UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): June 8, 2022
GLOBIS ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware | 001-39786 | 85-2703418 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
7100 W. Camino Real, Suite 302-48 Boca Raton, Florida |
33433 | |
| (Address of principal executive offices) | (Zip Code) |
212-847-3248
Registrant’s telephone number, including area code
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
| ☒ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
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
Amendment to Business Combination Agreement
As previously disclosed, on December 19, 2021, Globis Acquisition Corp., a Delaware corporation (“Globis” or the “Company”), entered into a Securities Purchase Agreement, which was amended on April 20, 2022 (as amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among Globis, Forafric Agro Holdings Limited, a Gibraltar private company limited by shares (“FAHL”), Lighthouse Capital Limited, a Gibraltar private company limited by shares (the “Seller”) and Globis NV Merger Corp., a Nevada corporation (“Globis Nevada”). The Business Combination Agreement provides for the consummation of the following series of transactions (collectively, the “Business Combination”): (i) Globis Nevada changes its jurisdiction of incorporation by transferring by way of a redomiciliation and domesticating as a Gibraltar private limited company known as “Forafric Global Limited” (the “Redomiciliation”) and, following the Redomiciliation, altering its authorized and issued share capital and thereafter re-registering as a Gibraltar public company limited by shares and changing its name to “Forafric Global PLC” (referred to herein as “New Forafric”); (ii) New Forafric forms a new wholly-owned subsidiary, Globis NV Merger 2 Corp., a Nevada corporation (“Merger Sub”); (iii) Globis merges with and into Merger Sub, with Merger Sub surviving (the “Merger”); (iv) immediately following the effectiveness of the Merger, all of the common stock of Merger Sub issued pursuant to the Merger is contributed to New Forafric in exchange for ordinary shares of New Forafric; and (v) as soon as practicable thereafter, New Forafric acquires 100% of the equity interests in FAHL from the Seller and FAHL becomes a direct subsidiary of New Forafric.
On June 8, 2022, the aforementioned parties agreed to further amend and revise the Business Combination Agreement (the “Second Amendment”) by providing that the Closing Payment (as defined in the Business Combination Agreement) shall be deferred in its entirety and that Globis shall pay to the Seller the principal sum of $20,000,000 together with interest on the the outstanding amount from the date of the closing of the Business Combination up to the date of payment (computed on the basis of a 360-day year consisting of twelve (12) months of thirty (30) days) accrued but unpaid thereon at the fixed per annum rate of 8%. The deferred payment shall be made on the first anniversary of the the closing of the Business Combination. If any amount of principal and/or interest thereon is unpaid after such due date, Globis shall pay the Seller additional interest on the outstanding amount at the per annum rate of 12% (or at such lower rate as shall be the highest rate permitted under applicable usury laws).
The foregoing description is a summary of the material terms of the of the Second Amendment and is qualified in its entirety by reference to the full text of the Second Amendment, a copy of which are attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Forward Share Purchase Agreements
On June 8, 2022, the Company and certain unaffiliated investors (the “Investors”) entered into Forward Share Purchase Agreements (the “Forward Purchase Agreements”) pursuant to which, on the three month anniversary of the date of the closing of the Company’s business combination (the “Business Combination”), the Investors may elect to sell and transfer to the Company, and the Company will purchase, in the aggregate up to 1,500,000 shares of common stock of Globis, par value $0.0001 per share (the “Investor Shares”), consisting of (i) shares of common stock then held by the Investors and/or (ii) any additional shares of common stock that the Investors may acquire prior to the closing of the Business Combination. The Company will acquire the Investor Shares at a price of $10.80 per share (the “Shares Purchase Price”). The date of the closing of the Business Combination is referred to as “Business Combination Closing Date”, and the date of the purchase by the Company of the Investor Shares is referred to as the “Investor Shares Closing Date”. In conjunction with the sale of the Investor Shares to the Company, each Investor shall notify the Company and the Escrow Agent (as defined below) in writing five business days prior to the three-month anniversary of the date of the Business Combination Closing Date whether or not such Investor is exercising its right to sell the Investor Shares that such Investor holds to the Company pursuant to the Forward Purchase Agreements (each, a “Investor Shares Sale Notice”). Failure of timely delivery of the Investor Shares Sales Notice shall be deemed as forfeiture of such Investor’s right to sell any Investor Shares to the Company pursuant to the Forward Purchase Agreements. If an Investor Shares Sale Notice is timely delivered by an Investor to the Company and the Escrow Agent, the Company will purchase from such Investor the Investor Shares held by such Investor on the Investor Shares Closing Date.
