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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

 

March 15, 2023

Date of Report (Date of earliest event reported)

 

Northern Revival Acquisition Corporation

(Exact Name of Registrant as Specified in its Charter)

 

Cayman Islands   001-39970   98-1566600
(State or other jurisdiction
of incorporation) 
  (Commission File Number)   (I.R.S. Employer
Identification No.)

 

 

4001 Kennett Pike, Suite 302

Wilmington, DE

  19807
(Address of Principal Executive Offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (302) 338-9130

  

N/A

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

 

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

 

Written communications pursuant to Rule 425 under the Securities Act

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act

 

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

 

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

 

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 Class A ordinary share and one-third of one redeemable warrant   NRACU   Nasdaq Capital Market
Class A ordinary shares, par value $0.0001 per share   NRAC   Nasdaq Capital Market
Redeemable warrants, each whole warrant exercisable for one Class A ordinary share at an exercise price of $11.50   NRACW   Nasdaq Capital Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

Emerging growth company

 

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

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement

 

On March 20, 2023, Northern Revival Acquisition Corporation, a Cayman Islands exempted company (“NRAC” or the “Company”), entered into a Business Combination Agreement (the “Business Combination Agreement”) by and among NRAC, Northern Revival Sponsor LLC (the Company’s sponsor, “Sponsor”), Braiin Limited, an Australian public company limited by shares (“Braiin”), and certain Braiin shareholders (the “Braiin Supporting Shareholders”) who collectively own 100% of the outstanding ordinary shares of Braiin (the “Braiin Shares”). Pursuant to the terms of the Business Combination Agreement, a business combination between NRAC and Braiin (the “Business Combination”) will be effected as a share exchange in which Braiin shareholders exchange 100% of their Braiin Shares for a pro rata portion of Class A Ordinary Shares, par value $0.0001 per share, of NRAC (the “Class A Ordinary Shares”) with an aggregate value of $190 million (the “Share Exchange”). The number of shares to be issued will be based upon a per share value of $10.00. The aggregate value is subject to adjustment up or down based upon certain indebtedness and cash on hand of Braiin as set forth in its audited financial statements. Prior to the consummation of the Business Combination, Braiin will acquire PowerTec Holdings Ltd., an Australian distributor that supplies connectivity solutions to individuals and businesses around the world. (“PowerTec”). Following the Share Exchange, Braiin will continue as a subsidiary of the Company, and the Companywill change its name to “Braiin Holdings.” We refer to NRAC after giving effect to the Business Combination, as “New Braiin.”

 

Simultaneously with the execution of the Business Combination Agreement, NRAC and Braiin entered into separate support agreements with the Braiin Supporting Shareholders and the Sponsor pursuant to which the Braiin Supporting Shareholders and the Sponsor have agreed to vote their Braiin shares and NRAC shares, respectively, in favor of the Business Combination and against any competing acquisition proposal, and not to solicit any competing acquisition proposal. In addition, the Sponsor has agreed to surrender 1,500,000 NRAC founder shares immediately prior to the closing of the Business Combination (the “Closing”) and to waive redemption rights with respect to its NRAC shares in connection with the Business Combination, and (ii) the right to have any working capital loans extended to NRAC converted into warrants.

 

In connection with the Business Combination, on March 16, 2023, NRAC and Braiin entered into an OTC Equity Prepaid Forward Transaction agreement (the “Forward Purchase Agreement”) with certain funds managed by Meteora Capital, LLC, an investor in the Sponsor (the “Meteora Funds”).

 

Business Combination Agreement

 

Capitalized terms used in this Current Report on Form 8-K but not otherwise defined herein have the meanings given to them in the Business Combination Agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference.

 

Merger Consideration

 

Initial Consideration

 

The total consideration to be paid at Closing by NRAC to Braiin security holders (the “Exchange Shares”) will be payable in Class A Ordinary Shares valued at $190 million, minus (ii) the indebtedness (excluding Indebtedness under any Company Convertible Security that will be converted into Company Shares prior to or at the Closing) of the Company as of the date hereof, plus (iii) cash and cash equivalents of the Company and its Subsidiaries as of the date of the Business Combination Agreement. Such amounts shall be initially calculated based upon the consolidated financial statements prepared by management but shall be adjusted on a dollar for dollar basis by the amount that the Audited Financial Statements differ from such amounts. (the “Equity Value”). For purposes of determining the number of Exchange Shares to be issued, the Class A Ordinary Shares will be valued at $10.00 per share.

 

Treatment of Braiin Convertible Securities

 

Convertible Securities.

 

Each convertible note and simple agreement for future equity of Braiin, and approximately 2,057,000 Braiin Shares issuable as consideration for Braiin’s purchase of PowerTec (which will not exceed 9.9% of New Braiin shares), will convert prior to the Effective Time into Braiin Shares in accordance with the agreements governing such securities, and all such holders will grant a full release to New Braiin of all claims in connection with the underlying agreements and will be entitled to their pro rata share of the Exchange Shares.

 

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NRAC Warrants

 

At the Closing,, New Braiin will pay the Sponsor $2.5 million to purchase all outstanding NRAC warrants (the “Private Placement Warrants”), originally purchased by the Sponsor for approximately $6.8 million simultaneously with the closing of NRAC’s initial public offering (“IPO”).

 

Post-Closing Board of Directors

 

Immediately following the Closing, New Braiin’s board of directors will consist of five members designated by Braiin, a majority of whom shall be independent directors for purposes of Nasdaq listing rules.

 

Registration Statement and Stockholder Approval

 

NRAC and Braiin will prepare, and NRAC will file with the Securities and Exchange Commission (the “SEC”), a Registration Statement on Form F-4 and proxy statement (the “Registration Statement”) for the purpose of soliciting proxies from holders of NRAC Class A Ordinary Shares sufficient to obtain shareholder approval for the Business Combination Agreement, the Share Exchange and the other transactions contemplated by the Business Combination Agreement at a general meeting of NRAC shareholders, which will be called and held for such purpose (the “Shareholder Meeting”). The Business Combination requires approval by a special resolution under Cayman Islands law, being the affirmative vote of the holders of at least two-thirds of the NRAC ordinary shares who, being present in person (including virtually) or represented by proxy and entitled to vote at the Shareholder Meeting, vote at the Shareholder Meeting.

 

Representations, Warranties and Covenants

 

The Business Combination Agreement contains customary representations, warranties and covenants with respect to, among other things, operation of their respective businesses prior to consummation of the Business Combination and efforts to satisfy conditions to consummation of the Business Combination. The Business Combination Agreement also contains additional covenants of the parties, including, among others, with respect to provision of information, cooperation in the preparation of the Registration Statement and to identify additional sources of third-party financing sources in the form of debt or equity investments (“Transaction Financing”).

 

NRAC Incentive Plan

 

NRAC has agreed to adopt an incentive plan (the “Equity Incentive Plan”) to be developed in consultation with Braiin and third-party advisors with market-based metrics and customary terms for incentive plans of similarly situated public companies.

 

Non-Solicitation Restrictions

 

Each of NRAC, Braiin and the Braiin Supporting Shareholders has agreed to not to directly or indirectly take any action to solicit, initiate continue, or encourage a Business Combination Proposal (as such term is defined in the Business Combination Agreement).

 

Conditions to Closing

 

The consummation of the Business Combination is conditioned upon, among other things, (i) the absence of any governmental or court order, determination or injunction enjoining or prohibiting the Business Combination and related transactions, (ii) effectiveness of the Registration Statement and completion of the Shareholder Meeting, including any associated redemptions by NRAC shareholders, (iii) NRAC having at least $5,000,001 of net tangible assets (determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) after all redemptions, (iv) approval of the Business Combination and related transactions at the Shareholder Meeting, (v) the Share Consideration being approved for listing on Nasdaq, and (vi) all necessary regulatory approvals being obtained.

 

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Solely with respect to NRAC’s obligations, the consummation of the Business Combination and related transactions is conditioned upon, among other things, (i) Braiin’s representations and warranties being true and correct in all material respects (except where failure, individually and in the aggregate, would not have a Material Adverse Effect (as defined in the Business Combination Agreement)), (ii) Braiin having complied with all of its covenants in all material respects, (iii) Braiin and certain Braiin Shareholders having executed and delivered the Company Shareholder Lock-Up Agreements (as defined below), (iv) Braiin having acquired PowerTec and transferred all intellectual property and other assets used in its business within its corporate structure, (v) all Braiin shareholders having agreed to exchange their Braiin shares for New Braiin shares in the Share Exchange, and (vi) no Material Adverse Effect (as defined in the Business Combination Agreement) having occurred to Braiin or its subsidiaries.

 

Solely with respect to Braiin’s obligations, the consummation of the Business Combination and related transactions is conditioned upon, among other things, (i) NRAC’s representations and warranties being true and correct in all material respects (except where failure, individually and in the aggregate, would not have a Material Adverse Effect), (ii) NRAC having complied with all of its covenants in all material respects, (iii) NRAC and the Sponsor having executed and delivered the Company Shareholder Lock-Up Agreements, and (iv) NRAC having, immediately after the closing of the Business Combination, at least $15 million available from the trust account established in connection with NRAC’s IPO (the “Trust Account”) and any Transaction Financing, but after paying expenses of NRAC and Braiin and any redemption payments due to shareholders who elect to redeem their NRAC Class A Ordinary Shares.

 

Termination

 

The Business Combination Agreement may be terminated at any time by mutual consent or: (i) by either party if: (A) NRAC’s shareholders do not approve the Business Combination Agreement at the Shareholder Meeting, or (B) the Business Combination is permanently enjoined by a final, non-appealable governmental order or law, (ii) by NRAC if: (A) there is any breach that would prevent Braiin from satisfying NRAC’s closing conditions that Braiin cannot cure within thirty days, (B) if the closing has not occurred by September 4, 2023, (iii) by Braiin if: (A) there is any breach that would prevent NRAC from satisfying Braiin’s closing conditions that NRAC cannot cure within thirty days, or (B) if NRAC gives notice of a breach and the closing does not occur by the end of the cure period.

 

The Business Combination Agreement and the other agreements described below have been included to provide investors with information regarding their respective terms. They are not intended to provide any other factual information about NRAC, Braiin or the other parties thereto. In particular, the assertions embodied in the representations and warranties in the Business Combination Agreement were made as of a specified date, are modified or qualified by information in one or more disclosure schedules prepared in connection with the execution and delivery of the Business Combination Agreement, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Business Combination Agreement are not necessarily characterizations of the actual state of facts about NRAC, Braiin or the other parties thereto at the time they were made or otherwise and should only be read in conjunction with the other information that NRAC makes publicly available in reports, statements and other documents filed with the SEC. NRAC and Braiin investors and securityholders are not third-party beneficiaries under the Business Combination Agreement.

 

Certain Related Agreements

 

Sponsor Support Agreement and Share Surrender

 

Simultaneously with the execution of the Business Combination Agreement, NRAC and Braiin entered into a support agreement with the Sponsor (the “Sponsor Support Agreement”) pursuant to which the Sponsor has agreed to vote its NRAC ordinary shares and its Private Placement Warrants in favor of the Business Combination and against any competing acquisition proposal, and not to solicit any competing acquisition proposal. In addition, the Sponsor has agreed to surrender 1,500,000 NRAC Class B Ordinary Shares immediately prior to the Effective Time and to waive: (i) redemption rights with respect to its NRAC shares in connection with the Business Combination, and (ii) the right to have any working capital loans extended to NRAC converted into warrants.

 

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Company Shareholder Lock-Up Agreements

 

Simultaneously with the execution of the Business Combination Agreement, NRAC and Braiin entered into a support agreement with the Braiin Supporting Shareholders (the “Company Shareholder Support Agreement”) pursuant to which the Braiin Supporting Shareholders have agreed to vote their Braiin shares in favor of the Business Combination and against any competing acquisition proposal, and not to solicit any competing acquisition proposal.

 

Company Shareholder Lock-Up Agreement

 

At the Closing, NRAC, Braiin and certain Braiin shareholders will enter into a series of Lock-Up Agreements (the “Company Shareholder Lock-Up Agreements”) pursuant to which the shareholders will agree not to sell or transfer any New Braiin shares or securities exercisable for or convertible into New Braiin shares (the “Lock-Up Shares”) for a period extending from the closing until the earlier of (i) six months after the closing, (ii) the time, 150 days or more after the closing, that the last sale price of New Braiin is at least $12.00 for any 20 trading days within a 30-trading-day period, and (iii) the liquidation, merger, share exchange, reorganization or other similar transaction that results in all of New Braiin’s shareholders have the right to exchange their New Braiin shares for cash, securities or other property (the “Lock-Up”).

 

Amended and Restated Registration Rights Agreement

 

At the Closing, NRAC, Braiin, the Sponsor and certain Braiin shareholders will enter into an Amended and Restated Registration Rights Agreement (the “Amended and Restated Registration Rights Agreement”) with respect to the resale of shares of New Braiin held, or acquired before or pursuant to the Share Exchange by the Sponsor and such shareholders (“Holders”). The Amended and Restated Registration Rights Agreement amends and restates the registration rights agreement dated February 1, 2021 entered into in connection with the NRAC IPO. Subject to the Lock-Up, New Braiin will file a registration statement to register the public resale of the Holders’ shares as soon as reasonably practicable, but in any event within 30 calendar days following the consummation of the Business Combination. In addition, subject to certain requirements and customary conditions, including with regard to when requests may be made, the Holders may request to sell all or any portion of their registrable securities in an underwritten offering so long as the total offering price is reasonably expected to exceed, in the aggregate, $10 million or includes all of the remaining shares held by the requesting Holder. In addition, Holders will have certain “demand” and “piggy-back” registration rights that require New Braiin to separately register the resale of their shares or to include such securities in registration statements that New Braiin otherwise files, respectively, subject to certain requirements and customary conditions. The Amended and Restated Registration Rights Agreement does not contain liquidated damages provisions or other cash settlement provisions resulting from delays in registering New Braiin’s securities. New Braiin will bear the expenses incurred in connection with the filing of any such registration statements.

 

Forward Purchase Agreement

 

In connection with the Business Combination NRAC, Braiin and (i) Meteora Special Opportunity Fund I, LP, (ii) Meteora Capital Partners, LP and (iii) Meteora Select Trading Opportunities Master, LP (collectively, “Meteora”) entered into a Forward Purchase Agreement (the “Forward Purchase Agreement”). Entities and funds managed by Meteora own equity interests in the Sponsor.

 

The Forward Purchase Agreement was entered into on March 16, 2023, prior to the signing and announcement of the Business Combination Agreement. Pursuant to the Forward Purchase Agreement, Meteora has agreed to make purchases of Class A Ordinary Shares of NRAC: (a) in open-market purchases through a broker after the date of NRAC’s redemption deadline in connection with the vote of NRAC shareholders to approve the Business Combination from holders of Class A Ordinary Shares of NRAC, including those who elect to redeem Class A Ordinary Shares and subsequently revoked their prior elections to redeem (the “Recycled Shares”) and (b) directly from NRAC, newly-issued Class A Ordinary Shares of NRAC (the “Additional Shares” and, together with the Recycled Shares, the “Subject Shares”). The aggregate total Subject Shares will be up to 2,900,000 (but not more than 9.9% of NRAC’s Class A Ordinary Shares outstanding on a post-transaction basis) (the “Maximum Number of Shares”). Meteora has agreed to waive any redemption rights with respect to any Subject Shares in connection with the Business Combination.

 

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The Forward Purchase Agreement provides that no later than the earlier of (a) one business day after the closing of the Business Combination and (b) the date any assets from NRAC’s trust account are disbursed in connection with the Business Combination, the Combined Company will pay to Meteora, out of funds held in its Trust Account, an amount (the “Prepayment Amount”) equal to (x) the per-share redemption price (the “Initial Price”) multiplied by (y) the number of Recycled Shares on the date of such prepayment less the Prepayment Shortfall. The Prepayment Shortfall is equal to the lesser of (i) ten percent of the product of (x) the Number of NRAC Class A Ordinary Shares multiplied by (y) the Initial Price and (ii) $3,000,000.

 

Meteora may, at its discretion and at any time following the closing of the Business Combination, provide an Optional Early Termination notice (“OET Notice”) and pay to the Combined Company the product of the “Reset Price” and the number of NRAC’s Class A Ordinary Shares listed on the OET Notice. The Reset Price shall initially equal the Initial Price but shall be adjusted on the first scheduled trading date of each two-week period commencing on the first week following the 30th day after the closing of the Business Combination to the lowest of (i) the current Reset Price, (ii) the Initial Price and (iii) the volume weighted average price (“VWAP”) of NRAC’s Class A Ordinary Shares of the prior two week period.

 

The Forward Purchase Agreement matures on the earlier to occur of (a) three years after the closing of the Business Combination, (b) the date specified by Meteora in a written notice delivered at Meteora’s discretion if (i) the VWAP of NRAC’s Class A Ordinary Shares during 10 out of 30 consecutive trading days is at or below $5.00 per Share, or (ii) the Shares are delisted from a national securities exchange. At maturity, Meteora will be entitled to receive maturity consideration in cash or shares. The maturity consideration will equal the product of (1) (a) the Number of NRAC Class A Ordinary Shares less (b) the number of Terminated Shares, multiplied by (2) $1.50 in the event of cash or, in the event of NRAC Class A Ordinary Shares Shares, $2.00; and $2.50, solely in the event of a registration failure.

 

The Forward Purchase Agreement has been structured, and all activity in connection with such agreement has been undertaken, to comply with the requirements of all tender offer regulations applicable to the Business Combination, including Rule 14e-5 under the Securities Exchange Act of 1934.

 

The Forward Purchase Agreement may be terminated by any of the parties thereto if the Business Combination Agreement is terminated pursuant to its terms prior to the closing of the Business Combination.

 

NRAC has agreed to indemnify and hold harmless Meteora, its affiliates, assignees and other parties described therein (the “Indemnified Parties”) from and against all losses, claims, damages and liabilities under the Forward Purchase Agreement (excluding liabilities relating to the manner in which Meteora sells any shares it owns) and reimburse the Indemnified Parties for their reasonable expenses incurred in connection with such liabilities, subject to certain exceptions described therein, and has agreed to contribute to any amounts required to be paid by any Indemnified Parties if such indemnification is unavailable or insufficient to hold such party harmless.

 

Joseph Tonnos, a Principal and Associate Portfolio Manager at Meteora Capital, LLC, an investor in the Sponsor, served on the NRAC board of directors from February 9, 2023 until his resignation on March 15, 2023. Mr. Tonnos promptly disclosed this conflict of interest to the board of directors of NRAC and refrained from participating in any discussions or any vote regarding the Forward Purchase Agreement or the transactions contemplated therein. Mr. Tonnos resigned from the NRAC board of directors prior to any approval of the Forward Purchase Agreement.

 

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Item 3.02 Unregistered Sales of Equity Securities.

 

The disclosure set forth above in the second, third and fourth paragraphs of Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The NRAC Class A Ordinary Shares that may be issued in connection with the Forward Purchase Agreement have not been registered under the Securities Act in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

 

On March 15, 2023, as described above, Joseph Tonnos, a Principal of Meteora Capital, LLC, resigned from NRAC’s board of directors prior to the execution of the Forward Purchase Agreement between Meteora and NRAC. Such resignation was not a result of disagreement with the Company on any matter relating to its operations, policies or practices.

 

Item 7.01 Regulation FD Disclosure.

 

The information in this Item 7.01 (including Exhibits 99.1and 99.2) is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing.

 

Investor Presentation

 

Furnished as Exhibit 99.1 and incorporated into this Item 7.01 by reference is the investor presentation that NRAC and Braiin will use in connection with the Business Combination and related matters.

 

Press Release

 

On March 21, 2023, NRAC and Braiin issued a press release announcing the execution of the Business Combination Agreement. Attached hereto as Exhibit 99.2 and incorporated into this Item 7.01 by reference is the copy of the press release.

 

Important Information for Investors and Stockholders

 

In connection with the Proposed Business Combination, NRAC intends to file a registration statement on Form F-4 with the SEC, which will include a document that serves as a prospectus and proxy statement of NRAC, referred to as a “proxy statement/prospectus.” A proxy statement/prospectus will be sent to all NRAC shareholders. NRAC also will file other documents regarding the Business Combination and related transactions with the SEC. Before making any voting decision, investors and security holders of NRAC are urged to read the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they become available because they will contain important information about the proposed Business Combination and related transactions.

 

Investors and security holders will be able to obtain free copies of the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by NRAC through the website maintained by the SEC at www.sec.gov.

 

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Forward Looking Statements

 

Certain statements included in this Current Report on Form 8-K are not historical facts but are forward-looking statements within the meaning of “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995, as amended. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “shall,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “future,” “outlook,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of the closing of the Share Exchange, achievement of the conditions necessary for the closing of the Business Combination, other performance metrics and projections of market opportunity. These statements are based on various assumptions, whether or not identified in this Current Report on Form 8-K and on the current expectations of the respective management teams of NRAC and Braiin and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of NRAC and Braiin. Some important factors that could cause actual results to differ materially from those in any forward-looking statements could include changes in domestic and foreign business, market, financial, political and legal conditions.

 

These forward-looking statements are subject to a number of risks and uncertainties, including, among others, the inability of the parties to successfully or timely consummate the Business Combination, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect NRAC or the expected benefits of the Business Combination, if not obtained; the failure to realize the anticipated benefits of the Business Combination; matters discovered by the parties as they complete their respective due diligence investigation of the other parties; the ability of NRAC prior to the Business Combination, and New Braiin following the Business Combination, to maintain the listing of New Braiin’s shares on Nasdaq; costs related to the Business Combination; the failure to satisfy the conditions to the consummation of the Business Combination, including the approval of the Business Combination Agreement by the shareholders of NRAC, the ability of NRAC and Braiin to attract Transaction Financing, the satisfaction of the minimum cash requirements of the Business Combination Agreement following any redemptions by NRAC’s public shareholders; the risk that the Business Combination may not be completed by the stated deadline and the potential failure to obtain an extension of the stated deadline; the outcome of any legal proceedings that may be instituted against NRAC or Braiin related to the Merger, the ability of Braiin to complete its planned acquisition of PowerTec, the attraction and retention of qualified directors, officers, employees and key personnel of NRAC and Braiin prior to the Merger and New Braiin following the Merger; the ability of New Braiin to compete effectively in a highly competitive market; the ability to protect and enhance New Braiin’s corporate reputation and brand; the impact from future regulatory, judicial, and legislative changes in New Braiin’s industry; and, the uncertain effects of the COVID-19 pandemic; future financial performance of New Braiin following the Business Combination; the ability of Braiin and New Braiin to forecast and maintain an adequate rate of revenue growth and appropriately plan its expenses; the ability of New Braiin to generate sufficient revenue from each of its revenue streams; the ability of New Braiin to protect its intellectual property from competitors; New Braiin’s ability to execute its business plans and strategy; and those factors set forth in documents of NRAC filed, or to be filed, with the SEC. The foregoing list of risks is not exhaustive.

 

If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither NRAC nor Braiin presently know, or that NRAC and Braiin currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect NRAC’s and Braiin’s current expectations, plans and forecasts of future events and views as of the date hereof. Nothing in this Current Report on Form 8-K and the attachments hereto should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. You should not place undue reliance on forward-looking statements in this Current Report on Form 8-K and the attachments hereto, which speak only as of the date they are made and are qualified in their entirety by reference to the cautionary statements herein and the risk factors of NRAC and Braiin described above. NRAC and Braiin anticipate that subsequent events and developments will cause their assessments to change. However, while NRAC and Braiin may elect to update these forward-looking statements at some point in the future, they each specifically disclaim any obligation to do so, except as required by law. These forward-looking statements should not be relied upon as representing NRAC’s or Braiin’s assessments as of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.

 

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Participants in the Solicitation

 

NRAC and its directors and executive officers may be deemed participants in the solicitation of proxies from NRAC’s shareholders with respect to the proposed Business Combination. A list of the names of those directors and executive officers and a description of their interests in NRAC is contained in NRAC’s Annual Report on Form 10-K, which was filed with the SEC on February 11, 2022, as supplemented by its subsequent filings on Form 8-K and the DEF 14A filed with the SEC on February 27, 2023, all of which are available free of charge at the SEC’s web site at www.sec.gov, or by directing a request to NRAC at 4001 Kennett Pike, Suite 302, Wilmington, DE 19807. Additional information regarding the interests of such participants will be contained in the proxy statement/prospectus for the proposed Business Combination when available.

 

Braiin and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of NRAC in connection with the proposed Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed Business Combination will be included in the proxy statement/prospectus for the proposed Business Combination when available.

 

No Offer or Solicitation

 

This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of any securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act or an exemption therefrom.

 

Item 9.01. Financial Statements and Exhibits.

 

Exhibit No.   Description
2.1*   Business Combination Agreement, dated as of March 20, 2023, by and among Northern Revival Acquisition Corporation, Braiin Limited, Northern Revival Sponsor LLC, and certain shareholders of Braiin
10.1   Sponsor Support Agreement, dated as of March 20, 2023, by and among Braiin Limited, Northern Revival Sponsor LLC and Northern Revival Acquisition Corporation (Incorporated by reference to Exhibit A to the Business Combination Agreement filed as Exhibit 2.1 hereto)
10.2   Company Shareholder Support Agreement, dated as of March 20, 2023, by and among Northern Revival Acquisition Corporation, Braiin Limited and certain shareholders of Braiin (Incorporated by reference to Exhibit B to the Business Combination Agreement filed as Exhibit 2.1 hereto)
10.3   Form of Company Shareholder Lock-Up Agreement (Incorporated by reference to Exhibit D to the Business Combination Agreement filed as Exhibit 2.1 hereto)
10.4   Form of Amended and Restated Registration Rights Agreement (Incorporated by reference to Exhibit C to the Business Combination Agreement filed as Exhibit 2.1 hereto)
10.5   Confirmation of OTC Equity Prepaid Forward Transaction from (i) Meteora Special Opportunity Fund I, LP, (ii) Meteora Capital Partners, LP and (iii) Meteora Select Trading Opportunities Master, LP to Northern Revival Acquisition Corporation and Braiin Limited
99.1**   Investor Presentation dated March 21, 2023
99.2**   Press release issued by Northern Revival and Braiin dated March 21, 2023
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. The registrant hereby undertakes to furnish copies of any of the omitted schedules and exhibits upon request by the U.S. Securities and Exchange Commission.

 

**Furnished but not filed.

 

8

 

 

SIGNATURES

 

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

 

Dated: March 21, 2023

 

NORTHERN REVIVAL ACQUISITION CORPORATION  
     
By: /s/ Aemish Shah   
Name:  Aemish Shah  
Title: Chief Executive Officer and Chairman  

 

 

9

 

 

Exhibit 2.1

 

BUSINESS COMBINATION AGREEMENT

 

dated as of

 

March 20, 2023

 

by and among

 

NORTHERN REVIVAL Acquisition CorpORATION,
as the Acquiror,

 

BRAIIN LIMITED,
as the Company,

 

NORTHERN REVIVAL SPONSOR LLC,

as the Sponsor,

 

and

 

THE SHAREHOLDERS OF THE COMPANY NAMED HEREIN,
as the Sellers

 

 

 

 

TABLE OF CONTENTS

 

          Page
           
Article I CERTAIN DEFINITIONS   2
  1.01   Definitions   2
  1.02   Construction   16
  1.03   Knowledge   17
Article II CLOSING   17
  2.01   Closing   17
  2.02   Organizational Documents of Acquiror and the Company   17
  2.03   Directors and Officers of Acquiror and the Company   17
  2.04   Conversion of Company Convertible Securities   18
  2.05   Sponsor Share Forfeiture   18
Article III SHARE EXCHANGE   18
  3.01   Sponsor Share Conversion and Exchange   18
  3.02   Equitable Adjustments   19
  3.03   Delivery of Consideration   19
  3.04   Lost Securities   19
  3.05   Withholding   20
  3.06   Payment of Expenses   20
Article IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY   21
  4.01   Corporate Organization of the Company   21
  4.02   Subsidiaries   21
  4.03   Due Authorization   22
  4.04   No Conflict   22
  4.05   Governmental Authorities; Consents   22
  4.06   Capitalization   23
  4.07   Financial Statements   23
  4.08   Undisclosed Liabilities   24
  4.09   Litigation and Proceedings   24
  4.10   Compliance with Laws   24
  4.11   Intellectual Property   25
  4.12   Contracts; No Defaults   28
  4.13   Company Benefit Plans   30
  4.14   Labor Matters   31

 

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  4.15   Taxes.   33
  4.16   Brokers’ Fees   36
  4.17   Insurance   36
  4.18   Real Property; Assets   36
  4.19   Environmental Matters   37
  4.20   Absence of Changes   38
  4.21   Affiliate Agreements   38
  4.22   Internal Controls   38
  4.23   Permits   39
  4.24   Registration Statement   39
  4.25   Operation of the Business during COVID-19   39
  4.26   Company Support Agreement   39
  4.27   Books and Records   39
  4.28   Sufficiency of Assets   40
  4.29   Superannuation.   40
  4.30   No Additional Representations and Warranties   40
Article V representations and warranties of the sellers   40
  5.01   Authorization; Binding Agreement   40
  5.02   Ownership   41
  5.03   No Conflict   41
  5.04   Litigation   41
  5.05   No Other Representations   42
Article VI REPRESENTATIONS AND WARRANTIES OF ACQUIROR   42
  6.01   Corporate Organization   42
  6.02   Due Authorization   42
  6.03   No Conflict   43
  6.04   Litigation and Proceedings   44
  6.05   Compliance with Laws   44
  6.06   Governmental Authorities; Consents   45
  6.07   Financial Ability; Trust Account   45
  6.08   Taxes   46
  6.09   Brokers’ Fees   47
  6.10   Acquiror SEC Reports; Financial Statements; Sarbanes-Oxley Act   47
  6.11   Business Activities; Absence of Changes   49

 

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  6.12   Registration Statement   49
  6.13   No Outside Reliance.   49
  6.14   Capitalization.   50
  6.15   Nasdaq Stock Market Quotation   50
  6.16   Contracts; No Defaults   51
  6.17   Title to Property   51
  6.18   Investment Company Act   51
  6.19   Affiliate Agreements   51
  6.20   Sponsor Support Agreement   52
Article VII COVENANTS OF THE COMPANY   52
  7.01   Conduct of Business   52
  7.02   Inspection   55
  7.03   No Acquiror Ordinary Share Transactions   55
  7.04   No Claim Against the Trust Account   55
  7.05   Proxy Solicitation; Other Actions   56
  7.06   Certain Transaction Agreements   57
Article VIII COVENANTS OF ACQUIROR AND THE SPONSOR   57
  8.01   Conduct of Acquiror During the Interim Period   57
  8.02   Trust Account   59
  8.03   Inspection.   60
  8.04   Acquiror Nasdaq Listing   60
  8.05   Acquiror Public Filings   60
  8.06   Section 16 Matters   60
  8.07   Exclusivity   60
  8.08   Certain Transaction Agreements   61
  8.09   Shareholder Action   61
  8.10   Incentive Equity Plan   61
  8.11   Obligations as an Emerging Growth Company   61
  8.12   Surrender of  Ordinary Shares   62
Article IX JOINT COVENANTS   62
  9.01   Support of Transaction   62
  9.02   Preparation of Registration Statement; Extraordinary General Meeting   62
  9.03   Tax Matters   64
  9.04   Confidentiality; Publicity   65

 

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  9.05   Post-Closing Cooperation; Further Assurances   65
  9.06   Additional Insurance and Indemnity Matters   65
  9.07   Antitrust Regulatory Approvals   67
  9.08   Employee Matters   69
  9.09   Transaction Financing   69
  9.10   Name Change; Stock Symbol Change   70
  9.11   Repurchase of Sponsor Warrants   70
Article X CONDITIONS TO OBLIGATIONS   70
  10.01   Conditions to Obligations of All Parties   70
  10.02   Additional Conditions to Obligations of Acquiror   71
  10.03   Additional Conditions to the Obligations of the Company   72
Article XI TERMINATION/EFFECTIVENESS   72
  11.01   Termination   72
  11.02   Effect of Termination   73
Article XII MISCELLANEOUS   74
  12.01   Waiver   74
  12.02   Notices   74
  12.03   Assignment   75
  12.04   Rights of Third Parties   75
  12.05   Expenses   75
  12.06   Governing Law   76
  12.07   Captions; Counterparts   76
  12.08   Schedules and Exhibits   76
  12.09   Entire Agreement   76
  12.10   Amendments   76
  12.11   Severability   76
  12.12   WAIVER OF TRIAL BY JURY   77
  12.13   Enforcement   77
  12.14   Non-Recourse   77
  12.15   Nonsurvival of Representations, Warranties and Covenants   78
  12.16   Acknowledgments   78

 

Exhibits

 

Exhibit A – Form of Sponsor Support Agreement
Exhibit B – Form of Company Support Agreement

Exhibit C – Form of Registration Rights Agreement

Exhibit D – Form of Company Shareholder Lock-up Agreement

 

iv

 

 

BUSINESS COMBINATION AGREEMENT

 

This Business Combination Agreement (this “Agreement”), dated as of March 20, 2023, is entered into by and among Northern Revival Acquisition Corporation, a Cayman Islands exempted company (prior to the Effective Time, “Acquiror” and, at and after the Effective Time, “PubCo”), Braiin Limited, an Australian public company limited by shares (the “Company”), Northern Revival Sponsor LLC, a Cayman Islands limited liability company, (the “Sponsor”), and each of the shareholders of the Company named on Annex I hereto (each, a “Seller” and collectively, the “Sellers”). Except as otherwise indicated, capitalized terms used but not defined herein shall have the meanings set forth in Article I of this Agreement.

 

Each of Acquiror, the Company, the Sponsor and the Sellers are individually referred to herein as a “Party” and, collectively, the “Parties”.

 

RECITALS

 

WHEREAS, Acquiror is a special purpose acquisition company incorporated to acquire one or more operating businesses through a Business Combination;

 

WHEREAS, the Sellers desire to sell to Acquiror, and Acquiror desires to purchase from the Sellers, all of the issued and outstanding shares and any other equity interests in or of the Company in exchange for newly issued PubCo Ordinary Shares (the “Share Exchange”), all upon the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions of applicable Law;

 

WHEREAS, contemporaneously with the execution and delivery of this Agreement, in connection with the Transactions, the Sponsor has entered into that certain Sponsor Support Agreement, substantially in the form attached hereto as Exhibit A (the “Sponsor Support Agreement”) with Acquiror, the Company and the Sellers;

 

WHEREAS, contemporaneously with the execution and delivery of this Agreement, in connection with the Transactions, certain Sellers have entered into that certain Company Shareholder Support Agreement, substantially in the form attached hereto as Exhibit B (the “Company Support Agreement”) with Acquiror and the Company;

 

WHEREAS, in connection with the Transactions, at the Closing, Acquiror, the Company and certain Company Shareholders who will receive PubCo Ordinary Shares will enter into that certain Registration Rights Agreement, substantially in the form attached hereto as Exhibit C (the “Registration Rights Agreement”);

 

WHEREAS, after the execution and delivery of this Agreement, the Parties intend to obtain financing commitments from one or more investors in support of the Transactions (the “Transaction Financing”);

 

WHEREAS, in connection with the Transactions, Acquiror shall adopt, subject to obtaining the Acquiror Shareholder Approval, the amended and restated memorandum and articles of association (the “PubCo Charter”) in a form to be mutually agreed to by the Company and Acquiror, which shall provide for, among other things an increase in the number of PubCo’s Ordinary Shares;

 

1

 

 

WHEREAS, at the Closing, the Company Shares will be exchanged for PubCo’s Ordinary Shares;

 

WHEREAS, pursuant to the Acquiror Organizational Documents, Acquiror is required to provide an opportunity to its shareholders to have their Acquiror Ordinary Shares redeemed for the consideration, and on the terms and subject to the conditions and limitations, set forth in this Agreement, the Acquiror Organizational Documents, the Trust Agreement, and the Proxy Statement in conjunction with, inter alia, obtaining approval from the shareholders of Acquiror for the Business Combination (the “Offer”);

 

WHEREAS, prior to the consummation of the Transactions, Acquiror shall, subject to obtaining the Acquiror Shareholder Approval, adopt a market-based equity incentive plan developed in consultation with the Company and third-party advisors (the “Acquiror Incentive Plan”);

 

WHEREAS, the respective boards of directors or similar governing bodies of each of Acquiror and the Company have each (i) approved and declared advisable the Transactions upon the terms and subject to the conditions of this Agreement and in accordance with the Australian Companies Act, the Cayman Companies Act and other applicable Law and (ii) recommended to their respective shareholders the approval and adoption of this Agreement and the Transactions.

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Acquiror, the Company, the Sponsor and the Sellers agree as follows:

 

Article I
CERTAIN DEFINITIONS

 

1.01 Definitions. As used herein, the following terms shall have the following meanings:

 

Acquiror” has the meaning specified in the preamble hereto.

 

Acquiror Affiliate Agreement” has the meaning specified in Section 6.19.

 

Acquiror Representations” means the representations and warranties of Acquiror expressly and specifically set forth in Article VI of this Agreement, as qualified by the Acquiror Schedules. For the avoidance of doubt, the Acquiror Representations are solely made by Acquiror.

 

Acquiror Schedules” means the disclosure schedules of Acquiror.

 

Acquiror Benefit Plansmeans any “employee benefit plan” as defined in Section 3(3) of the ERISA, and each equity-based, retirement, profit sharing, bonus, incentive, severance, separation, change in control, retention, deferred compensation, vacation, paid time off, medical, dental, life or disability plan, program, policy or Contract, and each other material employee compensation or benefit plan, program, policy or Contract that is maintained, sponsored or contributed to (or required to be contributed to) by the Acquiror or pursuant to which the Acquiror has or may have any material liabilities.

 

Acquiror Board” means the board of directors of Acquiror.

 

2

 

 

Acquiror Board Recommendation” has the meaning specified in Section 9.02(d).

 

Acquiror Class A Ordinary Shares” means the Class A Ordinary Shares of Acquiror, par value $0.0001 per share.

 

Acquiror Class B Ordinary Shares” means the Class B Ordinary Shares of Acquiror, par value $0.0001 per share.

 

Acquiror Cure Period” has the meaning specified in Section  11.01(c).

 

Acquiror Incentive Plan” has the meaning specified in the recitals hereto.

 

Acquiror Incentive Plan Proposal” has the meaning specified in Section  9.02(c).

 

Acquiror Ordinary Shares” means the Acquiror Class A Ordinary Shares and Acquiror Class B ordinary shares.

 

Acquiror Organizational Documents” means the Amended and Restated Memorandum and Articles of Association of Acquiror, as may be amended from time to time.

 

Acquiror Private Placement Warrants” means “Private Placement Warrants” as defined in the most recent Acquiror SEC Reports prior to the date of this Agreement.

 

Acquiror Public Warrant” means “Public Warrants”, as defined in the most recent Acquiror SEC Reports prior to this Agreement.

 

Acquiror SEC Reports” has the meaning specified in Section 6.10(a).

 

Acquiror Shareholder” means a holder of Acquiror Ordinary Shares.

 

Acquiror Shareholder Approval” has the meaning specified in Section 6.02(b).

 

Acquiror Units” means the units of Acquiror issued in connection with its initial public offering, which such units are comprised of Acquiror Class A Common Share and one-half of one Acquiror Public Warrant.

 

Acquiror Warrants” means, collectively, the Acquiror Public Warrants and the Acquiror Private Placement Warrants.

 

3

 

 

Action” means any legal action (including any legal action seeing injunctive relief), claim, action, suit, assessment, arbitration or proceeding, including but not limited to in each case any action that is by or before any Governmental Authority.

 

Additional Proposals” has the meaning specified in Section  9.02(c).

 

Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise. For the purposes of this definition, “control” (including, the terms “controlled by,” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by Contract, or otherwise.

 

Agreement” has the meaning specified in the preamble hereto.

 

Amendment Proposal” has the meaning specified in Section  9.02(c).

 

Ancillary Agreements” means this Agreement, the PubCo Charter, the Company Support Agreement, the Sponsor Support Agreement, the Company Shareholder Lock-Up Agreement, the Registration Rights Agreement and all the agreements, documents, instruments and certificates entered into in connection herewith or therewith and any and all exhibits and schedules thereto.

 

Anti-Corruption Laws” means any applicable Laws relating to anti-bribery or anti-corruption (governmental or commercial), including the Criminal Code Act 1995 (Cth), U.S. Foreign Corrupt Practices Act, as amended (FCPA), the UK Bribery Act 2010 and the U.S. Travel Act, 18 U.S.C. § 1952.

 

“Anti-Money Laundering Laws” means any anti-money laundering and/or counter-terrorism legislation, rules, regulations or policies with the force of law, that are applicable to the Company in any jurisdiction, including but not limited to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

 

Antitrust Law” means any applicable foreign antitrust Laws and all other applicable Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.

 

Audited Financial Statements” has the meaning specified in Section 4.07.

 

Available Cash Amount” means the sum of (a) the amount of cash available in the Trust Account immediately prior to the Closing (after payment of (i) amounts due to Redeeming Shareholders, (ii) Outstanding Acquiror Expenses and (iii) Outstanding Company Expenses), plus (b) the proceeds of the Transaction Financing.

 

4

 

 

Business Combination” mean a merger, share exchange, asset acquisition, share purchase, reorganisation or similar business combination involving the Company or Acquiror, as the case may be, with one or more businesses or entities.

 

Business Combination Proposal” has the meaning set forth in Section 8.07.

 

Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.

 

Cayman Companies Act” means the Companies Act (As Revised) of the Cayman Islands.

 

Claim” means any demand, claim, action, legal, judicial or administrative proceeding (whether at law or in equity) or arbitration.

 

Closing” has the meaning specified in Section 2.01.

 

Closing Date” has the meaning specified in Section 2.01.

 

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

 

Company” has the meaning specified in the preamble hereto.

 

Company Advance Shareholder Approval” means the approval of this Agreement and the Transactions, pursuant to and in accordance with the terms and conditions of the Company’s Governing Documents.

 

Company Affiliate Agreement” has the meaning specified in Section 4.21.

 

Company Benefit Plan” has the meaning specified in Section 4.13(a).

 

Company Board” means the board of directors of the Company.

 

Company Charter” means the Constitution of the Company.

 

Company Convertible Security” or “Company Convertible Securities” means Convertible Notes, the SAFEs and the PowerTec Consideration.

 

Company Cure Period” has the meaning specified in Section 11.01(b).

 

Company GST Group” means the GST Group which includes the Company as a Member.

 

Company Intellectual Property” means all Owned Intellectual Property, Company Licensed IP, and all Intellectual Property used in, or necessary for the conduct of the business of the Company or any Subsidiary, as currently conducted.

 

5

 

 

Company Licensed IP” means all Intellectual Property owned by a third Person and licensed to or purported to be licensed to the Company or any Subsidiary or that the Company or any Subsidiary has a right to use or purports to have a right to use.

 

Company Representations” means the representations and warranties of the Company expressly and specifically set forth in Article IV of this Agreement, as qualified by the Company Schedules.

 

Company Schedules” means the disclosure schedules of the Company.

 

Company Security” and “Company Securities” means the Company Shares and Company Convertible Securities.

 

Company Shareholder” means the holder of either a Company Share or a Company Convertible Security to be converted to a Company Share prior to the Effective Time.

 

Company Shareholder Lock-Up Agreements” has the meaning specified in Section 10.02(d).

 

Company Shares” has the meaning specified in Section 4.06(a).

 

Company Software” means all Company – or company Subsidiary Owned - owned and third party Software used in, or necessary for the conduct of, the business of the Company, as currently conducted.

 

Company Subsidiary” means a Subsidiary of the Company.

 

Company Support Agreement” has the meaning specified in the recitals hereto.

 

Confidential Data” means all data for which the Company is required by Law, Contract or privacy policy to keep confidential or private, including all such data transmitted to the Company by customers of the Company or Persons that interact with the Company.

 

Confidentiality Agreement” has the meaning specified in Section 12.09.

 

Contracts” means any legally binding contracts, agreements, subcontracts, leases, and purchase orders (other than any Company Benefit Plans).

 

Consolidated Financial Statements” has the meaning specified in Section 4.07.

 

Convertible Notes” means the convertible notes issued to the holders thereof listed on Schedule 4.06(b).

 

Copyleft Terms” has the meaning specified in Section 4.11(g).

 

COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions thereof or any other epidemics, pandemics or disease outbreaks.

 

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COVID-19 Action” means an inaction or action by the Company, including the establishment of any policy, procedure or protocol, in response to COVID-19 or any COVID-19 Measures (i) that is consistent with the past practice of the Company in response to COVID-19 prior to the date of this Agreement (but only to the extent in compliance with applicable Law), or (ii) that would, given the totality of the circumstances under which the Company acted or did not act, be unreasonable for Acquiror to withhold, condition or delay consent with respect to such action or inaction (whether or not Acquiror has a consent right with respect thereto).

 

COVID-19 Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other Law, Governmental Order, Action, directive, guidelines or recommendations by any Governmental Authority, including the Australian Department of Health and Aged Care, the U.S. Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19.

 

Duty” means any stamp, transaction or registration duty or similar charge imposed by any Governmental Authority and includes any interest, fine, penalty, charge or other amount imposed in respect of any of them, but excludes any Tax.

 

Effective Timemeans the occurrence of the Closing..

 

Environmental Laws” means any and all applicable Laws relating to pollution, protection of the environment (including natural resources) and human health and safety, or the use, storage, emission, disposal or release of or exposure to Hazardous Materials.

 

Equity Value” means an amount equal to (i) $190,000,000, minus (ii) the Indebtedness (excluding Indebtedness under any Company Convertible Security that will be converted into Company Shares prior to or at the Closing) of the Company as of the date hereof, plus (iii) cash and cash equivalents of the Company and its Subsidiaries as of the date hereof. Such amounts shall be initially calculated based upon the consolidated financial statements prepared by management but shall be adjusted on a dollar for dollar basis by the amount that the Audited Financial Statements differ from such amounts.

 

ERISA” has the meaning specified in Section 4.13(a).

 

ERISA Affiliate” has the meaning specified in Section  4.13(d).

 

Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.

 

Extraordinary General Meeting” means a meeting of the holders of Acquiror Ordinary shares to be held for the purpose of approving the Proposals.

 

Financial Derivative/Hedging Arrangement” means any transaction (including an agreement with respect thereto) which is a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any combination of these transactions.

 

7

 

 

Financial Statements” has the meaning specified in Section 4.07.

 

Funds” means the superannuation schemes set out in Schedule 1.01 to which the Company and its Australian Subsidiaries contribute in respect of the Employees, and including the Company’s Funds.

 

GAAP” means accounting principles generally accepted in the United States of America.

 

Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs.

 

Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, arbitrator, court or tribunal.

 

Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, issued or entered by or with any Governmental Authority.

 

GST” means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law.

 

GST Law” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

Hazardous Material” means any material, substance or waste that is listed, regulated, or defined as “hazardous,” “toxic,” or “radioactive,” or as a “pollutant” or “contaminant” (or words of similar intent or meaning) under applicable Environmental Laws, including but not limited to petroleum, petroleum by-products, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable or explosive substances, mold, per- and polyfluoroalkyl substances or pesticides.

 

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

 

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

 

Indebtedness” means, with respect to any Person, without duplication, any obligations (whether or not contingent) consisting of (a) the outstanding principal amount of and accrued and unpaid interest on, and other payment obligations for, borrowed money, or payment obligations issued or incurred in substitution or exchange for payment obligations for borrowed money, (b) amounts owing as deferred purchase price for property or services, including “earnout” payments, (c) payment obligations evidenced by any promissory note, bond, debenture, mortgage or other debt instrument or debt security, (d) contingent reimbursement obligations with respect to letters of credit, bankers’ acceptance or similar facilities (in each case to the extent drawn), (e) payment obligations of a third party secured by (or for which the holder of such payment obligations has an existing right, contingent or otherwise, to be secured by) any Lien, other than a Permitted Lien, on assets or properties of such Person, whether or not the obligations secured thereby have been assumed, (f) obligations under capitalized leases, (g) obligations under any Financial Derivative/Hedging Arrangement, (h) guarantees, make-whole agreements, hold harmless agreements or other similar arrangements with respect to any amounts of a type described in clauses (a) through (g) above and (i) with respect to each of the foregoing, any unpaid interest, breakage costs, prepayment or redemption penalties or premiums, or other unpaid fees or obligations; provided, however, that Indebtedness shall not include accounts payable to trade creditors that are not more than 60 days past due.

 

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Information or Document Request” means any request or demand for the production, delivery or disclosure of documents or other evidence, or any request or demand for the production of witnesses for interviews or depositions or other oral or written testimony, by any Regulatory Consent Authority relating to the Transactions or by any third party challenging the Transactions, including any so called “second request” for additional information or documentary material or any civil investigative demand made or issued by the Antitrust Division of the U.S. Department of Justice or the U.S. Federal Trade Commission or any subpoena, interrogatory or deposition.

