of that, we are facing a global food security issue, triggered by COVID, inflation, and the Ukraine-Russia war.

 

We can’t keep producing animal-based food the way we have been producing it for the last couple of decades because it’s far from being sustainable and planet-friendly. At the same time, it’s undeniable that consumers, especially new generations, are shifting and demanding nutritious food, but without animals, conscious of animal welfare.

 

As shown on Chart 14 now, to overcome many of the problems I pointed out, the new alternative protein industry emerged as a solution; but the main challenge this new food industry faces is to reach parity with animal-based food. We need the same taste, the same texture, and the same mouth experience. We need to match nutritional values, and the scale and cost that the markets needs.

 

If we want to move the needle here, we need to create delicious and nutritious food affordable for everyone, and not just for the people in wealthy countries.

 

As displayed on Chart 15 now, you can see that this new food industry is using different technologies and ingredients, based on plants from one side, and laboratories from the other side, utilizing science to replicate animal cells and proteins.

 

Plant-based is currently the fastest growing segment. It offers scalability compared to other technologies; however, their main challenges rely on achieving better taste, texture, and nutritional values compared to what other technologies offer.

 

Fermentation and cultured meat are the two other technologies. Their main upside is replicating animal proteins and cells by the use of science, with the main challenge on achieving scalability and competitive costs.

 

We expect that using molecular farming can provide additional scalability and more competitive costs when compared to other technologies. We understand that our technology can help overcome the three main challenges just by combining the best of each technology. The efficiency and the scalability of plants with the taste and nutrition of real animal proteins.

 

Moolec is a category creator, by primarily focusing on molecular farming, the fourth technological pillar in AltPro.

 

To better explain our tech, I give the floor now to our Chief Science Officer, Amit Dhingra. Amit, all yours.

 

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Amit Dhingra

 

Greetings. This is Amit Dhingra. I’m the Chief Science Officer in Moolec Science.

 

Referring to Chart 17, it is commonly agreed that 40% of the cropland today is used to produce feed for the animals, which will then feed us.

 

Our molecular farming platform allows us to make a tweak in the traditional agriculture value chain, solving the inefficiency in feed to food conversion.

 

We take the animal out of the equation by genetically engineering only the DNA or the gene of the desired animal protein inside the seeds of the main plants used in the food industry today.

 

Then we grow the crops, retaining the native proteins of the plants but with the addition of these animal proteins, we develop ingredients that directly go to make the foods that we love and enjoy.

 

I have been engineering plants since the last two decades. The technology of genetic engineering is very mature and has already been proven in other industries, such as pharma and AgriTech. It is important to note that Moolec is a pioneer in engineering alternative proteins for food.

 

Referencing to Chart 18, molecular farming is a technology where plants are genetically engineered to produce proteins of interest in a sustainable, scalable, and most critically, in an affordable way.

 

With this technological platform we can use plants as large-scale factories, using the natural power of photosynthesis, (inaudible) sun, water, and soil, has lowered the use of expensive infrastructure and resources.

 

Also, we can save purification costs by strategically selecting the right combination of the target crop and the designed animal protein in the hybrid product.

 

Finally, we can reach economies of scale by using low input and high-tech traditional farming which is an infrastructure that exists globally.

 

This approach is very near and dear to my heart since I grew up during the first green revolution in the 70s when the world needed subsistence. Today, in addition to subsistence, we need nutritious, best quality food grown in a sustainable, scalable, and cost-effective manner.

 

Over to Gastón.

 

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Gastón Paladini

 

Thank you, Amit.

 

Following now to Chart 22, I would like to point out that Moolec has solid foundations. We are a spin-off from Bioceres Group, a leading agricultural biotech holding that Federico Trucco leads. Bioceres applies science for achieving a more sustainable agriculture.

 

Leveraging on its vision, we made a roll out of patents, assets, approvals, and a team, and we combined all of these with a newly formed management and scientific team to focus on alternative proteins.

 

Moving now to Chart 23, you can see the pathway we have been building up to now. It took us more than 10 years, in predecessor companies, to build our technological platform.

 

A proof of concept was achieved, the first bovine protein produced in a plant for the food industry: a plant-based cheese ingredient with safflower seeds. It went through laboratories to pilot facility, regulatory approvals, patents, industrial scale, and commercialization of this cheese ingredient.

 

Later on, the spinoff became a reality to focus on alternative proteins, and to transfer and scale our technology to others targeted animal proteins in different food crops for a much bigger total addressable market opportunity.

 

After all of these, Moolec is ready. We are expected to be the first molecular farming food company to be listed on Nasdaq Exchange.

 

I pass the post now to our Chief Financial Officer, José Lopez Lecube. José, all yours.

 

José López Lecube

 

Thank you, Gastón.

 

We would like to discuss now the very large opportunity we have ahead of us and how we will address it. Going back to Chart 13, you can see that Moolec’s technology and products address the alternative protein sector. This is a very large opportunity with an approximate global TAM of $40 billion measured in retail prices.

 

In the years to come, this market is expected to grow rapidly based on fundamental changes in consumer behavior seeking for a more sustainable food system. This projected trend could result in a total addressable market of around $300 billion by 2035.

 

We have a high conviction that our disruptive technology and our pipeline of products position us in a unique spot to take advantage of this long-term market trend.

 

Moving on now to Chart 27. In order to capitalize on the opportunity we have ahead of us, we have developed a go-to market strategy with a clear focus on B2B.

 

Although the end consumer is the main driver of changes to the current food system, we see that there is an underserved market of food producers looking for better ingredients.

 

Moolec's business model, simply put, consists of selling animal-free ingredients with unique characteristics to food producers and consumer packaged good companies. Our product’s unique technology will facilitate the production of animal-free products with better taste, texture, and nutritional values in an affordable manner.

 

In order to maintain an asset-light approach, we will outsource the production of crops to growers. Also, we will rely on third-party industrial capacity for downstream. This will allow us to focus on IP generation and commercial traction.

 

Over to you, Amit.

 

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Amit Dhingra

 

Thank you, José.

 

As displayed on Chart 28, I will share our product portfolio with you. It’s composed of enhanced plant-based ingredients with the animal proteins inside.

 

Moolec also has a nutritional oil to complete its business lineup. It’s a circular model which promotes different strategies to optimize our operations.

 

We currently have four products included in the portfolio.

 

The first one is a proof of concept which is a plant-based chymosin. Chymosin is a key ingredient required for the clotting step during production of cheese.

 

The second one is the GLA, or the gamma linolenic acid. It’s an oil needed for enriching food, pet food, and nutraceutical products.

 

Finally, our two meat replacement products. These are plant-based porcine and bovine proteins embedded within the matrix of native soy and pea proteins to enhance alternative meat products in terms of taste, color, and nutritional values. We are using soy and pea as the main meat substitutes for plant-based meat alternative markets. We’re using soy and pea as the main hosts for these proteins because these are the main meat substitutes for plant-based meat alternative markets. Imagine the scale of disruption we will create with the animal proteins inside these two proteinaceous crops.

 

It is important to note here that this approach represents a technology platform where we can engineer any number of food-related animal proteins in desired target plants

 

Referring to Chart 35, I’m excited to share some of the key milestones we’ve achieved over the last 12 months.

 

Our soybean project has progressed to the first generation of genetically engineered seeds. This means that we have seeds with the genes for animal-protein in them.

 

For the safflower product, we are currently scaling up our GLA oil containing safflower seeds. They are currently being multiplied in the U.S.

 

We are also in conversations with the FDA to achieve GRAS notification for chymosin in the U.S. market. Further, we are forging ahead to merge the chymosin and GLA traits in the same safflower seed by traditional breeding. We are making crosses between the two lines.

 

Very excited that we have finalized a strategic partnership with Grupo Insud, which is a global pharmaceutical leader for R&D in the ingredients space.

 

Over to José.

 

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José López Lecube

 

Thank you, Amit.

 

Continuing with Chart 29, our expertise in engineering plants is continuously advancing and generating new animal protein expressions in new crops.

 

In terms of pipeline, we can classify our efforts into projects which are in an incubation mode and projects that have already passed this initial stage.

 

This current chart summarizes the different go-to-market strategy for those projects that have already passed the initial incubation mode and have a clear R&D, regulatory, and commercialization pathway.

 

Today, our plant-based chymosin and GLA oils have already achieved regulatory approval and are in a scale-up stage. We are currently building safflower seed inventories in the U.S. and South America to generate sufficient seed stock to move on to the production stage.

 

In terms of our meat products, we have invested a significant amount of time and resources in selecting the correct proteins to be expressed in the most efficient crop. We are now in a greenhouse stage, focusing efforts to move on to prototyping.

 

Now, over to you, Gastón, for final remarks.

 

Gastón Paladini

 

Thank you, José.

 

Last but not least, I would like to go back to Chart 24 to point out that all of this was, and is, possible because we have a world-class team.

 

Moolec has top PhDs and professionals that come from all over the world in line with our global ambitions and targeted footprint. Besides José and Amit, Moolec is a reality because of Henk Hoogenkamp, Martín Salinas, Catalina Jones, David Heron, Bruce Williamson, and Vivek Narisetty, with experience in molecular farming, sustainability, food tech, agribusiness, and science.

 

This diversity, while making no compromise on the talent level, allows us to have a flexible and dynamic culture of work to achieve our goals and purposes.

 

Now, to wrap-up, on Chart 37, a final note. Proteins are essential for human life. To feed 10 billion people in 2050, we need to work on affordability. In Moolec, our efforts are for the 90% of people that will need to eat, and not just for the 10% that could afford and choose what to eat. Let's empower science in food for the good of the planet.

 

Thank you.

 

 

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