 

Intellectual Property” means all intellectual property rights created, arising, or protected under applicable Law, including all: (i) patents, patent applications, patentable inventions and other patent rights (including any divisionals, continuations, continuations-in-part, reissues and reexaminations thereof) (collectively, “Patents”); (ii) trademarks, service marks, trade dress, trade names, taglines, social media identifiers (such as a Twitter® handle) brand names, logos, corporate names and other source identifiers and all goodwill related thereto; (iii) copyrights and designs; (iv) internet domain names; (v) trade secrets, know-how, inventions, processes, procedures, database rights, source code, confidential business information and other proprietary information and rights (collectively, “Trade Secrets”) and (vi) rights in Software.

 

Intended Tax Treatment” has the meaning specified in Section 9.03(b).

 

Interim Period” has the meaning specified in Section 7.01.

 

International Trade Laws” means any Law relating to international trade, including: (i) import laws and regulations administered by U.S. Customs and Border Protection, (ii) export control regulations issued by the U.S. Department of State pursuant to the International Traffic in Arms Regulations (22 C.F.R. 120 et seq.) and/or the U.S. Department of Commerce pursuant to the Export Administration Regulations (15 C.F.R. 730 et seq.); (iii) sanctions laws and regulations as administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (31 C.F.R. Part 500 et seq.); (iv) U.S. anti-boycott laws and requirements (Section 999 of the Code, or related provisions, or under the Export Administration Act, as amended, 50 U.S.C. App. Section 2407 et seq.).

 

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ITAA 1936” means Income Tax Assessment Act 1936 (Cth).

 

ITAA 1997” means Income Tax Assessment Act 1997 (Cth).

 

IT Systems” means the Software, systems, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and all other information technology and telecommunications assets, systems, and equipment, and all associated documentation, in each case, owned, used, held for use, leased, outsourced or licensed by or for the Company or one of the Company’s Subsidiaries for use in the conduct of its respective business as it is currently conducted.

 

JOBS Act” means the Jumpstart Our Business Startups Act of 2012, as amended.

 

Law” means any statute, law, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority.

 

Leased Real Property” means all real property leased, subleased, licensed or otherwise occupied by the Company or any of the Company’s Subsidiaries.

 

Letter of Transmittal” has the meaning specified in Section 3.03(a).

 

Lien” means any mortgage, deed of trust, pledge, hypothecation, easement, right of way, purchase option, right of first refusal, covenant, restriction, security interest (including any PPS Security Interest), title defect, encroachment or other survey defect, or other lien or encumbrance of any kind, except for any restrictions arising under any applicable Securities Laws.

 

Material Adverse Effect” means, with respect to the particular party, any event, change or circumstance that has a material adverse effect on (i) the assets, business, results of operations or financial condition of the party; provided, however, that in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Material Adverse Effect”: (a) any change in applicable Laws or IFRS or GAAP as applicable after the date hereof or any official interpretation thereof, (b) any change in interest rates or economic, political, business, financial, commodity, currency or market conditions generally, (c) the announcement or the execution of this Agreement, the pendency or consummation of the Transactions or the performance of this Agreement, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, licensors, distributors, partners, providers and employees (provided, that the exceptions in this clause (c) shall not be deemed to apply to references to “Material Adverse Effect” in the representations and warranties set forth in Section 4.04 and, to the extent related thereto, the condition in Section 10.02(a)), (d) any change generally affecting any of the industries or markets in which the party operates or the economy as a whole, (e) the compliance with the terms of this Agreement or the taking of any action required by this Agreement or with the prior written consent of the other party (provided, that the exceptions in this clause (e) shall not be deemed to apply to references to “Material Adverse Effect” in the representations and warranties set forth in Section 4.04 and, to the extent related thereto, the condition in Section 10.02(a)), (f) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster, pandemic, weather condition, explosion fire, act of God or other force majeure event, including, for the avoidance of doubt, COVID-19 and any Law, directive, pronouncement or guideline issued by a Governmental Authority, the Centers for Disease Control and Prevention, the World Health Organization or any industry group providing for business closures, changes to business operations, “sheltering-in-place” or other restrictions that relate to, or arise out of, an epidemic, pandemic or disease outbreak (including the COVID-19 pandemic) or any change in such Law, directive, pronouncement or guideline or interpretation thereof following the date of this Agreement or the party’s compliance therewith, (g) any national or international political or social conditions in countries in which, or in the proximate geographic region of which, the party operates, including the engagement by the United States or such other countries in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack (including any internet or “cyber” attack or hacking) upon the United States or such other country, or any territories, possessions, or diplomatic or consular offices of the United States or such other countries or upon any United States or such other country military installation, equipment or personnel, (h) any failure of the party to meet any projections, forecasts or budgets or (i) any actions taken, or failures to take action, or such other changes or events, in each case, which Acquiror has requested or to which it has consented; provided, that clause (h) shall not prevent or otherwise affect a determination that any change or effect underlying such failure to meet projections or forecasts has resulted in, or contributed to, or would reasonably be expected to result in or contribute to, a Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Material Adverse Effect), except in the case of clause (a), (b), (d), (f) and (g) to the extent that such change does not have a disproportionate impact on the party as compared to other industry participants or (ii) the ability of the party to consummate the Transactions.

 

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Material Contracts” has the meaning specified in Section 4.12(a).

 

Material Permits” has the meaning specified in Section 4.23.

 

McVean Pacific” means McVean Pacific Intl Offshoring Inc., a wholly-owned subsidiary of the Company.

 

MEC Group” has the meaning given by section 995 1 of the ITAA 1997.

 

Multiemployer Plan” has the meaning specified in Section 4.13(d).

 

Named Parties” means (i) with respect to this Agreement, the Company, Acquiror, the Sponsor, and the Sellers (and their permitted successors and assigns), and (ii) with respect to any Ancillary Agreement, the parties named in the preamble thereto (and their permitted successors and assigns), and “Named Party” means any of them.

 

Nasdaq” means the Nasdaq Stock Market LLC.

 

Offer” has the meaning specified in the recitals hereto.

 

Open Source Materials” has the meaning specified in Section  4.11(f).

 

Outstanding Acquiror Expenses” has the meaning specified in Section 3.06(b).

 

Outstanding Company Expenses” has the meaning specified in Section 3.06(a).

 

Owned Company Software” means all Software owned or purported to be owned, in whole or in part, by the Company or one of its Subsidiaries.

 

Owned Intellectual Property” means all Intellectual Property owned or purported to be owned, in whole or in part, by the Company or one of its Subsidiaries and includes the Owned Company Software.

 

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

 

Permits” means all permits, licenses, certificates of authority, authorizations, approvals, registrations and other similar consents issued by or obtained from a Governmental Authority.

 

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Permitted Liens” means (i) statutory or common law Liens of mechanics, materialmen, warehousemen, landlords, carriers, repairmen, construction contractors and other similar Liens (A) that arise in the ordinary course of business, (B) that relate to amounts not yet delinquent or (C) that are being contested in good faith through appropriate Actions, and either are not material or appropriate reserves for the amount being contested have been established in accordance with IFRS, (ii) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (iii) Liens for Taxes not yet due and payable or which are being contested in good faith through appropriate Actions to the extent appropriate reserves have been established in accordance with IFRS or GAAP as applicable, (iv) non-monetary Liens, encumbrances and restrictions on real property (including easements, covenants, rights of way and similar restrictions of record) that do not materially interfere with the present uses of such real property, (v) non-exclusive licenses of Owned Intellectual Property entered into in the ordinary course of business, (vi) Liens that secure obligations that are reflected as liabilities on the balance sheet included in the Unaudited Financial Statements or Liens the existence of which is referred to in the notes to the balance sheet included in the Unaudited Financial Statements, (vii) in the case of Leased Real Property, matters that would be disclosed by an accurate survey or inspection of such Leased Real Property, which do not materially interfere with the current use or occupancy of any Leased Real Property, (viii) requirements and restrictions of zoning, building and other applicable Laws and municipal by-laws, and development, site plan, subdivision or other agreements with municipalities, which do not materially interfere with the current use or occupancy of any Leased Real Property, (ix) statutory Liens of landlords for amounts that (A) are not due and payable, (B) are being contested in good faith by appropriate proceedings and either are not material or appropriate reserves for the amount being contested have been established in accordance with IFRS or (C) may thereafter be paid without penalty and (x) Liens described on Schedule 1.01(b) or incurred in connection with activities permitted under Section 7.01 hereof (including, for the avoidance of doubt, any refinancings of existing indebtedness of the Company).

 

Person” means any individual, firm, corporation, partnership (limited or general), limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.

 

Personal Information” means any personal information that specifically identifies, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, any particular individual or household.

 

PowerTec” means PowerTec Holdings Ltd.

 

PowerTec Consideration” means the shares set forth on Schedule 4.06(b) to be issued to Raymond Smith and Doug Pukallus pursuant to that certain Binding Heads of Agreement Contract between the Company and PowerTec.

 

PPS Act” means the Personal Property Securities Act 2009 (Cth).

 

PPS Security Interest” means a security interest as defined in the PPS Act.

 

Privacy and Security Requirements” means, to the extent applicable to the Company or any of its Subsidiaries, (a) any Laws relating to privacy and data security, including laws regulating the Processing of Protected Data; (b) the Payment Card Industry Data Security Standard issued by the PCI Security Standards Council, as it may be amended from time to time (“PCI DSS”); (c) all Contracts between the Company, any of its Subsidiaries and any Person that is applicable to the PCI DSS, privacy, data security and/or the Processing of Protected Data; and (d) all policies and procedures applicable to the Company or any of its Subsidiaries relating to the PCI DSS, privacy, data security and/or the Processing of Protected Data, including without limitation all website and mobile application privacy policies and internal information security procedures.

 

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Processing” means the creation, collection, use (including, without limitation, for the purposes of sending telephone calls, text messages and emails), storage, maintenance, processing, recording, distribution, transfer, transmission, receipt, import, export, protection, safeguarding, access, disposal or disclosure or other activity regarding data (whether electronically or in any other form or medium).

 

Proposals” has the meaning specified in Section 9.02(c).

 

Protected Data” means Personal Information and Confidential Data.

 

Proxy Statement” means the proxy statement filed by Acquiror as part of the Registration Statement with respect to the Extraordinary General Meeting for the purpose of soliciting proxies from Acquiror Shareholders to approve the Proposals (which shall also provide the Acquiror Shareholders with the opportunity to redeem their Acquiror Ordinary Shares in conjunction with a shareholder vote on the Business Combination).

 

PubCo” has the meaning specified in the recitals hereto.

 

PubCo Board” means the board of directors of PubCo.

 

PubCo Charter” has the meaning specified in the recitals hereto.

 

PubCo’s Class A Ordinary Shares” means PubCo’s Class A Ordinary Shares, par value $0.0001 per share, entitling the holder of each such share to one vote per share.

 

Raptor300” means Raptor300 Inc., a Delaware corporation and wholly-owned subsidiary of the Company.

 

Real Estate Lease Documents” has the meaning specified in Section 4.18(b).

 

Redeeming Shareholder” means an Acquiror Shareholder who demands that Acquiror redeem its Acquiror Ordinary Shares for cash in connection with the Offer and in accordance with the Acquiror Organizational Documents.

 

Registered Intellectual Property” has the meaning specified in Section 4.11(a).“Registration Rights Agreement” has the meaning specified in the recitals hereto.

 

Registration Statement” has the meaning specified in Section 9.02(a).

 

Regulatory Approvals” means any approvals required from any Governmental Authority and/or under any applicable Laws relating to the Transactions, including but not limited to the approvals required from the Regulatory Consent Authorities under Section 8.07.

 

Regulatory Consent Authorities” means the Antitrust Division of the U.S. Department of Justice or the U.S. Federal Trade Commission, as applicable.

 

Representative” means, as to any Person, any of the officers, directors, managers, employees, agents, counsel, accountants, financial advisors, lenders, debt financing sources and consultants of such Person.

 

SAFEs” means the simple agreements for future equity between the Company and the holders set forth on Schedule 4.06(b).

 

Schedules” means the Acquiror Schedules and the Company Schedules.

 

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

 

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Securities Act” means the U.S. Securities Act of 1933, as amended.

 

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

 

Share Issuance Proposal” has the meaning specified in Section 8.02(c).

 

Shareholder Action” has the meaning specified in Section 7.09.

 

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

 

Sponsor” means, individually, Northern Revival Sponsor LLC, a Cayman Islands limited liability company.

 

Sponsor Support Agreement” has the meaning specified in the recitals hereto.

 

Sponsor Share Conversion” shall have the meaning given to it in Section 3.01.

 

Sponsor Warrant Repurchase Amount” means $2,500,000.

 

Subscription Agreement” means an agreement executed by a Transaction Financing Investor pursuant to which such Transaction Financing Investor has committed to invest cash in Acquiror in order to acquire Acquiror Common Stock prior to or in connection with the Closing.

 

Subsidiary” means, with respect to a Person, any corporation or other organization (including a limited liability company or a general or limited partnership), whether incorporated or unincorporated, of which such Person directly or indirectly owns or controls a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization or any organization of which such Person or any of its Subsidiaries is, directly or indirectly, a general partner or managing member. For the avoidance of doubt, the term “Subsidiary” in this Agreement shall also refer to PowerTec, an entity which will be a Subsidiary of the Company as of the Closing.

 

SGA” means the Superannuation Guarantee (Administration) Act 1992.

 

Surviving Provisions” has the meaning specified in Section 11.02.

 

TAA” means Taxation Administration Act 1953 (Cth).

 

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Tax” means any federal, state, provincial, territorial, local, foreign and other net income, alternative or add-on minimum, franchise, gross income, adjusted gross income or gross receipts, employment, withholding, payroll, ad valorem, transfer, franchise, license, excise, severance, stamp, occupation, premium, personal property, goods and services tax (including GST), real property, capital stock, capital share, profits, disability, registration, value added, estimated, customs duties, escheat, sales, use, or other tax, governmental fee or other like assessment in the nature of a tax, together with any interest, penalty, addition to tax or additional amount imposed with respect thereto by a Governmental Authority.

 

Tax Return” means any return, report, statement, refund, claim, declaration, information return, statement, estimate or other document filed or required to be filed with a Governmental Authority respect to Taxes, including any schedule or attachment thereto and including any amendments thereof.

 

Terminating Acquiror Breach” has the meaning specified in Section 11.01(c).

 

Terminating Company Breach” has the meaning specified in Section 11.01(b).

 

Termination Date” has the meaning specified in Section 11.01(b).

 

Transaction Financing” has the meaning specified in the recitals hereto.

 

Transaction Financing Incentive Shares” has the meaning set forth in Section 9.09(c).

 

Transaction Investor” means any investor in the Transaction Financing.

 

Transaction Proposal” has the meaning specified in Section  9.02(c).

 

Transactions” means the transactions contemplated by this Agreement to occur at or prior to the Closing on the Closing Date.

 

Treasury Regulations” means the regulations promulgated under the Code.

 

Trust Account” has the meaning specified in Section 6.07(a).

 

Trust Agreement” has the meaning specified in Section 6.07(a).

 

Trustee” has the meaning specified in Section 6.07(a).

 

Unaudited Financial Statements” has the meaning specified in Section 4.07.

 

Unit Separation” means, the election of any holder of an Acquiror Unit, to separate such Acquiror Unit into Acquiror Ordinary Shares and Acquiror Public Warrants.

 

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Willful Breach” means, with respect to any agreement, a party’s knowing and intentional material breach of any of its representations or warranties as set forth in such agreement, or such party’s material breach of any of its covenants or other agreements set forth in such agreement, which material breach constitutes, or is a consequence of, a purposeful act or failure to act by such party with the knowledge that the taking of such act or failure to take such act would cause a material breach of such agreement.

 

1.02 Construction.

 

(a) 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 similar words refer to this entire Agreement, (iv) the terms “Article”, “Section”, “Schedule”, “Exhibit” and “Annex” refer to the specified Article, Section, Schedule, Exhibit or Annex of or to this Agreement unless otherwise specified, (v) the word “including” shall mean “including without limitation”, (vi) the word “or” shall be disjunctive but not exclusive and (vii) all references to money refer to the lawful currency of the United States.

 

(b) When used herein, “ordinary course of business” means an action taken, or omitted to be taken, in the ordinary and usual course of the Company’s or Acquiror’s business, as applicable, consistent with past practice (including, for the avoidance of doubt, recent past practice in light of COVID-19). Notwithstanding anything to the contrary contained in this Agreement, nothing herein shall prevent the Company from taking or failing to take any COVID-19 Actions and (x) no such COVD-19 Actions shall be deemed to violate or breach this Agreement in any way, (y) all such COVID-19 Actions shall be deemed to constitute an action taken in the ordinary course of business and (z) no such COVID-19 Actions shall serve as a basis for Acquiror to terminate this Agreement or assert that any of the conditions to the Closing contained herein have not been satisfied.

 

(c) Any reference in this Agreement to “PubCo” shall also mean Acquiror to the extent the matter relates to the pre-Closing period and any reference to “Acquiror” shall also mean “PubCo” to the extent the matter relates to the post-Closing period (including, for the purposes of this Section 1.02(c), the Effective Time).

 

(d) Unless the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto.

 

(e) Unless the context of this Agreement otherwise requires, 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.

 

(f) 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.

 

(g) 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.

 

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(h) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under IFRS.

 

(i) The phrases “delivered,” “provided to,” “furnished to,” “made available” and phrases of similar import when used herein, unless the context otherwise requires, means that a copy of the information or material referred to has been (A) provided no later than one calendar day prior to the date of this Agreement to the party to which such information or material is to be provided or furnished (i) in the virtual “data room” set up by the Company in connection with this Agreement or (ii) by delivery to such party or its legal counsel via electronic mail or hard copy form, or (B) with respect to Acquiror, filed with the SEC by Acquiror on or prior to the date hereof.

 

1.03 Knowledge. As used herein, the phrase “to the Knowledge” shall mean the actual knowledge of, in the case of the Company, and Natraj Balasubramanian, Darren McVean or Jay Stephenson, and, in the case of Acquiror, Aemish Shah and Manpreet Singh.

 

Article II
CLOSING

 

2.01 Closing. Subject to the terms and conditions of this Agreement, the consummation of the Transactions (the “Closing”) shall take place as promptly as practicable, but in no event later than the third (3rd) Business Day following the satisfaction or waiver (to the extent permitted by Applicable Law and the Acquiror Organizational Documents) of the conditions set forth in Article X shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at such time), unless another time or date, or both, are agreed in writing by the Company and Acquiror. The date on which the Closing is held is herein referred to as the “Closing Date.” The Closing will take place remotely via exchange of documents and signature pages via electronic transmission.

 

2.02 Organizational Documents of Acquiror and the Company.

 

(a) At the Closing, the amended and restated memorandum and articles of association of Acquiror shall be amended and restated in their entirety to be the PubCo Charter until thereafter supplemented or amended in accordance with their terms and the Cayman Companies Act.

 

(b) At the Effective Time by virtue of the Transactions, the Company Charter as in effect immediately prior to the Effective Time, shall be amended and restated in its entirety to appropriately reflect the Transactions, until thereafter supplemented or amended in accordance with their terms and the Australian Companies Act.

 

2.03 Directors and Officers of Acquiror and the Company.

 

(a) Except as otherwise directed in writing by the Company, and conditioned upon the occurrence of the Closing, subject to any limitation with respect to any specific individual imposed under applicable Laws and the listing requirements of Nasdaq (for the avoidance of doubt, after giving effect to any exemptions available to a controlled company), Acquiror shall take all actions necessary or appropriate (including securing resignations or removals and making such appointments as are necessary) to cause, effective as of the Closing, the PubCo Board to consist of a total of five directors; all determined by the Company which include a sufficient number of independent directors meeting the listing requirements of Nasdaq. On the Closing Date, Acquiror shall enter into customary indemnification agreements reasonably satisfactory to the Company with such individuals elected as members of the PubCo Board as of the Closing.

 

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(b) Except as otherwise directed in writing by the Company, and conditioned upon the occurrence of the Closing, Acquiror shall take all actions necessary or appropriate (including securing resignations or removals and making such appointments as are necessary) to cause the Persons constituting the officers of the Company prior to the Effective Time to be the officers of Acquiror (and holding the same titles as held at the Company) until the earlier of their resignation or removal or until their respective successors are duly appointed.

 

(c) The directors of PubCo shall also be appointed by PubCo to be the directors of the Company from and after the Effective Time, in each case, to hold office in accordance with the Governing Documents of the Company.  Each person appointed as a director of the Company pursuant to the preceding sentence shall remain in office as a director of the Company until his or her successor is elected and qualified or until his or her earlier resignation or removal.

 

2.04 Conversion of Company Convertible Securities. Prior to the Effective Time, all Company Convertible Securities outstanding shall be converted into Company Shares in accordance with the agreements governing such Company Convertible Securities. In connection therewith, all such holders shall enter into agreements with PubCo acknowledging full release of all claims in connection with the underlying agreements.

 

2.05 Sponsor Share Forfeiture. Immediately prior to the Effective Time, the Sponsor shall surrender 1,500,000 Acquiror Class B Ordinary Shares.

 

Article III
SHARE EXCHANGE

 

3.01 Sponsor Share Conversion and Exchange. Subject to the provisions of this Agreement:

 

(a) prior to the Effective Time, any remaining Acquiror Class B Ordinary Shares that are issued and outstanding as of such time shall automatically convert in accordance with the terms of the Acquiror Organizational Documents into one (1) Acquiror Class A Ordinary Share (the “Sponsor Share Conversion”).

 

(b) at the Effective Time (and, for the avoidance of doubt, immediately following the consummation of the Sponsor Share Conversion), the Company Shareholders collectively shall be entitled to have issued to them by Acquiror, in the aggregate, shares of PubCo Class A Ordinary Shares (the “Exchange Shares”) with an aggregate value equal to the Equity Value. The aggregate number of Exchange Shares shall be determined by dividing the Equity Value by $10.00. Each Company Shareholder shall receive its pro rata share of the Exchange Shares based on the percentage of Company Shares owned by such Seller as compared to the total number of Company Shares owned by all Company Shareholders immediately prior to the Effective Time but after the conversion of all Company Convertible Securities. Notwithstanding anything to the contrary contained herein, no fraction of an Acquiror Class A Ordinary Share will be issued by Acquiror by virtue of this Agreement or the Transactions, and each Person who would otherwise be entitled to a fraction of an Acquiror Class A Ordinary Share (after aggregating all fractional Acquiror Class A Ordinary Shares that would otherwise be received by such Person) shall instead have the number of Acquiror Class A Ordinary Shares issued to such Person rounded down in the aggregate to the nearest whole Acquiror Class A Ordinary Share.

 

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3.02 Equitable Adjustments. If, between the date of this Agreement and the Closing, the outstanding Acquiror Ordinary Shares shall have been changed into a different number of shares or a different class, by reason of any stock or share dividend, subdivision, reclassification, reorganization, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, or if there shall have been any breach of Section 6.14(a) of this Agreement by Acquiror with respect to the number of its issued and outstanding Acquiror Ordinary Shares (or any other issued and outstanding equity security interests in Acquiror) or rights to acquire Acquiror Ordinary Shares (or any other equity security interests in Acquiror), then any number, value (including dollar value) or amount contained herein which is based upon the number of Company Shares or Acquiror Ordinary Shares (or any other equity security interests in Acquiror), as applicable, will be appropriately adjusted to provide to the holders of Company Shares or the holders of Acquiror Ordinary Shares, as applicable, the same economic effect as contemplated by this Agreement prior to such event; provided, however, that this Section 3.02 shall not be construed to permit Acquiror or the Company to take any action with respect to their respective securities that is prohibited by the terms and conditions of this Agreement.

 

3.03 Delivery of Consideration.

 

(a) At least five (5) Business Days prior to the target Closing Date agreed between the Parties, Acquiror shall provide to the Company, who shall cause to be delivered to each Company Shareholder at the address provided to Acquiror by the Company, a letter of transmittal (the “Letter of Transmittal”), which shall (i) have customary representations and warranties as to title, authorization, execution and delivery, (ii) have a customary release of all claims against PubCo and the Company arising out of or related to such holder’s ownership of Company Shares, and (iii) specify that delivery shall be effected, and risk of loss and title to the Company Shares shall pass, only upon delivery of the Company Shares to Acquiror (including all certificates representing Company Shares to the extent such Company Shares are certificated), together with instructions thereto.

 

(b) Upon the receipt of a Letter of Transmittal (accompanied with all Company Securities representing Company Shares, to the extent such Company Shares are certificated) duly, completely and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by Acquiror, the holder of such Company Shares shall be entitled to receive in exchange therefor, and conditioned upon the occurrence of the Closing, the consideration described in Section 3.01(b). Until surrendered as contemplated by this Section 3.03(b) together with the delivery of a duly, completely and validly executed Letter of Transmittal, each Company Share shall be deemed at any time from and after the Effective Time to represent only the right to receive upon such surrender the consideration described in Section 3.01(a) which the holders of Company Shares were entitled to receive in respect of such shares pursuant to this Section 3.03(b).

 

3.04 Lost Securities. In the event any Company Security has been lost, stolen, mutilated or destroyed, upon the delivery of an affidavit of that fact by the Person claiming such Company Security to be lost, stolen or destroyed and, if required by Acquiror, the provision by such Person of a customary indemnity against any claim that may be made against Acquiror with respect to such Company Security, Acquiror shall issue or pay in exchange for such lost, stolen, mutilated or destroyed Company Security the consideration issuable or payable in respect thereof as determined in accordance with this Section 3.04.

 

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3.05 Withholding. Each of Acquiror, the Company and their respective Affiliates shall be entitled to deduct and withhold from any amounts otherwise deliverable or payable under this Agreement such amounts that any such Persons are required to deduct and withhold with respect to any of the deliveries and payments contemplated by this Agreement under the Code or any other applicable Law; provided that before making any deduction or withholding pursuant to this Section  3.05 other than with respect to compensatory payments made pursuant to this Agreement, Acquiror shall use commercially reasonably efforts to give the Company at least five (5) days prior written notice of any anticipated deduction or withholding to provide the Company with sufficient opportunity to provide any forms or other documentation from the applicable equity holders or take such other steps in order to avoid such deduction or withholding and shall reasonably cooperate with the Company to reduce or eliminate any amounts that would otherwise be deducted or withheld pursuant to this Section  3.05. To the extent that Acquiror, the Company or any of their respective Affiliates withholds such amounts with respect to any Person and properly remits such withheld amounts to the applicable Governmental Authority, such withheld amounts shall be treated as having been paid to or on behalf of such Person for all purposes of this Agreement. In the case of any such payment payable to employees of the Company or its Affiliates in connection with the Transactions treated as compensation, the parties shall cooperate to pay such amounts through the Company’s payroll to facilitate applicable withholding.

 

3.06 Payment of Expenses.

 

(a) Three (3) Business Days prior to the Closing Date, the Company shall provide to Acquiror the Closing Statement, setting forth a written report of the following unpaid fees and expenses incurred by or on behalf of the Company in connection with this Agreement, preparation, negotiation and execution of this Agreement and the consummation of the Transactions (together with written invoices and wire transfer instructions for the payment thereof), solely to the extent such fees and expenses are incurred and expected to remain unpaid as of the close of business on the Business Day immediately preceding the Closing Date: (i) the documented fees and disbursements of outside counsel, accountants, investment bankers, financial advisors, experts and consultants to the Company incurred in connection with the Transactions and (ii) the fees and expenses relating to the PCAOB audit (collectively, the “Outstanding Company Expenses”). At the Closing, PubCo shall pay or cause to be paid by wire transfer of immediately available funds all such Outstanding Company Expenses.

 

(b) Three (3) Business Days prior to the Closing Date, Acquiror shall provide to the Company a written report setting forth (i) a list of all unpaid fees and disbursements of Acquiror or the Sponsor for outside counsel and fees and expenses of Acquiror or the Sponsor or for any other agents, advisors, consultants, experts and financial advisors employed by or on behalf of Acquiror or the Sponsor in connection with Acquiror’s initial public offering (including any deferred underwriter fees), the Transactions or other proposed business combination with other third parties (together with written invoices and wire transfer instructions for the payment thereof), (ii) the amount of repayment of any loans to the Sponsor or its Affiliates, and (iii) the Sponsor Warrant Repurchase Amount to be paid for the Acquiror Private Placement Warrants held by the Sponsor (collectively, the “Outstanding Acquiror Expenses”). On the Closing Date, PubCo shall pay or cause to be paid by wire transfer of immediately available funds all such Outstanding Acquiror Expenses.

 

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Article IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

Except as set forth in the Company Schedules to this Agreement (each of which qualifies (a) the correspondingly numbered representation, warranty or covenant, and (b) such other representations, warranties or covenants where its relevance as an exception to (or disclosure for purposes of) such other representation, warranty or covenant is reasonably apparent), the Company represents and warrants to Acquiror as follows:

 

4.01 Corporate Organization of the Company.

 

(a) The Company has been duly incorporated, is validly existing and in good standing under the Laws of its jurisdiction of incorporation or organization and has the requisite corporate entity power and authority to own, lease and operate its assets and properties and to conduct its business as it is now being conducted. The Company Charter and Company Constitution previously made available by the Company are true, correct and complete and are in effect as of the date of this Agreement.

 

(b) The Company is licensed or duly qualified and in good standing as a foreign or extra-provincial company (or other entity, if applicable) in each jurisdiction in which the ownership of its property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, except where the failure to be so licensed or qualified has not had and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

4.02 Subsidiaries. A complete list of each Company Subsidiary and its jurisdiction of incorporation, formation or organization, outstanding equity securities, and holders of equity securities (including respective numbers and percentages), as applicable, is set forth on Schedule 4.02. The Company Subsidiaries have been duly formed or organized and are validly existing and in good standing under the Laws of their jurisdictions of incorporation or organization and have the requisite power and authority to own, lease or operate all of their respective properties and assets and to conduct their respective businesses as they are now being conducted. Each Company Subsidiary is duly licensed or qualified and in good standing as a foreign corporation or extra-provincial company (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing has not had and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Subsidiary Charter and other Subsidiary organization documents previously made available by the Company are true, correct and complete and are in effect as of the date of this Agreement.

 

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4.03 Due Authorization. As of the date of this Agreement, the Company has obtained the Company Advance Shareholder Approval. The Company has all requisite company power and authority to execute and deliver this Agreement and each Ancillary Agreement to this Agreement to which it is a party and (subject to the approvals described in Section 4.05) to perform its obligations hereunder and thereunder and to consummate the Transactions and thereby. The execution, delivery and performance of this Agreement and such Ancillary Agreements and the consummation of the Transactions and thereby have been duly and validly authorized and approved by the Company Board, no other company proceeding on the part of the Company is necessary to authorize this Agreement or such Ancillary Agreements or the Company’s performance hereunder or thereunder. This Agreement and each such Ancillary Agreement have been duly and validly executed and delivered by the Company and, assuming due authorization and execution by each other party hereto and thereto, constitutes, or will constitute, as applicable, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. The Company Advance Shareholder Approval is the only vote of the holders of any class or series of shares in the capital stock of the Company required to approve and adopt this Agreement and approve the Transactions.

 

4.04 No Conflict. Subject to the receipt of the consents, approvals, authorizations and other requirements set forth in Section 4.05 or on Schedule 4.05, the execution, delivery and performance of this Agreement and each Ancillary Agreement to this Agreement to which it is a party by the Company and the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of, the certificate of formation, bylaws or other organizational documents of the Company or any Subsidiary, (b) conflict with or result in any violation of any provision of any Law, Permit or Governmental Order applicable to the Company or any Subsidiary, or any of their respective properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, or result in the acceleration or trigger of any payment, posting of collateral (or right to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to, any of the terms, conditions or provisions of any Contract of the type required to be disclosed in Section 4.12(a), or any Leased Real Property document to which the Company or any Subsidiary is a party or by which any of them or any of their respective assets or properties may be bound or affected or (d) result in the creation of any Lien upon any of the properties, equity interests or assets of the Company or any Subsidiary, except (in the case of clause , (c) above) for such violations, conflicts, breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

4.05 Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of the Acquiror contained in this Agreement, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority or notice, approval, consent waiver or authorization from any Governmental Authority is required on the part of the Company or any Subsidiary with respect to the Company’s execution, delivery or performance of this Agreement or the consummation of the Transactions, except for (a) applicable requirements of the HSR Act and any other applicable Antitrust Law, (b) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (c) as otherwise disclosed on Schedule 4.05.

 

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4.06 Capitalization.

 

(a) The issued and outstanding share capital of the Company consists of 11,069,578 ordinary shares of the Company (the “Company Shares”) and 2,930,422 Company Convertible Securities

 

(b) All of the issued and outstanding Company Shares and Company Convertible Securities (i) have been duly authorized and validly issued and allotted and are fully paid and, (ii) were issued in compliance in all material respects with applicable Law, (iii) were not issued in breach or violation of any preemptive rights or Contract, and (iv) except as set forth on Schedule 4.06(b), are fully vested. Set forth on Schedule 4.06(b) is a true, correct and complete list of each holder of Company Shares and Company Convertible Securities and the number of Company Shares and Company Convertible Securities held by each such holder as of the date hereof. Except as set forth in this Section 4.06(b), there are no other Company Shares, Company Convertible Securities or other equity interests of the Company authorized, reserved, issued or outstanding.

 

(c) All of the outstanding equity of each direct and indirect Subsidiary is owned, or, in the case of PowerTec, will be owned prior to the Effective Time, by the Company. The capitalization of each Subsidiary is set forth on Schedule 4.02. The equity of each Subsidiary (i) has been duly authorized and validly issued and allotted and are fully paid and, (ii) was issued in compliance in all material respects with applicable Law, (iii) was not issued in breach or violation of any preemptive rights or Contract, and (iv) is fully vested. Except as set forth in this Section 4.06(c), there are no other equity interests of any direct or indirect Subsidiary authorized, reserved, issued or outstanding.

 

4.07 Financial Statements.

 

(a) Attached as Schedule 4.07 are: (a) (i) the audited financial statements of Raptor300 for the years ended December 31, 2021 and 2020, together with the auditor’s reports thereon, (ii) the audited financial statements of McVean Pacific for the years ended June 30, 2022 and 2021, together with the auditor’s reports thereon, and (iii) the audited financial statements of PowerTec for the years ended June 30, 2022 and 2021 (the “Audited Financials”) and (b) the unaudited balance sheets of the Company and each Subsidiary as of December 31, 2022 (the “Unaudited Financial Statements,” and together with the Audited Financial Statements, the “Financial Statements”). The Financial Statements present fairly, in all material respects, the financial position, results of operations, income (loss), changes in equity and cash flows as of the dates and for the periods indicated in such Financial Statements (except, in the case of the Unaudited Financial Statements, for the absence of footnotes and other presentation items and normal year-end adjustments).

 

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(b) Hall Chadwick, who will certify the consolidated financial statements of the Company to be provided in the Registration Statement, is an independent registered public accounting firm as required by the Securities Act and registered with the PCAOB.

 

(c) There are no outstanding loans or other extensions of credit made by the Company or any Subsidiary to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company or any Subsidiary.

 

4.08 Undisclosed Liabilities. There is no liability, debt or obligation against the Company or its Subsidiaries that would be required to be set forth or reserved for on a balance sheet of the Company or its Subsidiaries (and the notes thereto) prepared in accordance with IFRS consistently applied and in accordance with past practice, except for liabilities or obligations (a) reflected or reserved for on the Financial Statements or disclosed in the notes thereto, (b) that have arisen since the date of the most recent balance sheet included in the Financial Statements in the ordinary course of business, (c) disclosed in the Company Schedules, (d) arising under or related to this Agreement and/or the performance by the Company of its obligations hereunder, or (e) that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

4.09 Litigation and Proceedings. Except as set forth in Schedule 4.09, there are no pending or, to the knowledge of the Company, threatened, Actions and, to the knowledge of the Company and its Subsidiaries, there are no pending or threatened investigations against the Company or its Subsidiaries, or otherwise affecting the Company or its Subsidiaries’ assets, including any condemnation or similar proceedings, that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company, its Subsidiaries nor any property, asset or business of the Company or its Subsidiaries are subject to any Governmental Order, or, to the knowledge of the Company, any continuing investigation by, any Governmental Authority. There is no unsatisfied judgment or any open injunction binding upon the Company or any of its Subsidiaries.

 

4.10 Compliance with Laws.

 

(a) Except with respect to compliance with Environmental Laws (as to which certain representations and warranties are made solely pursuant to Section 4.19) and compliance with Tax Laws (which are being made solely pursuant to Sections 4.13 and  4.15), and, the Company and its Subsidiaries are, and since December 31, 2019 have been, in compliance in all material1 respects with all applicable Laws. Neither the Company nor any of its Subsidiaries has received any written notice from any Governmental Authority of a violation of any applicable Law by the Company or its Subsidiaries at any time since December 31, 2019.

 

(b) Since December 31, 2019, (i) there has been no action taken by the Company, its Subsidiaries or, to the knowledge of Company, any officer, director, manager, employee, agent or representative of Company, in each case, acting on behalf of the Company, in violation of any applicable Anti-Corruption Law, (ii) neither the Company nor any of its Subsidiaries has been convicted of violating any Anti-Corruption Laws or subjected to any investigation by a Governmental Authority for violation of any applicable Anti-Corruption Laws, (iii) the Company and each Subsidiary has conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any Anti-Corruption Law and (iv) neither the Company nor any of its Subsidiaries has received any written notice or citation from a Governmental Authority for any actual or potential noncompliance with any applicable Anti-Corruption Law.

 

 

1You already have a materiality threshold here. You should not get both materiality and MAE for the same rep.

 

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(c) No Company or Subsidiary has engaged in any activity, practice or conduct that would constitute a contravention of any of the applicable Anti-Money Laundering Laws. No Company or Subsidiary is or has been the subject of any investigation, enquiry or enforcement proceedings by any Governmental Authority or other agency regarding any contravention or alleged contravention under any of the Anti-Money Laundering Laws. Neither the Company nor any Subsidiary is aware of any investigation, enquiry or proceeding that is pending or, to the knowledge of the Company, threatened, nor any circumstances likely to give rise to any such investigation, enquiry or proceeding. The Company and each Subsidiary have conducted themselves in material compliance with the Anti-Money Laundering Laws and have instituted and maintain policies, procedures, systems and controls designed to promote and achieve compliance with the Anti-Money Laundering Laws.

 

(d) Since December 31, 2019, (i) there has been no action taken by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any officer, director, manager, employee, agent or representative of the Company, in each case, acting on behalf of the Company, in material violation of any applicable International Trade Laws, (ii) neither the Company nor any of its Subsidiaries has been convicted of violating any International Trade Laws or subjected to any investigation by a Governmental Authority for violation of any applicable International Trade Laws, (iii) neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any International Trade Laws and (iv) neither the Company nor any of its Subsidiaries has received any written notice or citation from a Governmental Authority for any actual or potential noncompliance with any applicable International Trade Law.

 

4.11 Intellectual Property.

 

(a) Schedule 4.11(a) sets forth, as of the date hereof, a true and complete list, including owner, jurisdiction, and serial and application numbers, of all Patents, all registered copyrights, all registered trademarks, all domain name registrations and all pending registration applications for any of the foregoing, in each case, that are owned by the Company or any of its Subsidiaries, including any interests under Part 11 of the Trade Marks Act 1995 (Cth) (the “Registered Intellectual Property”), all of which are valid, enforceable and subsisting and are sufficient to operate the business as currently conducted. Except (i) as set forth on Schedule 4.11(a), the Company or one of its Subsidiaries is the sole and exclusive owner of all right, title and interest in and to all Registered Intellectual Property set forth on Schedule 4.11(a) and all other Owned Intellectual Property free and clear of all Liens, other than Permitted Liens.

 

(b) Except (i) as set forth on Schedule 4.11(b), no Actions are pending or, to the Company’s knowledge, threatened (including unsolicited offers to license Patents) against the Company or any of its Subsidiaries by any third party claiming infringement, misappropriation or other violation of Intellectual Property owned by such third party or by the Company or any of its Subsidiaries or in the conduct of the Company’s or any Subsidiary’s business. Except (x) as set forth on Schedule 4.11(b) or, neither the Company nor any Subsidiary is a party to any pending Actions claiming infringement, misappropriation or other violation by any third party of any Owned Intellectual Property. Except as set forth on Schedule 4.11(b), within the five (5) years preceding the date of this Agreement, the Company, its Subsidiaries, its products and services and the conduct of the Company’s and the Subsidiaries’ business have not, to the knowledge of the Company, infringed, misappropriated or otherwise violated the Intellectual Property of any third party. To the knowledge of the Company, no third party is infringing, misappropriating or otherwise violating any Owned Intellectual Property. To the knowledge of the Company, the Company or one of its Subsidiaries either own(s), has a valid license to use or otherwise has the lawful right to use, all of the Company Intellectual Property and Company Software and IT Systems used in or necessary to conduct its business, except for such Company Intellectual Property and Company Software and IT Systems with respect to which the lack of such ownership, license or right to use would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and none of the foregoing will be materially adversely impacted by (nor will require the payment or grant of additional material amounts or material consideration as a result of) the execution, delivery, or performance of this Agreement or any Ancillary Agreement the consummation of the Transactions.

 

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(c) The Company has undertaken commercially reasonable efforts to protect the confidentiality of any Trade Secrets included in the Owned Intellectual Property.

 

(d) No director, officer or employee of the Company or any of its Subsidiaries has any ownership interest in any of the Owned Intellectual Property. The Company and its Subsidiaries have implemented policies whereby employees and contractors of the Company or any of its Subsidiaries who create or develop any Intellectual Property in the course of their employment or provision of services for the Company or any of its Subsidiaries is required to assign to the Company or any of its Subsidiaries all of such employee’s or contractor’s rights therein, and all such employees and contractors have executed valid written agreements pursuant to which such Persons have assigned (or are obligated to assign) to the Company or one of its Subsidiaries all of such employee’s or contractor’s rights in and to such Intellectual Property that did not vest automatically in the Company or one of its Subsidiaries by operation of law (and, in the case of contractors, to the extent such Intellectual Property was intended to be proprietary to the Company or one of its Subsidiaries).

 

(e) Except as set forth on Schedule 4.11(e), no government funding and no facilities or other resources of any university, college, other educational institution or research center were used in the development of any Owned Intellectual Property.

 

(f) The Company and its Subsidiaries are in material compliance with the terms and conditions (other than attribution or notice requirements) of all material licenses for “free software,” “open source software” or under a similar licensing or distribution term (including the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Affero General Public License (AGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL) and the Apache License) (“Open Source Materials”) used by the Company or its Subsidiaries in any way.

 

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(g) The Company has not (i) incorporated Open Source Materials into, or combined Open Source Materials with, any Owned Intellectual Property or Owned Company Software, (ii) distributed Open Source Materials in conjunction with any Owned Intellectual Property or Owned Company Software or (iii) used Open Source Materials in or with any Owned Intellectual Property or Owned Company Software (including any Open Source Materials that require, as a condition of use, modification and/or distribution of such Open Source Materials that other software incorporated into, derived from or distributed with such Open Source Materials be (A) disclosed or distributed in source code form, (B) licensed for the purpose of making derivative works or (C) redistributable at no charge), in each case of the foregoing clauses (i), (ii) and (iii), in such a way that grants or otherwise requires the Company to (x) disclose, distribute, license, grant rights or otherwise provide to any third party any material Owned Intellectual Property, including the source code for any Owned Company Software, or (y) otherwise imposes any limitation, restriction or condition on the right or ability of the Company to use, distribute or enforce any Owner Intellectual Property or Owned Company Software (collectively, “Copyleft Terms”).

 

(h) Except as set forth on Schedule 4.11(h), (i) with respect to all material Owned Company Software, the Company is in actual possession or control of the applicable material source code, object code, documentation, and know-how to the extent required for use, distribution, development, enhancement, maintenance and support of such Owned Company Software, (ii) the Company has not disclosed source code for Owned Company Software to a third party other than to employees or contractors pursuant to a written agreement that protects the Company’s rights in such source code and obligates the employee or contractor to maintain the confidentiality of the source code, (iii) to the knowledge of the Company, no Person other than the Company is in possession of, or has rights to possess, any source code for Owned Company Software (other than contractors engaged to develop or maintain Owned Company Software), and (iv) except as set forth on Schedule 4.11(h) or under non-exclusive licenses granted by the Company to contractors engaged to perform services for the Company or to customers in the ordinary course of business, no Person other than the Company has any rights to use any Owned Company Software.

 

(i) In connection with its collection, storage, transfer (including without limitation, any transfer across national borders) and/or use of any information or Protected Data, the Company is and has been, in compliance in all material respects with all Privacy and Security Requirements. The Company has commercially reasonable physical, technical, organizational and administrative security measures and policies in place to protect the confidentiality, integrity and availability of all systems, information and Protected Data maintained and collected by it or on its behalf. Except as set forth in Schedule 4.11(i), the Company has not experienced any security incident that has compromised the integrity or availability of the Company’s network, systems, data or information. The Company is and has been, to the Company’s knowledge, in compliance in all material respects with all Privacy and Security Requirements relating to data loss, theft and breach of security notification obligations. Neither the Company nor any Company Subsidiary has received, nor provided, any notice of any claims, actions, investigations, inquiries or alleged violations of Privacy and Security Requirements or any other security incidents.

 

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(j) The IT Systems are operational and adequate and sufficient for the current and reasonably anticipated future needs of the business of the Company or any of the Company’s Subsidiaries, (ii) to the knowledge of the Company, there have been no unauthorized intrusions or breaches of the security, or material failures of the IT Systems currently used to provide material products to customers in the conduct of their business as it is currently conducted during the two-year period preceding the date hereof, (iii) the Company and each of the Company’s Subsidiaries has in place adequate and commercially reasonable security controls and backup and disaster recovery plans and procedures in place, (iv) to the knowledge of the Company, there have been no unauthorized intrusions or breaches of the IT Systems in the two-year period preceding the date hereof that, pursuant to any legal requirement, would require the Company or any of the Company’s Subsidiaries to notify customers or employees of such breach or intrusion.

 

(k) The Software is free of material defects and complies with all applicable laws in all material respects. To the knowledge of the Company, the Software does not contain any virus, worm, trojan horse, time bomb or any other code or item intended or designed to permit unauthorised access to, or disable, damage, impair or interrupt the normal operation of the software or any other information technology used by the Company or any Subsidiary in its business.

 

4.12 Contracts; No Defaults.

 

(a) Schedule 4.12(a) contains a listing of all Contracts (other than purchase orders) described in clauses (i) through (ix) below to which, as of the date of this Agreement, the Company or one of the Company’s Subsidiaries is a party or by which their respective assets are bound (together with all material amendments, waivers or other changes thereto) (collectively, the “Material Contracts”). .

 

(i) each employee collective bargaining Contract;

 

(ii) any Contract pursuant to which the Company or any of the Company’s Subsidiaries (A) licenses or is granted rights from a third party under Intellectual Property that is material to the business of the Company or one of the Company’s Subsidiaries excluding click-wrap, shrink-wrap, off-the-shelf software licenses and any other software licenses that are commercially available on reasonable terms to the public generally with license, maintenance, support and other fees less than $100,000 per year or (B) licenses or grants to a third party to any rights in or to use Owned Intellectual Property or Owned Company Software (excluding non-exclusive licenses granted to customers, contractors, suppliers or service providers in the ordinary course of business);

 

(iii) any Contract which restricts in any material respect or contains any material limitations on the ability of the Company or any of the Company’s Subsidiaries to compete in any line of business or in any geographic territory, in each case excluding customary confidentiality agreements (or clauses) or non-solicitation agreements (or clauses);

 

(iv) any Contract under which the Company or any of the Company’s Subsidiaries has created, incurred, assumed or guaranteed Indebtedness, has the right to draw upon credit that has been extended for Indebtedness, or has granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness, in each case, in an amount in excess of $500,000;

 

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(v) any Contract that is a definitive purchase and sale or similar agreement entered into in connection with an acquisition or disposition by the Company since December 31, 2020, involving consideration in excess of $1,000,000 of any Person or of any business entity or division or business of any Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person or by any other manner), but excluding any Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;

 

(vi) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $500,000 in any calendar year, in each case, other than sales or purchases in the ordinary course of business;

 

(vii) any Contract not made in the ordinary course of business and not disclosed pursuant to any other clause under this Section 4.12 and expected to result in revenue or require expenditures in excess of $500,000 in the calendar year ending December 31, 2022; and

 

(viii) any joint venture Contract, partnership agreement, limited liability company agreement or similar Contract that is material to the business of the Company.

 

(b) Except for any Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, (i) such Material Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or its Subsidiaries, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, are enforceable by the Company or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) none of the Company or its Subsidiaries or, to the knowledge of the Company, any other party thereto is in material breach of or material default (or would be in material breach, violation or default but for the existence of a cure period) under any Material Contract, (iii) since December 31, 2021, the Company and its Subsidiaries have not received any written or, to the knowledge of the Company, oral claim or notice of material breach of or material default under any Material Contract, (iv) to the knowledge of the Company, no event has occurred which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any Material Contract by the Company or its Subsidiaries or, to the knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both) and (v) since December 31, 2021 through the date hereof, the Company and its Subsidiaries have not received written notice from any customer or supplier that is a party to any Material Contract that such party intends to terminate or not renew any Material Contract.

 

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4.13 Company Benefit Plans.

 

(a) Schedule 4.13(a) sets forth an accurate and complete list of each material Company Benefit Plan. “Company Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), and each equity-based, retirement, profit sharing, bonus, incentive, severance, separation, change in control, retention, deferred compensation, vacation, paid time off, medical, dental, life or disability plan, program, policy or Contract, and each other material employee compensation or benefit plan, program, policy or Contract that is maintained, sponsored or contributed to (or required to be contributed to) by the Company or any Subsidiary or pursuant to which the Company or any Subsidiary has or may have any material liabilities.

 

(b) Each Company Benefit Plan and each Contract with any consultant and independent contractor has been administered in compliance with its terms and all applicable Laws, including ERISA and the Code in all material respects and (ii) all contributions required to be made under the terms of any Company Benefit Plan and any Contract with any consultant and independent contractor as of the date this representation is made have been timely made or, if not yet due, have been properly reflected in the Company’s financial statements.

 

(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Company Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (i) has received a favorable determination or opinion letter as to its qualification or (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. To the knowledge of the Company, no event has occurred that would reasonably be expected to result in the loss of the tax-qualified status of such plans.

 

(d) Neither the Company nor any of its ERISA Affiliates sponsored, maintained, contributed to or was required to contribute to, at any point during the six (6) year period prior to the date hereof, a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other defined pension plans, in each case, that is subject to Title IV of ERISA or Section 412 of the Code. At any point during the six (6) year period prior to the date hereof, the Company has not had any liability under Title IV of ERISA on account of being considered a single employer under Section 414 of the Code with any other Person. No circumstance or condition exists that would reasonably be expected to result in an actual obligation of the Company to pay money to any Multiemployer Plan or other pension plan that is subject to Title IV of ERISA and that is maintained by an ERISA Affiliate of the Company. No Company Benefit Plan or Contract with any consultant and independent contractor provides post-employment health insurance benefits other than as required under Section 4980B of the Code. For purposes of this Agreement, “ERISA Affiliate” means any entity (whether or not incorporated) that, together with the Company, is considered under common control and treated as one employer under Section 414(b), (c), (m) or (o) of the Code.

 

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(e) With respect to the Company Benefit Plans and Contracts with consultants and independent contractors, no material administrative investigation, audit or other administrative proceeding by the Department of Labor, the Internal Revenue Service or other Governmental Authorities is pending or, to the knowledge of the Company, threatened.

 

(f) There have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA that are not otherwise exempt under Section 408 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Company Benefit Plan. There is no proceeding (other than routine and uncontested claims for benefits) pending or, to the knowledge of the Company, threatened, with respect to any Company Benefit Plan, Contract with any consultant and independent contractor or against the assets of any Company Benefit Plan or such Contract.

 

(g) Except as set forth in Schedule 4.13(h), the consummation of the Transactions, alone or together with any other event, will not (i) result in a payment or benefit becoming due or payable, to any current or former employee, director, independent contractor or consultant, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any current or former employee, director, independent contractor or consultant or (v) limit the ability of the Company to terminate any Company Benefit Plan or Contract with any consultant or independent contractor.

 

(h) No amount or benefit that could be, or has been, received by any current or former employee, officer or director of the Company or any Subsidiary who is a “disqualified individual” within the meaning of Section 280G of the Code could reasonably be expected to be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) as a result of the consummation of the Transactions. Neither the Company nor any Subsidiary has agreed to pay, gross up or otherwise indemnify any employee, director or contractor for any tax imposed under Section 4999 of the Code, 409A of the Code or otherwise.

 

4.14 Labor Matters.

 

(a) (i) Neither the Company nor any Subsidiary is a party to or bound by any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization or works council and no such agreements or arrangements are currently being negotiated by the Company or any Subsidiary, (ii) no labor union or organization, works council or group of employees of the Company or any Subsidiary has made a pending written demand for recognition or certification and (iii) there are no representation or certification proceedings or petitions seeking a representation proceeding pending or, to the knowledge of the Company or any Subsidiary, threatened in writing to be brought or filed with the National Labor Relations Board or any other applicable labor relations authority.

 

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(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and its Subsidiaries (i) is, and since January 1, 2020 has been, in compliance in all material respects with all applicable Laws regarding employment and employment practices, including, without limitation, all laws respecting terms and conditions of employment, health and safety, employee classification, non-discrimination, wages and hours, immigration, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, pay equity, overtime pay, employee leave issues, the proper classification of employees and independent contractors, the proper classification of exempt and non-exempt employees, and unemployment insurance, (ii) has not been adjudged to have committed any unfair labor practice as defined by the National Labor Relations Board or received written notice of any unfair labor practice complaint against it pending before the National Labor Relations Board that remains unresolved and (iii) since January 1, 2020, has not experienced any actual or, to the knowledge of the Company, threatened arbitrations, grievances, labor disputes, strikes, lockouts, picketing, hand-billing, slowdowns or work stoppages against or affecting the Company or any of its Subsidiaries.

 

(c) Neither the Company nor any Subsidiary is delinquent in payments to any employees or former employees in any material amounts for any services or amounts required to be reimbursed or otherwise paid.

 

(d) To the knowledge of the Company, no employee of the Company or any Subsidiary at the level of senior vice president or above is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or any Subsidiary or (ii) to a former employer of any such employee relating (A) to the right of any such employee to be employed by the Company or any Subsidiary or (B) to the knowledge or use of Trade Secrets or proprietary information.

 

(e) To the knowledge of the Company, all employees of the Company and its Subsidiaries are legally permitted to be employed by the Company in the jurisdiction in which such employees are employed in their current job capacities.

 

(f) Neither the Company nor any Subsidiary has incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act of 1988 or any similar state or local Law that remains unsatisfied.

 

(g) The Company and each Subsidiary have complied in all material respects with their obligations under each agreement, statute, modern award, enterprise agreement or other industrial instrument relating to the employees.

 

(h) Each person who is subject to a contract for services with the Company or any Subsidiary can, subject to any State or Federal legislation relating to, among other things, unlawful termination and unfair dismissal, be lawfully terminated as an employee on one months’ notice or less without payment of any damages or compensation, including severance or redundancy payments.

 

(i) The Company and its Subsidiaries have kept adequate and suitable records regarding the service of each employee and such records meet the Company’s and each Subsidiary’s record keeping obligations under the Fair Work Act 2009 (Cth).

 

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(j) Neither the Seller nor any Subsidiary pays salary or provides other benefits to any employee at a rate or in a manner exceeding that person's entitlement under that employee’s employment agreement, legislation (including the SGA), modern awards, enterprise agreements and industrial instruments applicable to that person.

 

4.15 Taxes.

 

(a) All income and other material Tax Returns required by Law to be filed by the Company or any Subsidiary have been duly and timely filed (after giving effect to any valid extensions of time in which to make such filings).

 

(b) All income and other material Taxes of the Company or any Subsidiary due and payable (whether or not shown on any Tax Return) have been paid, other than Taxes being contested in good faith and for which adequate reserves have been established in accordance with IFRS or GAAP as applicable.

 

(c) The Company and each Subsidiary has (i) withheld all material amounts of Taxes required to have been withheld by it in connection with amounts paid to any employee, independent contractor, creditor, shareholder or any other third party, and (ii) remitted such withheld amounts required to have been remitted to the appropriate Governmental Authority.

 

(d) Neither the Company nor any Subsidiary is currently engaged in any material audit, administrative or judicial proceeding with a taxing authority with respect to Taxes. Neither the Company nor any Subsidiary has received any written notice from a taxing authority of a proposed deficiency of a material amount of Taxes, other than any such deficiencies that have since been resolved. No written claim has been made by any Governmental Authority in a jurisdiction where the Company or any Subsidiary does not file a Tax Return that such entity is or may be subject to material Taxes by that jurisdiction in respect of Taxes that would be the subject of such Tax Return, which claim has not been resolved. There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, material Taxes of the Company or any Subsidiary, and no written request for any such waiver or extension is currently pending.

 

(e) Neither the Company nor any predecessor thereof has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) in the prior two years.

 

(f) Neither the Company nor any Subsidiary has been a party to any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2) for a taxable period for which the applicable statute of limitations remains open.

 

(g) Except with respect to deferred revenue or prepaid subscription revenues collected by the Company in the ordinary course of business, the Company 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: (A) change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and made prior to the Closing; (B) ruling by, or written agreement with, a Governmental Authority (including any closing agreement pursuant to Section 7121 of the Code or any similar provision of Tax Law) issued or executed prior to the Closing; (C) installment sale or open transaction disposition made prior to the Closing other than in the ordinary course of business; or (D) prepaid amount received prior to the Closing, other than in respect of such amounts reflected in balance sheets included in the Financial Statements, or received in the ordinary course of business.

 

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(h) There are no Liens with respect to Taxes on any of the assets of the Company, other than Permitted Liens.

 

(i) The Company does not have any liability for the Taxes of any other Person (other than the Company or any of its Subsidiaries) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law) or (ii) as a transferee or successor.

 

(j) The Company is not a party to or bound by, nor does it have any obligation to, any Governmental Authority or other Person (other than the Company or any of its Subsidiaries) under any Tax allocation, Tax sharing or Tax indemnification agreements (except, in each case, for any such agreements that are commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily relating to Taxes.

 

(k) The Company has not made an election under Section 1362(a) of the Code to be treated as an “S corporation” for U.S. federal, state or local income tax purposes.

 

(l) The Company is not, and has not been at any time during the five (5) year period ending on the Closing Date, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.

 

(m) The Company is in compliance in all material respects with applicable United States and foreign transfer pricing Laws and regulations in all material respects, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of the Company.

 

(n) Neither the Company nor any Subsidiary has sought (or is taken to have sought by virtue of the entry history rule under Section 701-5 of the ITAA 1997) capital gains tax relief under Sub division 126 B of the ITAA 1997 or former section 160ZZO of the ITAA 1936 in respect of any asset acquired by the Company or a Subsidiary.

 

(o) No Tax is or will be payable by the Company or any Subsidiary by reason of the application of Sub-division 104-J of the ITAA 1997 in relation to any agreement or transaction.

 

(p) Neither the Company nor any Subsidiary has a tainted share capital account or a share capital account that is taken to be tainted within the meaning of Division 197 of the ITAA 1997 or under the former section 160ARDM of the ITAA 1936 and neither the Company nor any Subsidiary has taken any action that would cause the Company’s share capital account to be a tainted share capital account, nor has an election been made at any time to untaint the Company’s or any Subsidiary’s share capital account.

 

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(q) Neither the Company nor any Subsidiary has made any election or made any choice under Division 230 of the ITAA 1997.

 

(r) All tax losses of the Company and any Subsidiary are fully available for use by the relevant entity subject to the Company satisfying the conditions in section 165-13 of the ITAA 1997.

 

(s) Neither the Company nor any Subsidiary has made an interposed entity election pursuant to section 272-85 of Schedule 2F to the ITAA 1936.

 

(t) Each Company and Subsidiary has: (i) complied with all provisions of the former Part IIIAA of the ITAA 1936 and Part 3-6 of the ITAA 1997 including maintaining proper records of franking debits and franking credits for the purposes of both the ITAA 1936 and the ITAA 1997 and (ii) provided distribution statements within the meaning of section 202-80 of the ITAA 1997 to shareholders in respect of all dividends paid by the Company or a Subsidiary.

 

(u) Neither the Company nor any Subsidiary (i) has notified, nor was required to notify, a Governmental Authority about variances in its benchmark franking percentage under subdivision 204-E of the ITAA 1997; or (ii) will have a deemed or actual franking deficit at the end of any year of income.

 

(v) Neither the Company nor any Subsidiary has paid or will as of the Closing Date have paid any amount, other than a duly declared dividend, which would or may constitute a dividend under the Tax Act.

 

(w) Neither the Company nor any Subsidiary has made any election to form a Consolidated Group or a MEC Group and neither the Company nor any Subsidiary has ever been a member of a Consolidated Group or MEC Group.

 

(x) Neither the Company nor any Subsidiary has entered into or been a party to any transaction which contravenes, and no Tax or Duty is or will be payable by the Company or any Subsidiary as a result of, sections 45 to 45D and Part IVA of the ITAA 1936 and Division 204 of Part 3-6 of the ITAA 1997).

 

(y) Neither the Company nor any Subsidiary: (i) has paid any material amount on account of, or in respect of, GST to any entity which it was not contractually required to pay; and (ii) is a party to any document, instrument, contract, agreement, deed or transaction in respect of which it is or will become liable to pay GST in circumstances where the Company or Subsidiary has no express entitlement to increase the consideration payable under the document, instrument, contract, agreement, deed or transaction or otherwise seek reimbursement so that the Company or Subsidiary retains the amount it would have retained but for the imposition of GST.

 

(z) The Company and each Subsidiary: (i) is registered for GST under the GST Law; (ii) has complied in all respects with the GST Law; (iii) is not in default of any obligation to make or lodge any payment or GST Return or notification under the GST Law; (iv) has adequate systems established for it to ensure it complies with the GST Law; and (v) where it has the right to require another party to any such agreement or arrangement to pay to it an amount on account of, or in respect of, GST, has enforced that right. Neither the Company nor any Subsidiary is or has ever been a Member of a GST Group.

 

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(aa) All documents, instruments, contracts, agreements, deeds or transactions which are liable to Duty, or necessary to establish the title of each Company or Subsidiary to an asset, have had Duty paid in full in accordance with all applicable Tax Laws.

 

(bb) No event has occurred, or will occur, as a result of anything provided for in this agreement, or as a result of this agreement itself, as a result of which any Duty from which the Company or any Subsidiary may have obtained an exemption or other relief may become payable on any document, instrument, contract, agreement, deed or transaction.

 

(cc) To the knowledge of the Company, there are no facts, circumstances or plans that, either alone or in combination, could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.

 

4.16 Brokers’ Fees. Except as described on Schedule 4.16, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by the Company for which the Company has any obligation.

 

4.17 Insurance. Schedule 4.17 contains a list of all material policies or programs of self-insurance of property, fire and casualty, product liability, workers’ compensation and other forms of insurance held by, or for the benefit of, the Company as of the date of this Agreement. With respect to each such insurance policy required to be listed on Schedule 4.17, (i) all premiums due have been paid (other than retroactive or retrospective premium adjustments and adjustments in the respect of self-funded general liability and automobile liability fronting programs, self-funded health programs and self-funded general liability and automobile liability front programs, self-funded health programs and self-funded workers’ compensation programs that are not yet, but may be, required to be paid with respect to any period end prior to the Closing Date), (ii) the policy is legal, valid, binding and enforceable in accordance with its terms and, except for policies that have expired under their terms in the ordinary course, is in full force and effect, (iii) the Company is not in breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice), and, to the Company’s knowledge, no event has occurred which, with notice or the lapse of time or both, would constitute such a breach or default, or permit termination or modification, under the policy, and to the knowledge of the Company, no such action has been threatened and (iv) as of the date hereof, no written notice of cancellation, non-renewal, disallowance or reduction in coverage or claim or termination has been received other than in connection with ordinary renewals.

 

4.18 Real Property; Assets.

 

(a) The Company does not own any real property. The Company is not a party to any agreement or option to purchase any real property or material interest therein.

 

(b) Schedule 4.18(b) contains a true, correct and complete list of all Leased Real Property. The Company has made available to Acquiror true, correct and complete copies of the leases, subleases, licenses and occupancy agreements (including all modifications, amendments, supplements, guaranties, extensions, renewals, waivers, side letters and other agreements relating thereto) for the Leased Real Property to which the Company is a party (the “Real Estate Lease Documents”), and such deliverables comprise all Real Estate Lease Documents relating to the Leased Real Property.

 

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(c) Except as set forth in Schedule 4.18(c), each Real Estate Lease Document (i) is a legal, valid, binding and enforceable obligation of the Company and, to the knowledge of the Company, the other parties thereto, as applicable, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, and each such Real Estate Lease Document is in full force and effect, (ii) has not been amended or modified except as reflected in the Real Estate Lease Documents made available to Acquiror and (iii) to the knowledge of the Company, covers the entire estate it purports to cover and, subject to securing the consents or approvals, if any, required under the Real Estate Lease Documents to be obtained from any landlord, or lender to landlord (as applicable), in connection with the execution and delivery of this Agreement by the Company or the consummation of the transaction contemplated hereby by the Company, upon the consummation of the Transactions, will entitle Acquiror or its Subsidiaries to the exclusive use (subject to the terms of the respective Real Estate Lease Documents in effect with respect to the Leased Real Property), occupancy and possession of the premises specified in the Real Estate Lease Documents for the purpose specified in the Real Estate Lease Documents.

 

(d) No material default or breach by (i) the Company or any of its Subsidiaries or (ii) to the knowledge of the Company, any other parties thereto, as applicable, presently exists under any Real Estate Lease Documents. The Company has not received written or, to the knowledge of the Company, oral notice of default or breach under any Real Estate Lease Document which has not been cured. To the knowledge of the Company, no event has occurred that, and no condition exists which, with notice or lapse of time or both, would constitute a material default or breach under any Real Estate Lease Document by the Company or by the other parties thereto. The Company has not subleased or otherwise granted any Person the right to use or occupy any Leased Real Property or portion thereof which is still in effect. The Company has not collaterally assigned or granted any other security interest in the Leased Real Property or any interest therein which is still in effect. The Company has a good and valid leasehold title to each Leased Real Property subject only to Permitted Liens.

 

(e) The Company has not received any written notice that remains outstanding as of the date of this Agreement that the current use and occupancy of the Leased Real Property and the improvements thereon (i) are prohibited by any Lien or law other than Permitted Liens or (ii) are in material violation of any of the recorded covenants, conditions, restrictions, reservations, easements or agreements applicable to such Leased Real Property.

 

4.19 Environmental Matters. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:

 

(a) the Company is and, during the last three (3) years, has been in compliance with all Environmental Laws;

 

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(b) there has been no release of any Hazardous Materials at, in, on or under any Leased Real Property or in connection with the Company’s operations off-site of the Leased Real Property or, to the knowledge of the Company, at, in, on or under any formerly owned or leased real property during the time that the Company owned or leased such property;

 

(c) the Company is not subject to and has not received any Governmental Order relating to any non-compliance with Environmental Laws by the Company or the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of Hazardous Materials;

 

(d) no Action is pending or, to the knowledge of the Company, threatened and no investigation is pending or, to the knowledge of the Company, threatened with respect to the Company’s compliance with or liability under Environmental Law;

 

(e) the Company has made available to Acquiror all material environmental reports (including any Phase One or Phase Two environmental site assessments), audits, correspondence or other documents relating to the Leased Real Property or any formerly owned or operated real property or any other location for which the Company may be liable in its possession, custody or control.

 

(f) Notwithstanding any other provision of this Article IV, this Section 4.19 contains the exclusive representations and warranties of the Company with respect to environmental matters.

 

4.20 Absence of Changes. Except (i) as set forth on Schedule 4.20 and (ii) in connection with the Transactions, from December 31, 2020 through and including the date of this Agreement, the Company and its Subsidiaries (1) have, in all material respects, conducted their respective business and operated their properties in the ordinary course of business (including, for the avoidance of doubt, recent past practice in light of COVID-19), and (2) have not taken any action that is both material to the Company or its Subsidiaries and would require the consent of Acquiror pursuant to Section 7.01 if such action had been taken after the date hereof.

 

4.21 Affiliate Agreements. Except as set forth on Schedule 4.21 and except for, in the case of any employee, officer or director, any employment or indemnification Contract or Contract with respect to the issuance of equity in the Company, the Company is not a party to any transaction, agreement, arrangement or understanding with any (i) present or former executive officer or director of any of the Company, (ii) beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of the Company or (iii) Affiliate, “associate” or member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 under the Exchange Act) of any of the foregoing (each of the foregoing, a “Company Affiliate Agreement”).

 

4.22 Internal Controls. The Company maintains a system of internal accounting controls designed to provide reasonable assurance that: (a) transactions are executed in accordance with management’s general or specific authorizations; (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; (c) access to assets is permitted only in accordance with management’s general or specific authorization; and (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

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4.23 Permits. The Company and its Subsidiaries have obtained and hold all material Permits (the “Material Permits”) that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted,. Each Material Permit is in full force and effect in accordance with its terms; no outstanding written notice of revocation, cancellation or termination of any Material Permit has been received by the Company; to the knowledge of the Company, none of such Permits upon its termination or expiration in the ordinary due course will not be renewed or reissued in the ordinary course of business upon terms and conditions substantially similar to its existing terms and conditions; there are no Actions pending or, to the knowledge of the Company, threatened, that seek the revocation, cancellation, limitation, restriction or termination of any Material Permit and the Company and its Subsidiaries are in compliance with all Material Permits applicable to the Company or its Subsidiaries.

 

4.24 Registration Statement. None of the information relating to the Company or its Subsidiaries supplied by the Company, or by any other Person acting on behalf of the Company, in writing specifically for inclusion or incorporation by reference in the Registration Statement will, as of the time the Registration Statement is declared effective under the Securities Act, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, notwithstanding the foregoing provisions of this Section 4.24, no representation or warranty is made by the Company with respect to information or statements made or incorporated by reference in the Registration Statement that were not supplied by or on behalf of the Company for use therein.

 

4.25 Operation of the Business during COVID-19. None of the Company’s actions and inactions prior to the date of this Agreement in response to COVID-19: (i) has resulted in the Company experiencing any material business interruption or material losses, or (ii) if taken following the date of this Agreement would constitute a Material Adverse Effect or a material breach of the covenants set forth in Section 7.01.

 

4.26 Company Support Agreement. The Company has delivered to Acquiror a true, correct and complete copy of the Company Support Agreement. The Company Support Agreement is in full force and effect and has not been withdrawn or terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination, amendment or modification is contemplated by Acquiror. The Company Support Agreement is a legal, valid and binding obligation of the Company Shareholders party thereto, and neither the execution or delivery by any party thereto of, nor the performance of any party’s obligations under, the Company Support Agreement violates any provision of, or results in the breach of or default under, or requires any filing, registration or qualification under, any applicable Law. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of the Company Shareholders party to the Company Support Agreement under any term or condition of the Company Support Agreement.

 

4.27 Books and Records. The books and records of the Company and each Subsidiary have been maintained, in all material respects in accordance with reasonable business practice.

 

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4.28 Sufficiency of Assets. The Company and its Subsidiaries own, have the right to use, or have good and valid title to and have full power and right, all of the assets necessary and sufficient to operate the business, as currently conducted and as proposed to be conducted.

 

4.29 Superannuation.

 

(a) As at the date of this agreement, the Funds are the only superannuation funds to which the Company or any Subsidiary contributes or are required to make superannuation contributions in respect of the employees. The Company and each Subsidiary have complied with all their obligations to make superannuation contributions which they are obliged to make on behalf of the Employees. Each Company’s and Subsidiary’s Fund is a complying superannuation fund for the purposes of the Superannuation Industry (Supervision) Act 1993 (Cth) and the Income Tax Assessment Act 1936 (Cth). The Company and each Subsidiary have provided at least the prescribed minimum level of superannuation support and made contributions that satisfy the choice of fund requirements for each Employee so as not to incur a shortfall amount under the SGA.

 

(b) The Company and each Subsidiary have made all contributions in accordance with the contribution rate set by the trustee and have paid all other amounts (including insurance premiums and administration costs), in respect of any defined benefits superannuation fund, in respect of any employees who are members of a defined benefit superannuation fund. There are no Claims outstanding or threatened or pending for disability benefits under the Company’s or any Subsidiary’s Fund.

 

4.30 No Additional Representations and Warranties. Except as otherwise expressly provided in this Article IV (as modified by the Company Schedules), the Company expressly disclaims any representations or warranties of any kind or nature, express or implied, including as to the condition, value or quality of the Company, any Subsidiary or the Company’s or Subsidiary’s assets, and the Company specifically disclaims any representation or warranty with respect to merchantability, usage, suitability or fitness for any particular purpose with respect to the Company’s assets, or as to the workmanship thereof, or the absence of any defects therein, whether latent or patent, it being understood that such subject assets are being acquired “as is, where is” on the Closing Date, and in their present condition, and Acquiror shall rely on its own examination and investigation thereof. None of the Company’s Affiliates or any of their respective directors, officers, employees, shareholders, partners, members or representatives has made, or is making, any representation or warranty whatsoever to Acquiror or its Affiliates, and no such party shall be liable in respect of the accuracy or completeness of any information provided to Acquiror or its Affiliates.

 

Article V
representations and warranties of the sellers

 

Except as set forth in the Company Schedules to this Agreement (which qualifies (a) the correspondingly numbered representation, warranty or covenant if specified therein and (b) such other representations, warranties or covenants where its relevance as an exception to (or disclosure for purposes of) such other representation, warranty or covenant is reasonably apparent), each Seller, severally and not jointly, represents and warrants to Acquiror as follows:

 

5.01 Authorization; Binding Agreement. Such Seller has all requisite power, authority and legal right and capacity to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform such Seller’s obligations hereunder and thereunder and to consummate the Transactions. This Agreement has been, and each Ancillary Document to which such Seller is or is required to be a party has been or shall be when delivered, duly and validly executed and delivered by such Seller and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

 

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5.02 Ownership. Such Seller owns good, valid and marketable title to the Company Shares set forth opposite such Seller’s name on Annex I, free and clear of any and all Liens (other than those imposed by applicable securities Laws or the Company’s Governing Documents). There are no proxies, voting rights, shareholders’ agreements or other agreements or understandings, to which such Seller is a party or by which such Seller is bound, with respect to the voting or transfer of any of such Seller’s Company Shares other than this Agreement. Upon delivery of such Seller’s Company Shares to Acquiror on the Closing Date in accordance with this Agreement, the entire legal and beneficial interest in such Company Shares and good, valid and marketable title to such Company Shares, free and clear of all Liens (other than those imposed by applicable securities Laws or those incurred by Acquiror), will pass to Acquiror.

 

5.03 No Conflict. The execution, delivery and performance of this Agreement by such Seller and the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of, the Company’s Governing Documents or any Governing Documents of any Subsidiaries of the Company, (b) conflict with or result in any violation of any provision of any Law or Governmental Order applicable to such Seller or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, or result in the acceleration or trigger of any payment, posting of collateral (or right to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to, any of the terms, conditions or provisions of any Contract to which such Seller is a party or by which any of their respective assets or properties may be bound or affected or (d) result in the creation of any Lien upon any of the properties or assets of such Seller, except (in the case of clauses (b), (c) or (d) above) for such violations, conflicts, breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Seller to enter into, perform its obligations under this Agreement and consummate the Transactions.

 

5.04 Litigation. There is no Action pending or, to the Knowledge of the Company, threatened, nor any Action is outstanding, against or involving such Seller, whether at law or in equity, which would reasonably be expected to materially and adversely affect the ability of such Seller to consummate the transactions contemplated by, and discharge its obligations under, this Agreement and the Ancillary Documents to which such Seller is or is required to be a party.

 

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5.05 No Other Representations. Except for the representations and warranties expressly made by such Seller in this Article V or as expressly set forth in an Ancillary Document, neither such Seller nor any other Person on its behalf makes any express or implied representation or warranty with respect to such Seller or the Transactions, and such Seller hereby expressly disclaims any other representations or warranties, whether implied or made by such Seller or any of its Representatives.

 

Article VI
REPRESENTATIONS AND WARRANTIES
OF ACQUIROR

 

Except as disclosed in the Acquiror SEC Documents, filed with or furnished to the SEC prior to the date of this Agreement (other than any risk factor disclosures or other similar cautionary or predictive statements therein) or set forth in the Acquiror Schedules to this Agreement (which qualifies (a) the correspondingly numbered representation, warranty or covenant if specified therein and (b) such other representations, warranties or covenants where its relevance as an exception to (or disclosure for purposes of) such other representation, warranty or covenant is reasonably apparent), Acquiror represents and warrants to the Company as follows:

 

6.01 Corporate Organization. Acquiror is duly incorporated and is validly existing as a company in good standing under the Laws of its jurisdiction of incorporation and has the corporate power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted. The copies of Acquiror Organizational Documents previously delivered by Acquiror to the Company are true, correct and complete and are in effect as of the date of this Agreement. Acquiror is, and at all times has been, in compliance in all material respects with all restrictions, covenants, terms and provisions set forth in its Governing Documents. Acquiror is duly licensed or qualified and in good standing as a foreign company in all jurisdictions in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified, except where failure to be so licensed or qualified has not and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into and perform its obligations under this Agreement and consummate the Transactions.

 

6.02 Due Authorization.

 

(a) Acquiror has all requisite corporate or entity power and authority to execute and deliver this Agreement and each Ancillary Agreement to this Agreement to which it is a party and (subject to the approvals described in Section  6.06), upon receipt of the Acquiror Shareholder Approval and effectiveness of the PubCo Charter, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement and such Ancillary Agreements by Acquiror and the consummation of the Transactions have been duly, validly and unanimously authorized by all requisite action and, except for the Acquiror Shareholder Approval, no other corporate or equivalent proceeding on the part of Acquiror is necessary to authorize this Agreement or such Ancillary Agreements or Acquiror’s performance hereunder or thereunder. This Agreement has been, and each such Ancillary Agreement will be, duly and validly executed and delivered by Acquiror and, assuming due authorization and execution by each other party hereto and thereto, this Agreement constitutes, and each such Ancillary Agreement will constitute, a legal, valid and binding obligation of Acquiror, enforceable against Acquiror in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

 

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(b) The approval by a special resolution in accordance with the Governing Documents of Acquiror requiring the affirmative vote of a majority of at least two thirds of the votes cast at the quorate Extraordinary General Meeting, in person or represented by proxy and entitled to vote thereon, is required to approve the Amendment Proposal (the “Special Resolution”). The approval by an ordinary resolution in accordance with the Governing Documents of Acquiror requiring the affirmative vote of a majority of the votes cast at the Extraordinary General Meeting, in person or represented by proxy and entitled to vote thereon, is required to approve: (i) the Transaction Proposal, (ii) the Share Issuance Proposal, and (iii) the Acquiror Incentive Plan Proposal, in each case, assuming a quorum is present (the approval by Acquiror Shareholders of all of the foregoing, and together with the Special Resolution, collectively, the “Acquiror Shareholder Approval”). The Acquiror Shareholder Approval are the only votes of any of Acquiror’s capital stock necessary in connection with the entry into this Agreement by Acquiror, and the consummation of the Transactions (including the Closing).

 

(c) The Acquiror Board has duly adopted resolutions: (i) determined that this Agreement and the Transactions are fair to, advisable and in the best interests of Acquiror and its shareholders; (ii) approved the Transactions as a Business Combination; (iii) approved this Agreement and the Transactions, the execution and delivery by Acquiror of this Agreement and Acquiror’s performance of its obligations under this Agreement and consummation of the Transactions and (v) resolved to recommend to the shareholders of Acquiror approval of each of the matters requiring Acquiror Shareholder Approval.

 

6.03 No Conflict. The execution, delivery and performance of this Agreement by Acquiror and upon receipt of the Acquiror Shareholder Approval and the effectiveness of the PubCo Charter, the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of, the Acquiror Organizational Documents, (b) conflict with or result in any violation of any provision of any Law or Governmental Order applicable to Acquiror or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, or result in the acceleration or trigger of any payment, posting of collateral (or right to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to, any of the terms, conditions or provisions of any Contract to which Acquiror or any its Subsidiaries is a party or by which any of their respective assets or properties may be bound or affected or (d) result in the creation of any Lien upon any of the properties or assets of Acquiror, except (in the case of clauses (b), (c) or (d) above) for such violations, conflicts, breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into, perform its obligations under this Agreement and consummate the Transactions.

 

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6.04 Litigation and Proceedings. There are no pending or, to the knowledge of Acquiror, threatened, Actions and, to the knowledge of Acquiror, there are no pending or threatened investigations, in each case, against Acquiror, or otherwise affecting Acquiror or its assets, including any condemnation or similar proceedings, which, if determined adversely, could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into, perform its obligations under this Agreement and consummate the Transactions. There is no unsatisfied judgment or any open injunction binding upon Acquiror which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into, perform its obligations under this Agreement and consummate the Transactions.

 

6.05 Compliance with Laws.

 

(a) Except where the failure to be, or to have been, in compliance with such Laws would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into, perform its obligations under this Agreement and consummate the Transactions, Acquiror is, and since the date of incorporation of Acquiror has been, in compliance in all material respects with all applicable Laws. Acquiror has not received any written notice from any Governmental Authority of a violation of any applicable Law by Acquiror at any time since the date of incorporation of Acquiror, which violation would reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into, perform its obligations under this Agreement and consummate the Transactions.

 

(b) Since the date of incorporation of Acquiror, and except where the failure to be, or to have been, in compliance with such Laws would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into, perform its obligations under this Agreement and consummate the Transactions, (i) there has been no action taken by Acquiror, or, to the knowledge of Acquiror, any officer, director, manager, employee, agent or representative of Acquiror, in each case, acting on behalf of Acquiror, in violation of any applicable Anti-Corruption Law, (ii) Acquiror has not been convicted of violating any Anti-Corruption Laws or subjected to any investigation by a Governmental Authority for violation of any applicable Anti-Corruption Laws, (iii) Acquiror has not or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any Anti-Corruption Law and (iv) Acquiror has not received any written notice or citation from a Governmental Authority for any actual or potential noncompliance with any applicable Anti-Corruption Law.

 

(c) Since the date of incorporation of Acquiror, and except where the failure to be, or to have been, in compliance with such Laws would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into and perform its obligations under this Agreement and consummate the Transactions, (i) there has been no action taken by Acquiror, or, to the knowledge of Acquiror, any officer, director, manager, employee, agent or representative of Acquiror, in each case, acting on behalf of Acquiror, in violation of any applicable International Trade Laws, (ii) Acquiror has not been convicted of violating any International Trade Laws or subjected to any investigation by a Governmental Authority for violation of any applicable International Trade Laws, (iii) Acquiror has not conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any International Trade Laws and (iv) Acquiror has not received any written notice or citation from a Governmental Authority for any actual or potential noncompliance with any applicable International Trade Law.

 

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6.06 Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of the Company contained in this Agreement, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of Acquiror with respect to Acquiror’s execution or delivery of this Agreement or the consummation of the Transactions, except for applicable requirements of the HSR Act and any other applicable Antitrust Law, Securities Laws, Nasdaq and the filing of the PubCo Charter.

 

6.07 Financial Ability; Trust Account.

 

(a) Set forth on Schedule 6.07 is a true and accurate record, as of the date identified on Schedule 6.07, of the balance invested in a trust account at J.P. Morgan Chase Bank, N.A. (the “Trust Account”), maintained by Continental Stock Transfer & Trust Company, a New York corporation, acting as trustee (the “Trustee”), pursuant to the Investment Management Trust Agreement, dated February 1, 2021 by and between Acquiror and the Trustee (the “Trust Agreement”). The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of Acquiror and, to the knowledge of Acquiror, the Trustee, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified, in any respect, and, to the knowledge of Acquiror, no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no side letters and there are no agreements, Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (i) cause the description of the Trust Agreement in the Acquiror SEC Reports to be inaccurate or (ii) entitle any Person (other than any Acquiror Shareholder who is a Redeeming Shareholder) 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 in accordance with the Trust Agreement, Acquiror Organizational Documents and Acquiror’s final prospectus dated February 1, 2021. Amounts in the Trust Account are invested in U.S. Government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940. Acquiror has performed all material obligations required to be performed by it to date under, and is not in material default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. There are no Actions pending or, to the knowledge of Acquiror, threatened with respect to the Trust Account. Except as set forth on Schedule 6.07, Acquiror has not released any money from the Trust Account (other than interest income earned on the principal held in the Trust Account as permitted by the Trust Agreement). As of the Effective Time, the obligations of Acquiror to dissolve or liquidate pursuant to the Acquiror Organizational Documents shall terminate, and, as of the Effective Time, Acquiror shall have no obligation whatsoever pursuant to the Acquiror Organizational Documents to dissolve and liquidate the assets of Acquiror by reason of the consummation of the Transactions. Following the Effective Time, no Acquiror Shareholder shall be entitled to receive any amount from the Trust Account except to the extent such Acquiror Shareholder is a Redeeming Shareholder.

 

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(b) 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 and the completion of the Transactions, Acquiror 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 Acquiror on the Closing Date.

 

(c) As of the date hereof, Acquiror does not have, or have any present intention, agreement, arrangement or understanding to enter into or incur, any obligations with respect to or under any Indebtedness.

 

6.08 Taxes.

 

(a) All material Tax Returns required by Law to be filed by Acquiror have been duly and timely filed (after giving effect to any valid extensions of time in which to make such filings).

 

(b) All material amounts of Taxes shown due on any Tax Returns of Acquiror and all other material amounts of Taxes owed by Acquiror have been timely paid.

 

(c) Acquiror has (i) withheld all material amounts of Taxes required to have been withheld by it in connection with amounts paid to any employee, independent contractor, creditor, shareholder or any other third party, and (ii) remitted such amounts required to have been remitted to the appropriate Governmental Authority.

 

(d) Acquiror is not currently engaged in any material audit, administrative or judicial proceeding with a taxing authority with respect to Taxes. Acquiror has not received any written notice from a taxing authority of a proposed deficiency of a material amount of Taxes, other than any such deficiencies that have since been resolved. No written claim has been made by any Governmental Authority in a jurisdiction where Acquiror does not file a Tax Return that such entity is or may be subject to Taxes by that jurisdiction in respect of Taxes that would be the subject of such Tax Return, which claim has not been resolved. There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, material Taxes of Acquiror, and no written request for any such waiver or extension is currently pending.

 

(e) To the knowledge of Acquiror, there are no facts, circumstances or plans that, either alone or in combination, could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment. There are no Liens with respect to Taxes on any of the assets of Acquiror, other than Permitted Liens.

 

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(f) Acquiror has no liability for the Taxes of any other Person (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law) or (ii) as a transferee or successor.

 

(g) Acquiror is not a party to or bound by, nor does it have any obligation to, any Governmental Authority or other Person under any Tax allocation, Tax sharing or Tax indemnification agreements (except, in each case, for any such agreements that are commercial contracts not primarily relating to Taxes).

 

(h) Acquiror is and has since formation been treated as a corporation for U.S. federal (and applicable state and local) income Tax purposes.

 

6.09 Brokers’ Fees. Except for fees described on Schedule 6.09 (including the amounts owed with respect thereto), no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission (including any deferred underwriting commission) in connection with the Transactions (including the Transaction Financing) or as a result of the Closing, in each case, including based upon arrangements made by Acquiror or any of its Affiliates, including the Sponsor.

 

6.10 Acquiror SEC Reports; Financial Statements; Sarbanes-Oxley Act.

 

(a) Acquiror has filed in a timely manner (taking in to account all extension periods permitted by the Exchange Act) all required registration statements, reports, schedules, forms, statements and other documents required to be filed or furnished by it with the SEC since the date of incorporation of Acquiror (collectively, as they have been amended since the time of their filing and including all exhibits thereto, the “Acquiror SEC Reports”). None of the Acquiror SEC Reports, as of their respective dates (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The audited financial statements and unaudited interim financial statements (including, in each case, the notes and schedules thereto) included in the Acquiror SEC Reports complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto and except with respect to unaudited statements as permitted by Form 10-Q of the SEC), and fairly present (subject, in the case of the unaudited interim financial statements included therein, to normal year-end adjustments and the absence of complete footnotes) in all material respects the financial position of Acquiror as of the respective dates thereof and the results of their operations and cash flows for the respective periods then ended.

 

(b) Acquiror 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 Acquiror and other material information required to be disclosed by Acquiror 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 Acquiror’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 Acquiror’s principal executive officer and principal financial officer to material information required to be included in Acquiror’s periodic reports required under the Exchange Act.

 

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(c) Acquiror has established and maintains a system of internal controls. Such internal controls are sufficient to provide reasonable assurance regarding the reliability of Acquiror’s financial reporting and the preparation of Acquiror’s financial statements for external purposes in accordance with U.S. GAAP.

 

(d) Marcum LLP, who has certified certain financial statements of the Company, is an independent registered public accounting firm as required by the Securities Act.

 

(e) Acquiror maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that (i) complies with the requirements of the Exchange Act, (ii) has been designed by Acquiror’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and (iii) is sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets, (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and, except as disclosed on Schedule 6.10, Acquiror’s internal control over financial reporting is effective and Acquiror is not aware of any material weaknesses in its internal control over financial reporting.

 

(f) Since the date of Acquiror’s latest audited financial statements filed with the SEC, there has been no change in Acquiror’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, Acquiror’s internal control over financial reporting.

 

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

 

(h) Except as disclosed in the Acquiror SEC Reports, Acquiror (including any employee thereof) nor Acquiror’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 Acquiror, (ii) any fraud, whether or not material, that involves Acquiror’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Acquiror or (iii) any claim or allegation regarding any of the foregoing.

 

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

 

6.11 Business Activities; Absence of Changes.

 

(a) Since its incorporation, Acquiror has not conducted any business activities other than activities directed toward the accomplishment of a Business Combination. Except as set forth in the Acquiror Organizational Documents, there is no agreement, commitment or Governmental Order binding upon Acquiror or to which Acquiror is a party which has had or would reasonably be expected to have the effect of prohibiting or impairing any business practice of Acquiror or any acquisition of property by Acquiror or the conduct of business by Acquiror as currently conducted or as contemplated to be conducted as of the Closing other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected to have a Material Adverse Effect on the ability of Acquiror to enter into and perform its obligations under this Agreement and consummate the Transactions.

 

(b) Acquiror does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. Except for this Agreement and the Transactions, Acquiror has no interests, rights, obligations or liabilities with respect to, and is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination.

 

(c) There is no liability, debt or obligation against Acquiror or its Subsidiaries, except for liabilities and obligations (i) reflected or reserved for on Acquiror’s consolidated balance sheet for the fiscal year ended December 31, 2022 or disclosed in the notes thereto (other than any such liabilities not reflected, reserved or disclosed as are not and would not be, in the aggregate, material to Acquiror and its Subsidiaries, taken as a whole) or (ii) that have arisen since the date of Acquiror’s consolidated balance sheet for the fiscal year ended December 31, 2022 in the ordinary course of the operation of business of Acquiror and its Subsidiaries (other than any such liabilities as are not and would not be, in the aggregate, material to Acquiror and its Subsidiaries, taken as a whole).

 

6.12 Registration Statement. As of the time the Registration Statement is declared effective under the Securities Act, the Registration Statement (together with any amendments or supplements thereto) will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that Acquiror makes no representations or warranties as to the information contained in or omitted from the Registration Statement in reliance upon and in conformity with information furnished in writing to Acquiror by or on behalf of the Company specifically for inclusion in the Registration Statement.

 

6.13 Reserved.

 

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6.14 Capitalization.

 

(a) As of the date hereof, the authorized capital stock of Acquiror consists of (i) 5,000,000 preference shares, with a par value of $0.0001 per share, (ii) 500,000,000 Acquiror Class A Ordinary Shares, with a par value of $0.0001 per share and (iii) 50,000,000 Acquiror Class B Ordinary Shares. Each Acquiror Warrant entitles the holder thereof to purchase one Acquiror Class A Ordinary Share at an exercise price of $11.50 per share on the terms and conditions set forth in the applicable Acquiror Warrant Agreements. As of January 31, 2023, (a) no preference shares of Acquiror are issued and outstanding; (b) 2,909,170 Acquiror Class A Ordinary Shares are issued and outstanding; (c) 6,037,500 Acquiror Class B Ordinary Shares are issued and outstanding and (d) Acquiror has, after giving effect to the Unit Separation, issued Acquiror Warrants, consisting of 8,050,000 Acquiror Public Warrants (including all Acquiror Warrants that have not been separated from the outstanding Acquiror Units) and 4,553,334 Acquiror Private Placement Warrants, all of which are held by the Sponsor. All of the issued and outstanding Acquiror Ordinary Shares and Acquiror Warrants (including the Acquiror Ordinary Shares underlying the Acquiror Warrants) (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance in all material respects with applicable Law, (iii) were not issued in breach or violation of any preemptive rights or Contract and (iv) are fully vested and not otherwise subject to a substantial risk of forfeiture within the meaning of Code Section 83.

 

(b) Except for this Agreement and the Acquiror Warrants there are no (i) subscriptions, calls, options, warrants, rights or other securities convertible into or exchangeable or exercisable for Acquiror Ordinary Shares or any other equity interests of Acquiror, and (ii) except as set forth on Schedule 6.14(b), any other Contracts to which Acquiror is a party or by which Acquiror is bound obligating (or in lieu of a cash payment, allowing) Acquiror to issue or sell any shares of capital stock of, other equity interests in or debt securities of, Acquiror. Except as otherwise required by Acquiror’s Organizational Documents in order to consummate the Transactions, there are no outstanding contractual obligations of Acquiror to repurchase, redeem or otherwise acquire any securities or equity interests of Acquiror.

 

6.15 Nasdaq Stock Market Quotation. The Acquiror Units, the Acquiror Public Warrants and the issued and outstanding Acquiror Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbols “NRACU” (with respect to the Acquiror Units), “NRAC” (with respect to the Acquiror Class A Ordinary Shares), and “NRACW” (with respect to the Acquiror Warrants). Acquiror is in material compliance with the rules of Nasdaq and there is no action or proceeding pending or, to the knowledge of Acquiror, threatened against Acquiror by Nasdaq, the Financial Industry Regulatory Authority or the SEC with respect to any intention by such entity to deregister the Acquiror Units, the Acquiror Ordinary Shares or the Acquiror Public Warrants or terminate the listing of such on Nasdaq. None of Acquiror or its Affiliates has taken any action in an attempt to terminate the registration of the Acquiror Units, the Acquiror Ordinary Shares or the Acquiror Public Warrants under the Exchange Act.

 

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6.16 Contracts; No Defaults.

 

(a) Schedule 6.16 contains a listing of every “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than confidentiality and non-disclosure agreements and this Agreement) to which, as of the date of this Agreement, Acquiror or one or more of its Subsidiaries is a party or by which any of their respective assets are bound. True, correct and complete copies of the Contracts listed on Schedule 6.16 have, as indicated on Schedule 6.16, been filed with the SEC or are to be filed with the SEC not later than the date of Acquiror’s Form 10-K for the fiscal year ended December 31, 2022.

 

(b) Each Contract of a type required to be listed on Schedule 6.16, whether or not set forth on Schedule 6.16, was entered into on arm’s length terms and in the ordinary course of business. Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, with respect to any Contract of the type described in Section 6.16(a), whether or not set forth on Schedule 6.16, (i) such Contracts are in full force and effect and represent the legal, valid and binding obligations of Acquiror or its Subsidiaries party thereto and, to the knowledge of Acquiror, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of Acquiror, are enforceable by Acquiror or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) none of Acquiror, or, to the knowledge of Acquiror, any other party thereto is in material breach of or material default (or would be in material breach, violation or default but for the existence of a cure period) under any such Contract, (iii) since its incorporation, Acquiror has not received any written or, to the knowledge of Acquiror, oral claim or notice of material breach of or material default under any such Contract, (iv) to the knowledge of Acquiror, no event has occurred which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such Contract by Acquiror or, to the knowledge of Acquiror, any other party thereto (in each case, with or without notice or lapse of time or both) and (v) since the dates of their respective incorporations, through the date hereof, Acquiror has not received written notice from any other party to any such Contract that such party intends to terminate or not renew any such Contract.

 

6.17 Title to Property. Acquiror does not (a) own or lease any real or personal property or (b) is a party to any agreement or option to purchase any real property, personal property or other material interest therein.

 

6.18 Investment Company Act. Acquiror is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

6.19 Affiliate Agreements. Except as set forth on Schedule 6.19 or disclosed in its SEC Reports, Acquiror is not a party to any transaction, agreement, arrangement or understanding with any (i) present or former executive officer or director of any of Acquiror, (ii) beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of Acquiror or (iii) Affiliate, “associate” or member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 under the Exchange Act) of any of the foregoing (each of the foregoing, an “Acquiror Affiliate Agreement”).

 

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6.20 Sponsor Support Agreement. Acquiror has delivered to the Company a true, correct and complete copy of the Sponsor Support Agreement. The Sponsor Support Agreement is in full force and effect and has not been withdrawn or terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination, amendment or modification is contemplated by Acquiror. The Sponsor Support Agreement is a legal, valid and binding obligation of Acquiror and, to the knowledge of Acquiror, each other party thereto and neither the execution or delivery by any party thereto of, nor the performance of any party’s obligations under, the Sponsor Support Agreement violates any provision of, or results in the breach of or default under, or requires any filing, registration or qualification under, any applicable Law. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Acquiror under any term or condition of the Sponsor Support Agreement.

 

Article VII
COVENANTS OF THE COMPANY

 

7.01 Conduct of Business. From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as set forth on Schedule 7.01, as expressly contemplated by this Agreement or as consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld or delayed), or as may be required by Law, (i) use commercially reasonable efforts to conduct and operate its business in the ordinary course, and to preserve intact the current business organization and ongoing businesses of the Company, and maintain the existing relations and goodwill of the Company with customers, suppliers, joint venture partners, distributors and creditors of the Company, and (ii) use commercially reasonable efforts to maintain all insurance policies of the Company or substitutes therefor. Without limiting the generality of the foregoing, except as set forth on Schedule 7.01, as expressly contemplated by this Agreement or as consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld or delayed), or as may be required by Law, neither the Company nor any Subsidiary shall, during the Interim Period, except as otherwise contemplated by this Agreement:

 

(a) change or amend the certificate of formation or the bylaws of the Company or similar organization documents of any Subsidiary;

 

(b) except with respect to the Company Convertible Securities, (i) make, declare or pay any dividend or distribution (whether in cash, shares or property) to the shareholders of the Company in their capacities as shareholders, (ii) effect any recapitalization, reclassification, split or other change in its capitalization, or (iii) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its capital stock or other equity interests;

 

(c) enter into, or amend or modify any material term of (in a manner adverse to the Company or any of its Subsidiaries), terminate (excluding any expiration in accordance with its terms), or waive or release any material rights, claims or benefits under, any Material Contract (or any Contract, that if existing on the date hereof, would have been a Material Contract), any Real Estate Lease Document related to the Leased Real Property or any collective bargaining or similar agreement (including agreements with works councils and trade unions and side letters) to which the Company or any Subsidiary is a party or by which it is bound, other than entry into, amendments of, modifications of, terminations of, or waivers or releases under, such agreements in the ordinary course of business;

 

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(d) sell, transfer, license, sublicense, covenant not to assert, lease, pledge or otherwise encumber or subject to any Lien, abandon, cancel, let lapse or convey or dispose of any assets, properties or business of the Company or any Subsidiary (including Owned Intellectual Property and Owned Company Software), except for (i) dispositions of obsolete or worthless assets, (ii) sales of tangible inventory in the ordinary course of business and (iii) sales, abandonment, lapses of tangible assets or tangible items or tangible materials in an amount not in excess of $500,000 in the aggregate, other than (1) Permitted Liens or (2) pledges and encumbrances on property and assets in the ordinary course of business and that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;

 

(e) except as set forth on Schedule 7.01(e) or otherwise required pursuant to Company Benefit Plans, in effect on the date of this Agreement, applicable Law, or policies or Contracts of the Company or any Subsidiary in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any employee, director or service provider of the Company other than any such individual with an annual base salary of less than $250,000, (ii) adopt, enter into or materially amend any Company Benefit Plan, or any collective bargaining or similar agreement (including agreements with works councils and trade unions and side letters) to which the Company or any Subsidiary is a party or by which it is bound, (iii) grant or provide any severance, termination payments, bonus, change of control, retention, or benefits to any employee of the Company or any Subsidiary, except in connection with the promotion or hiring (to the extent permitted by clause (iv) of this paragraph) or separation of any employee in the ordinary course of business or the firing of any employee, (iv) hire any employee of the Company or any Subsidiary or any other individual who is providing or will provide services to the Company or any Subsidiary other than any employee with an annual base salary of less than $250,000 in the ordinary course of business, (v) adopt, enter into or materially amend Contracts with any consultants or independent contractors that involve consideration of more than $500,000 in the aggregate or (vi) take any action to accelerate the vesting, payment or funding of any cash compensation, payment or benefit;

 

(f) (i) fail to maintain its existence or acquire by merger or consolidation with, or merge or consolidate with, or purchase a material portion of the assets or equity of, any corporation, partnership, limited liability company, association, joint venture or other business organization or division thereof; or (ii) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Subsidiary (other than the Transactions);

 

(g) make any capital expenditures (or commitment to make any capital expenditures) that in the aggregate exceed $1,000,000, other than any capital expenditures associated with new customer contracts; provided, however that the Company shall provide notice to Acquiror with respect to any such capital expenditures;

 

(h) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants), make any material change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any other Person, except advances to directors, employees or officers of the Company or any Subsidiary in the ordinary course of business or as required under any provisions of the Company Charter or any indemnification agreement to which the Company is a party, in each case as in effect as of the date hereof;

 

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(i) make, revoke or change any material Tax election, adopt or change any material Tax accounting method or period, file any amendment to a material Tax Return, enter into any agreement with a Governmental Authority with respect to a material amount of Taxes, settle or compromise any examination, audit or other Action with a Governmental Authority of or relating to any material Taxes or settle or compromise any claim or assessment by a Governmental Authority in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of Taxes, or enter into any Tax sharing or similar agreement (excluding any commercial contract not primarily related to Taxes);

 

(j) take any action, or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Transactions from qualifying for the Intended Tax Treatment;

 

(k) acquire any fee interest in real property;

 

(l) enter into, renew or amend in any material respect any Company Affiliate Agreement;

 

(m) waive, release, compromise, settle or satisfy any pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or compromise or settle any liability, other than in the ordinary course of business or that otherwise do not exceed $250,000 in the aggregate;

 

(n) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness in excess of $500,000, other than in connection with borrowings, extensions of credit and other financial accommodations under the Company’s existing credit facilities, notes and other existing Indebtedness and, in each case, any refinancings thereof, provided, that, in no event shall any such borrowing, extension of credit or other financial accommodation be subject to any prepayment fee or penalty or similar arrangement or amend, restate or modify in a manner materially adverse to the Company any terms of or any agreement with respect to any such outstanding Indebtedness (when taken as a whole); provided, further, that any action permitted under this Section 7.01(n) shall be deemed not to violate Section 7.01(b) or Section 7.01(c);

 

(o) enter into any material new line of business outside of the business currently conducted by the Company as of the date of this Agreement (it being understood that this Section 7.01(o) shall not restrict the Company from extending its business into new geographies);

 

(p) make any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in IFRS (including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization) or applicable Law;

 

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(q) (i) disclose any source code for any Owned Company Software or any other material Trade Secrets to any Person (other than pursuant to a written agreement sufficient to protect the confidentiality thereof) or (ii) subject any Owned Intellectual Property or Owned Company Software to Copyleft Terms; and

 

(r) enter into any agreement to do any action prohibited under this Section 7.01.

 

7.02 Inspection. Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to the Company by third parties that may be in the Company’s possession from time to time, and except for any information which (x) relates to interactions with prospective buyers of the Company or the negotiation of this Agreement and the Transactions or (y) in the judgment of legal counsel of the Company would result in the loss of attorney-client privilege or other privilege from disclosure or would conflict with any applicable Law or confidentiality obligations to which the is bound, the Company and the Subsidiaries shall afford to Acquiror and its Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance notice, in such manner as to not interfere with the normal operation of the Company, to all of its properties, books, projections, plans, systems, Contracts, commitments, Tax Returns, records, commitments and analyses and, as reasonably requested by Acquiror or its Representatives, appropriate officers and employees of the Company, and shall furnish such Representatives with all financial and operating data and other information concerning the affairs of the Company that are in the possession of the Company as such Representatives may reasonably request, in each case, as necessary to facilitate consummation of the Transactions; provided, however, that (i) such access may be limited to the extent the Company reasonably determines, in light of COVID-19 or COVID-19 Measures, that such access would jeopardize the health and safety of any employee of the Company and (ii) nothing in this Agreement shall be deemed to provide Acquiror and its Representatives with the right to have access to any of the offices or information of any of the equityholders of the Company, that is not otherwise related to the Company, its Subsidiaries or the Transactions or any Ancillary Agreement. Acquiror hereby agrees that, during the Interim Period, (x) it shall not contact any employee (excluding executive officers), customer, supplier, distributor or other material business relation of the Company or (y) conduct or perform any invasive or subsurface investigations of the properties or facilities of the Company or its Affiliates, in each case, without the prior written consent of the Company. The parties shall use commercially reasonable efforts to make alternative arrangements for such disclosure where the restrictions in the preceding sentence apply. All information obtained by Acquiror and its Representatives under this Agreement shall be subject to the Confidentiality Agreement prior to the Effective Time.

 

7.03 No Acquiror Ordinary Share Transactions. From and after the date of this Agreement until the Effective Time, except as otherwise contemplated by this Agreement, the Company shall not engage in any transactions involving the securities of Acquiror without the prior consent of Acquiror if the Company possesses material nonpublic information of Acquiror.

 

7.04 No Claim Against the Trust Account. The Company acknowledges that Acquiror is a special purpose acquisition company with the power and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving the Company and one or more businesses or assets, and the Company has read Acquiror’s final prospectus, dated February 1, 2021, and other Acquiror SEC Reports, the Acquiror Organizational Documents, and the Trust Agreement and understands that Acquiror has established the Trust Account described therein for the benefit of Acquiror’s public shareholders and that disbursements from the Trust Account are available only in the limited circumstances set forth therein. The Company further acknowledges and agrees that Acquiror’s sole assets consist of the cash proceeds of Acquiror’s initial public offering and private placements of its securities, and that substantially all of these proceeds have been deposited in the Trust Account for the benefit of its public shareholders. The Company further acknowledges that, if the Transactions are not consummated by September 4, 2023, or such later date as approved by the shareholders of Acquiror to complete a Business Combination, Acquiror will be obligated to return to its shareholders the amounts being held in the Trust Account. Accordingly, the Company (on behalf of itself and its Affiliates) hereby waives any past, present or future claim of any kind against, and any right to access, the Trust Account, any trustee of the Trust Account and Acquiror to collect from the Trust Account any monies that may be owed to them by Acquiror or any of its Affiliates for any reason whatsoever, and will not seek recourse against the Trust Account at any time for any reason whatsoever. This Section 7.04 shall survive the termination of this Agreement for any reason.

 

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7.05 Proxy Solicitation; Other Actions.

 

(a) The Company will use its commercially reasonable efforts to provide to Acquiror on or before April 30, 2023, for inclusion in the Registration Statement, to be filed by Acquiror hereunder, the audited financial statements, including balance sheets, statements of operations, statements of redeemable preferred stock and shareholders deficit and statements of cash flows as of and for the periods as are required by the SEC for the purposes of the Registration Statement), together with the auditor’s reports thereon (the “SEC Financial Statements”), and the unaudited financial statements including balance sheets, statements of operations, statements of redeemable preferred stock and shareholders’ deficit and statements of cash flows as of and for such periods as are required by the SEC for the purposes of the Registration Statement) (the “Unaudited SEC Financial Statements” and, together with the SEC Financial Statements, the “Consolidated Financial Statements”), in each case, prepared in accordance with Regulation S-X under the Securities Act (except (x) as otherwise noted therein to the extent permitted by Regulation S-X under the Securities Act and (y) in the case of the Unaudited SEC Financial Statements, subject to normal and recurring year-end adjustments and the absence of notes thereto) and audited in accordance with the auditing standards of the PCAOB. The Company shall be available to, and the Company shall use reasonable best efforts to make its officers and employees available to, in each case, during normal business hours and upon reasonable advanced notice, Acquiror and its counsel in connection with responding in a timely manner to comments on the Registration Statement from the SEC.

 

(b) From and after the date on which the Registration Statement becomes effective under the Securities Act, the Company will give Acquiror prompt written notice of any action taken or not taken by the Company or of any development regarding the Company, in any such case which, to the knowledge of the Company, would cause the Registration Statement to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances under which they were made, not misleading; provided that, if any such action shall be taken or fail to be taken or such development shall otherwise occur, Acquiror and the Company shall cooperate fully to cause an amendment or supplement to be made promptly to the Registration Statement, such that the Registration Statement no longer contains an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances under which they were made, not misleading; provided further, however, that no information received by Acquiror pursuant to this Section 7.05 shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the party who disclosed such information, and no such information shall be deemed to change, supplement or amend the Company Schedules.

 

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7.06 Certain Transaction Agreements. Unless otherwise approved in writing by Acquiror (such approval not to be unreasonably withheld, conditioned or delayed), the Company shall not permit any amendment or modification to be made to, or any waiver (in whole or in part) of, or provide consent to (including consent to termination) any provision or remedy under, or any replacement of the Company Support Agreement. The Company shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary to satisfy in all material respects on a timely basis all conditions and covenants applicable to the Company in the Company Support Agreement and otherwise comply with its obligations thereunder and to enforce its rights under each such agreement. Without limiting the generality of the foregoing, the Company shall give Acquiror prompt written notice of: (A) any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could give rise to any breach or default) by any party to the Company Support Agreement; and (B) the receipt of any written notice or other written communication from any other party to the Company Support Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party under any such agreement or any provisions of any such agreement.

 

Article VIII
COVENANTS OF ACQUIROR AND THE SPONSOR

 

8.01 Conduct of Acquiror During the Interim Period.

 

(a) During the Interim Period, except as set forth on Schedule 8.01 or as expressly contemplated by this Agreement or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld or delayed), Acquiror shall not and each shall not permit any of its Subsidiaries to:

 

(i) change, modify or amend the Trust Agreement or the Acquiror Organizational Documents;

 

(ii)  (A) make, declare, set aside or pay any dividends on, or make any other distribution (whether in cash, stock or property) in respect of any of its outstanding capital stock or other equity interests; (B) split, combine, reclassify, subdivide or otherwise change any of its capital stock or other equity interests; or (C) other than the redemption of Acquiror Ordinary Shares required by the Offer, repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock of, or other equity interests in, Acquiror;

 

(iii) make, revoke or change any material Tax election, adopt or change any material Tax accounting method or period, file any amendment to a material Tax Return, enter into any agreement with a Governmental Authority with respect to a material amount of Taxes, settle or compromise any examination, audit or other Action with a Governmental Authority of or relating to any material Taxes or settle or compromise any claim or assessment by a Governmental Authority in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of Taxes, or enter into any Tax sharing or similar agreement (excluding any commercial contract not primarily related to Taxes);

 

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(iv) take any action, or knowingly fail to take any action, which action or failure to act could reasonably be expected to prevent or impede the Transactions from qualifying for the Intended Tax Treatment;

 

(v) enter into, renew or amend in any material respect, any Acquiror Affiliate Agreement (or any Contract, that if existing on the date hereof, would have constituted an Acquiror Affiliate Agreement);

 

(vi) enter into, or amend or modify any material term of (in a manner adverse to Acquiror), terminate excluding any expiration in accordance with its terms, or waive or release any material rights, claims or benefits under, any Contract of a type required to be listed on Schedule 6.17 (or any Contract, that if existing on the date hereof, would have been required to be listed on Schedule 6.17) or any collective bargaining or similar agreement (including agreements with works councils and trade unions and side letters) to which Acquiror is a party or by which it is bound;

 

(vii) waive, release, compromise, settle or satisfy any pending or threatened claim (which shall include, but not be limited to, any pending or threatened Action) or compromise or settle any liability;

 

(viii) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness except in connection with a Transaction Financing;

 

(ix) (A) other than in connection with the Transaction Financing, offer, issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any capital stock of, or other equity interests in, Acquiror or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock or equity interests, other than in connection with the exercise of any Acquiror Warrants outstanding on the date hereof, or (B) other than pursuant to the Sponsor Support Agreement, amend, modify or waive any of the terms or rights set forth in, any warrant agreement with respect to Acquiror Warrants, including any amendment, modification or reduction of the warrant price set forth therein;

 

(x) except as contemplated by the Acquiror Incentive Plan Proposal, (i) adopt or amend any Acquiror Benefit Plan, or enter into any employment contract or collective bargaining agreement or (ii) hire any employee of Acquiror or any other individual who is providing or will provide services to Acquiror;

 

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(xi)  (i) fail to maintain its existence or acquire by merger or consolidation with, or merge or consolidate with, or purchase the assets or equity of, any corporation, partnership (limited or general), limited liability company, association, joint venture or other business organization or division thereof; or (ii) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Acquiror (other than the Transactions);

 

(xii) make any capital expenditures;

 

(xiii) except for any loans from the Sponsor to Acquiror, make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any other Person;

 

(xiv) enter into any new line of business outside of the business currently conducted by Acquiror as of the date of this Agreement;

 

(xv) make any change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP, including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or applicable Law;

 

(xvi) voluntarily fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage currently maintained with respect to Acquiror and their assets and properties; or

 

(xvii) except in connection with the Transaction Financing, enter into any agreement to do any action prohibited under this Section 8.01.

 

(b) During the Interim Period, Acquiror shall comply with, and continue performing under, as applicable, the Acquiror Organizational Documents, the Trust Agreement and all other agreements or Contracts to which Acquiror or its Subsidiaries may be a party.

 

8.02 Trust Account. Prior to or at the Closing (subject to the satisfaction or waiver of the conditions set forth in Article X), Acquiror shall make appropriate arrangements to cause the funds in the Trust Account to be disbursed in accordance with the Trust Agreement, and the funds received in the Transaction Financing to be disbursed, for the following uses: (a) the redemption of any Acquiror Ordinary Shares in connection with the Offer; (b) the payment of the Outstanding Company Expenses and Outstanding Acquiror Expenses pursuant to Section 3.08; and (c) the balance after payment and disbursement of the amounts required under the foregoing clauses (a) and (b) to be disbursed to PubCo.

 

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8.03 Inspection. Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to Acquiror or its Subsidiaries by third parties that may be in Acquiror’s or its Subsidiaries’ possession from time to time, and except for any information which in the opinion of legal counsel of Acquiror would result in the loss of attorney-client privilege or other privilege from disclosure or would conflict with any applicable Law or confidentiality obligations to which Acquiror or any of its Subsidiaries is bound, Acquiror shall afford to the Company, its Affiliates and their respective Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance notice, to information about Acquiror relating to the Transactions reasonably requested by the Company. The parties shall use commercially reasonable efforts to make alternative arrangements for such disclosure where the restrictions in the preceding sentence apply. All information obtained by the Company, its Affiliates and their respective Representatives under this Agreement shall be subject to the Confidentiality Agreement prior to the Effective Time.

 

8.04 Acquiror Nasdaq Listing.

 

(a) From the date hereof through the Closing, Acquiror shall use reasonable best efforts to ensure Acquiror remains listed as a public company on, and for Acquiror Ordinary Shares to be listed on, Nasdaq.

 

(b) Acquiror shall use reasonable best efforts to cause PubCo’s Ordinary Shares to be issued in connection with the Transactions to be approved for listing on Nasdaq as promptly as practicable following the issuance thereof, subject to official notice of issuance, prior to the Closing Date.

 

8.05 Acquiror Public Filings. From the date hereof through the Closing, Acquiror will use reasonable best efforts to keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws.

 

8.06 Section 16 Matters. Prior to the Closing, the Acquiror Board, or an appropriate committee of “non-employee directors” (as defined in Rule 16b-3 under the Exchange Act) thereof, shall adopt a resolution consistent with the interpretive guidance of the SEC so that the acquisition of Acquiror Ordinary Shares pursuant to this Agreement and the other agreements contemplated hereby, by any person owning securities of the Company who is expected to become a director or officer (as defined under Rule 16a-1(f) under the Exchange Act) of Acquiror following the Closing shall be an exempt transaction for purposes of Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.

 

8.07 Exclusivity. During the Interim Period, each Party shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company (for Acquiror) and Acquiror (for the Company), its shareholders and/or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination (a “Business Combination Proposal”) other than among the Company and Acquiror and their respective shareholders and their respective Affiliates and Representatives. Each Party shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal other than between the Company and Acquiror.

 

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8.08 Certain Transaction Agreements. Unless otherwise approved in writing by the Company (such approval not to be unreasonably withheld, conditioned or delayed), Acquiror shall not permit any amendment or modification to be made to, or any waiver (in whole or in part) of, or provide consent to (including consent to termination) any provision or remedy under, or any replacement of the Sponsor Support Agreement. Acquiror shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary to satisfy in all material respects on a timely basis all conditions and covenants applicable to Acquiror in the Sponsor Support Agreement and otherwise comply with its obligations thereunder and to enforce its rights under each such agreement. Without limiting the generality of the foregoing, Acquiror shall give the Company prompt written notice of: (A) any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could give rise to any breach or default) by any party to the Sponsor Support Agreement; and (B) the receipt of any written notice or other written communication from any other party to the Sponsor Support Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party under any such agreement or any provisions of any such agreement.

 

8.09 Shareholder Action. Acquiror shall notify the Company promptly in connection with a written threat to file, or filing by, an Action related to this Agreement or the Transaction by any of its shareholders or holders of any Acquiror Warrants against Acquiror or its Subsidiaries or against any of their respective directors or officers (any such action, a “Shareholder Action”). Acquiror shall keep the Company reasonably apprised of the defense, settlement, prosecution or other developments with respect to any such Shareholder Action. Acquiror shall give the Company the opportunity to participate in, subject to a customary joint defense agreement, but not control the defense of any such litigation, to give due consideration to the Company’s advice with respect to such litigation and to not settle any such litigation without the prior written consent of the Company, such consent not to be unreasonably withheld, delayed or conditioned; provided that, for the avoidance of doubt, Acquiror shall bear all of its costs of investigation and all of its defense and attorneys’ and other professionals’ fees related to such Shareholder Action.

 

8.10 Incentive Equity Plan. Prior to the Closing Date, Acquiror and the Company shall cooperate to prepare and, subject to the approval of the shareholders of Acquiror, adopt, the Acquiror Incentive Plan, which shall be designed with market-based metrics and customary terms for incentive plans of similarly situated public companies.

 

8.11 Obligations as an Emerging Growth Company. Acquiror shall, at all times during the period from the date hereof until the Closing: (a) take all actions necessary to continue to qualify as an “emerging growth company” within the meaning of the JOBS Act and (b) not take any action that would cause Acquiror to not qualify as an “emerging growth company” within the meaning of the JOBS Act at the Effective Time.

 

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8.12 Surrender of Ordinary Shares. The Sponsor shall surrender, and Acquiror shall cancel, 1,500,000 Acquiror Ordinary Shares held by the Sponsor, prior to the Effective Time.

 

8.13 Shares Owned by Raymond Smith. The shares of the Company issued to Raymond Smith by the Company shall not equal more than 9.9 percent of PubCo upon the Closing of the Transaction.

 

Article IX
JOINT COVENANTS

 

9.01 Support of Transaction. Without limiting any covenant contained in Article VII or Article VIII, including the obligations of the Company and Acquiror with respect to the notifications, filings, reaffirmations and applications described in Section 9.07, which obligations shall control to the extent of any conflict with the succeeding provisions of this Section 9.01, Acquiror and the Company shall each, and shall each cause their respective Subsidiaries to: (a) use commercially reasonable efforts to assemble, prepare and file any information (and, as needed, to supplement such information) as may be reasonably necessary to obtain as promptly as practicable all governmental and regulatory consents required to be obtained in connection with the Transactions, (b) use commercially reasonable efforts to obtain all material consents and approvals of third parties that any of Acquiror, the Company, or their respective Affiliates are required to obtain in order to consummate the Transactions, including any required approvals of parties to material Contracts with the Company, and (c) take such other action as may reasonably be necessary or as another party may reasonably request to satisfy the conditions of Article X or otherwise to comply with this Agreement and to consummate the Transactions as soon as practicable. Notwithstanding the foregoing, in no event shall Acquiror, the Company or the Sellers be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company is a party or otherwise in connection with the consummation of the Transactions.

 

9.02 Preparation of Registration Statement; Extraordinary General Meeting.

 

(a) Promptly following the date hereof and the receipt of the SEC Financial Statements, Acquiror shall cause to be filed with the SEC a registration statement on Form F-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of PubCo’s Ordinary Shares to be issued under this Agreement, which Registration Statement will also contain the Proxy Statement. Each of Acquiror and the Company shall use its reasonable best efforts to cause the Registration Statement and the Proxy Statement to comply with the rules and regulations promulgated by the SEC, to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Promptly after the Registration Statement is declared effective under the Securities Act, Acquiror will cause the Proxy Statement to be mailed to shareholders of Acquiror.

 

(b) Each of Acquiror and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Acquiror or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) Acquiror, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed) an amendment or supplement to the Registration Statement. Acquiror and the Company shall use reasonable best efforts to cause the Registration Statement, as so amended or supplemented, to be filed with the SEC and the Proxy Statement to be disseminated to the holders of Acquiror Ordinary Shares, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Acquiror Organizational Documents. Acquiror shall provide the other parties with copies of any written comments, and shall inform such other parties of any oral comments, that Acquiror receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other parties a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.

 

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(c) Acquiror agrees to include provisions in the Proxy Statement and to take reasonable action related thereto with respect to (i) approval of the Transactions (the “Transaction Proposal”), (ii) approval of the PubCo Charter (the “Amendment Proposal”), (iii) approval of the issuance of PubCo’s Ordinary Shares in connection with the Transactions (including pursuant to the consummation of the Transaction Financing) in accordance with this Agreement, in each case to the extent required by Nasdaq listing rules (the “Share Issuance Proposal”), (iv) the adoption of the Acquiror Incentive Plan (the “Acquiror Incentive Plan Proposal”), (v) the nomination of the director nominees as determined by the Parties consistent with the terms of this Agreement, and (vi) the adoption and approval of each other proposal that either the SEC or Nasdaq (or the respective staff members thereof) indicates is necessary in its comments to the Registration Statement or in correspondence related thereto, and approval of any other proposals reasonably necessary or appropriate to consummate the transaction contemplated hereby (the “Additional Proposals” and together with the Agreement Proposal, Transaction Proposal, Amendment Proposal, Acquiror Incentive Plan Proposal and the Share Issuance Proposal, the “Proposals”). The Acquiror Incentive Plan Proposal shall provide that an aggregate number of shares of PubCo’s Ordinary Shares equal to 5% of the fully diluted outstanding shares of PubCo’s Ordinary Shares immediately after the Closing shall be reserved for issuance pursuant to the Acquiror Incentive Plan, subject to annual increases as provided therein. Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Acquiror shall propose to be acted on by Acquiror’s shareholders at the Extraordinary General Meeting.

 

(d) Acquiror shall use reasonable best efforts to, as promptly as practicable, and in compliance with applicable Law (i) establish the record date for, duly call, give notice of, convene and hold the Extraordinary General Meeting in accordance with the Cayman Companies Act, (ii) cause the Proxy Statement to be disseminated to Acquiror’s shareholders and (iii) solicit proxies from the holders of Acquiror Ordinary Shares to vote in favor of each of the Proposals. Acquiror shall, through the Acquiror Board, recommend to its shareholders that they approve each of the Proposals (the “Acquiror Board Recommendation”) and shall include the unqualified Acquiror Board Recommendation in the Proxy Statement. The Acquiror Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Acquiror Board Recommendation. Notwithstanding the foregoing provisions of this Section 9.02(d), if on a date for which the Special Meeting is scheduled, Acquiror has not received proxies representing a sufficient number of Acquiror Ordinary Shares to obtain the Acquiror Shareholder Approval, whether or not a quorum is present, Acquiror shall have the right to make one or more successive postponements or adjournments of the Extraordinary General Meeting.

 

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9.03 Tax Matters.

 

(a) Transfer Taxes. Notwithstanding anything to the contrary contained herein, the Company and Acquiror shall pay each pay 50% of all transfer, documentary, sales, use, stamp, registration, value added or other similar Taxes incurred in connection with the Transactions (“Transfer Taxes”). The Parties shall reasonably cooperate to establish any available exemption from (or reduction in) any Transfer Taxes.

 

(b) Tax Treatment. For U.S. federal income tax purposes, (a) it is intended that (i) the Share Exchange will qualify as a “reorganization” under Section 368(a)(1) of the Code and (ii) taken together, the Share Exchange and any Transaction Financing will qualify as an exchange under Section 351 of the Code, and (b) this Agreement is intended to constitute and hereby is adopted as a “plan of reorganization” with respect to the Share Exchange within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) for purposes of Sections 354, 361 and 368 of the Code and the Treasury Regulations thereunder, ((a) and (b), together, the “Intended Tax Treatment”). None of the parties or their respective Affiliates shall knowingly take or cause to be taken, or knowingly fail to take or knowingly cause to be failed to be taken, any action that would reasonably be expected to prevent qualification for such Intended Tax Treatment. Each party shall, unless otherwise required by a final determination within the meaning of Section 1313(a) of the Code (or any similar state, local or non-U.S. final determination) or a change in applicable Law, or based on a change in the facts and circumstances underlying the Transactions from the terms described in this Agreement, cause all Tax Returns to be filed in a manner consistent with the Intended Tax Treatment. Each of the parties agrees to use reasonable best efforts to promptly notify all other parties of any challenge to the Intended Tax Treatment by any Governmental Authority.

 

(c) The Company, Acquiror and the Sellers hereby adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a).

 

(d) On or prior to the Closing Date, the Company shall deliver to Acquiror a certification from the Company pursuant to Treasury Regulations Section 1.1445-2(c) dated no more than thirty (30) days prior to the Closing Date and signed by a responsible corporate officer of the Company.

 

(e) In the event there is any tax opinion, comfort letter or other opinion in respect of Tax consequences of or related to the Transactions required by the SEC, (i) to the extent such opinion relates to Acquiror or its equityholders immediately prior to the Closing, Acquiror shall use its reasonable best efforts to cause its tax advisors to provide such opinion, subject to customary assumptions and limitations, and (ii) to the extent such opinion relates to the Company or the Sellers, the Company shall use its reasonable best efforts to cause its tax advisors to provide such opinion, subject to customary assumptions and limitations. Each Party shall use commercially reasonable efforts to execute and deliver customary Tax representation letters to the applicable tax advisor in form and substance reasonably satisfactory to such advisor. Notwithstanding anything to the contrary in this Agreement, Loeb & Loeb LLP shall not be required to provide any opinion to any party regarding the Intended Tax Treatment.

 

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9.04 Confidentiality; Publicity.

 

(a) Acquiror acknowledges that the information being provided to it in connection with this Agreement and the consummation of the Transactions is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference.

 

(b) None of Acquiror, the Company or any of their respective Affiliates shall make any public announcement or issue any public communication regarding this Agreement or the Transactions, or any matter related to the foregoing, without first obtaining the prior consent of the Company or Acquiror, as applicable (which consent shall not be unreasonably withheld, conditioned or delayed), except if such announcement or other communication is required by applicable Law or legal process (including pursuant to the Securities Law or the rules of any national securities exchange), in which case Acquiror or the Company, as applicable, shall use their commercially reasonable efforts to coordinate such announcement or communication with the other party, prior to announcement or issuance and allow the other party a reasonable opportunity to comment thereon (which shall be considered by Acquiror or the Company, as applicable, in good faith); provided, however, that, notwithstanding anything contained in this Agreement to the contrary, each party and its Affiliates may make announcements and may provide information regarding this Agreement and the Transactions to its and their Affiliates, and its and their respective investors, directors, officers, employees, managers and advisors without the consent of any other party hereto; and provided further that, subject to Section 7.02 and this Section 9.04, the foregoing shall not prohibit any party hereto from communicating with third parties to the extent necessary for the purpose of seeking any third party consent.

 

(c) Acquiror and the Company shall mutually agree upon and, as promptly as practicable after the execution of this Agreement, issue a press release announcing the execution of this Agreement. Promptly after the issuance of such press release, Acquiror shall file a Current Report on Form 8-K with a description of this Agreement as required by Law, which the Company shall receive reasonably in advance of such filing and shall review, comment on and approve (which approval shall not be unreasonably withheld, conditioned or delayed) within a reasonable amount of time prior to filing.

 

9.05 Post-Closing Cooperation; Further Assurances. Following the Closing, each Party shall, on the request of any other Party, execute such further documents, and perform such further acts, as may be reasonably necessary or appropriate to give full effect to the allocation of rights, benefits, obligations and liabilities contemplated by this Agreement and the Transactions.

 

9.06 Additional Insurance and Indemnity Matters.

 

(a) Prior to the Closing, Acquiror and the Company shall reasonably cooperate in order to obtain directors’ and officers’ liability insurance for PubCo and the Company that shall be effective as of Closing and will cover (i) those Persons who were directors and officers of the Company and Acquiror prior to the Closing and (ii) those Persons who will be the directors and officers of PubCo and its Subsidiaries (including the directors and officers of the Company) at and after the Closing on terms not less favorable than the better of (a) the terms of the current directors’ and officers’ liability insurance in place for the Company’s directors and officers and (b) the terms of a typical directors’ and officers’ liability insurance policy for a company whose equity is listed on Nasdaq which policy has a scope and amount of coverage that is reasonably appropriate for a company of similar characteristics (including the line of business and revenues) as PubCo and its Subsidiaries (including the Company).

 

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(b) From and after the Effective Time, PubCo and the Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director or officer of Acquiror and the Company, or any other person that may be a director or officer of the Company prior to the Effective Time, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any actual or threatened Action or other action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time or relating to the enforcement by any such Person of his or her rights under this Section 9.06, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company, would have been permitted under applicable Law and its certificate of incorporation, bylaws or other organizational documents in effect on the date of this Agreement to indemnify such Person, and shall advance expenses (including reasonable attorneys’ fees and expenses) of any such Person as incurred to the fullest extent permitted under applicable Law (including, without limitation, in connection with any action, suit or proceeding brought by any such Person to enforce his or her rights under this Section 9.06). Without limiting the foregoing, PubCo shall, and shall cause the Company and its Subsidiaries to, (i) maintain for a period of not less than six years from the Effective Time provisions in its certificate of incorporation (if applicable), articles of association, bylaws and other organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors that are no less favorable to those Persons than the provisions of such certificates of incorporation (if applicable), articles of association, bylaws and other organizational documents as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law. PubCo shall assume, and be liable for, and shall cause the Company and their respective Subsidiaries to honor, each of the covenants in this Section 9.06.

 

(c) Notwithstanding anything contained in this Agreement to the contrary, this Section 9.06 shall survive the consummation of the Transactions indefinitely and shall be binding, jointly and severally, on PubCo and the Company and all successors and assigns of PubCo and the Company. In the event that PubCo, the Company or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person or effects any division transaction, then, and in each such case, PubCo and the Company shall ensure that proper provision shall be made so that the successors and assigns of PubCo or the Company, as the case may be, shall succeed to the obligations set forth in this Section 9.06. The obligations of PubCo and the Company under this Section 9.06 shall not be terminated or modified in such a manner as to materially and adversely affect any present and former director or officer of the Company, or other person that may be a director or officer of the Company prior to the Effective Time, to whom this Section 9.06 applies without the consent of the affected Person. The rights of each person entitled to indemnification or advancement hereunder shall be in addition to, and not in limitation of, any other rights such Person may have under the Company Charter or any other indemnification arrangement, any applicable law, rule or regulation or otherwise. The provisions of this Section 9.06 are expressly intended to benefit, and are enforceable by, each Person entitled to indemnification or advancement hereunder and their respective successors, heirs and representatives, each of whom is an intended third-party beneficiary of this Section 9.06.

 

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9.07 Antitrust Regulatory Approvals.

 

(a) Each of Acquiror and the Company shall substantially comply with any Information or Document Requests.

 

(b) Each of Acquiror and the Company exercise its reasonable best efforts to (i) prevent the entry in any Action brought by a Regulatory Consent Authority or any other Person of any Governmental Order which would prohibit, make unlawful or delay the consummation of the Transactions and (ii) if any such Governmental Order is issued in any such Action, cause such Governmental Order to be lifted.

 

(c) Each of Acquiror and the Company shall cooperate in good faith with the Regulatory Consent Authorities and exercise its reasonable best efforts to undertake promptly any and all action required to complete lawfully the Transactions as soon as practicable (but in any event prior to the Termination Date) and any and all action necessary or advisable to avoid, prevent, eliminate or remove any impediment under Antitrust Law or the actual or threatened commencement of any proceeding in any forum by or on behalf of any Regulatory Consent Authority or the issuance of any Governmental Order that would delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Transactions. Without limiting the generality of the foregoing, each of Acquiror and the Company shall, and shall cause its respective Subsidiaries (as applicable) to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any investments, assets, properties, products, rights, services or businesses of such party or any interest therein, and (ii) otherwise take or commit to take any actions that would limit such party’s freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of such party, or any interest or interests therein; provided, that any such action contemplated by this Section 9.07(c) is conditioned upon the consummation of the Transactions. Notwithstanding anything in this Agreement to the contrary, nothing in this Section 9.07 or any other provision of this Agreement shall require or obligate the Company’s Affiliates and investors, Acquiror’s Affiliates and investors, including the Sponsor, their respective Affiliates and any investment funds or investment vehicles affiliated with, or managed or advised by, Acquiror’s Affiliates and investors, including the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of Acquiror’s Affiliates and investors including, the Sponsor, or of any such investment fund or investment vehicle to take any action in connection with avoiding, preventing, eliminating or removing any impediment under Antitrust Law with respect to the Transactions, including selling, divesting, or otherwise disposing of, licensing, holding separate, or taking or committing to take any action that limits in any respect such Person’s or entity’s freedom of action with respect to, or its ability to retain, any business, products, rights, services, licenses, assets or properties of such Person or entity or any of such entity’s Subsidiaries or Affiliates, or any interest therein.

 

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(d) Each of Acquiror and the Company shall promptly notify the other of any substantive communication with, and furnish to such other party copies of any notices or written communications received by, Acquiror or the Company, as applicable, or any of its respective Affiliates and any third party or Governmental Authority with respect to the Transactions, and each of Acquiror and the Company shall permit counsel to such other party an opportunity to review in advance, and each of Acquiror and the Company shall consider in good faith the views of such other party’s counsel in connection with, any proposed communications by Acquiror or the Company, as applicable, and/or its respective Affiliates to any Governmental Authority concerning the Transactions; provided that neither Acquiror nor the Company enter into any agreement with any Governmental Authority without the written consent of such other party. Each of Acquiror and the Company agrees to provide, to the extent permitted by the applicable Governmental Authority, such other party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions. Any materials exchanged in connection with this Section 9.07 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns, and to remove references concerning the valuation of the Company or Acquiror, as applicable, or other competitively sensitive material; provided, that each of Acquiror and the Company may, as it deems advisable and necessary, designate any materials provided to such other party under this Section 9.07 as “outside counsel only.” Notwithstanding anything in this Agreement to the contrary, nothing in this Section 9.07 or any other provision of this Agreement shall require or obligate the Company or any of its investors or Affiliates to, and Acquiror shall not, without the prior written consent of the Company, agree or otherwise be required to, take any action with respect to the Company, or such investors or Affiliates, including selling, divesting, or otherwise disposing of, licensing, holding separate, or taking or committing to take any action that limits in any respect its freedom of action with respect to, or its ability to retain, any business, products, rights, services, licenses, assets or properties of the Company or such investors or Affiliates, or any interest therein.

 

(e) Each of Acquiror and the Company shall be responsible for all its respective filing fees payable to the Regulatory Consent Authorities in connection with the Transactions.

 

(f) Each of Acquiror and the Company shall not, and shall cause its respective Subsidiaries (as applicable) not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to: (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Regulatory Consent Authorities or the expiration or termination of any applicable waiting period; (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) delay or prevent the consummation of the Transactions. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 9.07(f) shall not apply to or be binding upon Acquiror’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, Acquiror’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of Acquiror’s Affiliates, the Sponsor, or any such investment fund or investment vehicle.

 

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9.08 Employee Matters. The Company and Acquiror shall cooperate in good faith to identify those employees of the Company who shall enter into new employment agreements with terms that are reasonably customary the positions or titles of such employees, in a form to be reasonably agreed upon between the Company and Acquiror to be effective on the Closing Date.

 

9.09 Transaction Financing.

 

(a) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to Article X, each of Acquiror and the Company shall take, or cause to be taken, all reasonable actions and do, or cause to be done all things reasonably necessary, proper or advisable to: (a) identify additional sources of financing from third party financing sources in the form of debt or equity investments (the “Transaction Financing Investments”) and negotiate binding agreements on marketable terms with such Transaction Financing Investors (the “Transaction Financing Agreements”) in connection with ensuring the closing condition set forth in Section 10.03(f) is satisfied and (b) reasonably cooperate in a timely manner in connection with any such Transaction Financing Investments the Parties may seek in connection with the Transaction Financing including (i) by providing such information and assistance as the other Party may reasonably request, (ii) granting such access to potential Transaction Financing Investors and their respective representatives as may be reasonably necessary for their due diligence, and (iii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with respect to such Transaction Financing. All such cooperation, assistance and access shall be granted during normal business hours and shall be granted under conditions that shall not unreasonably interfere with the business and operations of the Parties or their auditors and shall be subject to any limitations under applicable Law.

 

(b) As of the date of entering into a Transaction Financing Agreement, Acquiror will deliver to the Company true, correct and complete copies of each fully executed Transaction Financing Agreement. Each of the Transaction Financing Agreements will be in full force and effect and will be legal, valid and binding upon Acquiror and, to the knowledge of Acquiror, the applicable Transaction Financing Investor, and will be enforceable in accordance with its terms. Acquiror will have fully paid any and all commitment fees or other fees required in connection with the Transaction Financing Agreements that are payable on or prior to the date such Transaction Financing Agreement is entered into and will pay any and all such fees when and as the same become due and payable after such date pursuant to the Transaction Financing Agreements. Acquiror will have, and to the knowledge of Acquiror, the Transaction Financing Investors will have, complied with all of their obligations under the Transaction Financing Agreements. Acquiror shall not enter into any side letters or Contracts related to the provision or funding, as applicable, of the purchases contemplated by the Transaction Financing Agreements other than as approved by the Company in its reasonable discretion.

 

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(c) The Sponsor shall make available up to one million (1,000,000) Acquiror Class B Ordinary Shares to provide an economic incentive for Transaction Financing Investors and non-redeeming shareholders of Acquiror (the “Transaction Financing Incentive Shares”). At the Closing, the Sponsor shall surrender and cause to be cancelled any Transaction Financing Incentive Shares not used for in connection with the Transaction Financing.

 

9.10 Name Change; Stock Symbol Change. In connection with the Closing, PubCo shall (a) amend its Governing Documents to change the name of PubCo to a name containing “Braiin Holdings” and change PubCo’s symbol on Nasdaq to a symbol acceptable to the Company.

 

9.11 Repurchase of Sponsor Warrants. At the Closing, PubCo shall repurchase all of the Acquiror Private Placement Warrants held by the Sponsor for an amount equal to the Sponsor Warrant Repurchase Amount.

 

Article X
CONDITIONS TO OBLIGATIONS

 

10.01 Conditions to Obligations of All Parties. The obligations of the parties hereto to consummate, or cause to be consummated, the Transactions are subject to the satisfaction of the following conditions, any one or more of which may be waived (if legally permitted) in a joint writing duly executed by all of such parties:

 

(a) No Prohibition. There shall not have been enacted or promulgated any Governmental Order, statute, rule or regulation enjoining or prohibiting the consummation of the Transactions.

 

(b) Offer Completion. The Offer shall have been completed in accordance with the terms hereof, the Acquiror Organizational Documents and the Proxy Statement.

 

(c) Registration Statement. The Registration Statement shall have been declared effective in accordance with the provisions of the Securities Act, no stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and shall remain in effect with respect to the Registration Statement, and no Proceeding seeking such a stop order shall have been threatened or initiated by the SEC and remain pending.

 

(d) Net Tangible Assets. Acquiror shall not have redeemed Acquiror Ordinary Shares in the Offer in an amount that would cause Acquiror to have less than $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) after such redemption.

 

(e) Acquiror Shareholder Approval. The Acquiror Shareholder Approval shall have been obtained.

 

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(f) Listing. PubCo’s Ordinary Shares to be issued in connection with the Transactions shall have been approved for listing on Nasdaq subject only to official notice of issuance thereof.

 

(g) Regulatory Approvals. All Regulatory Approvals shall have been obtained.

 

10.02 Additional Conditions to Obligations of Acquiror. The obligations of Acquiror to consummate, or cause to be consummated, the Transactions are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror:

 

(a) Representations and Warranties. Each of the representations and warranties of the Company shall be true and correct (disregarding all qualifications made therein with respect to materiality or Material Adverse Effect) as of the date hereof and as of the Closing Date as though then made (except to the extent any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), except, in either case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Material Adverse Effect.

 

(b) Agreements and Covenants. Each of the covenants of the Company to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects.

 

(c) Officer’s Certificate. The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying on behalf of the Company that, to the knowledge and belief of such officer, the conditions specified in Section 10.02(a) and Section 10.02(b) have been fulfilled.

 

(d) Company Shareholder Lock-Up Agreements. The Company shall deliver to Acquiror duly executed counterparts of the Company Shareholder Lock-Up Agreements, the form of which is attached hereto as Exhibit D (the “Company Shareholder Lock-Up Agreements”); provided, however, that any shareholder of the Company who holds less than ten (10%) percent of the shares in the PubCo upon consummation of the Transaction shall not be required to sign the Company Shareholder Lock-Up Agreements.

 

(e) PowerTec Acquisition. The PowerTec acquisition shall have been completed.

 

(f) Additional Shareholders. All additional holders of Company securities or Company Convertible Securities shall have entered into binding agreements to provide for the exchange of their shares for their pro rata share of the Exchange Shares.

 

(g) Transfer of Assets. All Intellectual Property or other assets used by the Company or any Subsidiary in the operation of the business of such entity that is not currently owned by the Company or such Subsidiary shall have been transferred to the Company.

 

(h) No Material Adverse Effect. Since the date of this Agreement, the Company or any of its Subsidiaries shall not have incurred a Material Adverse Effect.

 

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10.03 Additional Conditions to the Obligations of the Company. The obligation of the Company to consummate the Transactions is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:

 

(a) Representations and Warranties. Each of the representations and warranties of Acquiror shall be true and correct (disregarding all qualifications made therein with respect to materiality or Material Adverse Effect as of the date hereof and as of the Closing Date as though then made (except to the extent any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), except, in either case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Material Adverse Effect.

 

(b) Agreements and Covenants. Each of the covenants of Acquiror to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects.

 

(c) Officer’s Certificate. Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 10.03(a) and Section 10.03(b) have been fulfilled.

 

(d) PubCo Charter. The Memorandum and Articles of Association shall be amended and restated in the form of the PubCo Charter.

 

(e) Company Shareholder Lock-Up Agreements. Acquiror shall deliver to the Company a duly executed counterpart of each Company Shareholder Lock-Up Agreement.

 

(f) Available Cash Amount. The Available Cash Amount shall equal or exceed $15,000,000.

 

Article XI
TERMINATION/EFFECTIVENESS

 

11.01 Termination. This Agreement may be terminated and the Transactions abandoned:

 

(a) by written consent of the Company and Acquiror;

 

(b) prior to the Closing, by written notice to the Company from Acquiror if (i) there is any breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, such that the conditions specified in Section 10.02(a) or Section 10.02(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Company through the exercise of its commercially reasonable efforts, then, for a period of up to 30 days (or any shorter period of the time that remains between the date Acquiror provides written notice of such violation or breach and the date of termination (such date, the “Termination Date”)) after receipt by the Company of notice from Acquiror of such breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period, (ii) the Closing has not occurred on or before September 4, 2023 (the “Outside Date”), or (iii) the consummation of the Transactions is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or a statute, rule or regulation; provided that the right to terminate this Agreement under Section 11.01(b)(i) shall not be available if the failure of Acquiror to fulfill any obligation under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date; provided further that the right to terminate this Agreement under Section 11.01(b)(i) shall not be available if Acquiror has materially breached its obligations under Section 7.04;

 

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(c) prior to the Closing, by written notice to Acquiror from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of Acquiror set forth in this Agreement, such that the conditions specified in Section 10.03(a) or Section 10.03(b) would not be satisfied at the Closing (a “Terminating Acquiror Breach”), except that, if any such Terminating Acquiror Breach is curable by Acquiror through the exercise of its commercially reasonable efforts, then, for a period of up to 30 days (or any shorter period of the time that remains between the date the Company provides written notice of such violation or breach and the Termination Date) after receipt by Acquiror of notice from the Company of such breach (the “Acquiror Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Acquiror Breach is not cured within the Acquiror Cure Period, (ii) the Closing has not occurred on or before the Termination Date, (iii) the consummation of the Transactions is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or a statute, rule or regulation; provided, that the right to terminate this Agreement under Section 11.01(c)(ii) shall not be available if the Company’s material failure to fulfill any obligation under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date; or

 

(d) by written notice from either the Company or Acquiror to the other if the Acquiror Shareholder Approval is not obtained at the Extraordinary General Meeting (subject to any adjournment or recess of the meeting).

 

11.02 Effect of Termination. Except as otherwise set forth in this Section 11.02 and subject to Section 12.05, in the event of the termination of this Agreement pursuant to Section 11.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto or its respective Affiliates, officers, directors, employees, shareholders or stockholders, other than liability of any party hereto for any Willful Breach of this Agreement by such party occurring prior to such termination. The provisions of Sections , 9.04, 11.02 and Article XII (collectively, the “Surviving Provisions”), and any other Section or Article of this Agreement referenced in the Surviving Provisions, which are required to survive in order to give appropriate effect to the Surviving Provisions, shall in each case survive any termination of this Agreement. Notwithstanding the foregoing, a failure by Acquiror to close in accordance with this Agreement when they are obligated to do so shall be deemed to be a Willful Breach of this Agreement.

 

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Article XII
MISCELLANEOUS

 

12.01 Waiver. Any party to this Agreement may, to the fullest extent permitted by applicable law at any time prior to the Closing and before or after shareholder adoption of this Agreement, by action taken by its board of directors, or officers thereunto duly authorized, waive any of the terms or conditions of this Agreement, or by action taken by its board of directors and without further action on the part of its shareholders to the extent permitted by applicable law, agree to an amendment or modification to this Agreement in the manner contemplated by Section 12.10 and by an agreement in writing executed in the same manner (but not necessarily by the same Persons) as this Agreement.

 

12.02 Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx (or other nationally recognized overnight delivery service) or (iv) when e-mailed during normal business hours (and otherwise as of the immediately following Business Day), addressed as follows:

 

(a) If to Acquiror, to:

 

Northern Revival Acquisition Corporation
4001 Kennett Pike, Suite 302
Wilmington, DE 19807

 

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

 

Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
E-mail: mnussbaum@loeb.com

 

 

(b) If to the Company to:

 

Braiin Limited

Attn: Natraj Balasubramanian

283 Rokeby Road

Subiaco, WA 6008

Australia

natraj@braiin.com

 

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

 

Winston & Strawn LLP

800 Capitol St., Suite 2400

Houston, Texas 77002

Attn: Michael Blankenship

Email: mblankenship@winston.com

 

or to such other address or addresses as the parties may from time to time designate in writing.

 

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12.03 Assignment. No party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Any attempted assignment in violation of the terms of this Section 12.03 shall be null and void, ab initio.

 

12.04 Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the parties hereto, any right or remedies under or by reason of this Agreement; provided, however, that, notwithstanding the foregoing (a) in the event the Closing occurs, the present and former officers and directors of the Company and Acquiror (and their successors, heirs and representatives) are intended third-party beneficiaries of, and may enforce, Section 9.06 and (b) the past, present and future directors, officers, employees, incorporators, members, partners, stockholders, Affiliates, agents, attorneys, advisors and representatives of the parties, and any Affiliate of any of the foregoing (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, Section 12.14.

 

12.05 Expenses.

 

(a) Except as otherwise provided herein (including Section 9.07(e)), Section 9.03(a), Section 12.05(b) and Section 12.05(c)), each party hereto shall bear its own expenses incurred in connection with this Agreement and the Transactions whether or not the Transactions shall be consummated, including all fees of its legal counsel, financial advisers and accountants.

 

(b) Notwithstanding anything to the contrary herein, in the event that the Transactions are not consummated by the Outside Date, and the Company’s conditions to closing set forth in Article IX have been satisfied prior to the Outside Date, or such conditions would be satisfied if the Closing were to occur and Acquiror is ready, willing and able to close the Transactions, then the Company shall reimburse Acquiror for Acquiror’s documented fees and expenses incurred between the date of this Agreement and the Termination Date in an amount up to $700,000 (subject to the monthly aggregate caps set forth on Schedule 11.05). For the avoidance of doubt, the Company shall not have any obligation to reimburse Acquiror for any documented fees and expenses if the Company terminates this Agreement in accordance with Section 11.01(c).

 

(c) Notwithstanding anything to the contrary herein, (i) in the event that the Transactions are not consummated by the Outside Date, and Acquiror’s conditions to closing set forth in Article IX have been satisfied prior to the Outside Date, or such conditions would be satisfied if the Closing were to occur and the Company is ready, willing and able to close the Transactions, or (ii) in the event that the Company’s condition to Closing set forth in Section 10.03(f) is not satisfied by the Outside Date, then Acquiror shall reimburse (and, if Acquiror does not have sufficient funds, the Sponsor shall reimburse), 50% of the Outstanding Company Expenses (consisting for this purpose, of only legal and PCAOB accounting fees of the Company and reasonable travel expenses of the Company), incurred between December 20, 2022 and the Termination Date up to a maximum of $700,000. For the avoidance of doubt, Acquiror shall not have any obligation to reimburse the Company for any documented fees and expenses if Acquiror terminates this Agreement in accordance with Section 11.01(b).

 

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12.06 Governing Law. This Agreement, the Transactions and all claims or causes of action based upon, arising out of, or related to this Agreement or the Transactions, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.

 

12.07 Captions; Counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

12.08 Schedules and Exhibits. The Schedules and Exhibits referenced herein are a part of this Agreement as if fully set forth herein. All references herein to Schedules and Exhibits shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a party in the Schedules with reference to any section or schedule of this Agreement shall be deemed to be a disclosure with respect to all other sections or schedules to which such disclosure may apply solely to the extent the relevance of such disclosure is reasonably apparent on the face of the disclosure in such Schedule. Certain information set forth in the Schedules is included solely for informational purposes.

 

12.09 Entire Agreement. This Agreement (together with the Schedules and Exhibits to this Agreement) and that certain Confidentiality Agreement, dated September 19, 2022, between Acquiror and the Company (the “Confidentiality Agreement”), constitute the entire agreement among the parties relating to the Transactions and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the parties hereto or any of their respective Subsidiaries relating to the Transactions. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the Transactions exist between the parties except as expressly set forth or referenced in this Agreement and the Confidentiality Agreement.

 

12.10 Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed in the same manner as this Agreement and which makes reference to this Agreement. The approval of this Agreement by the shareholders of any of the parties shall not restrict the ability of the board of directors of any of the parties to terminate this Agreement in accordance with Section 11.01 or to cause such party to enter into an amendment to this Agreement pursuant to this Section 12.10 provided that any further approval of the of shareholders required under applicable law is obtained.

 

12.11 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.

 

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12.12 WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS.

 

12.13 Enforcement. The parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties do not perform their obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate this Agreement) in accordance with its specified terms or otherwise breach such provisions. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without posting a bond or other security or proof of damages, prior to the valid termination of this Agreement in accordance with Section 11.01, this being in addition to any other remedy to which they are entitled under this Agreement, and (b) the right of specific enforcement is an integral part of the Transactions and without that right, none of the parties would have entered into this Agreement. Each party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties acknowledge and agree that any party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 12.13(a) shall not be required to provide any bond or other security in connection with any such injunction. Each of the parties to this Agreement consents to personal jurisdiction for any equitable action sought in the U.S. District Court for the District of the Southern District of New York or any court of the State of New York having subject matter jurisdiction.

 

12.14 Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the Transactions may only be brought against, the Parties, and then only with respect to the specific obligations set forth herein or in an Ancillary Agreement with respect to such Named Party. Except to the extent a Named Party to this Agreement or an Ancillary Agreement and then only to the extent of the specific obligations undertaken by such Named Party in this Agreement or in the applicable Ancillary Agreement, (a) no past, present or future director, officer, employee, incorporator, member, partner, shareholder, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any Named Party to this Agreement or any Ancillary Agreement, and (b) no past, present or future director, officer, employee, incorporator, member, partner, shareholder, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, Acquiror or the Sellers under this Agreement or any Ancillary Agreement of or for any claim based on, arising out of, or related to this Agreement or the Transactions.

 

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12.15 Nonsurvival of Representations, Warranties and Covenants. None of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing and shall terminate and expire upon the occurrence of the Effective Time (and there shall be no liability after the Closing in respect thereof), except for (a) those covenants and agreements contained herein or in any Ancillary Agreement that by their terms expressly apply in whole or in part after the Closing and then only with respect to any breaches occurring after the Closing, and (b) this Article XII.

 

12.16 Acknowledgments. Each of the parties acknowledges and agrees (on its own behalf and on behalf of its respective Affiliates) that: (a) the Acquiror Representations constitute the sole and exclusive representations and warranties of Acquiror; (b) the Seller Representations constitute the sole and exclusive representations and warranties of such Sellers; (c) except for the Company Representations by the Company, the Acquiror Representations by Acquiror, and the Seller Representations, none of the parties hereto or any other Person makes, or has made, any other express or implied representation or warranty with respect to any party hereto (or any party’s Affiliates) or the Transactions and all other representations and warranties of any kind or nature expressed or implied (including (i) regarding the completeness or accuracy of, or any omission to state or to disclose, any information, including in the estimates, projections or forecasts or any other information, document or material provided to or made available to any party hereto or their respective Affiliates or Representatives in certain “data rooms,” management presentations or in any other form in expectation of the Transactions, including meetings, calls or correspondence with management of any party hereto (or any party’s Subsidiaries), and (ii) any relating to the future or historical business, condition (financial or otherwise), results of operations, prospects, assets or liabilities of any party hereto (or its Subsidiaries), or the quality, quantity or condition of any party’s or its Subsidiaries’ assets) are specifically disclaimed by all parties hereto and their respective Subsidiaries and all other Persons (including the Representatives and Affiliates of any party hereto or its Subsidiaries); and (d) each party hereto and its respective Affiliates and its and their respective Representatives are not relying on and have not relied on, any representations or warranties in connection with the Transactions or otherwise except the Company Representations by the Company, the Acquiror Representations by Acquiror, the Seller Representations by the Sellers and the other representations expressly made by a Person in the Ancillary Agreements (each of which is being made solely by the Person expressly making such representation in the applicable Ancillary Agreement and not by any other Person).

 

[signature page follows]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.

 

  ACQUIROR:
     
  NORTHERN REVIVAL ACQUISITION CORPORATION
     
  By: /s/ Aemish Shah   
    Name: Aemish Shah       
    Title: Chief Executive Officer 

 

Signature Page to Business Combination Agreement

 

 

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.

 

  COMPANY:
     
  BRAIIN LIMITED
     
  By: /s/ Natraj Balasubramanian 
    Name:  Natraj Balasubramanian
    Title: Chief Executive Officer

 

Signature Page to Business Combination Agreement

 

 

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.

 

  SELLERS:
   
  /s/ Natraj Balasubramanian
  NATRAJ BALASUBRAMANIAN
   
  /s/Darren McVean 
  DARREN MCVEAN

 

Signature Page to Business Combination Agreement

 

 

 

 

ANNEX I

 

Sellers and Ownership

 

SELLER  COMPANY
SHARES
   PERCENTAGE
OWNERSHIP
 
Natraj Balasubramanian   5,534,789    50%
Darren McVean   5,534,789    50%

 

Annex I

 

 

EXHIBIT A

 

Form of Sponsor Support Agreement

 

See attached.

 

 

 

 

SPONSOR SUPPORT AGREEMENT

 

This Sponsor Support Agreement, dated as of March 20, 2023 (this “Agreement”), is by and among (a) Braiin Limited, an Australian public company limited by shares (the “Company”), (b) Northern Revival Sponsor LLC, a Delaware limited liability company (the “Sponsor” for limited purposes), and (c) Northern Revival Acquisition Corporation, a Cayman Islands exempted company limited by shares (prior to the Effective Time, “Acquiror” and, at and after the Effective Time, “PubCo”).

 

WHEREAS, Acquiror, the Sponsor, the Company and certain shareholders of the Company (the “Sellers”), propose to enter into, concurrently herewith, that certain Business Combination Agreement (as amended and/or restated from time to time, the “BCA”), pursuant to which (and subject to the terms and conditions set forth therein) all of the shareholders of the Company will exchange their shares of the Company for ordinary shares of PubCo (capitalized terms used but not defined herein shall have the respective meanings given to them in the BCA);

 

WHEREAS, as of the date hereof, the Sponsor is currently, and as of immediately prior to the Closing will be, the record and “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of the issued and outstanding Acquiror Ordinary Shares and Acquiror Warrants set forth on Schedule A hereto; and

 

WHEREAS, in order to induce Acquiror, the Company and the Sponsor to enter into the BCA and consummate the Transactions, Acquiror, the Company and the Sponsor desire to enter into this Agreement.

 

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, the Sponsor hereby agrees with Acquiror and the Company as follows:

 

1.Voting Obligations. Commencing on the effectiveness of the BCA and until the earlier of (i) the Closing or (ii) termination of the BCA in accordance with Article XI thereof (such period, the “Interim Period”), the Sponsor, in its capacity as a holder of Acquiror Ordinary Shares, agrees that, at the Extraordinary General Meeting, at any other meeting of the Acquiror Shareholders (whether annual or extraordinary 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 Acquiror Shareholders and in connection with any similar vote or consent of the holders of Acquiror Warrants in their capacities as such, the Sponsor shall, and shall cause any other holder of record of any of the Sponsor’s Acquiror Ordinary Shares to:

 

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

 

Exhibit A-1

 

 

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 the Sponsor’s Acquiror Ordinary Shares owned as of the record date for determining holders entitled to vote at such meeting (or the record date for determining holders entitled to provide consent) in favor of each Proposal and any other matters reasonably necessary for 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 Sponsor’s Acquiror Ordinary Shares against any competing 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 Acquiror, under the BCA.

 

d.The obligations of the Sponsor in this Section 1 shall apply whether or not the Acquiror Board or other governing body or any committee, subcommittee or subgroup thereof recommends any of the 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 Acquiror Board’s recommendation to its shareholders.

 

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

 

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

 

b.The Sponsor hereby irrevocably and unconditionally (i) waives any rights for working capital loans made by or on its behalf to Acquiror or any of its affiliates to be converted into warrants exercisable for securities of Acquiror or any of its affiliates or their successors and assigns and (ii) agrees that no such loans shall be converted into such warrants or any such other securities.

 

c.The Sponsor agrees not to commence, join in, 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 the Company, or Acquiror, or any of their respective affiliates and each of their officers, directors or managers relating to the negotiation, execution or delivery of this Agreement or the BCA or the consummation of the transactions contemplated hereby or thereby, including any claim (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the BCA (including any claim seeking to enjoin or delay the Closing) or (b) alleging a breach of any fiduciary duty of the Acquiror Board in connection with the negotiation and entry into this Agreement, the BCA or the transactions contemplated hereby or thereby, and hereby irrevocably waives any claim or rights whatsoever with respect to any of the foregoing.

 

Exhibit A-2

 

 

3.Reasonable Best Efforts. During the Interim Period, the Sponsor (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 the BCA.

 

4.Transfer Restrictions.

 

a.Interim Period. During the Interim Period, the Sponsor shall not, and shall cause any other holder of record of any of the Sponsor’s Acquiror Ordinary Shares not to, Transfer any Acquiror Ordinary Shares that it Beneficially Owns or owns of record without the prior written consent of the Company. Notwithstanding anything to the contrary, the foregoing sentence shall not apply to the following (each, a “Permitted Transfer”):

 

(i) Transactions relating to Acquiror Ordinary Shares acquired in open market transactions;

 

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

 

(iii) Transfers to Acquiror or the officers, directors or affiliates of Acquiror or the Sponsor;

 

(iv) in the event of Acquiror’s liquidation prior to the completion of the Transactions;

 

(v) by virtue of the laws of the Cayman Islands; and

 

(vi) 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 Acquiror Ordinary Shares or any securities convertible into or exercisable or exchangeable for Acquiror Ordinary Shares during the Interim Period.

 

provided, that in the case of any Transfer or distribution pursuant to Section 4(a)(ii) through Section 4(a)(viii) hereof, each donee, distributee or othertransferee shall agree in writing, in form and substance reasonably satisfactory to the Sponsor and the Company, to be bound by the provisions of this Agreement.

 

Exhibit A-3

 

  

b.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.

 

c.Any person who acquires Acquiror Ordinary Shares pursuant to a Permitted Transfer in compliance with this Agreement shall subsequently be permitted to Transfer such Acquiror Ordinary Shares pursuant to a Permitted Transfer in compliance with this Agreement.

 

5.Waiver of Appraisal Rights. The Sponsor hereby irrevocably and unconditionally waives, and agrees not to exercise or assert, on its own behalf or on behalf of any other holder of Acquiror Ordinary Shares, any rights of appraisal, any dissenters’ rights or any similar rights relating to the Transactions that the Sponsor may have by virtue of, or with respect to, any Acquiror Ordinary Shares.

 

6.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.Transfer” means to, directly or indirectly, by operation of law or otherwise, 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.

 

c.Warrant Agreement” means the Warrant Agreement, dated as of February 1, 2021, between Acquiror and Continental Stock Transfer & Trust Company, as may be amended from time to time.

 

7.Entire Agreement; Assignment. 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.

 

8.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.

 

Exhibit A-4

 

 

9.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.

 

10.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.

 

11.Governing Law; Dispute Resolutions. Section 12.06 of the BCA is incorporated herein by reference, mutatis mutandis.

 

12.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 Acquiror, the address for Acquiror in accordance with the terms of Section 12.02(a) of the BCA, (b) if to the Company, the address for the Company in accordance with the terms of Section 12.02(b) of the BCA and (c) if to the Sponsor, the address set forth in the Sponsor’s signature block hereto.

 

13.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), (b) the Effective Time, or (c) the time this Agreement is terminated upon the mutual written agreement of Acquiror, the Company and the Sponsor.

 

14.Amendment. This Agreement cannot be amended, except by a writing signed by each party. No provision hereof can be waived, except by a writing signed by the party against whom such waiver is to be enforced, and any such waiver shall apply only in the particular instance in which such waiver shall have been given.

 

15.Representations and Warranties. The Sponsor hereby represents and warrants to Acquiror and the Company as follows: (a) 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 the Sponsor’s limited liability company or other organizational powers and have been duly authorized by all necessary limited liability company or other organizational actions on the part of such person; (b) this Agreement has been duly executed and delivered by the Sponsor and, assuming due authorization, execution and delivery by the other parties to this Agreement, this Agreement constitutes a legally valid and binding obligation of the Sponsor, enforceable against the Sponsor 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); and (d) the execution and delivery of this Agreement by the Sponsor do not, and the performance by the Sponsor 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 the Sponsor of its obligations under this Agreement.

 

Exhibit A-5

 

  

16.Additional Shares. The Sponsor agrees that any Acquiror Ordinary Shares and any other shares of capital stock or other equity of Acquiror that the Sponsor purchases or otherwise acquires or with respect to which the Sponsor otherwise acquires voting power after the execution of this Agreement and prior to the termination of this Agreement shall be subject to all of the terms and conditions of this Agreement except for the transfer restrictions set forth in Section 4, to the same extent as if they constituted Acquiror Ordinary Shares as of the date of this Agreement.

 

17.Equitable Adjustments. If, and as often as, there are any changes in Acquiror, the Acquiror Ordinary Shares or the Acquiror 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 Acquiror, the Acquiror Ordinary Shares or the Acquiror Warrants, each as so changed.

 

18.Stop Transfer Order; Legend. The Sponsor hereby authorizes Acquiror to maintain a copy of this Agreement at either the executive office or the registered office of Acquiror. In furtherance of this Agreement, the Sponsor hereby authorizes and will instruct Acquiror, promptly after the date hereof, to enter, or cause its transfer agent to enter, a stop transfer order with respect to the Sponsor’s Acquiror Ordinary Shares that are subject to the transfer restrictions set forth in Section 4, and to include the following legend on any certificates or other instruments representing (or any notice given pursuant to the Cayman Companies Act in respect of) the Sponsor’s Acquiror Ordinary Shares: “THE SHARES OR OTHER SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VOTING AND TRANSFER RESTRICTIONS PURSUANT TO THAT CERTAIN SPONSOR SUPPORT AGREEMENT, DATED AS OF MARCH ___, 2023, BY AND AMONG BRAIIN LTD., NORTHERN REVIVAL ACQUISITION CORPoration AND NORTHERN REVIVAL SPONSOR LLC, AS THE SAME MAY BE AMENDED FROM TIME TO TIME. ANY TRANSFER OF SUCH SHARES OR OTHER SECURITIES IN VIOLATION OF THE TERMS AND PROVISIONS OF SUCH SPONSOR SUPPORT AGREEMENT SHALL BE NULL AND VOID AB INITIO AND HAVE NO FORCE OR EFFECT WHATSOEVER.”

 

Exhibit A-6

 

 

19.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 the Court of Chancery of the State of Delaware, or, if that court does not have jurisdiction, any court of the United States located in the State of New York 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 (b) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief and (c) any defense relating to the absence of irreparable harm.

 

20.Updates to Schedule A; Admission of New Acquiror Ordinary Share Holders. During the Interim Period, the Sponsor shall promptly notify Acquiror of any increase, decrease or other change in the number of Acquiror Ordinary Shares or Acquiror Warrants held by or on behalf of the Sponsor (for the avoidance of doubt, the Sponsor acknowledges and agrees that  Section 4(a) prohibits all Transfers of its Acquiror Ordinary Shares, other than Permitted Transfers, during the Interim Period). Promptly following each such notification, Acquiror (as applicable) shall update Schedule A to reflect the applicable changes as they relate to Acquiror Ordinary Shares or Acquiror Warrants (in the case of an Interim Period change) or Acquiror Ordinary 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 21). Any update to Schedule A in accordance with this Agreement shall not be deemed an amendment to this Agreement for purposes of Section 14.

 

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

 

22.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.

 

[Signature pages follow]

 

Exhibit A-7

 

 

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

 

NORTHERN REVIVAL SPONSOR LLC  
     
By:    
Name:    
Title:    
     
noRTHERN REVIVAL acquisition corporation  
     
By:    
Name:    
Title:    
     
braiin LIMITED  
     
By:    
Name:   Natraj Balasubramanian  
Title: Chief Executive Officer  

 

 

 

 

SCHEDULE A

 

   Acquiror
Ordinary
Shares
   Acquiror
Warrants
 
Northern Revival Sponsor LLC                 

  

Sch A-1

 

 

EXHIBIT B

 

Form of Company Support Agreement

 

See attached.

 

 

 

 

COMPANY SHAREHOLDER SUPPORT AGREEMENT

 

This Company Shareholder Support Agreement (this “Agreement”), dated as of March 20, 2023, is entered into by and among Northern Revival Acquisition Corporation, a Cayman Islands exempted company limited by shares (prior to the Effective Time, “Acquiror”, and, at and after the Effective Time, “PubCo”), Braiin Limited, an Australian public company limited by shares (the “Company”) and certain shareholders of the Company set forth on the signature page hereto (the “Shareholders”). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the BCA.

 

RECITALS

 

WHEREAS, concurrently herewith, Acquiror and the Company are entering into a Business Combination Agreement (as amended, supplemented, restated or otherwise modified from time to time, the “BCA”), pursuant to which (and subject to the terms and conditions set forth therein) all of the shareholders of the Company will exchange their shares of the Company for ordinary shares of Acquiror;

 

WHEREAS, as of the date hereof, each Shareholder is the record and “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of and is entitled to dispose of the outstanding Company Ordinary Shares set forth opposite his, her or its name on the signature page of this Agreement (collectively, the “Owned Shares”; the Owned Shares and any additional Company Ordinary Shares (or any securities convertible into or exercisable or exchangeable for Company Ordinary Shares) in which the Shareholders acquire record or beneficial ownership after the date hereof, including by purchase, as a result of a share dividend, share split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities, the “Covered Shares”); and

 

WHEREAS, as a condition and inducement to the willingness of Acquiror to enter into the BCA, the Shareholders are entering into this Agreement.

 

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

 

AGREEMENT

 

1. Agreement to Vote. Subject to (i) the earlier termination of this Agreement in accordance with this Section 3 and (ii) the Shareholder’s receipt and review of BCA, and the information therein being to his satisfaction, each Shareholder, solely in his capacity as a shareholder of the Company, irrevocably and unconditionally agrees, and agrees to cause any other holder of record of any of the Shareholders’ Covered Shares, to validly execute and deliver to the Company in respect of all of the Shareholders’ Covered Shares in a timely manner the written consent that will be solicited by the Company from the Shareholders pursuant to the BCA to obtain the Company Advance Shareholder Approval. In addition, prior to the Termination Date (as defined in the BCA), each Shareholder, in his, her or its capacity as a shareholder of the Company, irrevocably and unconditionally agrees that, at any other meeting of the shareholders of the Company (whether annual or special and whether or not an adjourned or postponed meeting, however called and including any adjournment or postponement thereof) and in connection with any written consent of shareholders of the Company, each Shareholder shall, and shall cause any other holder of record of any of the Shareholders’ Covered Shares to:

 

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

 

Exhibit B-1

 

 

(b) vote (or execute and return an action by written consent), or cause to be voted at such meeting (or validly execute and return and cause such consent to be granted with respect to), all of such Shareholder’s Covered Shares owned as of the record date for such meeting (or the date that any written consent is executed by such Shareholder) in favor of the Transactions BCA and any other matters necessary or reasonably requested by the Company for consummation of the Transactions; and

 

(c) vote (or execute and return an action by written consent), or cause to be voted at such meeting, or validly execute and return and cause such consent to be granted with respect to, all of such Shareholder’s Covered Shares against any Acquisition Proposal (as defined below) and any other action that would reasonably be expected to materially impede, interfere with, delay, postpone or adversely affect the Transactions contemplated by the BCA or result in a breach of any covenant, representation or warranty or other obligation or agreement of the Company under the BCA or result in a breach of any covenant, representation or warranty or other obligation or agreement of such Shareholder contained in this Agreement.

 

The obligations of the Shareholders specified in this Section 1 shall apply whether or not the Transactions or any action described above is recommended by the Company Board or the Company Board has previously recommended the Transactions but changed such recommendation.

 

For the purposes of this Agreement, “Acquisition Proposal” means any proposal or offer from any Person or “group” (as defined in the Exchange Act) (other than Acquiror or its Affiliates) relating to, in a single transaction or series of related transactions, (i) any direct or indirect acquisition or purchase of any business of the Company or any assets thereof, (ii) any direct or indirect acquisition of the consolidated assets of the Company (, including through the acquisition of one or more subsidiaries of the Company owning such assets, (iii) acquisition of beneficial ownership, or the right to acquire beneficial ownership, of any equity securities of the Company, any tender offer or exchange offer for equity securities of the Company, or any merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company (or any Company Subsidiary) or (iv) any issuance or sale or other disposition (including by way of merger, reorganization, division, consolidation, share exchange, business combination, recapitalization or other similar transaction) of equity securities of the Company.

 

Exhibit B-2

 

 

2. No Inconsistent Agreements. Each Shareholder hereby covenants and agrees that such Shareholder shall not, at any time prior to the Termination Date, (i) enter into any voting agreement or voting trust with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, (ii) grant a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, or (iii) enter into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.

 

3. Commencing on the effectiveness of the BCA and until the earlier of (i) the Closing or (ii) termination of the BCA in accordance with Section 4 thereof (such period, the “Interim Period”), each Shareholder (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 the BCA.

 

4. Termination. This Agreement shall terminate upon the earliest of (i) the Effective Time, and (ii) the termination of the BCA in accordance with its terms; provided, that the provisions set forth in Sections 10 through 22 hereof shall survive the termination of this Agreement.

 

5. Representations and Warranties of the Shareholders. Each Shareholder, severally and not jointly, hereby represents and warrants to Acquiror as to itself as follows:

 

(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement or the organizational documents of the Company (including, for the purposes hereof, any agreements between or among shareholders of the Company). As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any Company Shares (or any securities convertible into Company Shares) or any interest therein.

 

(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.

 

Exhibit B-3

 

 

(c) Such Shareholder affirms that (i) if such Shareholder is a natural person, he or she has all the requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform his or her obligations hereunder and to consummate the transactions contemplated hereby, and (ii) if such Shareholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization and (B) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Shareholder and constitutes a valid and binding agreement of such Shareholder enforceable against such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

 

(d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under Law, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Authority in connection with the execution, delivery and performance by such Shareholder of this Agreement, or the consummation of the transactions contemplated hereby.

 

(e) The execution, delivery and performance of this Agreement by such Shareholder do not, and the consummation of the transactions contemplated hereby or the Transactions and the other transactions contemplated by the BCA will not, constitute or result in (i) a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in this Section 5(e), under any applicable Law to which such Shareholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Transactions or the other transactions contemplated by the BCA.

 

(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, the validity of this Agreement or the performance by such Shareholder of its obligations under this Agreement.

 

Exhibit B-4

 

 

(g) Such Shareholder understands and acknowledges that Acquiror is entering into the BCA in reliance upon such Shareholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of such Shareholder contained herein.

 

(h) Such Shareholder acknowledges that none of Acquiror, the Company, their affiliates or their respective officers, directors, partners, members or employees makes any representation or warranty with respect to, and shall have no responsibility with respect to, the solvency, financial condition or business operations or financial statements of PubCo, except as set forth in the BCA and its filings with the SEC.  Such Shareholder supports the BCA for its own account based on information currently available to such Shareholder (the “Current Information”). Based on such Current Information, the Shareholder has evaluated the merits and risks of the terms set forth in the BCA on its own and without reliance upon Acquiror (other than with respect to the representations, warranties and covenants set forth in the BCA and the Acquiror’s filings with the SEC). Such Shareholder is an “accredited investor,” as that term is defined in Rule 501(a) or Regulation D under the Securities Act. Such Shareholder is not, and is not acting on behalf of, an employee benefit plan or “benefit plan investor” within the purview of ERISA, or otherwise using “plan assets” (within the meaning of ERISA). Nothing in this sub-section 4(h) shall diminish the provisions of any other part of this Agreement or any applicable Law.

 

(i) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by such Shareholder in his, her or its capacity as a Shareholder or, to the knowledge of such Shareholder, on behalf of such Shareholder in his, her or its capacity as a Shareholder.

 

6. Certain Covenants of the Shareholders. Except in accordance with the terms of this Agreement or with the prior written consent of Acquiror (such consent to be given or withheld in its sole discretion), each Shareholder hereby covenants and agrees as follows:

 

(a) No Solicitation. Subject to this Section 6, prior to the Termination Date, such Shareholder agrees not to, directly or indirectly, (i) initiate, solicit or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, or the making of, any inquiry regarding, or any proposal or offer that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal, (ii) engage in, continue or otherwise participate in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any Person relating to any proposal, offer, inquiry or request for information that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, (iv) execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, BCA, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Acquisition Proposal or (v) resolve or agree to do any of the foregoing.

 

Exhibit B-5

 

 

Such Shareholder shall promptly (and in any event within one Business Day) keep the Company reasonably informed of any material developments with respect to any such inquiry, proposal, offer, request for information or Acquisition Proposal (including any material changes thereto) which comes to his actual knowledge.

 

Notwithstanding anything in this Agreement to the contrary, (i) such Shareholder shall not be responsible for the actions of the Company or the Company Board, any Subsidiary of the Company, or any officers, directors (in their capacity as such), employees and professional advisors of any of the foregoing (the “Company Related Parties”), including with respect to any of the matters contemplated by this Section 6(a), (ii) such Shareholder makes no representations or warranties with respect to the actions of any of the Company Related Parties, and (iii) any breach by the Company of its obligations under Article VII of the BCA shall not be considered a breach of this Section 6(a) (it being understood for the avoidance of doubt that such Shareholder shall remain responsible for any breach by such Shareholder or his, her or its Representatives (other than any such Representative that is a Company Related Party) of this Section 6(a)).

 

(b) Such Shareholder hereby agrees not to, directly or indirectly, (i) sell, transfer, pledge, encumber, assign, hedge, swap, convert or otherwise dispose of (including by Transactions (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary disposition, by operation of Law or otherwise), either voluntarily or involuntarily (collectively, “Transfer”), or enter into any Contract or option with respect to the Transfer of, any of such Shareholder’s Covered Shares, or (ii) take any action that would make any representation or warranty of such Shareholder contained herein untrue or incorrect or have the effect of preventing or disabling such Shareholder from performing its obligations under this Agreement; provided, however, that nothing herein shall prohibit a Transfer to an Affiliate of such Shareholder (a “Permitted Transfer”); provided, further, that any Permitted Transfer shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Acquiror, to assume all of the obligations of such Shareholder under, and be bound by all of the terms of, this Agreement; provided, further, that any Transfer permitted under this Section 6(b) shall not relieve such Shareholder of its obligations under this Agreement. Any Transfer in violation of this Section 6(b) with respect to such Shareholder’s Covered Shares shall be null and void.

 

(c) Such Shareholder hereby authorizes the Company to maintain a copy of this Agreement at either the executive office or the registered office of the Company.

 

7. Further Assurances. From time to time, at Acquiror’s reasonable request and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or reasonably requested to effect the actions and consummate the transactions contemplated by this Agreement.

 

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

 

Exhibit B-6

 

 

 

9. Changes in Company Shares. In the event of a share split, share dividend or distribution, or any change in the Company Shares by reason of any split-up, reverse share split, recapitalization, combination, reclassification, exchange of shares or the like, the terms “Owned Shares” and “Covered Shares” shall be deemed to refer to and include such shares as well as all such share dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.

 

10. Amendment and Modification. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed by Acquiror, the Company and the Shareholders.

 

11. Waiver. No failure or delay by any party hereto exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of the parties hereto hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on the part of a party hereto to any such waiver shall be valid only if set forth in a written instrument executed and delivered by such party.

 

12. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, by email (with confirmation of receipt) or sent by a nationally recognized overnight courier service, such as Federal Express, to the parties hereto at the following addresses (or at such other address for a party as shall be specified by like notice made pursuant to this Section 12):

 

if to a Shareholder, to it at:

 

the address (including email) set forth in the Company’s books and records, or to such other address or to the attention of such other person as such Shareholder has specified by prior written notice to the sending party

 

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

 

Winston & Strawn LLP

800 Capitol St., Suite 2400

Houston, TX 77002-2925

Attn: Michael J. Blankenship

Email: MBlankenship@winston.com

 

if to Acquiror, to it at:

 

Northern Revival Acquisition Corporation

4001 Kennett Pike

Suite 302

Wilmington, DE 19807

Attn: Aemish Shah

Email: aemish@nraccorp.com

 

Exhibit B-7

 

 

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

 

Loeb & Loeb LLP

345 Park Ave

New York, NY 10154

Attn: Alexandria E. Kane

Email: akane@loeb.com

 

13. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Acquiror any direct or indirect ownership or incidence of ownership of or with respect to the Covered Shares of any Shareholder. All rights, ownership and economic benefits of and relating to the Covered Shares of the Shareholders shall remain vested in and belong to such Shareholders, and Acquiror shall have no authority to direct the Shareholders in the voting or disposition of any of the Shareholders’ Covered Shares, except as otherwise provided herein.

 

14. Entire Agreement. This Agreement and the BCA constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof and thereof.

 

15. No Third-Party Beneficiaries. Each Shareholder hereby agrees that his, her or its representations, warranties and covenants set forth herein are solely for the benefit of Acquiror in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein, and the parties hereto hereby further agree that this Agreement may only be enforced against, and any Action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against, the Persons expressly named as parties hereto; provided, that the Company shall be an express third party beneficiary with respect to Section 5 and Section 6(b) hereof.

 

16. Governing Law and Venue; Service of Process; Waiver of Jury Trial.

 

(a) This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to conflicts of laws principles or rules to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.

 

(b) EACH OF THE PARTIES HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

Exhibit B-8

 

 

17. Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto in whole or in part (whether by operation of Law or otherwise) without the prior written consent of the other party, and any such assignment without such consent shall be null and void. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

18. Enforcement. The rights and remedies of the parties shall be cumulative with and not exclusive of any other remedy conferred hereby. The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, including each Shareholder’s obligation to vote its Covered Shares as provided in this Agreement, in the applicable courts, without proof of actual damages or otherwise (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to which they are entitled at law or in equity.

 

19. Severability. If any term or other provision of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms and provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, so long as the economic and legal substance of the transactions contemplated hereby, taken as a whole, are not affected in a manner materially adverse to any party hereto. Upon such a determination, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

20. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, it being understood that each party need not sign the same counterpart. This Agreement shall become effective when each party shall have received a counterpart hereof signed by all of the other parties. Signatures delivered electronically or by facsimile shall be deemed to be original signatures.

 

21. Interpretation and Construction. The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. References to Sections are to Sections of this Agreement unless otherwise specified. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. The definitions contained in this Agreement are applicable to the masculine as well as to the feminine and neuter genders of such term. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute and to any rules or regulations promulgated thereunder. References to any person include the successors and permitted assigns of that person. References from or through any date mean, unless otherwise specified, from and including such date or through and including such date, respectively. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

 

22. Capacity as a Shareholder. Notwithstanding anything herein to the contrary, each Shareholder signs this Agreement solely in such Shareholder’s capacity as a shareholder of the Company, and not in any other capacity and this Agreement shall not limit or otherwise affect the actions of such Shareholder or any Affiliate, employee or designee of such Shareholder or any of their respective Affiliates in his or her capacity, if applicable, as an officer or director of the Company or any other Person.

 

[The remainder of this page is intentionally left blank.]

 

Exhibit B-9

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.

 

  SHAREHOLDER:
   
   
  Company Shares:
   
  ____________ Shares

 

[Signature Page to Company Shareholder Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.

 

  NORTHERN REVIVAL ACQUISITION CORPORATION
       
  By:  
    Name:  
    Title:  

 

[Signature Page to Company Shareholder Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.

 

  BRAIIN, LTD.
   
  By:  
    Name:   Natraj Balasubramanian
    Title: Chief Executive Officer

 

[Signature Page to Company Shareholder Support Agreement]

 

 

 

 

EXHIBIT C

 

Form of Registration Rights Agreement

 

See attached.

 

 

 

  

FORM OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

 

This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (as it may be amended from time to time in accordance with the terms hereof, the “Agreement”), dated as of ___, 2023, is made by and among Northern Revival Acquisition Corporation, a Cayman Islands exempted company limited by shares (prior to the Effective Time (as defined in the Business Combination Agreement), “Acquiror” and, at and after the Effective Time, “PubCo”), Braiin Limited, an Australian public company limited by shares (the “Company”), Northern Revival Sponsor LLC (the “Sponsor”) and the undersigned parties listed under “Investors” on the signature page hereto (collectively, together with their Permitted Transferees, the “Investors”).

 

RECITALS

 

WHEREAS, each of Acquiror and Sponsor are parties to that certain Registration Rights Agreement dated as of February 1, 2021 (the “Prior Agreement”);

 

WHEREAS, each of the Investors is a security holder of the Company;

 

WHEREAS, Acquiror, the Company, Northern Revival Sponsor LLC, a Cayman Islands limited liability company (“Sponsor”) and certain shareholders of the Company (the “Sellers”) have entered into a Business Combination Agreement, dated as March ___, 2023 (as may be amended, restated or supplemented from time to time, the “Business Combination Agreement”), pursuant to which (and subject to the terms and conditions set forth therein) all of the shareholders of the Company will exchange their shares of the Company for ordinary shares of PubCo;

 

WHEREAS, in accordance with the Business Combination Agreement, Acquiror, the Company and the Investors have entered into a Lock-Up Agreement for Company Shares on or about the date hereof (the “Lock-Up Agreement”) pursuant to which such Investors have agreed not, during the Lock-Up Period (as defined in the Lock-Up Agreement, the “Lock-Up Period”) to Transfer their Lock-Up Shares in PubCo (as such terms are defined in the Lock-Up Agreement);

 

WHEREAS, pursuant to Section 5.5 of the Prior Agreement, any amendment, waiver or modification or the Prior Agreement requires the written consent of Acquiror and the holders of at least a majority in interest of the Registrable Securities at the time in question and, insofar as any amendment hereto or waiver adversely affects one holder, solely in his, her or its capacity as a holder of the shares of Acquiror, in a manner that is materially different from the other holders (in such capacity), the consent of such holder; and

 

WHEREAS, in accordance with the Business Combination Agreement, all of the parties to the Prior Agreement desire to amend and restate the Prior Agreement in its entirety as set forth herein, and the parties hereto desire to enter into this Agreement pursuant to which PubCo shall grant the Holders certain registration rights with respect to the Registrable Securities (as defined below) on the terms and conditions set forth in this Agreement;

 

Exhibit C-1

 

 

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

 

EFFECTIVENESS

 

1.1. Effectiveness. This Agreement shall become effective upon the Closing.

 

ARTICLE II

 

DEFINITIONS

 

2.1. Definitions. Capitalized terms used but not otherwise defined in this Section 2.1 or elsewhere in this Agreement shall have the meanings ascribed to such terms in the Business Combination Agreement:

 

Acquiror” shall have the meaning set forth in the preamble.

 

Adverse Disclosure” means public disclosure of material non-public information that, in the good faith judgment of the board of directors of PubCo: (i) would be required to be made in any Registration Statement filed with the SEC by PubCo so that such Registration Statement, from and after its effective date, does 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; (ii) would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement; and (iii) PubCo has a bona fide business purpose for not disclosing publicly.

 

Affiliate” means, (i) with respect to any specified Person that is not a natural person, (a) any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person, and (b) any corporation, trust, limited liability company, general or limited partnership or other entity advised or managed by, or under common control or management with, such Person (for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise) and (ii) with respect to any natural person, any Member of the Immediate Family of such natural person, or any Person that is, directly or indirectly, controlled by such specified natural person; provided that PubCo and each of its subsidiaries shall be deemed not to be Affiliates of any Investor.

 

Agreement” shall have the meaning set forth in the preamble.

 

Applicable Courts” shall have the meaning set forth in Section 4.8.

 

Business Combination Agreement” shall have the meaning set forth in the recitals to this Agreement.

 

Exhibit C-2

 

 

Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

 

Charitable Gifting Event” means any Transfer by a holder of Registrable Securities, or any subsequent Transfer by such holder’s members, partners or other employees, in connection with a bona fide gift to any Charitable Organization made on the date of, but prior to, the execution of the underwriting agreement entered into in connection with any Underwritten Public Offering.

 

Charitable Organization” means a charitable organization as described by Section 501(c)(3) of the U.S. Internal Revenue Code of 1986, as in effect from time to time.

 

Company” shall have the meaning set forth in the preamble.

 

“Demand Notice” shall have the meaning set forth in Section 3.1.3.

 

“Demand Registration” shall have the meaning set forth in Section 3.1.1.1.

 

“Demand Registration Request” shall have the meaning set forth in Section 3.1.1.1.

 

“Demand Registration Statement” shall have the meaning set forth in Section 3.1.1.3.

 

Demand Suspension” shall have the meaning set forth in Section 3.1.6.

 

Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.

 

FINRA” means the Financial Industry Regulatory Authority.

 

Holders” means, as of any determination time, the Sponsor and the Investors who hold Registrable Securities under this Agreement.

 

Investors” shall have the meaning set forth in the preamble.

 

Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act, relating to an offer of the Registrable Securities.

 

Loss” shall have the meaning set forth in Section 3.9.1.

 

Member of the Immediate Family” means, with respect to any Person who is an individual, (i) each parent, spouse (but not including a former spouse or a spouse from whom such Person is legally separated) or child (including those adopted) of such individual and (ii) each trustee, solely in his or her capacity as trustee, for a trust naming only one or more of the Persons listed in sub-clause (i) as beneficiaries.

 

Non-Underwritten Offering” means any Public Offering other than an Underwritten Public Offering.

 

Exhibit C-3

 

 

Participation Conditions” shall have the meaning set forth in Section 3.2.5.1.

 

Permitted Transferee” means any Affiliate of the Sponsor or an Investor, as applicable.

 

Person” means any individual, partnership, corporation, company, association, trust, joint venture, limited liability company, unincorporated organization, entity or division, or any government, governmental department or agency or political subdivision thereof.

 

Piggyback Notice” shall have the meaning set forth in Section 3.3.1.

 

Piggyback Registration” shall have the meaning set forth in Section 3.3.1.

 

Potential Takedown Participant” shall have the meaning set forth in Section 3.2.5.1.

 

Pro Rata Portion” means, with respect to each Holder requesting that its shares be registered or sold in an Underwritten Public Offering, a number of such shares equal to the aggregate number of Registrable Securities to be registered or sold (excluding any shares to be registered or sold for the account of PubCo) multiplied by a fraction, the numerator of which is the aggregate number of Registrable Securities held by such Holder, and the denominator of which is the aggregate number of Registrable Securities held by all Holders requesting that their Registrable Securities be registered or sold.

 

Prospectus” means (i) the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including post-effective amendments and supplements, and all other material incorporated by reference in such prospectus, and (ii) any Issuer Free Writing Prospectus.

 

PubCo” shall have the meaning set forth in the preamble.

 

PubCo Ordinary Shares” means the ordinary shares of PubCo, par value $0.0001 per share.

 

Public Offering” means the offer and sale of Registrable Securities for cash pursuant to an effective Registration Statement under the Securities Act (other than a Registration Statement on Form F-4, Form S-4 or Form S-8 or any successor form).

 

Registrable Securities” means (i) all PubCo Ordinary Shares that are not then subject to forfeiture to PubCo, (ii) all PubCo Ordinary Shares issuable upon exercise, conversion or exchange of any option, warrant or convertible security not then subject to vesting or forfeiture to PubCo, (iii) all Warrants and (iv) all PubCo Ordinary Shares directly or indirectly issued or then issuable with respect to the securities referred to in clauses (i), (ii) or (iii) above by way of a share dividend or share split, or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (x) 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 disposed of in accordance with such Registration Statement, (y) such securities shall have become eligible to be Transferred pursuant to Rule 144 (but with no volume or other restrictions or limitations) or (z) such securities shall have ceased to be outstanding.

 

Exhibit C-4

 

 

Registration” means registration under the Securities Act of the offer and sale to the public of any Registrable Securities under a Registration Statement. The terms “register”, “registered” and “registering” shall have correlative meanings.

 

Registration Expenses” shall have the meaning set forth in Section 3.7.

 

Registration Statement” means any registration statement of PubCo filed with, or to be filed with, the SEC under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement other than a registration statement (and related Prospectus) filed on Form F-4, Form S-4 or Form S-8 or any successor form thereto.

 

Representatives” means, with respect to any Person, any of such Person’s officers, directors, employees, agents, attorneys, accountants, actuaries, consultants, equity financing partners or financial advisors or other Person associated with, or acting on behalf of, such Person.

 

Rule 144” means Rule 144 under the Securities Act (or any successor rule).

 

SEC” means the U.S. Securities and Exchange Commission or any successor agency having jurisdiction under the Securities Act.

 

Securities Act” means the U.S. Securities Act of 1933, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.

 

Shelf Registration” means a Registration pursuant to a Shelf Registration Statement.

 

Shelf Registration Statement” shall have the meaning set forth in Section 3.2.1.

 

“Shelf Takedown” means a Public Offering pursuant to an effective Shelf Registration Statement.

 

Shelf Takedown Notice” shall have the meaning set forth in Section 3.2.5.1.

 

Shelf Takedown Request” shall have the meaning set forth in Section 3.2.5.1.

 

Suspension” shall have the meaning set forth in Section 3.9.

 

Transfer” means, with respect to any Registrable Security, any interest therein, or any other securities or equity interests relating thereto, a direct or indirect transfer, sale, exchange, assignment, pledge, hypothecation or other encumbrance or other disposition thereof, including the grant of an option or other right, whether directly or indirectly, whether voluntarily, involuntarily, by operation of law, pursuant to judicial process or otherwise. “Transferred” shall have a correlative meaning.

 

Underwritten Public Offering” means an underwritten Public Offering, including any bought deal or block sale to a financial institution conducted as an underwritten Public Offering.

 

Exhibit C-5

 

 

Underwritten Shelf Takedown” means an Underwritten Public Offering pursuant to an effective Shelf Registration Statement.

 

Warrants” means any warrants to subscribe for, purchase or otherwise directly acquire PubCo Ordinary Shares.

 

WKSI” means any Securities Act registrant that is a well-known seasoned issuer as defined in Rule 405 under the Securities Act at the most recent eligibility determination date specified in paragraph (2) of that definition.

 

2.2. Other Interpretive Provisions.

 

(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b) The words “hereof”, “herein”, “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and any subsection and section references are to this Agreement unless otherwise specified.

 

(c) The term “including” is not limiting and means “including without limitation.”

 

(d) The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

 

(e) Whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms.

 

Exhibit C-6

 

 

ARTICLE III

 

REGISTRATION RIGHTS

 

PubCo will perform and comply, and cause each of PubCo’s subsidiaries to perform and comply, with such of the following provisions as are applicable to them. Each Holder will perform and comply with such of the following provisions as are applicable to such Holder.

 

3.1. Demand Registration.

 

3.1.1. Request for Demand Registration.

 

3.1.1.1. At any time after the Lock-Up Period, Holders of at least thirty percent (30%) in interest of the then outstanding number of Registrable Securities (the “Demanding Holders”) shall have the right to make one or more written requests from time to time (a “Demand Registration Request”) to PubCo for Registration of all or part of the Registrable Securities held by such Holder. Any such Registration pursuant to a Demand Registration Request shall hereinafter be referred to as a “Demand Registration”.

 

3.1.1.2. Each Demand Registration Request shall specify (x) the kind and aggregate amount of Registrable Securities to be registered, and (y) the intended method or methods of disposition thereof including pursuant to an Underwritten Public Offering.

 

3.1.1.3. Upon receipt of a Demand Registration Request, PubCo shall as promptly as practicable file a Registration Statement (a “Demand Registration Statement”) relating to such Demand Registration, and use its reasonable best efforts to cause such Demand Registration Statement to be promptly declared effective under the Securities Act.

 

3.1.2. Limitation on Demand Registrations. PubCo shall not be obligated to take any action to effect any Demand Registration: (i) during the six-month period following the closing of a prior Shelf Registration Takedown, or (ii) if a Piggyback Registration was declared effective within the preceding ninety (90) days.

 

3.1.3. Demand Notice. Promptly upon receipt of a Demand Registration Request pursuant to Section 3.1.1 (but in no event more than two (2) Business Days thereafter), PubCo shall deliver a written notice (a “Demand Notice”) of any such Demand Registration Request to all other Holders and the Demand Notice shall offer each such Holder the opportunity to include in the Demand Registration that number of Registrable Securities as each such Holder may request in writing. Subject to Section 3.1.7, PubCo shall include in the Demand Registration all such Registrable Securities with respect to which PubCo has received written requests for inclusion therein within three (3) Business Days after the date that the Demand Notice was delivered.

 

3.1.4. Demand Withdrawal. Any Holder that has requested its Registrable Securities be included in a Demand Registration pursuant to Section 3.1.1 or Section 3.1.3 may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Demand Registration Statement. Upon receipt of a notice to such effect with respect to all of the Registrable Securities included in such Demand Registration, PubCo shall cease all efforts to secure effectiveness of the applicable Demand Registration Statement.

 

Exhibit C-7

 

 

3.1.5. Effective Registration. PubCo shall use reasonable best efforts to cause the applicable Demand Registration Statement to become effective promptly after receipt of a Demand Registration Request and remain effective for not less than one hundred eighty (180) days (or such shorter period as will terminate when all Registrable Securities covered by such Demand Registration Statement have been sold or withdrawn), or, if such Demand Registration Statement relates to an Underwritten Public Offering, such longer period as in the opinion of counsel for the underwriter or underwriters a Prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer.

 

3.1.6. Delay in Filing; Suspension of Registration. If the filing, initial effectiveness or continued use of a Demand Registration Statement at any time would require PubCo to make an Adverse Disclosure, PubCo may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, the Demand Registration Statement (a “Demand Suspension”); provided, however, that PubCo shall not be permitted to exercise a Demand Suspension more than one (1) time during any twelve (12)-month period or for a total period of greater than sixty (60) days; and provided further that PubCo shall not register any securities for its own account or that of any other shareholder during such sixty (60)-day period, other than pursuant to a registration relating to the sale or grant of securities to employees or directors of PubCo or a subsidiary pursuant to a share option, share purchase, equity incentive or similar plan; a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or a registration in which the only PubCo Ordinary shares being registered are PubCo Ordinary Shares issuable upon conversion of debt securities that are also being registered. In the case of a Demand Suspension, the Holders agree to suspend use of the applicable Prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. PubCo shall immediately notify the Holders in writing upon the termination of any Demand Suspension, amend or supplement the Prospectus, if necessary, so it does not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading and furnish to the Holders such numbers of copies of the Prospectus as so amended or supplemented as the Holders may reasonably request. PubCo shall, if necessary, supplement or amend the Demand Registration Statement, if required by the registration form used by PubCo for the Demand Registration or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder or as may reasonably be requested by the Holders holding a majority of Registrable Securities that are included in such Demand Registration Statement.

 

3.1.7. Priority of Securities Registered Pursuant to Demand Registrations. If the managing underwriter or underwriters of a proposed Underwritten Public Offering of the Registrable Securities included in a Demand Registration advise PubCo in writing that, in its or their opinion, the number of securities requested to be included in such Demand Registration exceeds the number that can be sold in such offering without being likely to have an adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Registration shall be, in the case of any Demand Registration, (x) first, allocated to each Holder that has requested to participate in such Demand Registration an amount equal to the lesser of (i) the number of such Registrable Securities requested to be registered or sold by such Holder, and (ii) a number of such shares equal to such Holder’s Pro Rata Portion, and (y) second, and only if all the securities referred to in clause (x) have been included, the number of other securities that, in the opinion of such managing underwriter or underwriters can be sold without having such adverse effect.

 

Exhibit C-8

 

 

3.2. Shelf Registration.

 

3.2.1. Filing. PubCo shall as soon as reasonably practicable, but in any event later than thirty (30) days after the Closing, file with the SEC a Registration Statement for a Shelf Registration on Form S-1 (the “Shelf Registration Statement”) covering, subject to Section 3.2.4, the public resale of all of the Registrable Securities (determined as of two (2) business days prior to such filing) on a delayed or continuous basis and shall use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than the earlier of (i) the 30th calendar day (or the 60th calendar day if the Commission notifies PubCo that it will “review” the Registration Statement) following the filing of the Registration Statement and (ii) the tenth (10th) business day after the date PubCo is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review. Such Form Shelf Registration Statement shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. Following the filing of the Shelf Registration Statement, PubCo shall use its reasonable best efforts to convert the Shelf Registration Statement (and any subsequent Shelf Registration) to a Registration Statement on Form S-3 as soon as reasonably practicable after PubCo is eligible to use Form S-3.

 

3.2.1.1. If on the date the Shelf Registration Statement is to be filed PubCo is a WKSI, then the Shelf Registration Statement may register an unspecified amount of Registrable Securities to be sold by unspecified Holders. If on the date the Shelf Registration Statement is to be filed PubCo is not a WKSI, then the Shelf Registration Statement shall specify the aggregate amount of Registrable Securities to be registered. PubCo shall provide to any Holder the information necessary to determine PubCo’s status as a WKSI upon such Holder’s request.

 

3.2.2. Shelf Registration Notice. Promptly upon receipt of a Shelf Registration Request (but in no event more than three (3) Business Days thereafter (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”)), PubCo shall deliver a written notice (a “Shelf Registration Notice”) of any such request to all other Holders, which notice shall specify, if applicable, the amount of Registrable Securities to be registered, and the Shelf Registration Notice shall offer each such Holder the opportunity to include in the Shelf Registration that number of Registrable Securities as each such Holder may request in writing. PubCo shall include in such Shelf Registration all such Registrable Securities with respect to which PubCo has received written requests for inclusion therein within three (3) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) after the date that the Shelf Registration Notice has been delivered.

 

Exhibit C-9

 

 

3.2.3. Continued Effectiveness. PubCo shall use its reasonable best efforts to keep such Shelf Registration Statement continuously effective under the Securities Act and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep the Shelf Registration Statement continuously effective, available for use in order to permit the Prospectus forming part of the Shelf Registration Statement to be usable by Holders until the earlier of: (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder); and (ii) the date as of which no Holder holds Registrable Securities. Subject to Section 3.2.4, PubCo shall be deemed not to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf Period if PubCo voluntarily takes any action or omits to take any action that would result in Holders of the Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to such Shelf Registration Statement during the Shelf Period, unless such action or omission is required by applicable law.

 

3.2.4. Suspension of Registration. If the continued use of such Shelf Registration Statement at any time would require PubCo to make an Adverse Disclosure, PubCo may, upon giving prompt written notice of such action to the Holders, suspend use of the Shelf Registration Statement (a “Shelf Suspension”); provided, however, that PubCo shall not be permitted to exercise a Shelf Suspension more than one (1) time during any twelve (12)-month period or for a total period of greater than sixty (60) days. In the case of a Shelf Suspension, the Holders agree to suspend use of the applicable Prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. PubCo shall immediately notify the Holders in writing upon the termination of any Shelf Suspension, amend or supplement the Prospectus, if necessary, so it does not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading and furnish to the Holders such numbers of copies of the Prospectus as so amended or supplemented as the Holders may reasonably request. PubCo shall, if necessary, supplement or amend the Shelf Registration Statement, if required by the registration form used by PubCo for the Shelf Registration Statement or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder or as may reasonably be requested by the Holders holding a majority of Registrable Securities that are included in such Shelf Registration Statement.

 

Exhibit C-10

 

 

3.2.5. Shelf Takedown.

 

3.2.5.1. At any time after the Lock-Up Period that PubCo has an effective Shelf Registration Statement with respect to a Holder’s Registrable Securities, by notice to PubCo specifying the approximate number of Registrable Securities to be sold and the intended method or methods of disposition thereof, such Holder may make a written request (a “Shelf Takedown Request” and such Holder, the “Requesting Holder”) to PubCo to effect a Public Offering pursuant to a Shelf Takedown, of all or a portion of such Holder’s Registrable Securities that may be registered under such Shelf Registration Statement, and as soon as practicable PubCo shall amend or supplement the Shelf Registration Statement as necessary for such purpose, provided, that PubCo shall only be obligated to effect an Underwritten Public Offering if such offering: (i) shall include Registrable Securities proposed to be sold by the Requesting Holder(s), either individually or together with other Requesting Holders, with a total offering price reasonably expected to exceed, in the aggregate, $10 million (the “Minimum Takedown Threshold”), or (ii) is comprised of all remaining Registrable Securities held by the Requesting Holder. Promptly upon receipt of a Shelf Takedown Request (but in no event more than two (2) Business Days thereafter (or more than twenty-four (24) hours thereafter in connection with an underwritten “block trade”)) for any Underwritten Shelf Takedown, PubCo shall deliver a notice (a “Shelf Takedown Notice”) to each other Holder with Registrable Securities covered by the applicable Registration Statement, or to all other Holders if such Registration Statement is undesignated (each, a “Potential Takedown Participant”). The Shelf Takedown Notice shall offer each such Potential Takedown Participant the opportunity to include in any Underwritten Shelf Takedown such number of Registrable Securities as each such Potential Takedown Participant may request in writing. PubCo shall include in the Underwritten Shelf Takedown all such Registrable Securities with respect to which PubCo has received written requests for inclusion therein within three (3) Business Days (or within twenty-four (24) hours in connection with an underwritten “block trade”) after the date that the Shelf Takedown Notice has been delivered. Any Potential Takedown Participant’s request to participate in an Underwritten Shelf Takedown shall be binding on the Potential Takedown Participant; provided that each such Potential Takedown Participant that elects to participate may condition its participation on the Underwritten Shelf Takedown being completed within ten (10) Business Days of its acceptance at a price per share (after giving effect to any underwriters’ discounts or commissions) to such Potential Takedown Participant of not less than a percentage of the closing price for the shares on their principal trading market on the Business Day immediately prior to such Potential Takedown Participant’s election to participate, as specified in such Potential Takedown Participant’s request to participate in such Underwritten Shelf Takedown (the “Participation Conditions”). Notwithstanding the delivery of any Shelf Takedown Notice, all determinations as to whether to complete any Underwritten Shelf Takedown and as to the timing, manner, price and other terms of any Underwritten Shelf Takedown contemplated by this Section 3.2.3 shall be determined by the Requesting Holders holding majority of Registrable Securities to be included in the Underwritten Shelf Takedown, provided, that the underwriter for such Underwritten Shelf Takedown shall consist of one or more reputable nationally recognized investment banks, subject to PubCo’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). Subject to Sections 3.2.3.2 and 3.2.4, PubCo shall include in such Underwritten Shelf Takedown, all such Registrable Securities that are requested to be included therein by Potential Takedown Participants.

 

3.2.5.2. Notwithstanding anything to the contrary in this Section 3.2, PubCo shall not be obligated to take any action to effect any Underwritten Shelf Takedown: (i) more than once in any nine-month period, (ii) during the six-month period following the closing of a prior Underwritten Shelf Takedown, or (iii) if a Piggyback Registration was declared effective within the preceding ninety (90) days.

 

3.2.5.3. Any Holder that has requested its Registrable Securities be included in a Registration pursuant to Section 3.2 may withdraw all or any portion of its Registrable Securities from such Public Offering upon written notification (a “Withdrawal Notice”) to PubCo and the underwriter or underwriters (if any) of their intention to withdraw from such Public Offering at any time prior to the effectiveness of the applicable Registration Statement, provided, that: (i) PubCo shall not be obligated to consummate an Underwritten Shelf Takedown subject to a Withdrawal Notice unless the Minimum Takedown Threshold would still be satisfied by the Registrable Securities remaining to be sold in the Underwritten Shelf Takedown, and (ii) even if not consummated, an Underwritten Shelf Takedown subject to a Withdrawal Notice shall constitute an Underwritten Shelf Takedown for purposes of Section 3.2.3.2, unless PubCo shall receive full reimbursement from Holders of all Registration Expenses in connection therewith. Following the receipt of any Withdrawal Notice, PubCo shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Underwritten Shelf Takedown.

 

Exhibit C-11

 

 

3.2.6. Priority of Securities Sold Pursuant to Shelf Takedowns. If the managing underwriter or underwriters of a proposed Underwritten Shelf Takedown, or the Requesting Holder of a proposed “block trade” conducted as an Underwritten Shelf Takedown, in each case pursuant to Section 3.2.5 advise PubCo in writing that, in its or their opinion, the number of securities requested to be included in the proposed Underwritten Shelf Takedown exceeds the number that can be sold in such Underwritten Shelf Takedown without being likely to have an adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the number of Registrable Securities to be included in such offering shall be (x) first, allocated to each Holder that has requested to participate in such Underwritten Shelf Takedown an amount equal to the lesser of (i) the number of such Registrable Securities requested to be registered or sold by such Holder, and (ii) a number of such shares equal to such Holder’s Pro Rata Portion, and (y) second, and only if all the securities referred to in clause (x) have been included, the number of other securities that, in the opinion of such managing underwriter or underwriters (or Requesting Holder, as the case may be) can be sold without having such adverse effect.

 

3.3. Piggyback Registration.

 

3.3.1. Participation. At any time after the Lock-Up Period, if PubCo proposes to file a Registration Statement under the Securities Act or to conduct a Public Offering with respect to any offering of its equity securities for its own account or for the account of any other Persons (other than (i) a Registration under Sections 3.1 or 3.2, (ii) a Registration on Form F-4, Form S-4 or Form S-8 or any successor form to such forms or (iii) a Registration of securities solely relating to an offering and sale to employees or directors of PubCo or its subsidiaries pursuant to any employee share plan or other employee benefit plan arrangement), then, as soon as practicable (but in no event less than five (5) Business Days prior to the proposed date of filing of such Registration Statement or, in the case of a Public Offering under a Shelf Registration Statement, the anticipated pricing or trade date), PubCo shall give written notice (a “Piggyback Notice”) of such proposed filing or Public Offering to all Holders, and such Piggyback Notice shall offer the Holders the opportunity to register under such Registration Statement, or to sell in such Public Offering, such number of Registrable Securities as each such Holder may request in writing (a “Piggyback Registration”). Subject to Section 3.3.2, PubCo shall include in such Registration Statement or in such Public Offering as applicable, all such Registrable Securities that are requested to be included therein within three (3) Business Days after the receipt by such Holder of any such notice; provided, however, that if at any time after giving written notice of its intention to register or sell any securities and prior to the effective date of the Registration Statement filed in connection with such Registration, or the pricing or trade date of a Public Offering under a Shelf Registration Statement, PubCo determines for any reason not to register or sell or to delay the Registration or sale of such securities, PubCo shall give written notice of such determination to each Holder and, thereupon, (x) in the case of a determination not to register or sell, shall be relieved of its obligation to register or sell any Registrable Securities in connection with such Registration or Public Offering (but not from its obligation to pay the Registration Expenses in connection therewith), without prejudice, however, to the rights of any Holders entitled to request that such Registration or sale be effected as a Demand Registration under Section 3.1 or an Underwritten Shelf Takedown under Section 3.2, as the case may be, and (y) in the case of a determination to delay Registration or sale, in the absence of a request for a Demand Registration or an Underwritten Shelf Takedown, as the case may be, shall be permitted to delay registering or selling any Registrable Securities, for the same period as the delay in registering or selling such other securities. Any Holder shall have the right to withdraw all or part of its request for inclusion of its Registrable Securities in a Piggyback Registration by giving written notice to PubCo of its request to withdraw, prior to the applicable Registration Statement becoming effective or, in connection with an Underwritten Shelf Takedown, the execution of the related underwriting agreement.

 

Exhibit C-12

 

 

3.3.2. Priority of Piggyback Registration. If the managing underwriter or underwriters of any proposed offering of Registrable Securities included in a Piggyback Registration informs PubCo and the participating Holders in writing that, in its or their opinion, the number of securities that such Holders and any other Persons intend to include in such offering exceeds the number that can be sold in such offering without being likely to have an adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Registration shall be (i) first, one hundred percent (100%) of the securities that PubCo proposes to sell; (ii) second, and only if all the securities referred to in clause (i) have been included, the number of Registrable Securities that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect, with such number to be allocated among the Holders that have requested to participate in such Registration based on an amount equal to the lesser of (x) the number of such Registrable Securities requested to be sold by such Holder, and (y) a number of such shares equal to such Holder’s Pro Rata Portion; (iii) third, and only if all of the Registrable Securities referred to in clause (ii) have been included in such Registration, any other securities eligible for inclusion in such Registration.

 

3.3.3. No Effect on Other Registrations. No Registration of Registrable Securities effected pursuant to a request under this Section 3.3 shall be deemed to have been effected pursuant to Sections 3.1 or 3.2 or shall relieve PubCo of its obligations under Section 3.1 or 3.2.

 

3.4. Lock-Up Agreements.

 

Each Holder participating in a Registration or sale of Registrable Securities pursuant to Section 3.1, 3.2 or 3.3 conducted as an Underwritten Public Offering agrees, and PubCo agrees and shall use reasonable best efforts to cause each director and officer of PubCo to agree, that, in connection with each such Registration or sale of Registrable Securities pursuant to Section 3.1, 3.2 or 3.3 conducted as an Underwritten Public Offering, if requested by the underwriter of such Underwritten Public Offering, to become bound by and to execute and deliver a customary lock-up agreement with the underwriter(s) of such Underwritten Public Offering restricting such applicable person or entity’s right to (a) Transfer, directly or indirectly, any equity securities of PubCo held by such person or entity or (b) enter into any swap or other arrangement that transfers to another any of the economic consequences of ownership of such securities during the period commencing on the date of the final Prospectus relating to the Underwritten Public Offering and ending on the date specified by the underwriters (such period not to exceed ninety (90) days). The terms of such lock-up agreements shall be negotiated among the applicable Holders requested to enter into lock-up agreements in accordance with the immediately preceding sentence, PubCo and the underwriters and shall include customary exclusions from the restrictions on Transfer set forth therein, including that such restrictions on the applicable Holders shall be conditioned upon all officers and directors of PubCo, as well as all Holders, being subject to the same restrictions; provided, that, to the extent any Holder is granted a written release or waiver from the restrictions contained in this Section 3.4 and in such Holder’s lock-up agreement prior to the expiration of the period set forth in such Holder’s lock-up agreement, then all Holders shall be automatically granted a release or waiver from the restrictions contained in this Section 3.4 and the applicable lock-up agreements to which they are party to the same extent, on substantially the same terms as and on a pro rata basis with, the Holder to which such release or waiver is granted.

 

Exhibit C-13

 

 

3.5. Registration Procedures.

 

3.5.1. Requirements. In connection with PubCo’s obligations under Sections 3.1 through 3.3, PubCo shall use its reasonable best efforts to effect such Registration and to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable, and in connection therewith PubCo shall:

 

3.5.1.1. As promptly as practicable prepare the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and Prospectus, and, before filing a Registration Statement or Prospectus or any amendments or supplements thereto, (x) furnish to the underwriters, if any, and to the Holders of the Registrable Securities covered by such Registration Statement, copies of all documents prepared to be filed, which documents shall be subject to the review of such underwriters and such Holders and their respective counsel, (y) make such changes in such documents concerning the Holders prior to the filing thereof as such Holders, or their counsel, may reasonably request and (z) except in the case of a Registration under Section 3.3 not file any Registration Statement or Prospectus or amendments or supplements thereto to which the Holders, in such capacity, or the underwriters, if any, shall reasonably object;

 

3.5.1.2. Prepare and file with the SEC such amendments and post-effective amendments to such Registration Statement and supplements to the Prospectus as may be (x) reasonably requested by any Holder with Registrable Securities covered by such Registration Statement, (y) reasonably requested by any participating Holder (to the extent such request relates to information relating to such Holder), or (z) necessary to keep such Registration Statement effective for the period of time required by this Agreement, and comply with provisions of the applicable securities laws with respect to the sale or other disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Registration Statement;

 

3.5.1.3. Notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such notice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by PubCo (i) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus or any amendment or supplement thereto has been filed; (ii) of any written comments by the SEC, or any request by the SEC or other federal or state governmental authority for amendments or supplements to such Registration Statement or such Prospectus, or for additional information (whether before or after the effective date of the Registration Statement) or any other correspondence with the SEC relating to, or which may affect, the Registration; and (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes; (iv) if, at any time, the representations and warranties of PubCo in any applicable underwriting agreement cease to be true and correct in all material respects; and (v) of the receipt by PubCo of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

 

Exhibit C-14

 

  

3.5.1.4. Promptly notify each selling Holder and the managing underwriter or underwriters, if any, when PubCo becomes aware of the happening of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus or any preliminary Prospectus, in light of the circumstances under which they were made) not misleading, when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement, or, if for any other reason, it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus, which shall correct such misstatement or omission or effect such compliance;

 

3.5.1.5. To the extent PubCo is eligible under the relevant provisions of Rule 430B under the Securities Act, if PubCo files any Shelf Registration Statement, PubCo shall include in such Shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such Shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendment;

 

3.5.1.6. Use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order or notice preventing or suspending the use of any preliminary or final Prospectus;

 

3.5.1.7. Promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment such information as the managing underwriter or underwriters and the participating Holders agree should be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment;

 

3.5.1.8. Furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment or supplement thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);

 

3.5.1.9. Deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto and such other documents as such Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter (it being understood that PubCo shall consent to the use of such Prospectus or any amendment or supplement thereto by each of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto);

 

Exhibit C-15

 

 

3.5.1.10. On or prior to the date on which the applicable Registration Statement becomes effective, use its reasonable best efforts to register or qualify, and cooperate with the selling Holders, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the Registration or qualification of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction as any such selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such Registration or qualification in effect for such period as required by Section 3.1 or Section 3.2, as applicable, provided that PubCo shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;

 

3.5.1.11. Cooperate with the selling Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request prior to any sale of Registrable Securities to the underwriters;

 

3.5.1.12. Use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;

 

3.5.1.13. Make such representations and warranties to the Holders being registered, and the underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in public offerings similar to the offering then being undertaken;

 

3.5.1.14. Enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the participating Holders or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the Registration and disposition of such Registrable Securities;

 

3.5.1.15. Obtain for delivery to the underwriter or underwriters, if any, an opinion or opinions from counsel for PubCo dated the most recent effective date of the Registration Statement or, in the event of an Underwritten Public Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to such underwriter or underwriters, as the case may be, and their respective counsel;

 

3.5.1.16. In the case of an Underwritten Public Offering, obtain for delivery to PubCo and the managing underwriter or underwriters, with copies to the Holders included in such Registration or sale, a comfort letter from PubCo’s independent certified public accountants or independent auditors (and, if necessary, any other independent certified public accountants or independent auditors of any subsidiary of PubCo or any business acquired by PubCo for which financial statements and financial data are, or are required to be, included in the Registration Statement) in customary form and covering such matters of the type customarily covered by comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;

 

Exhibit C-16

 

 

3.5.1.17. Cooperate with each seller of Registrable Securities and each underwriter or underwriters, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;

 

3.5.1.18. Use its reasonable best efforts to comply with all applicable securities laws and, if a Registration Statement was filed, make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;

 

3.5.1.19. Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement;

 

3.5.1.20. Use its reasonable best efforts to cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of PubCo’s equity securities are then listed or quoted and on each inter-dealer quotation system on which any of PubCo’s equity securities are then quoted;

 

3.5.1.21. Make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by the Holders holding a majority of Registrable Securities being sold, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such Holders or any such underwriter, all pertinent financial and other records and pertinent corporate documents and properties of PubCo, and cause all of PubCo’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of PubCo and to supply all information reasonably requested by any such Person in connection with such Registration Statement;

 

3.5.1.22. In the case of an Underwritten Public Offering, cause the senior executive officers of PubCo to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any such offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto;

 

3.5.1.23. Take no direct or indirect action prohibited by Regulation M under the Exchange Act;

 

3.5.1.24. Take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any Registration complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

 

3.5.1.25. Cooperate with the Holders of Registrable Securities subject to the Registration Statement and with the managing underwriter or agent, if any, to facilitate any Charitable Gifting Event and to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to permit any such recipient Charitable Organization to sell in the Public Offering if it so elects;

 

Exhibit C-17

 

 

3.5.1.26. Take all such other reasonable best actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities in accordance with the terms of this Agreement.

 

3.5.2. PubCo Information Requests. PubCo may require each seller of Registrable Securities as to which any Registration or sale is being effected to furnish to PubCo customary information regarding such Holder and the ownership and distribution of its Registrable Securities as PubCo may from time to time reasonably request in writing and PubCo may exclude from such Registration or sale the Registrable Securities of any such Holder who fails to furnish such information within a reasonable time after receiving such request. Each Holder agrees to furnish such information to PubCo and to cooperate with PubCo as reasonably necessary to enable PubCo to comply with the provisions of this Agreement.

 

3.5.3. Discontinuing Registration. Each Holder agrees that, upon receipt of any notice from PubCo of the happening of any event of the kind described in Section 3.5.1.4, such Holder will discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3.5.1.4, or until such Holder is advised in writing by PubCo that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus, or any amendments or supplements thereto, and if so directed by PubCo, such Holder shall destroy or deliver to PubCo (at PubCo’s expense) all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event PubCo shall give any such notice, the period during which the applicable Registration Statement is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus contemplated by Section 3.5.1.4 or is advised in writing by PubCo that the use of the Prospectus may be resumed.

 

3.6. Underwritten Offerings.

 

3.6.1. Shelf and Demand Registrations. If requested by the underwriters for any Underwritten Public Offering, pursuant to a Registration or sale under Sections 3.1 or 3.2, PubCo shall enter into an underwriting agreement with such underwriters, such agreement to be reasonably satisfactory in substance and form to each of PubCo, the holders holding a majority of the Registrable Securities being sold and the underwriters, and to contain such representations and warranties by PubCo and such other terms as are generally prevailing in agreements of that type. The Holders of the Registrable Securities proposed to be distributed by such underwriters shall cooperate with PubCo in the negotiation of the underwriting agreement and shall complete and execute all questionnaires, powers of attorney and other documents reasonably requested by the underwriters and required under the terms of such underwriting arrangements. Any such Holder shall not be required to make any representations or warranties to or agreements with PubCo or the underwriters other than representations, warranties or agreements regarding such Holder, such Holder’s title to the Registrable Securities, such Holder’s intended method of distribution and any other representations to be made by the Holder as are generally prevailing in agreements of that type and the aggregate amount of the liability of such Holder under such agreement shall not exceed such Holder’s proceeds from the sale of its Registrable Securities in the offering, net of underwriting discounts and commissions but before expenses.

 

Exhibit C-18

 

  

3.6.2. Piggyback Registrations. If PubCo proposes to register or sell any of its securities under the Securities Act as contemplated by Section 3.3 and such securities are to be distributed through one or more underwriters, PubCo shall, if requested by any Holder pursuant to Section 3.3 and, subject to the provisions of Section 3.3.2, use its reasonable best efforts to arrange for such underwriters to include on the same terms and conditions that apply to the other sellers in such Registration or sale all the Registrable Securities to be offered and sold by such Holder among the securities of PubCo to be distributed by such underwriters in such Registration or sale. The Holders of Registrable Securities to be distributed by such underwriters shall be parties to a customary underwriting agreement between PubCo and such underwriters and shall complete and execute all questionnaires, powers of attorney and other documents reasonably requested by the underwriters and required under the terms of such underwriting arrangements. Any such Holder shall not be required to make any representations or warranties to or agreements with PubCo or the underwriters other than representations, warranties or agreements regarding such Holder, such Holder’s title to the Registrable Securities, such Holder’s intended method of distribution and any other representations to be made by the Holder as are generally prevailing in agreements of that type and the aggregate amount of the liability of such Holder shall not exceed such Holder’s proceeds from the sale of its Registrable Securities in the offering, net of underwriting discounts and commissions but before expenses..

 

3.6.3. Selection of Underwriters; Selection of Counsel. In the case of an Underwritten Public Offering under Sections 3.1 or 3.2, the managing underwriter or underwriters to administer the offering shall be determined by the Holders holding a majority of Registrable Securities being sold in such offering; provided that such underwriter or underwriters shall be reasonably acceptable to PubCo. In the case of an Underwritten Public Offering under Section 3.3, the managing underwriter or underwriters to administer the offering shall be determined by PubCo; provided that such underwriter or underwriters shall be reasonably acceptable to the Holders holding a majority of Registrable Securities being sold in such offering. In the case of an Underwritten Public Offering under Sections 3.1, 3.2 or 3.3, each participating Holder shall be entitled to select its counsel, including, without limitation, any additional local counsel necessary to deliver any required legal opinions.

 

3.6.4. Non-Underwritten Offerings. Notwithstanding anything herein to the contrary and subject to applicable law, regulation and stock exchange rules, any Non-Underwritten Offering shall be conducted in accordance with PubCo’s insider trading policy to the extent that such selling Holder is then subject to such policy.

 

3.7. No Inconsistent Agreements. Neither PubCo nor any of its subsidiaries shall hereafter enter into, and neither PubCo nor any of its subsidiaries is currently a party to, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders by this Agreement.

 

Exhibit C-19

 

  

3.8. Registration Expenses. All expenses incident to PubCo’s performance of or compliance with this Agreement shall be paid by PubCo, including (i) all registration and filing fees, and any other fees and expenses associated with filings required to be made with the SEC or FINRA, (ii) all fees and expenses in connection with compliance with any securities or “Blue Sky” laws (including reasonable fees and disbursements of counsel for the underwriters in connection with blue sky qualifications of the Registrable Securities), (iii) all printing, duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses), (iv) all fees and disbursements of counsel for PubCo and of all independent certified public accountants or independent auditors of PubCo and any subsidiaries of PubCo (including the expenses of any special audit and comfort letters required by or incident to such performance), (v) Securities Act liability insurance or similar insurance if PubCo so desires or the underwriters so require in accordance with then-customary underwriting practice, (vi) all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange or quotation of the Registrable Securities on any inter-dealer quotation system, (viii) all reasonable fees and disbursements of legal counsel for the selling Holders, (ix) any reasonable fees and disbursements of underwriters customarily paid by issuers or sellers of securities, (x) all fees and expenses incurred in connection with the distribution or Transfer of Registrable Securities to or by a Holder or its Permitted Transferees in connection with a Public Offering, (xi) all fees and expenses of any special experts or other Persons retained by PubCo in connection with any Registration or sale, (xii) all of PubCo’s internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties) and (xiii) all expenses related to the “road show” for any Underwritten Public Offering, including the reasonable out-of-pocket expenses of the Holders and underwriters, if so requested. All such expenses are referred to herein as “Registration Expenses”. PubCo shall not be required to pay any fees and disbursements to underwriters not customarily paid by the issuers of securities in an offering similar to the applicable offering, including underwriting discounts and commissions and transfer taxes, if any, attributable to the sale of Registrable Securities.

 

3.9. Indemnification.

 

3.9.1. Indemnification by PubCo. PubCo shall indemnify and hold harmless, to the extent permitted by law, each Holder, each shareholder, stockholder, member, limited or general partner of such Holder, each shareholder, stockholder, member, limited or general partner of each such shareholder, stockholder, member, limited or general partner, each of their respective Affiliates, officers, directors, shareholders, employees, advisors, and agents and each Person who controls (within the meaning of the Securities Act or the Exchange Act) such Persons and each of their respective Representatives from and against any and all losses, penalties, judgments, suits, costs, claims, damages, liabilities and expenses, joint or several (including actual and reasonable costs of investigation and legal expenses and any indemnity and contribution payments made to underwriters ) (each, a “Loss” and collectively “Losses”) arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities are registered or sold under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein) or any other disclosure document produced by or on behalf of PubCo or any of its subsidiaries including any report and other document filed under the Exchange Act, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or preliminary Prospectus, in light of the circumstances under which they were made) not misleading or (iii) any violation or alleged violation by PubCo or any of its subsidiaries of any federal, state, foreign or common law rule or regulation applicable to PubCo or any of its subsidiaries and relating to action or inaction in connection with any such Registration, disclosure document or other document or report; provided, that no selling Holder shall be entitled to indemnification pursuant to this Section 3.9.1 in respect of any untrue statement or omission caused by or contained in any information relating to such selling Holder furnished in writing by such selling Holder to PubCo specifically for inclusion in a Registration Statement and used by PubCo in conformity therewith (such information “Selling Shareholder Information”). Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any indemnified party and shall survive the Transfer of such securities by such Holder and regardless of any indemnity agreed to in the underwriting agreement that is less favorable to the Holders. PubCo shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above (with appropriate modification) with respect to the indemnification of the indemnified parties.

  

Exhibit C-20

 

  

3.9.2. Indemnification by the Selling Holders. Each selling Holder agrees (severally and not jointly) to indemnify and hold harmless, to the fullest extent permitted by law, PubCo, its directors and officers and each Person who controls PubCo (within the meaning of the Securities Act or the Exchange Act) from and against any Losses resulting from (i) any untrue or alleged statement of a material fact in any Registration Statement under which such Registrable Securities were registered or sold under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein) or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or preliminary Prospectus, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission is contained in (or not contained in, in the case of an omission) such selling Holder’s Selling Shareholder Information. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the proceeds from the sale of its Registrable Securities in the offering giving rise to such indemnification obligation, net of underwriting discounts and commissions but before expenses, less any amounts paid by such Holder pursuant to Section 3.9.4 and any amounts paid by such Holder as a result of liabilities incurred under the underwriting agreement, if any, related to such sale.

 

3.9.3. Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that any delay or failure to so notify the indemnifying party shall relieve the indemnifying party of its obligations hereunder only to the extent, if at all, that it is materially prejudiced or forfeits substantive legal rights by reason of such delay or failure) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (a) the indemnifying party has agreed in writing to pay such fees or expenses, (b) the indemnifying party shall have failed to assume the defense of such claim within a reasonable time after receipt of notice of such claim from the Person entitled to indemnification hereunder and employ counsel reasonably satisfactory to such Person, (c) the indemnified party has reasonably concluded (based upon advice of its counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, or (d) in the reasonable judgment of any such Person (based upon advice of its counsel) a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person). If the indemnifying party assumes the defense, the indemnifying party shall not have the right to settle such action without the consent of the indemnified party. No indemnifying party shall consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional release from all liability in respect to such claim or litigation without the prior written consent of such indemnified party. If such defense is not assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its prior written consent, but such consent may not be unreasonably withheld. It is understood that the indemnifying party or parties shall not, except as specifically set forth in this Section 3.9.3, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements or other charges of more than one separate firm admitted to practice in such jurisdiction at any one time unless (x) the employment of more than one counsel has been authorized in writing by the indemnifying party or parties, (y) an indemnified party has reasonably concluded (based on the advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other indemnified parties or (z) a conflict or potential conflict exists or may exist (based upon advice of counsel to an indemnified party) between such indemnified party and the other indemnified parties, in each of which cases the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel or counsels.

 

Exhibit C-21

 

 

3.9.4. Contribution. If for any reason the indemnification provided for in Section 3.9.1 and Section 3.9.2 is unavailable to an indemnified party or insufficient in respect of any Losses referred to therein (other than as a result of exceptions or limitations on indemnification contained in Section 3.9.1 and Section 3.9.2), then the indemnifying party shall, in lieu of indemnifying the indemnified party, contribute to the amount paid or payable by the indemnified party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party or parties on the other hand in connection with the acts, statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. In connection with any Registration Statement filed with the SEC by PubCo, the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, it being understood and agreed that, with respect to each selling Holder, such information will be limited to such Holder’s Selling Shareholder Information. The parties hereto agree that it would not be just or equitable if contribution pursuant to this Section 3.9.4 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 3.9.4. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The amount paid or payable by an indemnified party as a result of the Losses referred to in Sections 3.9.1 and 3.9.2 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 3.9.4, in connection with any Registration Statement filed by PubCo, a selling Holder shall not be required to contribute any amount in excess of the dollar amount of the proceeds from the sale of its Registrable Securities in the offering giving rise to such indemnification obligation, net of underwriting discounts and commissions but before expenses, less any amounts paid by such Holder pursuant to Section 3.9.2 and any amounts paid by such Holder as a result of liabilities incurred under the underwriting agreement, if any, related to such sale. If indemnification is available under this Section 3.9, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Sections 3.9.1 and 3.9.2 hereof without regard to the provisions of this Section 3.9.4.

 

3.9.5. Rules 144 and Regulation S. PubCo shall file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if PubCo is not required to file such reports, it will, upon the request of any Holder, make publicly available such necessary information for so long as necessary to permit sales that would otherwise be permitted by this Agreement pursuant to Rule 144 or Regulation S under the Securities Act, as such rules may be amended from time to time or any similar rule or regulation hereafter adopted by the SEC), and it will 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 Registrable Securities without Registration under the Securities Act in transactions that would otherwise be permitted by this Agreement and within the limitation of the exemptions provided by Rule 144 or Regulation S under the Securities Act, as such rules may be amended from time to time. Upon the request of any Holder, PubCo will deliver to such Holder a written statement as to whether it has complied with such requirements and, if not, the specifics thereof.

 

Exhibit C-22

 

 

3.10. Adverse Disclosure; Suspension of Registration. If the filing, initial effectiveness or continued use of a Registration Statement at any time would: (i) require PubCo to make an Adverse Disclosure, (ii) require the inclusion in such Registration Statement of financial statements that are unavailable to PubCo for reasons beyond PubCo’s control, or (iii) in the good faith judgment of the majority of PubCo’s board of directors be seriously detrimental to PubCo and as a result that it is essential to defer such filing, initial effectiveness or continued use at such time, PubCo may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, the Registration Statement (a “Suspension”); provided, however, that PubCo shall not be permitted to exercise a Suspension during any twelve (12)-month period: more than three (3) times or for a period of greater than sixty (60) consecutive days or more than ninety (90) calendar days. In the case of a Suspension, the Holders agree to suspend use of the applicable Prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. PubCo shall immediately notify the Holders in writing upon the termination of any Suspension.

 

3.11. Existing Registration Statements. Notwithstanding anything herein to the contrary and subject to applicable law and regulation, PubCo may satisfy any obligation hereunder to file a Registration Statement or to have a Registration Statement become effective by a specified date by designating, by notice to the Holders, a Registration Statement that previously has been filed with the SEC or become effective, as the case may be, as the relevant Registration Statement for purposes of satisfying such obligation, and all references to any such obligation shall be construed accordingly; provided that such previously filed Registration Statement may be, and is, amended or, subject to applicable securities laws, supplemented to add the number of Registrable Securities, and, to the extent necessary, to identify as selling shareholders those Holders demanding the filing of a Registration Statement pursuant to the terms of this Agreement. To the extent this Agreement refers to the filing or effectiveness of other Registration Statements, by or at a specified time and PubCo has, in lieu of then filing such Registration Statements or having such Registration Statements become effective, designated a previously filed or effective Registration Statement as the relevant Registration Statement for such purposes, in accordance with the preceding sentence, such references shall be construed to refer to such designated Registration Statement, as amended or supplemented in the manner contemplated by the immediately preceding sentence.

 

Exhibit C-23

 

 

ARTICLE IV

 

MISCELLANEOUS

 

4.1. Authority; Effect. Each party hereto represents and warrants to and agrees with each other party that the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized on behalf of such party and do not violate any agreement or other instrument applicable to such party or by which its assets are bound. This Agreement does not, and shall not be construed to, give rise to the creation of a partnership among any of the parties hereto, or to constitute any of such parties members of a joint venture or other association.

 

4.2. Notices. Any notices, requests, demands and other communications required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx (or other nationally recognized overnight delivery service) or (iv) when e-mailed during normal business hours (and otherwise as of the immediately following Business Day), in each case addressed as follows:

 

If to PubCo to:

 

PubCo

Attn: Natraj Balasubramanian

283 Rokeby Road

Subiaco, WA 6008

Australia

 

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

Winston & Strawn LLP

800 Capitol St., Suite 2400

Houston, Texas 77002

Attn: Michael Blankenship

Email: mblankenship@winston.com

 

If to Sponsor to:

 

Northern Revival Sponsor LLC

Attn: Aemish Shah

4001 Kennett Pike, Suite 302

Wilmington, DE 19807

 

Exhibit C-24

 

 

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

 

Loeb & Loeb LLP 

345 Park Avenue

New York, NY 10154

Attn: Alexandria E. Kane

Email: akane@loeb.com

 

If to an Investor, to his, her or its address as set forth on Schedule A.

 

Each of the parties hereto shall be entitled to specify a different address by giving notice as aforesaid to the other applicable party or parties.

 

4.3. Termination and Effect of Termination. This Agreement may be terminated only by an agreement in writing signed by PubCo and all Holders. Notwithstanding any termination of this Agreement in accordance with the foregoing sentence, the provisions of Sections 3.8 (Registration Expenses), 3.9 (Indemnification) and 3.10 (Rules 144 and Regulation S) shall survive any such termination. No termination under this Agreement shall relieve any Person of liability for breach or Registration Expenses incurred prior to termination. In the event this Agreement is terminated, each Person entitled to indemnification rights pursuant to Section 3.9 hereof shall retain such indemnification rights with respect to any matter that (i) may be an indemnified liability thereunder and (ii) occurred prior to such termination.

 

4.4. Permitted Transferees. The rights of a Holder hereunder may be assigned (but only with all related obligations as set forth below) in connection with a Transfer of Registrable Securities to a Permitted Transferee of that Holder. Without prejudice to any other or similar conditions imposed hereunder with respect to any such Transfer, no assignment permitted under the terms of this Section 4.4 will be effective unless the Permitted Transferee to which the assignment is being made, if not a Holder, has delivered to PubCo a written acknowledgment and agreement in form and substance reasonably satisfactory to PubCo that the Permitted Transferee will be bound by, and will be a party to, this Agreement. A Permitted Transferee to whom rights are transferred pursuant to this Section 4.4 may not again transfer those rights to any other Permitted Transferee, other than as provided in this Section 4.4.

 

4.5. Remedies. The parties to this Agreement shall have all remedies available at law, in equity or otherwise in the event of any breach or violation of this Agreement or any default hereunder. The parties acknowledge and agree that in the event of any breach of this Agreement, in addition to any other remedies that may be available, each of the parties hereto shall be entitled to specific performance of the obligations of the other parties hereto and, in addition, to such other equitable remedies (including preliminary or temporary relief) as may be appropriate in the circumstances. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission nor waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.

 

Exhibit C-25

 

 

4.6. Amendments. This Agreement may not be orally amended, modified or extended, nor shall any oral waiver of any of its terms be effective. Upon the written consent of PubCo and the Holders of 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, provided, that, notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from any other Holders (in such capacity) shall require the consent of the Holder so affected. Each such amendment, modification, extension or waiver shall be binding upon all Holders. In addition and subject to the foregoing, each party hereto may waive any right hereunder (solely as applicable to such party) by an instrument in writing signed by such party.

 

4.7. Governing Law. This Agreement, the rights of the parties under or in connection herewith or in connection with any of the transactions contemplated hereby, and all actions arising in whole or in part under or in connection herewith or therewith (whether at law or in equity, whether sounding in contract, tort, statute or otherwise), shall be governed by and construed in accordance with the domestic substantive laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction.

 

4.8. Consent to Jurisdiction; Venue; Service. Each party to this Agreement, by its execution hereof, (i) hereby irrevocably submits to the personal jurisdiction and venue of the state or federal courts sitting in New York County, New York (the “Applicable Courts”) for the purpose of any suit, action or other proceeding described in Section 4.7; and (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, and agrees not to allow any of its subsidiaries to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the Applicable Courts, that its property is exempt or immune from attachment or execution, that any such suit, action or proceeding brought in one of the Applicable Courts is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court. Each party to this Agreement hereby also (x) consents to service of process in any action described in this Section 4.8 in any manner permitted by New York law, (y) agrees that service of process made in accordance with clause (x) or made by overnight delivery by a nationally recognized courier service addressed to a party’s address specified pursuant to Section 4.2 shall constitute good and valid service of process in any such action and (z) waives and agrees not to assert (by way of motion, as a defense or otherwise) in any such action any claim that service of process made in accordance with clause (x) or (y) does not constitute good and valid service of process.

 

4.9. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO THIS AGREEMENT OR ANY AND ALL ACTIONS OR PROCEEDINGS (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) DESCRIBED IN SECTION 4.8. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 4.9 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 4.9 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

 

Exhibit C-26

 

 

4.10. Merger; Binding Effect, Etc. This Agreement constitutes the entire agreement of the parties with respect to its subject matter, supersedes all prior or contemporaneous oral or written agreements or discussions with respect to such subject matter, and shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective heirs, representatives, successors and permitted assigns. Except as otherwise expressly provided herein, no Holder or other party hereto may assign any of its respective rights or delegate any of its respective obligations under this Agreement without the prior written consent of PubCo, and any attempted assignment or delegation in violation of the foregoing shall be null and void.

 

4.11. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one instrument. The parties hereto agree that execution of this Agreement by industry standard electronic signature software and/or by exchanging executed signature pages in .pdf format via e-mail shall have the same legal force and effect as the exchange of original signatures, and that in any proceeding arising under or related to this Agreement, each party hereby waives any right to raise any defense or waiver based upon execution of this Agreement by means of such electronic signatures or maintenance of the executed agreement electronically.

 

4.12. Severability. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, such provision shall be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law. The provisions hereof are severable, and in the event any provision hereof should be held invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.

 

Exhibit C-27

 

 

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

 

Acquiror: NORTHERN REVIVAL ACQUISITION CORPORATION
       
  By:
    Name:           
    Title:    

 

[Signature Page to Registration Rights Agreement] 

 

 

 

 

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

 

Company: BRAIIN LIMITED
       
  By:
  Name:    
    Title:    

 

[Signature Page to Registration Rights Agreement] 

 

 

 

 

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

 

Investor:
       
  By:
  Name:    
    Title:    

 

[Signature Page to Registration Rights Agreement]

 

Exhibit C

 

 

EXHIBIT D

 

Form of Company Shareholder Lock-up Agreement

 

See attached.

 

 

 

 

COMPANY SHAREHOLDER LOCK-UP AGREEMENT

 

___, 2023

 

[Shareholder]

 

Re: Lock-Up Agreement for Company Shares

 

Ladies and Gentlemen:

 

This letter (this “Letter Agreement”) is being delivered to you in accordance with that certain Business Combination Agreement dated as of ___, 2023, by and among Northern Revival Acquisition Corporation, a Cayman Islands exempted company limited by shares (prior to the Effective Time (as defined in the BCA), “Acquiror” and after the Effective Time “PubCo”), Braiin Limited, an Australian public company limited by shares (the “Company”), Northern Revival Sponsor LLC, a Cayman Islands limited liability company, (the “Sponsor”), and certain shareholders of the Company named therein (each, a “Seller” and collectively, the “Sellers”) (as may be amended, restated or supplemented from time to time, the “BCA”). Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the BCA.

 

In order to induce Acquiror to proceed with the Transactions, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned shareholder of the Company (the “Shareholder”) hereby agrees with Acquiror as follows:

 

1.Subject to the exceptions set forth herein, the Shareholder agrees not to, , (i) sell, offer to sell, contract or agree to sell, assign, lend, offer, encumber, donate, hypothecate, pledge, grant any option, right or warrant to purchase or otherwise transfer, dispose of or agree to transfer or dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the U.S. Securities and Exchange Commission promulgated thereunder, (A) any PubCo Ordinary Shares, or (B) any securities convertible into or exercisable or exchangeable for PubCo Ordinary Shares, in each case, held by it immediately after the Effective Time (the “Lock-up Shares”), (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Lock-up Shares, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii) (the actions specified in clauses (i)-(iii), collectively, “Transfer”) until the earlier of (i) six months after the Closing Date, and (ii) subsequent to the Closing, (x) if the last sale price of the PubCo Ordinary Shares equals or exceeds $12.00 per PubCo Ordinary Share (as adjusted for share splits, share consolidations, share capitalizations, rights issuances, subdivisions, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Closing, or (y) the date on which PubCo completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of PubCo’s shareholders having the right to exchange their PubCo Ordinary Shares for cash, securities or other property (the “Lock-Up Period”).

 

Exhibit D-1

 

  

2.The restrictions set forth in paragraph 1 shall not apply to:

 

(i)(A) another entity that is an affiliate of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned or who shares a common investment advisor with the undersigned or (B) as part of a distribution to members, partners or shareholders of the undersigned via dividend or share repurchase;

 

(ii)Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon liquidation or dissolution of the entity;

 

(iii)transactions relating to PubCo Ordinary Shares or other securities convertible into or exercisable or exchangeable for PubCo Ordinary Shares acquired in open market transactions after the Effective Date;

 

(iv)Transfers made pursuant to a bona fide gift or charitable contribution;

 

(v)Transfers made by will or intestate succession upon the death of a Shareholder;

 

(vi)Transfers pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of marriage or civil union;

 

(vii)the exercise of share options or warrants to purchase PubCo Ordinary Shares or the vesting of share awards of PubCo Ordinary Shares and any related transfer of PubCo Ordinary Shares to PubCo in connection therewith (a) deemed to occur upon the “cashless” or “net” exercise of such options or warrants or (b) for the purpose of paying the exercise price of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, the vesting of such options, warrants or share awards, or as a result of the vesting of such PubCo Ordinary Shares, it being understood that all PubCo Ordinary Shares received upon such exercise, vesting or transfer will remain subject to the restrictions of this Letter Agreement during the Lock-Up Period;

 

(viii)surrender of Company Shares or other securities convertible into or exercisable or exchangeable for PubCo Ordinary Shares for cancellation pursuant to any contractual arrangement in effect at the Effective Time;

 

(ix)the entry, by the Shareholder, at any time after the Effective Time, of any trading plan providing for the sale of PubCo Ordinary Shares by the Shareholder, which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act, provided, however, that such plan does not provide for, or permit, the sale of any PubCo Ordinary Shares during the Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period;

 

Exhibit D-2

 

 

(x)transactions in the event of completion of a liquidation, merger, stock exchange or other similar transaction which results in all of Acquiror’s shareholders having the right to exchange their PubCo Ordinary Shares for cash, securities or other property; and

 

(xi)transactions to satisfy any U.S. federal, state, or local income tax obligations of the Shareholder (or its direct or indirect owners) arising from a change in the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or the U.S. Treasury Regulations promulgated thereunder (the “Regulations”) after the date on which the BCA was executed by the parties, which change prevents the Transactions from qualifying as either a “reorganization” pursuant to Section 368(a) of the Code or a transaction governed by Section 351 of the Code (and the Transactions do not qualify for similar tax-free treatment pursuant to any successor or other provision of the Code or Regulations taking into account such changes), solely and to the extent necessary to cover any tax liability as a direct result of the transaction.

 

provided, however, that (A) in the case of clauses (i) through (iv), these permitted transferees must enter into a written agreement, in substantially the form of this Letter Agreement, agreeing to be bound by these Transfer restrictions. For purposes of this paragraph, “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended.

 

3.In furtherance of the foregoing, Acquiror, and any duly appointed transfer agent for the registration or transfer of the securities described in the BCA, are hereby authorized to decline to make any transfer of such securities if such transfer would constitute a violation or breach of this Letter Agreement.

 

4.This Letter Agreement and the terms of the BCA embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred herein or the documents or instrument referred to herein, which collectively supersedes all prior agreements and the understandings between the parties hereto with respect to the subject matter contained herein. .

 

5.This Letter Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors and permitted assigns. This Letter Agreement shall not be assigned by any party hereto, except by operation of law or consistent with the terms herein, without the prior written consent of the other party and any assignment without such consent shall be null and void; provided, that no such assignment shall relieve the assigning party of its obligations hereunder.

 

Exhibit D-3

 

 

6.This Letter Agreement and any action, proceeding, claim or dispute (whether in contract, tort or otherwise) (each, an “Action”) that may be based upon, arise out of or relate to this Letter Agreement or the negotiation, execution or performance hereof shall be governed by, construed and enforced in accordance with the laws (both substantive and procedural) of the State of Delaware, without regard to the conflicts of law principles thereof. All Actions arising out of or relating to this Letter Agreement shall be heard and determined exclusively in the federal or state courts sitting in New York County, New York (the “Specified Courts”). Each party hereto hereby (i) submits to the exclusive personal and subject matter jurisdiction of any Specified Court for the purpose of any Action arising out of or relating to this Letter Agreement by any party hereto and (ii) irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject to the personal or subject matter jurisdiction of the above named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court. Each party hereto agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by laws.

 

7.This Letter Agreement shall become effective on the date hereof and terminate on the the expiration of the Lock-up Period.

 

[Signature pages follow]

 

Exhibit D-4

 

 

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

 

  Very truly yours,
     
  Shareholder:
     
  Signature:  
     
  Name:  

 

[Signature Page to Lock-Up Agreement

 

 

 

 

  Acknowledged and agreed by:
     
 

Northern Revival Acquisition Corporation

     
  Signature:  
     
  Name:        
     
  Title:  

 

[Signature Page to Lock-Up Agreement]

 

 

 

 

  Braiin Limited
     
  Signature:  
     
  Name:  
     
  Title:  

 

 

[Signature Page to Lock-Up Agreement]

 

 

 

 

 

 

Exhibit 10.5

 

Date: March 16, 2023
   
To: Northern Revival Acquisition Corporation (“Northern Revival” or “NRAC”) and Braiin Limited, an Australian public company limited by shares (“Target”).
   
Address: c/o Maples Fiduciary Services (Delaware) Inc., 4001 Kennett Pike, Suite 302, Wilmington, DE 19807
   
From: (i) Meteora Special Opportunity Fund I, LP (“MSOF”), (ii) Meteora Capital Partners, LP (“MCP”) and (iii) Meteora Select Trading Opportunities Master, LP (“MSTO”) (with MCP, MSOF, and MSTO collectively as “Seller”)
   
Re: OTC Equity Prepaid Forward Transaction

 

The purpose of this agreement (this “Confirmation”) is to confirm the terms and conditions of the transaction (the “Transaction”) entered into between Seller, NRAC and Target on the Trade Date specified below. The term “Counterparty” refers to NRAC until the Business Combination (as defined below), then to Braiin Limited, a Cayman Islands exempted company following the Business Combination. Upon the closing of the transactions contemplated by the BCA (as defined below) NRAC and Target will be organized as a Cayman Islands exempted company (the “Combined Company”). Certain terms of the Transaction shall be as set forth in this Confirmation, with additional terms as set forth in a Pricing Date Notice (the “Pricing Date Notice”) in the form of Schedule A hereto. This Confirmation, together with the Pricing Date Notice(s), constitutes a “Confirmation” and the Transaction constitutes a separate “Transaction” as referred to in the ISDA Form (as defined below).

 

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

 

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

 

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

 

Prior to NRAC’s initial public offering which was consummated on February 2nd, 2021, Seller and its affiliates entered into an investment agreement to acquire purchase certain equity interests of its sponsor, a Cayman Islands limited liability company, pursuant to which Seller and its affiliates agreed to become a party to the Amended and Restated Limited Liability Company Agreement of such sponsor. Additionally, Seller and its affiliates indicated intent to purchase units in NRAC’s initial public offering.

 

Joseph Tonnos, a principal of the Seller previously served as a member of the board of directors of NRAC. Joseph Tonnos promptly disclosed this conflict of interest to the board of directors of NRAC and refrained from participating in any discussions or any vote regarding this Agreement or the transactions contemplated herein. Prior to any approval of this Agreement by the board of directors of NRAC, Joseph Tonnos resigned from the board of directors.

 

 

 

 

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

 

General Terms

 

Type of Transaction:   Share Forward Transaction
     
Trade Date:   March [●], 2023
     
Pricing Date:   As specified in the Pricing Date Notice.
     
Effective Date:   One (1) Settlement Cycle following the Pricing Date.
     
Valuation Date:   The earliest to occur of (a) the third anniversary of the closing of the transactions between Counterparty and Target pursuant to a Business Combination Agreement, as will be entered into on [●] (as the same may be amended, modified, supplemented or waived from time to time, the “BCA”), by and among Counterparty, the Target and certain other parties thereto, to be reported on a Form 8-K filed by the Counterparty (the “Form 8-K”) (the “Business Combination”) and (b) the date specified by Seller in a written notice to be delivered to Counterparty at Seller’s discretion (not earlier than the day such notice is effective) after the occurrence of any of a (x) Seller VWAP Trigger Event or (y) a Delisting Event (in each case the “Maturity Date”).
     
Seller VWAP Trigger Event   An event that occurs if the VWAP Price is at or below $5.00 per Share for any 10 trading days during a 30 consecutive trading day-period thereafter.
     
VWAP Price:   For any scheduled trading day, the volume weighted average price per Share for such day as reported on the relevant Bloomberg Screen “NRAC <Equity> AQR SEC” (or any successor thereto), or if such price is not so reported on such trading day for any reason or is erroneous, the VWAP Price shall be as reasonably determined by the Calculation Agent.
     
Dilutive Offering Reset   To the extent the Counterparty, after the date hereof, sells, enters any agreement to sell or grants any right to reprice, or otherwise dispose of or issues (or announce any offer, sale, grant or any option to purchase or other disposition) any Shares or any securities of the Counterparty or any of their respective subsidiaries which would entitle the holder thereof to acquire at any time Shares, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Shares, at an effective price per share less than the then existing Reset Price then the Reset Price shall be modified to equal such reduced price.
     
Reset Price   The Reset Price shall initially be the Initial Price.  The Reset Price shall be adjusted on the first scheduled trading day of each two-week period commencing with the first week following the thirtieth day after the closing of the Business Combination to be the lowest of (a) the then-current Reset Price, (b) the Initial Price and (c) the VWAP Price of the Shares of the prior two-week period; provided that the Reset Price may be further reduced pursuant to a Dilutive Offering Reset.
     
Seller:   Seller.
     
Buyer:   Counterparty.
     
Shares:   Prior to the closing of the Business Combination, shares of the Class A ordinary shares, par value $0.0001 per share, of Northern Revival (Ticker: “NRAC”) and, after the closing of the Business Combination, the Class A shares of the Combined Company/Braiin Holdings.

 

2

 

 

Number of Shares:   The number of Shares, including Recycled Shares, as specified in the Pricing Date Notice(s), but in no event more than the Maximum Number of Shares. The Number of Shares is subject to reduction only as described under “Optional Early Termination”.
     
Maximum Number of Shares:   2,900,000 Shares
     
Initial Price:   Equals the Per-Share Redemption Price (the “Redemption Price”) as defined in Section [●] of the Amended and Restated Memorandum and Articles of Association of NRAC, effective as of [●], as amended from time to time (the “Certificate of Incorporation”).
     
Recycled Shares:   The number of Shares purchased by Seller from third parties (other than Counterparty) through a broker in the open market or via redemption reversals (other than through Counterparty); provided that Seller shall have irrevocably waived all redemption rights with respect to such Shares as provided below in the section captioned “Transactions by Seller in the Shares.” Seller shall specify the number of Recycled Shares in the initial Pricing Date Notice. 
     
Prepayment:   Payment of the Prepayment Amount shall be made directly from the Counterparty’s Trust Account maintained by Continental Stock Transfer and Trust Company holding the net proceeds of the sale of the units in Counterparty’s initial public offering and the sale of private placement units (the “Trust Account”) to the Seller no later than the Prepayment Date. Counterparty shall provide (a) notice to Counterparty’s trustee of the entrance into this Confirmation no later than one (1) Local Business Day following the date hereof, with copy to Seller and Seller’s outside legal counsel, and (b) to Seller and Seller’s outside legal counsel a final draft of the flow of funds from the Trust Account prior to the closing of the Business Combination itemizing the Prepayment Amount due.  At the election of the Seller, the Prepayment Amount may be transferred to a new escrow account as further described in “Escrow” below.
     
Escrow:  

At the written request of Seller, simultaneously with the closing of the Business Combination, NRAC shall transfer the Prepayment Amount into an escrow account for the benefit of the Seller (the “Escrow Account”) with Continental Stock Transfer & Trust Company (the “Escrow Agent”), subject to the terms of a written escrow agreement (the “Escrow Agreement”) provided by the Escrow Agent (with any customary changes as reasonably requested by the Escrow Agent) and to be entered into on or prior to the time reversals of redemptions in connection with the Business Combination are no longer permitted.

 

Upon receipt by the Escrow Agent and the Counterparty of an OET Notice, resulting in a reduction to the Number of Shares, the Escrow Agent will release from the Escrow Account (a) to the Counterparty the Early Termination Obligation associated with such Terminated Shares and (b) to the Seller an amount in cash equal to the difference between the Initial Price and the Reset Price for each Terminated Share.

 

On the Valuation Date, the Escrow Agent shall transfer to the Seller an amount in cash equal to the product of (x)(i) the Number of Shares less (b) the number of Terminated Shares (the “Matured Shares”) multiplied by (y) the Initial Price. The Seller shall transfer to the Escrow Agent for the benefit of the Counterparty the Matured Shares less the Maturity Shares and the Penalty Shares.

     
Prepayment Amount:   A cash amount equal to (x) the product of (i) the Number of Shares   multiplied by (ii) the Initial Price less (y) the Prepayment Shortfall.

 

3

 

 

Prepayment Date:   Subject to Counterparty receiving the initial Pricing Date Notice, the earlier of (a) one (1) Local Business Day after the closing of the Business Combination and (b) the date any assets from the Trust Account are disbursed in connection with the Business Combination.
     
Variable Obligation:   Not applicable.
     
Prepayment Shortfall   An amount in USD equal to the lesser of (i) ten percent (10.00%) of the product of (x) the Number of Shares multiplied by (y) the Initial Price and (ii) $3,000,000; paid by Seller to Counterparty on the Prepayment Date (which amount shall be netted from the Prepayment Amount).
     
Prepayment Shortfall Consideration   Seller in its sole discretion may sell Shares at any time and at any sales price, without payment by Seller of any Early Termination Obligation (as defined below) until such time as the proceeds from such sales equal 100% of the Prepayment Shortfall (as set forth under Shortfall Sales below) (such sales, “Shortfall Sales,” such Shares, “Shortfall Sale Shares” and such proceeds at their maximum amount, the “Shortfall Sale Proceeds”). A sale of Shares is only (a) a “Shortfall Sale,” subject to the terms and conditions herein applicable to Shortfall Sale Shares, when a Shortfall Sale Notice is delivered hereunder, and (b) an Optional Early Termination, subject to the terms and conditions herein applicable to Terminated Shares, when an OET Notice (as defined below) is delivered hereunder, in each case the delivery of such notice in the sole discretion of the Seller.
     
Exchanges   The Nasdaq Stock Market LLC
     
Related Exchange(s)   All Exchanges
     
Break-up Fees:   A break-up fee equal to (i) all of Seller’s actual out-of-pocket reasonable and documented fees, costs and expenses relating to the Transaction in an amount not to exceed $50,000 (as provided below under “Reimbursement of Legal Fees and Other Expenses”) plus (ii) $25,000 (collectively, the “Break-up Fee”) shall be payable, jointly and severally, by the Counterparty and the Target to the Seller in the event this Confirmation or the Transaction is terminated by either the Counterparty or the Target; provided that Counterparty and Target may terminate this Transaction, including the Confirmation, with no liability to Seller, including without limitation the Break-up Fee, upon any Additional Termination Event; provided that notwithstanding any other provision, clause or proviso of this Confirmation, this Transaction, including the Confirmation, may not be terminated by Counterparty or Target after Seller purchases any Recycled Shares after the redemption deadline; provided further that Seller hereby waives any and all right, title and interest, or any claim of any kind they have or may have, in or to any monies held in the Counterparty’s Trust Account and agrees not to seek recourse against the Trust Account, in each case, as a result of, or arising out of, this Transaction; provided, however, that nothing in the foregoing waiver shall (x) serve to limit or prohibit Seller’s right to pursue a claim against the Counterparty for legal relief against assets held outside the Trust Account, for specific performance or other equitable relief, (y) serve to limit or prohibit any claims that the Seller may have in the future against the Counterparty’s assets or funds that are not held in the Trust Account (including any funds that have been released from the Trust Account and any assets that have been purchased or acquired with any such funds), (z) be deemed to limit Seller’s right, title, interest or claim to the Trust Account by virtue of such Seller’s record or beneficial ownership of securities of the Counterparty acquired by any means other than pursuant to this Transaction or (aa) serve to limit Seller’s redemption right with respect to any such securities of the Seller other than during the term of this Confirmation. The Breakup Fee is not intended to constitute a liquidated damages provision, and it will be payable in addition to any other amount due and payable to Seller as a result of the occurrence of an Early Termination Date under the ISDA Master Agreement.
     
Payment Dates:   Following the Business Combination the last day of each week or, if such date is not a Local Business Day, the next following Local Business Day, until the Maturity Date.

 

4

 

 

Reimbursement of Legal Fees and Other Expenses:   Together with the Prepayment Amount, Counterparty shall pay to Seller an amount equal to the reasonable and documented attorney fees and other reasonable out-of-pocket expenses related thereto actually incurred by Seller or its affiliates in connection with this Transaction not to exceed (a) $50,000, (b) a quarterly fee of $5,000 (initially payable on the Trade Date and upon the first Local Business Day of each quarter and (c) expenses actually incurred in connection with the acquisition of the Shares in an amount not to exceed $0.05 per Share and $0.03 per disposition of each Share.
     
Settlement Terms    
     
Settlement Method Election:   Not Applicable.
     
Settlement Method:   Physical Settlement.
     
Settlement Currency:   USD.
     
Settlement Date:   Two (2) Local Business Days following the Valuation Date.
     
Excess Dividend Amount   Ex Amount.
     
Optional Early Termination:   From time to time and on any date following the Business Combination (any such date, an “OET Date”) and subject to the terms and conditions below, Seller may, in its absolute discretion, terminate the Transaction in whole or in part so long as Seller provides written notice to Counterparty (the “OET Notice”), no later than the later of (a) the fifth Local Business Day following the OET Date and (b) the first Payment Date after the OET Date which shall specify the quantity by which the Number of Shares is to be reduced (such quantity, the “Terminated Shares”) provided that “Terminated Shares” includes only such quantity of Shares by which the Number of Shares is to be reduced and included in an OET Notice and does not include any Share Consideration Shares sales, Shortfall Sale Shares, sales of Shares that are designated as Shortfall Sales (which designation can be made only up to the amount of Shortfall Sale Proceeds) or any other sales of Shares (other than Recycled Shares), which Shares will not be included in any OET Notice or included in the definition, or when calculating the number, of Terminated Shares.  The effect of an OET Notice given shall be to reduce the Number of Shares by the number of Terminated Shares specified in such OET Notice with effect as of the related OET Date.  As of each OET Date, Counterparty shall be entitled to an amount from Seller, or if there is an Escrow Account, the Escrow Agent, and the Seller or Escrow Agent, as applicable, shall pay to Counterparty an amount, equal to the product of (x) the number of Terminated Shares multiplied by (y) the Reset Price in respect of such OET Date (an “Early Termination Obligation”), except that no such amount will be due to Counterparty upon any Shortfall Sale; provided that Seller or the Escrow Agent, as applicable, shall pay certain of the Early Termination Obligation to the accounts and in the amounts as directed by Counterparty.  The remainder of the Transaction, if any, shall continue in accordance with its terms; provided that if the OET Date is also the stated Valuation Date, the remainder of the Transaction shall be settled in accordance with the other provisions of “Settlement Terms.”  The Seller or Escrow Agent, as applicable, shall pay to Counterparty any and all unsatisfied Early Termination Obligations, calculated as of the last day of each calendar month, on the first Local Business Day following such day; provided that Seller or Escrow Agent, as applicable, shall be under no obligation to settle an Early Termination Obligation set forth in an OET Notice prior to one (1) Local Business Day following the settlement of the Share sale(s) covered in such OET Notice.
     
Shortfall Sales   From time to time and on any date following the Business Combination (any such date, a “Shortfall Sale Date”) and subject to the terms and conditions below, Seller may, in its absolute discretion, at any sales price, sell Shortfall Sale Shares, and in connection with such sales, Seller shall provide written notice to Counterparty (the “Shortfall Sale Notice”) no later than the later of (a) the fifth Local Business Day following the Shortfall Sales Date and (b) the first Payment Date after the Shortfall Sales Date, specifying the quantity of the Shortfall Sale Shares and the allocation of the Shortfall Sale Proceeds. Seller shall not have any Early Termination Obligation in connection with any Shortfall Sales. The Counterparty covenants and agrees for a period of at least sixty (60) Local Business Days (commencing on the Prepayment Date or if an earlier Registration Request is submitted by Seller on the Registration Statement Effective Date) not to issue, sell or offer or agree to sell any Shares, or securities or debt that is convertible, exercisable or exchangeable into Shares, including under any existing or future equity line of credit, until the Shortfall Sales equal the Prepayment Shortfall.

 

5

 

 

 

Unless and until the proceeds from Shortfall Sales equal 100% of the Prepayment Shortfall, in the event that the product of (x) the difference between (i) the number of Shares as specified in the Pricing Date Notice(s), less (ii) any Shortfall Sale Shares as of such measurement time, multiplied by (y) the VWAP Price, is less than (z) the difference between (i) the Prepayment Shortfall, less (ii) the proceeds from Shortfall Sales as of such measurement time (the “Shortfall Variance”), then the Counterparty, as liquidated damages in respect of such Shortfall Variance, at its option shall within five (5) business days either:

 

(A) Pay in cash an amount equal to the Shortfall Variance; or

 

(B) Issue and deliver to Seller such number of additional Shares that are equal to (1) the Shortfall Variance, divided by (2) the VWAP Price (the “Shortfall Variance Shares”).

 

In the event that the Counterparty issues and delivers to Seller Shortfall Variance Shares, within thirty (30) calendar days of such issuance and delivery, Counterparty shall file (at Counterparty’s sole cost and expense) with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement registering the resale of all shares held by the Seller, including the Recycled Shares (the “Shortfall Variance Registration Statement”), and have the Shortfall Variance Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earliest of (i) the 90th calendar day (or 135th calendar day if the Commission notifies the Counterparty that it will “review” the Shortfall Variance Registration Statement) following the issuance and delivery of the Shortfall Variance Shares and (ii) the 5th Local Business Day after the date the Counterparty is notified (orally or in writing, whichever is earlier) by the Commission that such Shortfall Variance Registration Statement will not be “reviewed” or will not be subject to further review. Upon notification by the Commission that the Shortfall Variance Registration Statement has been declared effective by the Commission, within two (2) Local Business Days thereafter, the Counterparty shall file the final prospectus under Rule 424 of the Securities Act of 1933, as amended containing a “plan of distribution” reasonably agreeable to Seller. Counterparty shall not identify Seller as a statutory underwriter in the Registration Statement unless requested by the Commission. The Counterparty will use its reasonable best efforts to keep the Shortfall Variance Registration Statement covering the resale of the shares as described above continuously effective (except for customary blackout periods, up to twice per year and for a total of up to 15 calendar days (and not more than 10 calendar days in an occurrence), if and when the Counterparty is in possession of material non-public information the disclosure of which, in the good faith judgment of the Counterparty’s board of directors, would be prejudicial, and the Counterparty agrees to promptly notify Seller of any such blackout determination) until all such shares have been sold or may be transferred without any restrictions including the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2) or the volume and manner of sale limitations under Rule 144 under the Securities Act; provided that Counterparty covenants and agrees to make all necessary filings, amendments, supplements and submissions in furtherance of the foregoing, including to register all of Seller’s Shares for resale; provided that it shall be a “Shortfall Variance Registration Failure” if (a) the Shortfall Variance Registration Statement covering all of the shares described above in this section is not declared effective after the 90th calendar day (or 135th calendar day if the Commission notifies the Counterparty that it will “review” the Shortfall Variance Registration Statement) after the issuance and delivery of the Shortfall Variance Shares) or (b) the Shortfall Variance Registration Statement after it is declared effective ceases to be continuously effective (subject to the blackout periods as indicated above) as set forth in the preceding sentence for more than 15 consecutive calendar days. Seller will promptly deliver customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection with the Shortfall Variance Registration Statement, including those related to selling shareholders and to respond to SEC comments. If requested by Seller, the Counterparty shall remove or instruct its transfer agent to remove any restrictive legend with respect to transfers under the Securities Act from any and all Shares held by Seller if (1) the Shortfall Variance Registration Statement is and continues to be effective under the Securities Act, (2) such Shortfall Variance Shares are sold or transferred pursuant to Rule 144 under the Securities Act (subject to all applicable requirements of Rule 144 being met), or (3) such Shortfall Variance Shares are eligible for sale under Rule 144, without the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to the Shortfall Variance Shares and without volume or manner-of-sale restrictions; provided that Seller shall have timely provided customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection therewith. Any fees (with respect to the transfer agent, Counterparty’s counsel or otherwise) associated with the issuance of any legal opinion required by the Counterparty’s transfer agent or the removal of such legend shall be borne by the Counterparty. If a legend is no longer required pursuant to the foregoing, the Counterparty will, no later than five (5) Local Business Days following the delivery by Seller to the Counterparty or the transfer agent (with notice to the Counterparty) of customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent, remove the restrictive legend related to the book entry account holding the Shortfall Variance Shares and make a new, unlegended book entry for the Shortfall Variance Shares.

 

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    Any Shortfall Variance Shares shall constitute Shortfall Shares, and the sale of such Shortfall Variance Shares after the Shortfall Variance Registration Statement is declared effective by the Commission shall be a Shortfall Sale. If the Shortfall Variance has not been paid in cash by the Counterparty, and after the sale of all Shortfall Variance Shares, the proceeds from all Shortfall Sales, including the Shortfall Variance Shares, is less than 100% of the Prepayment Shortfall, then there will be another Shortfall Variance, calculated in accordance with this provision, and the Counterparty shall address such Shortfall Variance as provided for by this provision. This shall continue until such time as the proceeds from all Shortfall Sales equal 100% of the Prepayment Shortfall or the Counterparty shall have paid any Shortfall Variance in cash.
     
    With respect to the forgoing and any issuance of Shortfall Variance Shares, the Counterparty shall not issue any Shortfall Variance Shares pursuant to this provision to the extent that after giving effect thereto, the aggregate number of Shares that would be issued pursuant to this provision would exceed 19.99% of the Shares that are issued and outstanding immediately prior to such issuance, which number of shares shall be (i) reduced, on a share-for-share basis, by the number of Shares issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated hereby under applicable rules of the Nasdaq Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this Confirmation (such maximum number of shares, the “Exchange Cap”), unless and until the Counterparty elects to solicit stockholder approval of the issuance of the Shortfall Variance Shares as contemplated hereby, and the stockholders of the Counterparty have in fact approved the issuance of the Shortfall Variance Shares as contemplated hereby in accordance with the applicable rules of the Nasdaq Stock Market. In the event that there is an Exchange Cap, if the Counterparty does not elect to solicit stockholder approval and obtain such stockholder approval in accordance with the applicable rules of the Nasdaq Stock Market, then the Counterparty will pay the Shortfall Variance in cash.

 

Maturity Consideration:   The “Maturity Consideration” means an amount equal to the product of (1) (a) the Number of Shares less (b) the number of Terminated Shares, multiplied by (2) $1.50 in the event of cash or, in the event of Shares, $2.00; and $2.50, solely in the event of a Registration Failure. In the event the Maturity Date is determined by clause (a) or (b) of Valuation Date, on such Maturity Date, Seller shall be entitled to receive the Maturity Consideration in cash or, at the option of Counterparty (other than in the case of a Delisting Event), Shares based on the average daily VWAP Price over 30 scheduled trading days ending on the Maturity Date (such shares to be paid as Maturity Consideration, the “Maturity Shares”); provided that the Maturity Shares used to pay the Maturity Consideration (i) (a) are registered for resale under an effective registration statement pursuant to the Securities Act under which Seller may sell or transfer the Shares or (b) may be transferred by Seller without any restrictions including the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2)) or the volume and manner of sale limitations under Rule 144 under the Securities Act and (ii) bear no restrictive legend (collectively, (i) and (ii) above, the “Share Conditions”); provided further that if the Maturity Shares do not satisfy the Share Conditions, Seller shall instead receive such number of Shares equal to the product of (a) three (3) multiplied by  (b) the (i) the Number of Shares less (ii) the number of Terminated Shares,  (the “Penalty Shares”); provided further that if the Penalty Shares satisfy the Share Conditions within 45 days after the Maturity Date, Seller shall return to Counterparty such number of Penalty Shares that are valued in excess of Maturity Consideration based on the 10-day VWAP ending on the date that such Shares satisfied the Share Conditions. Counterparty, at Sellers’s option, will pay the Maturity Consideration on a net basis such that Seller retains a number of shares due to Counterparty upon the Maturity Date equal to the number of Maturity Shares or Penalty Shares payable to Seller, only to the extent the Number of Shares due to Counterparty upon the Maturity Date are equal to or more than the number of Maturity Shares or Penalty Shares payable to Seller, with any Maturity Consideration remaining due to be paid to Seller in newly issued Shares.  For the avoidance of doubt, in addition to the Maturity Consideration, at the Maturity Date, Seller will be entitled to an amount in cash from the Escrow Account equal to the product of (i) the number of the Matured Shares multiplied by (ii) the Initial Price.

 

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Share Consideration:   In addition to the Prepayment Amount, Counterparty shall pay to Seller (directly from the Trust Account if there are sufficient funds available after paying redemptions and the Prepayment), on the Prepayment Date, an amount equal to the product of (x) 200,000 multiplied by (y) the Initial Price. The Shares related to  the Share Consideration (the “Share Consideration Shares”) shall not be included in the Number of Shares in this Transaction, and the Seller and the Share Consideration Shares shall be free and clear of all obligations with respect to the Seller and such Share Consideration Shares in connection with this Confirmation.
     
Share Registration   At the written request of Seller and no earlier than the Counterparty’s redemption deadline and no later than the Maturity Date (the “Registration Request”), within forty-five (45) calendar days of the Registration Request, Counterparty shall file (at Counterparty’s sole cost and expense) with the Commission a registration statement registering the resale of all shares held by the Seller, including the Recycled Shares the Share Consideration Shares (the “Registration Statement”), and have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earliest of (i) the 90th calendar day (or 135th calendar day if the Commission notifies the Counterparty that it will “review” the Registration Statement) following the Registration Request and (ii) the 5th Local Business Day after the date the Counterparty is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review. Upon notification by the Commission that the Registration Statement has been declared effective by the Commission, within two (2) Local Business Days thereafter, the Counterparty shall file the final prospectus under Rule 424 of the Securities Act of 1933, as amended containing a “plan of distribution” reasonably agreeable to Seller. Counterparty shall not identify Seller as a statutory underwriter in the Registration Statement unless requested by the Commission. The Counterparty will use its reasonable best efforts to keep the Registration Statement covering the resale of the shares as described above continuously effective (except for customary blackout periods, up to twice per year and for a total of up to 15 calendar days (and not more than 10 calendar days in an occurrence), if and when the Counterparty is in possession of material non-public information the disclosure of which, in the good faith judgment of the Counterparty’s board of directors, would be prejudicial, and the Counterparty agrees to promptly notify Seller of any such blackout determination) until all such shares have been sold or may be transferred without any restrictions including the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2) or the volume and manner of sale limitations under Rule 144 under the Securities Act; provided that Counterparty covenants and agrees to make all necessary filings, amendments, supplements and submissions in furtherance of the foregoing, including to register all of Seller’s Shares for resale; provided that it shall be a (“Registration Failure”) if (a) the Registration Statement covering all of the shares described above in this section is not declared effective after the 90th calendar day (or 135th calendar day if the Commission notifies the Counterparty that it will “review” the Registration Statement) after the Registration Request) or (b) the Registration Statement after it is declared effective ceases to be continuously effective (subject to the blackout periods as indicated above) as set forth in the preceding sentence for more than 15 consecutive calendar days. Seller will promptly deliver customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection with the Registration Statement, including those related to selling shareholders and to respond to SEC comments. If requested by Seller, the Counterparty shall remove or instruct its transfer agent to remove any restrictive legend with respect to transfers under the Securities Act from any and all Shares held by Seller if (1) the Registration Statement is and continues to be effective under the Securities Act, (2) such Shares are sold or transferred pursuant to Rule 144 under the Securities Act (subject to all applicable requirements of Rule 144 being met), or (3) such Shares are eligible for sale under Rule 144, without the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to the Shares and without volume or manner-of-sale restrictions; provided that Seller shall have timely provided customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection therewith. Any fees (with respect to the transfer agent, Counterparty’s counsel or otherwise) associated with the issuance of any legal opinion required by the Counterparty’s transfer agent or the removal of such legend shall be borne by the Counterparty. If a legend is no longer required pursuant to the foregoing, the Counterparty will, no later than five (5) Local Business Days following the delivery by Seller to the Counterparty or the transfer agent (with notice to the Counterparty) of customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent, remove the restrictive legend related to the book entry account holding the Shares and make a new, unlegended book entry for the Shares.

 

8

 

 

Share Adjustments:    
     
Method of Adjustment:   Calculation Agent Adjustment.
     
Extraordinary Events:    
     
Consequences of Merger Events involving Counterparty:    
     
Share-for-Share:   Calculation Agent Adjustment.
     
Share-for-Other:   Cancellation and Payment.
     
Share-for-Combined:   Component Adjustment.
     
Tender Offer:   Applicable; provided, however, that Section 12.1(d) of the Equity Definitions is hereby amended by adding “, or of the outstanding Shares,” before “of the Issuer” in the fourth line thereof. Sections 12.1(e) and 12.1(l)(ii) of the Equity Definitions are hereby amended by adding “or Shares, as applicable,” after “voting Shares”.
     
Consequences of Tender Offers:    
     
Share-for-Share:   Calculation Agent Adjustment.
     
Share-for-Other:   Calculation Agent Adjustment.
     
Share-for-Combined:   Calculation Agent Adjustment.
     
Composition of Combined Consideration:   Not Applicable.
     
Nationalization, Insolvency or Delisting:   Cancellation and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the Nasdaq Global Select Market, Nasdaq Capital Market or the Nasdaq Global Market (or their respective successors) or such other exchange or quotation system which, in the determination of the Calculation Agent, has liquidity comparable to the aforementioned exchanges; if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
     
Business Combination Exclusion:   Notwithstanding the foregoing or any other provision herein, the parties agree that the Business Combination shall not constitute a Merger Event, Tender Offer, Delisting or any other Extraordinary Event hereunder.
     
Additional Disruption Events:    
     
(a) Change in Law:   Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by adding the words “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” after the word “regulation” in the second line thereof.
     
(a) Failure to Deliver:   Not Applicable.
     
(b) Insolvency Filing:   Applicable.
     
(c) Hedging Disruption:   Not Applicable.
     
(d) Increased Cost of Hedging:   Not Applicable.
     
(e) Loss of Stock Borrow:   Not Applicable.
     
(f) Increased Cost of Stock Borrow:   Not Applicable.

 

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Determining Party:   For all applicable events, Seller, unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect to Seller, or (ii) if Seller fails to perform its obligations as Determining Party, in which case a Third Party Dealer (as defined below) in the relevant market selected by Counterparty will be the Determining Party.
     
Additional Provisions:    
     
Calculation Agent:   Seller, unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect to Seller, or (ii) if Seller fails to perform its obligations as Calculation Agent, in which case an unaffiliated leading dealer in the relevant market selected by Counterparty in its sole discretion will be the Calculation Agent.
     
    In the event that a party (the “Disputing Party”) does not agree with any determination made (or the failure to make any determination) by the Calculation Agent, the Disputing Party shall have the right to require that the Calculation Agent have such determination reviewed by a disinterested third party that is a dealer in derivatives of the type that is the subject of the dispute and that is not an Affiliate of either party (a “Third Party Dealer”). Such Third Party Dealer shall be jointly selected by the parties within one (1) Local Business Day after the Disputing Party’s exercise of its rights hereunder (once selected, such Third Party Dealer shall be the “Substitute Calculation Agent”). If the parties are unable to agree on a Substitute Calculation Agent within the prescribed time, each of the parties shall elect a Third Party Dealer and such two dealers shall agree on a Third Party Dealer by the end of the subsequent Local Business Day. Such Third Party Dealer shall be deemed to be the Substitute Calculation Agent. Any exercise by the Disputing Party of its rights hereunder must be in writing and shall be delivered to the Calculation Agent not later than the third Local Business Day following the Local Business Day on which the Calculation Agent notifies the Disputing Party of any determination made (or of the failure to make any determination). Any determination by the Substitute Calculation Agent shall be binding in the absence of manifest error and shall be made as soon as possible but no later than the second Local Business Day following the Substitute Calculation Agent’s appointment. The costs of such Substitute Calculation Agent shall be borne by (a) the Disputing Party if the Substitute Calculation Agent substantially agrees with the Calculation Agent or (b) the non-Disputing Party if the Substitute Calculation Agent does not substantially agree with the Calculation Agent. If, after following the procedures and within the specified time frames set forth above, a binding determination is not achieved, the original determination of the Calculation Agent shall apply.
     
Non-Reliance:   Applicable.
     
Agreements and Acknowledgements Regarding Hedging Activities:   Applicable.
     
Additional Acknowledgements:   Applicable.
     
Schedule Provisions:    
     
Specified Entity:   In relation to both Seller and Counterparty for the purpose of:
     
    Section 5(a)(v), Not Applicable
    Section 5(a)(vi), Not Applicable
    Section 5(a)(vii), Not Applicable
     
Cross-Default   The “Cross-Default” provisions of Section 5(a)(vi) of the ISDA Form will not apply to either party.

 

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Credit Event Upon Merger   The “Credit Event Upon Merger” provisions of Section 5(b)(v) of the ISDA Form will not apply to either party.
     
Automatic Early Termination:   The “Automatic Early Termination” of Section 6(a) of the ISDA Form will not apply to either party.
     
Termination Currency:   United States Dollars.
     
Additional Termination Events:  

Will apply to Seller and to Counterparty and Target. The occurrence of any of the following events shall constitute an Additional Termination Event in respect of which Seller and Counterparty and Target shall be Affected Parties:

 

(a) The BCA is terminated pursuant to its terms prior to the closing of the Business Combination.

 

Notwithstanding the foregoing, Counterparty’s obligations set forth under the captions, “Reimbursement of Legal Fees and Other Expenses,” and “Other Provisions — (d) Indemnification” shall survive any termination due to the occurrence of either of the foregoing Additional Termination Events.

     
Governing Law:   New York law (without reference to choice of law doctrine).
     
Credit Support Provider:   With respect to Seller and Counterparty, None.
     
Local Business Days:   Seller specifies the following places for the purposes of the definition of Local Business Day as it applies to it: New York. Counterparty specifies the following places for the purposes of the definition of Local Business Day as it applies to it: New York.

 

Representations, Warranties and Covenants

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(i) Affiliate Status. It is the intention of the parties hereto that Seller shall not be an “affiliate” (as such term is defined in Rule 405 under the Securities Act) of the Counterparty including NRAC or the Combined Company following the closing of the Business Combination, as a result of the transactions contemplated hereunder.

 

2. Counterparty represents and warrants to, and covenants and agrees with Seller as of the date on which it enters into the Transaction that:

 

(a) Total Assets. NRAC has total assets as of the date hereof and expects to have as of the closing of the Business Combination of at least USD $5,000,001.

 

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

 

(c) Solvency. Counterparty is, and shall be as of the date of any payment or delivery by Counterparty under the Transaction, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the businesses in which it engages. Counterparty: (i) has not engaged in and will not engage in any business or transaction after which the property remaining with it will be unreasonably small in relation to its business, (ii) has not incurred and does not intend to incur debts beyond its ability to pay as they mature, and (iii) as a result of entering into and performing its obligations under the Transaction, (a) it has not violated and will not violate any relevant state law provision applicable to the acquisition or redemption by an issuer of its own securities and (b) it would not be nor would it be rendered “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code or under any other applicable local insolvency regime).

 

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

 

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

 

(f) SEC Documents. The Counterparty shall comply with the Securities and Exchange Commission’s guidance, including Compliance and Disclosure Interpretation No. 166.01, for all relevant disclosure in connection with this Confirmation and the Transaction, and will not file with the Securities and Exchange Commission any Form 8-K, Registration Statement on Form S-4 (or Form F-4 (if applicable)) (including any post-effective amendment thereof), proxy statement, or other document that includes any disclosure regarding this Confirmation or the Transaction without consulting with and reasonably considering any comments received from Seller, provided that, no consultation shall be required with respect to any subsequent disclosures that are substantially similar to prior disclosures by Counterparty that were reviewed by Seller.

 

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(g) Waiver. The Counterparty shall waive any violation of its “bulldog clause” and any other restrictions that would be caused by Seller entering into this Transaction.

 

(h) Disclosure. The Counterparty agrees to comply with applicable SEC guidance in respect of disclosure and the Counterparty shall preview with Seller all public disclosure relating to the Transaction and shall consult with Seller to ensure that such public disclosure, including the press release, Form 8-K or other filing that announces the Transaction adequately discloses the material terms and conditions of the Transaction in form and substance reasonably acceptable to Seller; provided that the Form 8-K shall be publicly filed on the same date that definitive transaction documents are signed and provided further, that to the extent definitive transaction documents are not signed at least 48 hours prior to the Redemption Deadline, the Counterparty agrees to make all necessary disclosures (if any) at least 24 hours prior to the Redemption Deadline to ensure that Seller is not in possession of material non-public information as a result of the transactions outlined herein.

 

(i) Listing. The Counterparty agrees to use its best efforts to maintain the listing of the Shares on a national securities exchange; provided that if the Shares cease to be listed on a national securities exchange or upon the filing of a Form 25 (each a “Delisting Event”), Seller may accelerate the Maturity Date under this Confirmation by delivering notice to the Counterparty and shall be entitled to the Break-up Fees, which shall be due and payable immediately following the Maturity Date.

 

(j) Regulatory Filings. Counterparty covenants that it will make all regulatory filings that it is required by law or regulation to make with respect to the Transaction.

 

(k) Regulation M and Target Approvals. Counterparty is not on the Trade Date and agrees and covenants that it will not be on any date Seller is purchasing shares that may be included in a Pricing Date Notice, engaged or engaging in a distribution, as such term is used in Regulation M under the Exchange Act, of any securities of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M. Counterparty shall not, until the second scheduled trading day immediately following dates referenced in the preceding sentence, engage in any such distribution. Counterparty, including Target, also agrees and covenants that the BCA shall be executed and all required approvals and consents of the Target security holders in connection with the Business Combination shall be obtained and any subsequent valuation periods as contemplated under Regulation M under the Exchange Act, shall be completed in each case no later than NRAC’s redemption deadline.

 

(l) Other Agreements. Counterparty covenants and agrees that it has not and will not enter into any other OTC Equity Prepaid Forward Transactions or similar transaction(s) or agreement(s) with any other person(s) without the prior written consent of Seller during the term of this Confirmation.

 

(m) No conflicts. The execution and delivery by the Counterparty and Target of, and the performance by the Counterparty and the Target of its obligations under, the Transaction and the Confirmation and the consummation of the transactions contemplated by the Confirmation, including the payments and share issuances hereunder, do not and will not result in any breach or violation of or constitute a default under (nor constitute any event which, with notice, lapse of time or both, would result in any breach or violation of or constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of the Counterparty, the Target or any of their respective subsidiaries pursuant to) (i) any provision of applicable law, (ii) the organizational documents of any of the Counterparty, the Target or any of their respective subsidiaries, (iii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument binding upon the Counterparty, the Target or any of their respective subsidiaries, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Counterparty, the Target or any of their respective subsidiaries, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Counterparty or the Target of their respective obligations under the Confirmation, except as have been obtained. In addition, the Counterparty and Target covenant and agree not to enter into any agreement or other arrangement that would prohibit, restrict or otherwise prevent the Counterparty from performing its obligations hereunder, including the making of any payment or Share issuance to the Seller.

 

13

 

 

3. Target and the Combined Company, from and after the Trade Date, each covenants and agrees not to incur in excess of $10.0 million of indebtedness (as a result of incurring additional indebtedness, refinancing of existing indebtedness as of the date hereof, or otherwise) through and including the 90th day following the Prepayment Date without the prior written consent of the Seller. Indebtedness shall not include accounts payable at the closing of the Business Combination or otherwise.

 

4. Seller represents and warrants to, and covenants and agrees with Counterparty as of the date on which it enters into the Transaction and each other date specified that:

 

(a) Regulatory Filings. Seller covenants that it will make all regulatory filings that it is required by law or regulation to make with respect to the Transaction including, without limitation, as may be required by Section 13 or Section 16 (if applicable) under the Exchange Act and, assuming the accuracy of Counterparty’s Repurchase Notices (as described under “Repurchase Notices” below), any sales of the Recycled Shares will be in compliance therewith.

 

Transactions by Seller in the Shares

 

(a) Seller hereby waives the redemption rights (“Redemption Rights”) set forth in the Certificate of Incorporation in connection with the Business Combination with respect to the Recycled Shares only during the term of this Confirmation. Seller may sell or otherwise transfer, loan or dispose of any of the Shares or any other shares or securities of the Counterparty in one or more public or private transactions at any time. Any Recycled Shares that are not Shortfall Sale Shares sold by Seller during the term of the Transaction will cease to be included in the Number of Shares.

 

(b) No sale of Shares by Seller shall terminate all or any portion of this Confirmation (unless Seller issues a  Shortfall Sale Notice or OET Notice within the deadlines contemplated in sections entitled Shortfall Sales and Optional Early Termination above), and provided that Seller complies with all of its other obligations hereunder nothing contained herein shall limit any of Seller’s purchases and sales of Shares. 
   
© Seller hereby agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with it, will engage in any Short Sales with respect to securities of Counterparty prior to the closing of the Business Combination. For purposes of this Section 6, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.

 

No Arrangements

 

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

 

Wall Street Transparency and Accountability Act

 

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

 

14

 

 

Address for Notices

 

Notice to Seller:

 

1200 N Federal Hwy, Ste 200

Boca Raton, FL 33432 

Email: notices@meteoracapital.com

 

With a copy to:

 

DLA Piper LLP (US)

555 Mission Street, Suite 2400

San Francisco, CA 94105-2933

Attention: Jeffrey C. Selman

Email: jeffrey.selman@us.dlapiper.com

 

Notice to Counterparty:

 

Northern Revival Acquisition Corporation
c/o Maples Fiduciary Services (Delaware) Inc.

4001 Kennett Pike, Suite 302, Wilmington, DE 19807

Attention: Aemish Shah
E-mail: aemish@genglobalcapital.com

 

With a copy to:

 

Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
E-mail: mnussbaum@loeb.com

 

Following the Closing of the Business Combination:

 

Notice to Combined Company:

 

Braiin Holdings

Attn: Natraj Balasubramanian

283 Rokeby Road

Subiaco, WA 6008

Australia

natraj@braiin.com

 

Notice to Target:

 

Braiin Limited

Attn: Natraj Balasubramanian

283 Rokeby Road

Subiaco, WA 6008

Australia

natraj@braiin.com

 

With a copy to:

 

Winston & Strawn LLP

800 Capitol St., Suite 2400

Houston, Texas 77002

Attn: Michael Blankenship

Email: mblankenship@winston.com

 

15

 

 

Other Provisions.

 

(a) Rule 10b5-1.

 

  (i) Counterparty represents and warrants to Seller that Counterparty is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) for the purpose of inducing the purchase or sale of such securities or otherwise in violation of the Exchange Act, and Counterparty represents and warrants to Seller that Counterparty has not entered into or altered, and agrees that Counterparty will not enter into or alter, any corresponding or hedging transaction or position with respect to the Shares.

 

  (ii) Counterparty agrees that it will not seek to control or influence Seller’s decision to make any “purchases or sales” under the Transaction, including, without limitation, Seller’s decision to enter into any hedging transactions. Counterparty represents and warrants that it has consulted with its own advisors as to the legal aspects of its adoption and implementation of this Confirmation and the Transaction under the federal securities laws, including without limitation, the prohibitions on manipulative and deceptive devices under the Exchange Act.

 

  (iii) Counterparty acknowledges and agrees that any amendment, modification, waiver or termination of this Confirmation must be effected in accordance with the requirements for the amendment or termination of a written trading plan for trading securities.. Without limiting the generality of the foregoing, Counterparty acknowledges and agrees that any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws, including without limitation the prohibition on manipulative and deceptive devises under the Exchange Act and no such amendment, modification or waiver shall be made at any time at which Counterparty or any officer, director, manager or similar person of Counterparty is aware of any material non-public information regarding Counterparty or the Shares.

 

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

 

16

 

 

(c) Transfer or Assignment. The Seller may freely transfer or assign the rights and duties under this Confirmation. If at any time following the closing of the Business Combination at which (A) the Section 16 Percentage exceeds 9.9%, or (B) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clause (A) or (B), and “Excess Ownership Position”), Seller is unable to effect a transfer or assignment of a portion of the Transaction to a third party on pricing terms reasonably acceptable to Seller and within a time period reasonably acceptable to Seller such that no Excess Ownership Position exists, then Seller may designate any Local Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Seller so designates an Early Termination Date with respect to a portion of the Transaction, a portion of the Shares with respect to the Transaction shall be delivered to Counterparty as if the Early Termination Date was the Valuation Date in respect of a Transaction having terms identical to the Transaction and a Number of Shares equal to the number of Shares underlying the Terminated Portion. The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, as determined by Seller, (A) the numerator of which is the number of Shares that Seller and each person subject to aggregation of Shares with Seller under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) of the Exchange Act) with Seller directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) (the “Seller Group” ) and (B) the denominator of which is the number of Shares outstanding.

 

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

 

The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting (other than on Schedule 13D or 13G) or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Seller Person, or could result in an adverse effect on a Seller Person, under any Applicable Restriction, as determined by Seller in its sole discretion, minus (B) 0.1% of the number of Shares outstanding.

 

(d) Indemnification. Counterparty agrees to indemnify and hold harmless each Indemnified Person from and against any and all losses (but not including financial losses to an Indemnified Person relating to the economic terms of the Transaction provided that the Counterparty performs its obligations under this Confirmation in accordance with its terms), claims, damages and liabilities (or actions in respect thereof) expenses (including reasonable attorney’s fees), joint or several, incurred by or asserted against such Indemnified Person arising out of, in connection with, or relating to, and to reimburse, within thirty (30) days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Indemnified Parties and the Counterparty or between any of the Indemnified Parties and any third party, or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of or based upon the Transaction, including the execution or delivery of this Confirmation, the performance by Counterparty of its obligations under the Transaction, any breach of any covenant, representation or warranty made by Counterparty in this Confirmation or the ISDA Form, regulatory filings and submissions made by or on behalf of the Counterparty related to the Transaction (other than as relates to any information provided in writing by or on behalf of Seller or its affiliates), or the consummation of the transactions contemplated hereby, including the Registration Statement or any untrue statement or alleged untrue statement of a material fact contained in any registration statement, press release, filings or other document, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is related to the manner in which Seller sells, or arising out of any sales by Seller of, any Shares, including the Recycled Shares or found in a nonappealable judgment by a court of competent jurisdiction to have resulted from Seller’s material breach of any covenant, representation or other obligation in this Confirmation or the ISDA Form or from Seller’s willful misconduct, bad faith or gross negligence in performing the services that are subject of the Transaction. If for any reason the foregoing indemnification is unavailable to any Indemnified Person or insufficient to hold harmless any Indemnified Person, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Person as a result of such loss, claim, damage or liability. In addition (and in addition to any other Reimbursement of Legal Fees and other Expenses contemplated by this Confirmation), Counterparty will reimburse any Indemnified Person for all reasonable, out-of-pocket, expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Person is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty also agrees that no Indemnified Person shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to in this Confirmation except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from such Indemnified Person’s breach of any covenant, representation or other obligation in this Confirmation or the ISDA Form or from the gross negligence, willful misconduct or bad faith of the Indemnified Person or breach of any U.S. federal or state securities laws or the rules, regulations or applicable interpretations of the Securities and Exchange Commission. The provisions of this paragraph shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and/or delegation of the Transaction made pursuant to the ISDA Form or this Confirmation shall inure to the benefit of any permitted assignee of Seller.

 

17

 

 

(e) Amendments to Equity Definitions.

 

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

 

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

 

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

 

(g) Attorney and Other Fees. Subject to clause (d) Indemnification (above), in the event of any legal action initiated by any party arising under or out of, in connection with or in respect of, this Confirmation or the Transaction, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses incurred in such action, as determined and fixed by the court.

 

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

 

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

 

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

 

Seller appoints as its Process Agent: None

 

Counterparty appoints as its Process Agent: None.

 

[Signature page follows]

 

18

 

 

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

 

  Very truly yours,
   
  Meteora Special Opportunity Fund I, LP;
   
  Meteora Capital Partners, LP; and
   
  Meteora Select Trading Opportunities Master, LP

 

  By: /s/ Vikas Mittal
  Name:  Vikas Mittal
  Title: CIO/Managing Member

 

[Signature Page to Forward Purchase Agreement]

 

 

 

 

Agreed and accepted by:  
   
Northern Revival Acquisition Corporation  

 

By: /s/ Aemish Shah  
Name:  Aemish Shah  
Title: Chairman and Chief Executive Officer  

 

[Signature Page to Forward Purchase Agreement]

 

 

 

 

Braiin Limited  

 

By: /s/ Natraj Balasubramaniann  
Name:  Natraj Balasubramanian  
Title: Chief Executive Officer  

 

[Signature Page to Forward Purchase Agreement]

 

 

 

 

Schedule A

 

FORM OF PRICING DATE NOTICE

 

Date: [●], 2023

 

To: Northern Revival Acquisition Corporation (“Counterparty”)

 

Address: c/o Maples Fiduciary Services (Delaware) Inc., 4001 Kennett Pike, Suite 302, Wilmington, DE 19807

 

Phone: (302) 338-9130

 

From: Meteora Special Opportunity Fund I, LP, Meteora Capital Partners, LP, and Meteora Select Trading Opportunities Master, LP (collectively, “Seller”)

 

Re: OTC Equity Prepaid Forward Transaction

 

1. This Pricing Date Notice supplements, forms part of, and is subject to the Confirmation Re: OTC Equity Prepaid Forward Transaction dated as of [●], 2023 (the “Confirmation”) between Counterparty and Seller, as amended and supplemented from time to time. All provisions contained in the Confirmation govern this Pricing Date Notice except as expressly modified below.

 

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

 

Pricing Date: [●], 2023

 

Number of Shares: [●]

 

 

 

 

 

Exhibit 99.1

 

 

 

THIS PRESENTATION (TOGETHER WITH ORAL STATEMENTS MADE IN CONNECTION HEREWITH, THIS “PRESENTATION”) IS BEING PROVIDED TO YOU SOLELY FOR YOUR INFORMATION. THIS PRESENTATION HAS NOT BEEN APPROVED BY ANY REGULATORY AUTHORITY. THIS PRESENTATION DOES NOT CONSTITUTE AN OFFER TO SELL OR ISSUE, OR ANY SOLICITATION OF ANY OFFER TO PURCHASE, SUBSCRIBE FOR OR OTHERWISE ACQUIRE, ANY SECURITIES IN ANY STATES OR JURISDICTIONS IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL, AND NOTHING CONTAINED HEREIN SHALL FORM THE BASIS OF ANY CONTRACT OR COMMITMENT WHATSOEVER. THIS PRESENTATION MAY NOT BE PUBLISHED OR FURTHER DISTRIBUTED, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, TO ANY OTHER PERSON IN ANY JURISDICTION WHERE, OR TO ANY OTHER PERSON TO WHOM, TO DO SO WOULD BE UNLAWFUL. This Presentation is only being provided to assist interested parties in making their own evaluation with respect to the proposed business combination (the “Business Combination”) between Northern Revival Acquisition Corporation (the “Company”) and Braiin Limited (“Braiin”). The information contained herein does not purport to be all - inclusive and none of the Company, Braiin, or any of their respective affiliates nor any of its or their control persons, officers, directors, employees or representatives makes any representation or warranty, express or implied, as to the accuracy, completeness or reliability of the information contained in this Presentation. You should consult your own counsel and tax and financial advisors as to legal and related matters concerning the matters described herein, and, by accepting this Presentation, you confirm that you are not relying upon the information contained herein to make any decision. The reader shall not rely upon any statement representation or warranty made by any other person, firm or corporation (including, without limitation, the Company, Braiin, or any of their respective affiliates or control persons, officers, directors and employees) in making its investment or decision to invest in the Company. None of the Company, Braiin, any of their respective affiliates nor any of its or their control persons, officers, directors, employees or representatives, shall be liable to the reader for any information set forth herein or any action taken or not taken by any reader, including any investment in shares of the Company or Braiin. No Representation or Warrantie s: The opinions presented herein are based on general information gathered at the time of writing and are subject to change without notice. Information in this Presentation has been obtained from sources believed to be reliable but the Company does not guarantee its accuracy or completeness. All information is provided “AS IS” and no representations or warranties, of any kind, express or implied are given in, or in respect of, this Presentation. To the fullest extent permitted by law in no circumstances will the Company or any of its subsidiaries, shareholders, affiliates, representatives, partners, directors, officers, employees, advisers or agents be responsible or liable for any direct, indirect or consequential loss or loss of profit arising from the use of this Presentation, its contents, its omissions, reliance on the information contained within it, or on opinions communicated in relation thereto or otherwise arising in connection therewith. Industry and market data used in this Presentation have been obtained from third - party industry publications and sources as well as from research reports prepared for other purposes. The Company has not independently verified the data obtained from these sources. In addition, this Presentation does not purport to be all - inclusive or to contain all of the information that may be required to make a full analysis of the Company or any Business Combination. Viewers of this Presentation should each make their own evaluation of the Company and of the relevance and adequacy of the information and should make such other investigations as they deem necessary. Forward Looking Statements : This presentation contains forward - looking statements made pursuant to the Safe Harbor provisions under the United States Private Securities Litigation Reform Act of 1995, including, but not limited to, statements regarding Braiin’s expected future operating results; financial performance and potential revenues, sales forecast, sales funnel and sales pipeline; business strategy, various addressable markets, anticipated trends, growth, and developments in markets in which it operates; the market adoption of its technology and products; the capabilities, performance, and advancement of its technology and products; its projected expansion and economics; its pro forma information; and its future product development and roadmap. These statements are based on various assumptions, whether or not identified in this Presentation, and on the current expectations of the Company’s management and are not predictions of actual performance. Forward - looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “could,” “plan,” “predict,” “potential,” “project,” “pro forma,” “seem,” “seek,” “future,” “outlook,” “model,” “target,” “goal,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, although not all forward - looking statements will contain these identifying words. All forward - looking statements are based on current assumptions, expectations and beliefs, and involve substantial risks and uncertainties that may cause results, performance or achievement to materially differ from those expressed or implied by these forward - looking statements. These forward - looking statements should not be relied upon as representing the Company’s or Braiin’s assessments as of any date subsequent to the date of this Presentation. These forward - looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction, or a definitive statement of fact or probability. However, while the Company may elect to update these forward - looking statements at some point in the future, the Company specifically disclaims any obligation to do so, whether as a result of new information, new developments, future events, or otherwise. Confidential – Not For Distribution | 2 Notice and Disclaimer

 

 

These forward - looking statements are subject to a number of risks and uncertainties, including, the inability of the parties to successfully or timely consummate the Business Combination, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the Company or the expected benefits of the Business Combination, if not obtained; the failure to realize the anticipated benefits of the Business Combination; matters discovered by the parties as they complete their respective due diligence investigation of the other party; the ability of the Company to maintain the listing of the Company’s securities on Nasdaq; costs related to the Business Combination; the failure to satisfy the conditions to the consummation of the Business Combination, including the risk that the Business Combination may not be completed by the stated deadline and the potential failure to obtain an extension of the stated deadline; the inability to complete a PIPE transaction; the outcome of any legal proceedings that may be instituted against the Company or Braiin related to the Business Combination; the attraction and retention of qualified directors, officers, employees and key personnel of the Company following the Business Combination; the ability of the Company to compete effectively in a highly competitive market; the ability to protect and enhance the Company’s corporate reputation and brand after the Business Combination; the impact from future regulatory, judicial, and legislative changes in the Company’s industry; and, the uncertain effects of the COVID - 19 pandemic; competition from larger technology companies that have greater resources, technology, relationships and/or expertise; future financial performance of the Company following the Business Combination including the ability of future revenues to meet projections; the ability of the Company to forecast and maintain an adequate rate of revenue growth and appropriately plan its expenses; the ability of the Company’s trademark and copyright applications to protect the Company’s core intellectual property from competitors; the Company’s ability to manage a complex set of marketing relationships and realize projected revenues from subscriptions, advertisements; product, ticket sales and other sources of revenue; the Company’s ability to execute its business plans and strategy; and those factors set forth in documents of the Company filed, or to be filed, with SEC. The foregoing list of risks is not exhaustive. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward - looking statements. There may be additional risks that are presently unknown or that the Company currently believes are immaterial that could also cause actual results to differ from those contained in the forward - looking statements. In addition, forward - looking statements reflect the Company’s current expectations, plans and forecasts of future events and views as of the date of this Presentation. Nothing in this Presentation should be regarded as a representation by any person that the forward - looking statements set forth herein will be achieved or that any of the contemplated results of such forward - looking statements will be achieved. You should not place undue reliance on forward - looking statements in this Presentation, which speak only as of the date they are made and are qualified in their entirety by reference to the cautionary statements herein and the risk factors of the Company and Braiin described above. The Company anticipate that subsequent events and developments will cause their assessments to change. However, while the Company may elect to update these forward - looking statements at some point in the future, it specifically disclaims any obligation to do so. These forward - looking statements should not be relied upon as representing the Company’s assessments as of any date subsequent to the date of this Presentation. Accordingly, undue reliance should not be placed upon the forward - looking statements. Use Of Projections : This Presentation contains projected financial information with respect to the Company and Braiin. Such projected financial information constitutes forward - looking information and is for illustrative purposes only and should not be relied upon as necessarily being indicative of future results. The assumptions and estimates underlying such financial forecast information are inherently uncertain and are subject to a wide variety of significant business, economic, competitive, and other risks and uncertainties that could cause actual results to differ materially from those contained in the prospective financial information. See “Forward - Looking Statements” above. Actual results may differ materially from the results contemplated by the financial forecast information contained in this Presentation, and the inclusion of such information in this Presentation should not be regarded as a representation by any person that the results reflected in such forecasts will be achieved. Financial Information; Non - GAAP Financial Measure s: The financial information and data contained this Presentation is unaudited and does not conform to Regulation S - X. Accordingly, such information and data may not be included in, may be adjusted in, or may be presented differently in, any proxy statement/prospectus or registration statement or other report or document to be filed or furnished by the Company with the SEC. Some of the financial information and data contained in this Presentation has not been prepared in accordance with United States generally accepted accounting principles (“GAAP”) or International Financial Reporting Standards (“IFRS”). Confidential – Not For Distribution | 3 Notice and Disclaimer

 

 

The Company believes that the use of these non - GAAP financial measures provides an additional tool for investors to use in evaluating projected operating results and trends in and in comparing the financial measures of Braiin with other similar companies, many of which present similar non - GAAP financial measures to investors. Management does not consider these non - GAAP measures in isolation or as an alternative to financial measures determined in accordance with GAAP. The principal limitation of these non - GAAP financial measures is that they exclude significant expenses and income that are required by GAAP to be recorded in financial statements of Braiin. In addition, they are subject to inherent limitations as they reflect the exercise of judgments by management about which expense and income are excluded or included in determining these non - GAAP financial measures. In order to compensate for these limitations, management presents non - GAAP financial measures in connection with GAAP results. You should review the audited financial statements of Braiin, which will be included in the registration statement and proxy statement to be filed with the SEC. A reconciliation of projected non - GAAP financial measures has not been provided as such reconciliation is not available without unreasonable efforts. Trademark s: This Presentation contains trademarks, service marks, trade names, and copyrights of the Company and other companies, which are the property of their respective owners . The use or display of third parties’ trademarks, service marks, trade name or products in this Presentation is not intended to, and does not imply, a relationship with the Company, or an endorsement of sponsorship by or of the Company . Solely for convenience, the trademarks, service marks and trade names referred to in this Presentation may appear with the ®, TM or SM symbols, but such references are not intended to indicate, in any way, that the Company will not assert, to the fullest extent under applicable law, their rights or the right of the applicable licensor to these trademarks, service marks and trade names . The information contained herein is as of March 20 , 2023 and does not reflect any subsequent events . Neither the Securities and Exchange Commission (the “SEC”) nor any securities commission of any other U.S. or non - U.S. jurisdiction has approved or disapproved of the securities or of the Business Combination contemplated hereby or determined that this Presentation is truthful or complete. Any representation to the contrary is a criminal offense. The Company will make any offer to sell securities only pursuant to a definitive subscription agreement, and the Company reserves the right to withdraw or amend for any reason any offering and to reject any subscription agreement in whole or in part for any reason. The Company’s independent auditors have not audited, reviewed, compiled or performed any procedures with respect to the projections for the purpose of their inclusion in this Presentation, and, accordingly, neither of them expressed an opinion or provided any other form of assurance with respect thereto for the purpose of this Presentation. Additional Information and Where to Find i t: This document relates to a proposed Business Combination between the Company and Braiin. In connection with the proposed Business Combination, the Company intends to file with the SEC, a registration statement on Form F - 4, containing a preliminary proxy statement/prospectus of the Company and after the registration statement is declared effective, the Company will mail a definitive proxy statement/prospectus relating to the proposed Business Combination to its shareholders. This Presentation does not contain any information that should be considered by the Company’s shareholders concerning the proposed Business Combination and is not intended to constitute the basis of any voting or investment decision in respect of the Business Combination or the securities of the Company. The Company’s shareholders and other interested persons are advised to read, when available, the preliminary proxy statement/prospectus and the amendments thereto and the definitive proxy statement/prospectus and other documents filed in connection with the proposed Business Combination, as these materials will contain important information about the Company, Braiin and the Business Combination. When available, the definitive proxy statement/prospectus and other relevant materials for the proposed Business Combination will be mailed to shareholders of the Company as of a record date to be established for voting on the proposed Business Combination. Shareholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/ prospectus and other documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to: Northern Revival Acquisition Corporation, 4001 Kennett Pike, Suite 302, Wilmington, DE. Participants in the Solicitation The Company and Braiin and their respective directors, executive officers, other members of management and employees may be deemed participants in the solicitation of proxies from the Company’s shareholders with respect to the proposed transaction. Investors and security holders may obtain more detailed information regarding the names and interests in the proposed transaction of the Company’s directors and officers in its filings with the SEC, including, when filed with the SEC, the preliminary proxy statement/prospectus and the amendments thereto, the definitive proxy statement/prospectus, and other documents filed with the SEC. Such information with respect to Braiin’s directors and executive officers will also be included in the proxy statement/prospectus. Confidential – Not For Distribution | 4 Notice and Disclaimer

 

 

Today’s Presenters Confidential – Not For Distribution | 5 Braiin Limited Northern Revival Acquisition Corporation Darren McVean Executive Director and Chief Technology Officer Natraj Balasubramanian Chief Executive Officer Manpreet Singh Chief Financial Officer Aemish Shah Chief Executive Officer Chairman

 

 

NRAC SPAC Overview and Investment Thesis Confidential – Not For Distribution | 6 Braiin Business Combination Investment Thesis ■ High growth, revenue and EBITDA positive business with diverse geographic presence ■ Pioneer platform solution that is revolutionizing traditional farm management and increased crop yields through automation, insights, and connectivity ■ Positive ESG impact through lower water usage and soil preservation, and increased worker safety ■ The Precision Agriculture market is growing at a ~12.8% CAGR and is expected to reach ~$14.6 billion by 2026. ■ NRAC invests in sustainable companies with enduring business models and expansive total addressable markets, positioned for long - term success ■ NRAC prioritizes partnering with high - quality management teams that prioritize strong governance and environmental sustainability, driving sustainable value creation ■ Our rigorous due diligence process identifies businesses with attractive growth potential, uncovering hidden value for our investors ■ With a global perspective, NRAC invests in diverse markets around the world, identifying opportunities for long - term growth and expansion ■ NRAC focuses on creating lasting value for our investors and partners, delivering positive returns and contributing to a more sustainable future Source: ReasearchAndMarkets.com, Braiin Internal research https:// www.globenewswire.com/en/news - release/2022/03/09/2399820/28124/en/The - Worldwide - Precision - Farming - Industry - is - Expected - to - Reach - 14 - 6 - Billion - by - 2026.html

 

 

Braiin Business Overview Company • Braiin is an Australia - based company that provides precision agriculture solutions to farmers, and land bureaus in the APAC region • Braiin provides two types of solutions: (1) drones and operational AI and software which assess and monitor land performance and deliver targeted fertilizers, pesticides, and seeds to fields and (2) IoT devices and network management software which provide the devices (sensors, routers, repeaters, antennas) and centralized software to manage the wired farm Market • In 2022, the global agriculture technology industry totaled ~$20 billion and in 2021, the precision agriculture industry totaled ~$8 billion. 1 • The precision agriculture industry is growing rapidly at a ~12.8% CAGR and is underpenetrated partly due to nascent regulation policies on the use of drones • The agriculture robotics market is believed to be in its early innings. PwC estimates the total addressable market (TAM) of drone - powered solutions in agriculture industry at $32.4 billion 2 . Product & Services • Robotics: Purpose - fit drones; including Braiin - built, cutting - edge, fully autonomous drones that can analyze, map and monitor and spray crops • Connectivity Infrastructure: Reliable wireless connectivity solutions to enable data communications and ensure IoT readiness • Software & Analytics: Reporting and analytics to improve transparency into supply chain, improve traceability, facilitate prompt payment and expand financing options Go - to - market • Braiin sells long term management contracts and one - off hardware sales directly to large scale organizations, through distributors in their dealer network and to value - added resellers (VARs) across Australia, New Zealand, Sri Lanka, India, Bangladesh, and Philippines, with planned global expansion • Braiin has over 100 customers today including some of the largest tea producers and agriculture technology distributors and VARs in Asia, Australia & NZ Mgmt. and business information • The predecessors of Braiin’s business came together in 2015. Braiin has grown by ~30% per annum over the last three years • High quality revenue mix: ~65% of revenue is reoccurring in nature (40% recurring / ~25% ARR) • The business is owned and operated by its founders, Natraj Balasubramanian (CEO) and Darren McVean (CIO).They have raised negligible outside capital. Confidential – Not For Distribution | 7 Source: 1,2. Precedence Research, Foley, BIS Research, Juniper Research, P&S Intelligence, ReasearchAndMarkets.com, Braiin Company research and internal metrics https:// www.globenewswire.com/en/news - release/2022/03/09/2399820/28124/en/The - Worldwide - Precision - Farming - Industry - is - Expected - to - Reach - 14 - 6 - Billion - by - 2026.htm l https://explodingtopics.com/blog/agtech - market#agtech - industry - highlight s

 

 

Precision Agriculture is a very attractive market for high value suppliers ■ In 2021, the precision agriculture industry totaled $8 billion and is expected to reach to ~$14.6 billion by 2026 ■ The business’ fully integrated platform creates embedded moats against innovative, niche - benefit, providers in the market ■ The global market remains mostly underpenetrated and there are few scaled competitors in the space today The Braiin Value Proposition Braiin has developed a high - value solution suite and business model ■ Braiin’s integrated platform is driving high ROI for its customers in terms of improved crop yields, cost reduction, worker safety and carbon reduction ■ Customer ROI specifics: ~20 - 25% increase in crop yields, 30% cost savings, 15x faster than manual spraying and 50% reduction in chemicals and 85% reduction in water usage. ■ Long term revenue visibility through recurring revenue model from insights/analytics and infrastructure solutions sold direct to buyers ■ Braiin currently operates in Australia, New Zealand, Sri Lanka, India, Bangladesh, and Philippines, with planned expansion to the U.S.,Thailand, Malaysia, and Africa Entrepreneurial business that can utilize Northern Revival’s expertise and network ■ NRAC’s global network of capital and deep relationships in emerging markets will help Braiin expand globally ■ NRAC’s expertise in capital markets, software, operational prowess, and advisors expect to expand Braiin’s already robust management team and expertise Confidential – Not For Distribution | 8 Source: ReasearchAndMarkets.com, Braiin Company research and internal metrics https:// www.globenewswire.com/en/news - release/2022/03/09/2399820/28124/en/The - Worldwide - Precision - Farming - Industry - is - Expected - to - Reach - 14 - 6 - Billion - by - 2026.htm l

 

 

Braiin Overview

 

 

Braiin Management Team Natraj Balasubramanian Chief Executive Officer Experienced Tech Entrepreneur in SaaS. Currently CEO of Braiin which provides actionable intelligent solutions using AI/ML, robotics and IoTs . Raised funding and built the world’s first fully autonomous spray drone certified by a country. Previously Co - founder and CEO of a SaaS business (scaled to $20m revenue, 250 employees and negotiated an exit of Asian business to DFSI), Alumnus of Air Force Academy and Harvard Business School. Darren McVean Executive Director and Chief Technology Officer Experienced Tech Entrepreneur in Blockchain. Previously Founder and CEO at Quantum Crowd (leading blockchain development company with 220+ employees mainly focused on designing and developing solutions for global banks and large corporation, Founder at Online Media Group (exit $10m to publicly listed Eastern Corporation). Experienced in manufacturing and business development for 34 years, including the 26 years as Non - Executive Director, Chief Financial Officer and Company Secretary for various listed and unlisted entities in manufacturing, wine, hotels, and property. Skilled in business acquisitions, mergers, initial public offerings, capital raisings, business restructuring as well as managing all areas of finance for companies. Jay Stephenson Non - Executive Director, Company Secretary and CFO

 

 

East Asia, South Asia, Pacific $299B Middle East & Africa $61B Europe & Central Asia $54B North America $46B Latin America & Caribbean $64B Connected agriculture expected to transform traditional farming Confidential – Not For Distribution | 11 “If connectivity infrastructure is implemented successfully in agriculture, the industry could tack on $500 billion in additional value to the global gross domestic product by 2030.” – McKinsey & Company Distribution of Potential GDP Value from Connectivity by 2030 Smart - Crop Monitoring Drone Farming Smart - Livestock Monitoring Autonomous - Farming Machinery Smart - Building & Equipment Mgmt. Optimize resource usage and crop growth through real - time connected - sensor data and imagery analysis Drone surveillance and remote interventions based on image analysis and connected sensors Data - driven, Self - operated Prescriptive individualized feeding machinery to perform maintenance and real - and care plans targeted interventions time environmental adjustments Connected Agriculture Use Cases Estimated range of potential new global GDP value ($B) Source: McKinsey & Company (https:// www.mckinsey.com/industries/agriculture/our - insights/agricultures - connected - future - how - technology - can - yield - new - growth) Smart - Crop Monitoring Drone Farming Smart Livestock Monitoring Autonomous – Farming Machinery Smart Building & Equipment Mgmt.

 

 

Braiin sits at the center of a highly attractive AgTech segment Source: ResearchAndMarkets.com https:// www.globenewswire.com/en/news - release/2022/03/09/2399820/28124/en/The - Worldwide - Precision - Farming - Industry - is - Expected - to - Reach - 14 - 6 - Billion - by - 2026.html ~$8 BILLION Precision Agriculture Market 2021 ~12.8% CAGR ~$14.6 BILLION Precision Agriculture Market 2026 Traditional Farm Management x Manual labor intensive x Reactive x Health and safety risk x Environmental impact ✓ Robotics - enabled operations ✓ Actionable intelligence and automation ✓ Smarter, safer deployment of labor ✓ Efficient use of inputs Precision Agriculture Precision Agriculture is revolutionizing traditional farm management through automation, insights and connectivity Confidential – Not For Distribution | 12

 

 

Braiin solves four fundamental problems Worker Safety Farm workers are exposed to multiple hazardous exposures including pesticides and fertilizers 3 . Stagnant yields and falling margins Agriculture margins are being squeezed from every angle with rising costs and falling margins 2 . Erosion, water shortages and climate change Human activities leaves soil vulnerable to erosion 4 , with over 80% of croplands expected to experience water scarcity 5 Increased yields of ~20 - 25% 20 - 25% increase in crop productivity improving yields from data - based decisions throughout crop cycle. See more about Braiin’s precision agriculture technology here . Lower water use and soil preservation Less inputs: 85% less water; 50% less biologics. Sensors and drones observe plants and environment and serve only areas in need Dramatic improvement in worker safety Braiin’s automated spraying technology reduces exposure to harmful chemicals and physical strain on the body . Some pesticides have been linked to cancer, endocrine disorders, and other health risks 6 . Industry Problem Labor shortages and rising costs Labor accounts for +60% of agriculture costs 1 , forecast to increase further with labor shortages due to an ever - growing global population placing strain on supply. The Braiin Solution Automated Cultivation at Lower Costs Braiin’s technology enables crop - spraying at 15 x the speed of traditional spraying and 30 % cost savings . 10 drones and pilots can cover in one day what would require hundreds of hours of human labour over a week . 1 - https://farmable.tech/whats - the - biggest - cost - in - agriculture - labo r/ 2 - https://research.rabobank.com/far/en/sectors/regional - food - agri/farm - margins - squeezed - from - every - angle.htm l 3 - https://nasdonline.org/1827/d001772/human - health - effects - of - agriculture - physical - diseases - and.html#:~:text=Farmers%20and%20farm%20workers%20are,%2C%20infectious%20microorganisms%2C%20and%20endotoxi ns. 4 - https:// www.nrdc.org/stories/soil - erosion - 10 1 5 - https:// www.preventionweb.net/news/water - scarcity - predicted - worsen - more - 80 - croplands - globally - centur y 6 https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC2984095 / Confidential – Not For Distribution | 13

 

 

Technology of choice for permanent crop spraying and servicing Row Crops Permanent Crops Trees, bushes, vines (e.g., tea, rubber, oil palm, etc.) Perennial More labor intensive Require spraying to be done aerially from ~50 ft beyond reach of a tractor boom Often hilly terrain and difficult for ground - based vehicles to navigate Examples Plant Cycle (Typical) Cultivating & Harvesting Rice, wheat, corn, barley, soybean Annual Less labor intensive Crop height low enough for ground - based vehicles with booms to perform crop spraying Flatter terrain navigable by high payload autonomous tractors and equipment Crop - spraying drones are the best robotics option for servicing permanent crop farms, Braiin’s target market. Confidential – Not For Distribution | 14

 

 

Braiin is the only platform solution servicing the precision agriculture and the overall ag - tech market APAC leader offering an end - to - end precision agriculture platform solution Value Added Reseller Offer drones, sensors, and connectivity devices for purchase for general or agriculture - specific use cases Managed Service Provider Solutions supporting imagery capture, data conversion, and/or analytics Platform Solution Turnkey offering that provides the connectivity infrastructure, drones, imagery, analytics, and actionable productivity recommendations as a service with Cap Ex or Op Ex to the farming clients. Confidential – Not For Distribution | 15

 

 

Vertically integrated platform for the new age farm Robotics Division (Drones) IoT Division Software / Analytics Division “With three well established, fully integrated divisions providing digital solutions to the agriculture sector across drones, analytics & AI/ML and connectivity , Braiin is able to provide complete end to end solutions to its clients, resulting in automated cultivation at same or lower costs, Increase yields of up to 20 - 25%, a dramatic improvement in worker safety, as well as 85% lower water usage and soil preservation.” Natraj Balasubramanian Chief Executive Officer Confidential – Not For Distribution | 16

 

 

Robotics division value proposition Confidential – Not For Distribution | 17 Customer value • Braiin’s technology enables crop - spraying at 15x the speed of traditional spraying • Less inputs: 85% less water; 50% less biologics. Sensors and drones observe plants and environment and serve only areas in need • 20 - 25% increase in crop productivity improving yields from data - based decisions throughout crop cycle. • Safer than human labor, and without pesticide exposure risk Drone based crop spraying Braiin provides customized agriculture drones for crop spraying: • Fully autonomous agricultural drones covering up to two to three hectares per hour, carrying 15kgs of chemicals • Provides users a dashboard with detailed maps of plantations and actionable insights increasing productivity, reduce environmental impacts and lower pesticide or water usage • Crop spray based on insights provided in Braiin analytics dashboard • Custom installation of multi - spectral camera systems including FPV, thermal, and zoom installations • Quality control and reporting of efficiency metrics, including path flown, plant coverage, and spray utilization

 

 

IoT division value proposition Confidential – Not For Distribution | 18 Customer value • With the remoteness of most agricultural locations, clients typically face zero wireless connectivity, with Braiin, providing reliable wireless connectivity solutions to meet the demands of the AgTech IoT and to provide functionality • Wide array of clients including global agricultural companies, and multinational companies Agriculture connectivity infrastructure • Braiin’s technology provides a connectivity solution as well as reporting on Braiin (drones) and other third party IoT assets • Some of the IoT devices which Braiin sells and services include: • IoT (Internet of Things) Automation ,Wireless networks, Cellular Repeaters, Modems and Routers, Wireless Networks, Power and Solar, Local Area Networking, RF Components, Installation Hardware

 

 

Software and analytics division value proposition Confidential – Not For Distribution | 19 Customer value Keyways technology can be used to build smarter farms: • Improved transparency in the supply chain • Facilitate prompt payment on delivery • Traceability for producers and consumers • Provide farmers with direct access to buyers and transparent transaction information • Expand financing option for farmers Integrating software and analytics for smarter farms • The division specializes in the development of innovative and transformative artificial intelligence and blockchain technology, which can improve supply chain transparency, speed up payment processes, and reduce critical issues such as fraud and corruption • Services include strategy consultation and assessment, application development, UI and UX designing, application management, systems integration, API integration, quality analysis and testing, DevOps, software maintenance and support, in - product analysis and big data

 

 

Large customer base across regions and channels Confidential – Not For Distribution | 20 IoT business (dealer/distributors) Robotics (direct) Software (direct) (Japan) (Australia) (Australia) (The Netherlands) (Australia) (India) (Australia) (Australia) (Sri Lanka) (Sri Lanka) (Sri Lanka) (Sri Lanka) (U.S.) (Australia) (China) (Maldives) (Sri Lanka) (Sri Lanka) (Sri Lanka) (Sri Lanka) (India) (U.S.) (U.S.) (U.K.)

 

 

Braiin is targeting favorable markets based on competition and regulation Source: Precedence Research, Foley, BIS Research, Juniper Research, P&S Intelligence, World Bank, IFC, UN agricultural productivity index, Raptor financials Growth Markets Free From Supportive Drone AgTech Mkt Size ($MMs) Strategic Rationale Competition Regulations Sri Lanka and India provide $1.7B of future market value… Priority Markets (Years 1 - 3) Sri Lanka (260K hectare tea) India (560K hectare tea) …other APAC and African Secondary Asian Markets (Years 4+) Thailand Indonesia markets have similar needs Secondary African Markets (Years 4+) Nigeria Kenya Tanzania Ethiopia Confidential – Not For Distribution | 21

 

 

ESG: Environmental and social impact in the developing world Confidential – Not For Distribution | 22 Significantly Increased Productivity Helps farmers in the developing world to significantly increase productivity of crops and thereby their wages by using cutting edge technology Improved Human Health Reduces health by reducing related diseases like bronchial asthma, cancer, kidney failure, and musculoskeletal problems caused due to backpack spraying (44lb backpacks) by moving workers to safer jobs like crop harvesting Dramatically Improved Crop Health and Preserving Topsoil Reduced Raptor’s usage of aerial surveillance with infrared and thermal imagery allows Braiin to find areas of high probability of breeding thereby reducing incidence of crop disease, preserving the topsoil, and improving human health, by reducing chemical usage by 50% Emission Free Significant positive impact on the environment - workers are currently using gasoline - operated sprayers in tea farms and by using our environment friendly rechargeable battery electric drones there is little to no emission in the places they are operated Creating Opportunity for the Future Training commenced for the young local workforce to assist Braiin in various aspects of operations, with the more senior workers thrilled with the prospect of their children working with high - tech gadgets and leading to improved wages through highly skilled jobs

 

 

Braiin’s leadership has an executable plan to drive long term growth Confidential – Not For Distribution | 23 Focus primarily on Sri Lanka tea plantations to finalize offering and optimize deployment Expand to 6 - 8 plantations by end of 2022 Markets and customers served Prove our value in Sri Lanka 2015 - 2022 Expand and scale 2023 - 2024 Global expansion 2024 Onward Initial scale and refinement Developed fully fledged offering serving Sri Lankan tea plantations Global expansion Expand into further regions: deeper APAC penetration, Africa, and the Americas Regional growth Leverage success in current markets to expand globally Primarily focused on crop spraying to address labor shortage Offer analytics free trial to show potential and begin to scale up after initial projects running Product focus Expand into India and scale ; continue regional focus, but position in additional markets for future growth Cover up to 75,000 hectares by end of Year Joint data analytics and crop spraying offerings Consider other product offerings (e.g.,data broker , government spray contracts, crop insurance claim verification), sell UAV systems Continue to capture share in global markets , focusing on areas with highest margins Leverage agricultural case studies to sway governments to support drone services Offering expanded product offerings (e.g., government spray contracts, crop insurance claim verification) Monetize crop data – become a data broker

 

 

Summary of Terms

 

 

Summary of proposed terms Summary of Key Transaction Terms Illustrative Sources & Uses $ in millions Illustrative Pro Forma Capitalization Confidential – Not For Distribution | 25 • Enterprise value of $190 million • The transaction will be funded with $40 million consisting of a combination of cash in trust and PIPE • 100% rollover by existing Braiin equity holders • Completion of the transaction is expected in Q2 or Q3 2023 Existing Braiin Shareholders Public Shareholders PIPE Shareholders Sponsor Shareholders 65.1% 11.6% 7.0% 16.3% Illustrative Sources & Uses $ in millions, except per share amounts Share Price $10.00 Pro Forma Shares Outstanding (mm) 21.5 Pro Forma Equity Value $215 (+) Net Debt 20 ( - ) New Cash to Balance Sheet (45) Pro Forma Enterprise Value $190 1 - Assumes no redemptions 2 - Assumes no cash (e.g. current net debt of $0) 3 - Forfeiture of 2.0M private placement warrants 4 - Forfeiture of 1.5M founder shares 5 - Assumed transfer of 1.5M founder shares to PIPE investors as incentive 6 - Transaction fees include $3.0M of target fees 7 - Closing numbers will vary based on final indebtedness and cash on hand Sources NRAC Cash in Trust Braiin Equity Rollover Anticipated PIPE Investment Anticipated New Debt $25 140 15 20 Total Sources $200 Uses Braiin Equity Rollover Cash to Equityholders Cash to Balance Sheet Fees & Expenses (4) $140 0 45 15 Total Uses $200

 

Exhibit 99.2

 

Braiin Limited, a Leading Precision Agriculture Solutions and Analytics Services Company, Announces Plans to go public via Business Combination with Northern Revival Acquisition Corporation

 

  Braiin Limited, an Australia-based company that provides end-to-end precision agriculture solutions and analytics services to farmers and land bureaus that improve farm productivity, crop yields, and environmental sustainability, has entered into a business combination agreement with Northern Revival Acquisition Corporation (NRAC).
     
  Combined company transaction is expected to be valued at approximately $215 million, assuming no redemptions of current NRAC public shareholders, with the proposed business combination expected to be completed in Q2 or Q3 of 2023. Braiin is revenue and EBITDA positive and is positioned for growth.
     
 

Prior to entering into the business combination agreement, NRAC signed a forward purchase agreement for up to 2.5 million shares with Meteora Special Opportunity Fund I, LP, Meteora Select Trading Opportunities Master, LP, and Meteora Capital Partners, LP (collectively, “Meteora”). Entities and funds managed by Meteora own equity interests in NRAC’s sponsor. Based on a $10.00 price, the 2.5 million shares would be valued at approximately $25 million

 

New York, NY, and Subiaco, Western Australia March 21, 2023 — Northern Revival Acquisition Corporation (NASDAQ: NRAC) (“NRAC”), a special purpose acquisition company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, or similar business combination with one or more businesses, announced today that it has entered into a business combination agreement (the “BCA”) with Braiin Limited (“Braiin”), a multi-faceted agricultural technology company with differentiated technologies and capabilities that dynamically address high growth market trends across the agriculture ecosystem.

 

Braiin provides a precision agriculture technology platform that revolutionizes traditional farm management through automation, insights, and connectivity, operating in three key divisions that provide connectivity infrastructure, drones, imagery, analytics, and actionable productivity recommendations to farms:

 

  Internet of Things (IoT): The remoteness of most agriculture locations often poses a significant challenge for clients who need reliable wireless connectivity solutions. With the increasing demand for IoT connectivity in these industries, Braiin’s technology offers a comprehensive solution for customers seeking IoT functionality and reporting capabilities.
     
  Robotics: Agricultural drones are deployed, enabling farms to increase productivity leading to higher crop yields and healthier crops. Braiin is the first company to be certified in any country to operate fully autonomous aerial robots for crop spraying.
     
  Software: Software and artificial intelligence/machine learning (AI/ML) technologies that improve supply chain transparency, speed up payment processes, and reduce critical business challenges such as fraud and corruption.

 

As farmers’ margins are being challenged from all angles - rising costs and falling margins, Braiin’s integrated platform allows farmers to drive increased yields. The core technology helps improve yields by an estimated 20-25% by mapping the landscape, monitoring microclimates, and automating cultivation.

 

The company currently has over 300 employees and offices in six countries.

 

 

 

 

A commitment to ESG values

 

Lower Water Usage and Soil Preservation: Human activities leave soil vulnerable to erosion, with an estimated 80% of croplands expected to experience water scarcity. Braiin’s IoT sensor and drone technology can reduce water usage by up to 85% and fertilizer usage by up to 50% by observing crops and their environment and applying them to only areas in need.
   
Reduce Health Hazards and Ensure Worker Safety: Using our drone technology to spray crops can reduce farm workers’ health risks from bronchial asthma, cancer, kidney failure, and musculoskeletal problems due to backpack spraying of chemicals by moving workers to safer jobs like crop harvesting, tilling, etc. that reduce or eliminate their exposure
   
Environment Friendly: Our environmentally friendly rechargeable battery electric drones replace gasoline-powered sprayers and other fossil-fuel-burning machines, substantially reducing carbon emissions where they are operated.

 

Management Comments

 

Natraj Balasubramanian, Chief Executive Officer of Braiin, remarks, “Partnering with Northern Revival Acquisition Corporation is a major milestone in our company’s development. This business combination and entry into the public markets will allow us access to a much larger pool of capital and increase awareness and adoption of our products and services to expand the practice of precision agriculture around the world.”

 

Aemish Shah, Chairman and CEO of NRAC, said: “Braiin is driving agriculture to the future by leveraging AI/ML to improve outcomes that aid farmers. Braiin’s strong and profitable revenue growth gives credence to the power of its technology to move the agriculture industry forward.”

 

Transaction Overview

 

Under the BCA, NRAC will acquire all the outstanding shares of Braiin from its existing shareholders in exchange for newly issued ordinary shares of NRAC. Braiin shareholders holding 100% of its currently outstanding ordinary shares have signed on to sell their shares to NRAC under the BCA. Prior to closing, all convertible securities of Braiin will be converted into Braiin ordinary shares, which will also be exchanged for NRAC ordinary shares. The pro forma value of the combined company is expected to be approximately $215 million.

 

Upon the closing, current Braiin shareholders will retain 100% of their equity through new ordinary shares of NRAC and will own approximately 65% of the post-closing combined public company, assuming no redemptions by NRAC’s public shareholders.

 

The transaction is expected to close in Q2 or Q3 of 2023 and is subject to approval by NRAC’s shareholders and other customary closing conditions.

 

About Northern Revival Acquisition Corp. (NRAC)

 

NRAC is a special purpose acquisition company formed for the purpose of effecting a merger, stock purchase, or similar business combination. While NRAC may pursue an acquisition opportunity in any industry or sector, it focused its search in the software and tech-enabled services space. The team is composed of seasoned executives with a unique combination of experiences in wholesale and retail, logistics, distribution, technology development and transformation, investing, banking, and capital markets. NRAC is led by its Chief Executive Officer and Chairman, Aemish Shah, and its Chief Financial Officer and director, Manpreet Singh.

 

To learn more, visit: www.nraccorp.com

 

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About Braiin

 

Braiin is a multi-faceted agricultural technology company with differentiated technologies and capabilities that dynamically address high-growth market trends across the entire agriculture ecosystem. Braiin is a company for the 21st century positioned to revolutionize traditional farm management through its precision agriculture platform that provides end-to-end precision agriculture solutions and analytics services to farmers and land bureaus that improve farm productivity, crop yields, and environmental sustainability using cutting-edge technologies, including Robotics, AI/ML, software and IoTs.

 

The United Nations estimates that the world’s population will increase by 2.2 billion people by 2050. As a result, the world faces the challenge of growing more food on existing farms, as there is limited new land suitable for agricultural cultivation. The United Nations estimates that yields will need to increase significantly in the next 30 years to feed the estimated 10 billion people, a daunting task without a technological leap. Braiin is ideally positioned to help address this challenge.

 

Braiin is led by its Co-Founder and Chief Executive Officer Natraj Balasubramanian, and its Co-Founder, and Chief Technical Officer, Darren McVean

 

To learn more, visit: https://www.braiin.com/

 

Advisors

 

Loeb & Loeb LLP is serving as legal advisor to NRAC, and Winston & Strawn LLP is serving as legal advisor to Braiin.

 

Additional Information and Where to Find It

 

In connection with the BCA and the proposed Transaction, NRAC intends to file with the U.S. Securities and Exchange Commission (the “SEC”) a Registration Statement on Form F-4, which will include a document that serves as a proxy statement of NRAC, referred to as a proxy statement/prospectus relating to the proposed Transaction. This communication is not intended to be, and is not, a substitute for the proxy statement or any other document that NRAC has filed or may file with the SEC in connection with the proposed Transaction. NRAC’s shareholders and other interested persons are advised to read, when available, the preliminary proxy statement/prospectus and the amendments thereto and the definitive proxy statement/prospectus filed in connection with the proposed Transaction, as these materials will contain important information about NRAC, Braiin, the BCA, and the proposed Transaction. When available, the definitive proxy statement/prospectus and other relevant materials for the proposed Transaction will be mailed to shareholders of NRAC as of a record date to be established for voting on the proposed Transaction. Before making any voting or investment decision, investors and shareholders of NRAC are urged to carefully read the entire proxy statement, when they become available, and any other relevant documents filed with the SEC, as well as any amendments or supplements to these documents, because they will contain important information about the proposed Transaction. NRAC investors and shareholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus, and other documents filed with the SEC that will be incorporated by reference therein, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to:

 

Northern Revival Acquisition Corporation, 4001 Kennett Pike, Suite 302

Wilmington, DE 19807

 

Participants in the Solicitation

 

NRAC and Braiin and their respective directors, executive officers, other members of management and employees may be deemed participants in the solicitation of proxies from NRAC’s shareholders with respect to the proposed Transaction. Investors and security holders may obtain more detailed information regarding the names and interests in the proposed Transaction of NRAC’s directors and officers in NRAC’s filings with the SEC, including, when filed with the SEC, the preliminary proxy statement/prospectus and the amendments thereto, the definitive proxy statement/prospectus, and other documents filed with the SEC. Such information with respect to Braiin’s directors and executive officers will also be included in the proxy statement/prospectus.

 

No Offer or Solicitation

 

This press release is not a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed Transaction and will not constitute an offer to sell or the solicitation of an offer to buy any securities, nor will there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

 

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Forward-Looking Statements

 

This press release contains certain statements that are not historical facts and are forward-looking statements within the meaning of the federal securities laws with respect to the proposed Transaction between NRAC and Braiin, including without limitation statements regarding the anticipated benefits of the proposed Transaction, the anticipated timing of the proposed Transaction, the implied enterprise value, future financial condition and performance of Braiin and the combined company after the closing and expected financial impacts of the proposed Transaction, the satisfaction of closing conditions to the proposed Transaction, the level of redemptions of NRAC’s public shareholders and the products, services, markets and expected future performance and market opportunities of Braiin. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “think,” “strategy,” “future,” “opportunity,” “potential,” “plan,” “seeks,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions, but the absence of these words does not mean that a statement is not forward-looking. 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.

 

These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many factors could cause actual future events to differ materially from the forward-looking statements in this communication, including but not limited to: (i) the risk that the proposed transaction may not be completed in a timely manner or at all (ii) the failure to satisfy the conditions to the consummation of the proposed transaction; (iii) the occurrence of any event, change or other circumstance that could give rise to the termination of the BCA; (iv) the failure to achieve the minimum amount of cash available following any redemptions by NRAC’s shareholders; (v) the failure to meet The Nasdaq Capital Market’s initial listing standards in connection with the consummation of the proposed transaction; (vi) the effect of the announcement or pendency of the proposed transaction on Braiin’s business relationships, operating results, and business generally; (vii) risks that the proposed transaction disrupts current plans and operations of Braiin; (viii) the outcome of any legal proceedings that may be instituted against Braiin or against NRAC related to the BCA or the proposed transaction; (ix) changes in the markets in which Braiin competes, including with respect to its competitive landscape, technology evolution, or regulatory changes; (x) changes in domestic and global general economic conditions; (xi) risk that Braiin may not be able to execute its growth strategies; (xii) risks related to the ongoing COVID-19 pandemic and response, including supply chain disruptions; (xiii) risk that Braiin may not be able to develop and maintain effective internal controls; (xiv) costs related to the proposed transaction and the failure to realize anticipated benefits of the proposed transaction or to realize estimated pro forma results and underlying assumptions, including with respect to estimated shareholder redemptions; (xv) the ability to recognize the anticipated benefits of the proposed transaction and to achieve its commercialization and development plans, and identify and realize additional opportunities, which may be affected by, among other things, competition, the ability of Braiin to grow and manage growth economically and hire and retain key employees; (xvi) the risk that Braiin may fail to keep pace with rapid technological developments to provide new and innovative products and services or make substantial investments in unsuccessful new products and services; (xvii) the risk that Braiin will need to raise additional capital to execute its business plan, which may not be available on acceptable terms or at all; (xviii) the risk that BRAIIN, post-combination, experiences difficulties in managing its growth and expanding operations; (xix) the risk of product liability or regulatory lawsuits or proceedings relating to Braiin’s business; (xx) the risk of cyber security or foreign exchange losses; (xxi) the risk that Braiin is unable to secure or protect its intellectual property; and (xxiii) those factors discussed in NRAC’s filings with the SEC and that that will be contained in the proxy statement/prospectus relating to the proposed transaction.

 

The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties that will be described in the “Risk Factors” section of the preliminary proxy statement/prospectus and the amendments thereto, the definitive proxy statement, and other documents to be filed by NRAC 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 while Braiin and NRAC may elect to update these forward-looking statements at some point in the future, they assume no obligation to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law. Neither Braiin nor NRAC gives any assurance that Braiin or NRAC, or the combined company, will achieve its expectations. These forward-looking statements should not be relied upon as representing NRAC’s or Braiin’s assessments as of any date subsequent to the date of this press release. Accordingly, undue reliance should not be placed upon the forward-looking statements.

 

# # #

 

INVESTOR CONTACT:

 

investorrelations@nraccorp.com

 

MEDIA CONTACT:

 

Rick Keating

rjk@keatingco.com

212 925 6900

 

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