In exchange for the Company’s commitment to purchase the Investor Shares on the Investor Shares Closing Date, each Investor agreed that it will not request redemption of any of the Investor Shares in conjunction with Globis’ stockholders’ approval of the Business Combination, or tender the Investor Shares to Globis in response to any redemption or tender offer that Globis may commence for its shares of common stock.
Notwithstanding anything to the contrary in the Forward Purchase Agreements, commencing on the day after the date by which shares of common stock of Globis must be tendered for redemption in conjunction with Globis’ stockholders’ approval of the Business Combination (the “Redemption Date”), the Investor may sell its Investor Shares in the open market as long as the sales price exceeds $10.80 per Investor Share. If the Investor sells any Investor Shares in the open market after the Redemption Date and prior to the three-month anniversary of the Business Combination Closing Date at a sales price per Investor Share that is greater than $10.80 (such sale, the “Early Sale” and such shares, the “Early Sale Shares”), the Escrow Agent shall release from the Escrow Account to the Company an amount equal to $10.80 per Early Sale Share sold in such Early Sale.
Simultaneously with the closing of the Business Combination, the Company will deposit into an escrow account with Wilmington Trust, National Association (the “Escrow Agent”), subject to the terms of an escrow agreement, an amount equal to the lesser of (i) $16,200,000 and (ii) $10.80 multiplied by the aggregate number of Investor Shares held by the Investors as of the closing of the Business Combination. The Company’s purchase of the Investor Shares will be made with funds from the escrow account attributed to the Investor Shares. In the event that an Investor sells any Investor Shares as provided for above, it shall provide notice to the Company and the Escrow Agent within three business days of such sale (the “Open Market Sale Notice), and the Escrow Agent shall release from the escrow account for the Company’s use without restriction an amount equal to the pro rata portion of the escrow attributed to the Investor Shares which the Investor has sold. In the event that the Investor chooses not to sell to the Company any Investor Shares that the Investor owns as of the three-month anniversary of the Business Combination Closing Date, the Escrow Agent shall release all remaining funds from the escrow account for the Company’s use without restriction.
Nothing in the Forward Purchase Agreements prohibits or restricts the Investors with respect to the purchase from third parties prior to the Business Combination Closing Date of additional shares of common stock of Globis, including shares that have previously been tendered by third parties for redemption in conjunction with Globis’ stockholders’ approval of the Business Combination, to the extent such third parties unwind such tenders for redemption, or any warrants, convertible notes or options (including puts or calls) of Globis; provided, the aggregate number of Investor Shares (including any additional shares) owned by the Investors shall not exceed 1,500,000 shares of common stock of Globis, unless otherwise agreed in writing by all parties.
Globis agreed not to enter into additional agreements for the purchase of Globis’ common stock that provide material terms that are more favorable than the terms provided to the Investors in the Forward Purchase Agreements. In the event that Globis enters into separate purchase agreements with material terms that are more favorable than the terms provided to the Investor in the Forward Purchase Agreements at any time prior to the Business Combination Closing Date, Globis shall promptly inform the Investor of such more favorable terms, and the Investor shall have the mutual right to elect to have such more favorable terms included in the Forward Purchase Agreements.
The Forward Purchase Agreements contain customary representations, warranties and covenants from the parties. Globis’ obligation to consummate the transactions contemplated by the Forward Purchase Agreements are subject to the consummation of the Business Combination.
Globis agreed to indemnify the Investor and its respective officers, directors, employees, agents and shareholders (collectively referred to as the “Investor Indemnitees”) against, and hold them harmless of and from, any and all loss, liability, cost, damage and expense, including without limitation, reasonable and documented out-of-pocket outside counsel fees, which the Investor Indemnitees may suffer or incur by reason of any action, claim or proceeding, in each case, brought by a third party creditor of Globis, Forafric Agro Holdings Limited or any of their respective subsidiaries asserting that an Investor is not entitled to receive the aggregate Share Purchase Price or such portion thereof as they are entitled to receive pursuant to the Forward Purchase Agreements, in each case unless such action, claim or proceeding is the result of the fraud, bad faith, willful misconduct or gross negligence of any Investor Indemnitee.
Each Forward Purchase Agreement may be terminated: (i) by mutual written consent of Globis and the Investor; (ii) automatically if Globis stockholders fail to approve the Business Combination; and (iii) prior to the closing of the Business Combination by discretion of the Investor if there occurs a Company Material Adverse Effect (as defined in that the Business Combination Agreement. Each Forward Purchase Agreement may be terminated by the Investor, if (x) prior to the stockholder meeting to approve the Business Combination, all parties have not executed the escrow agreement; or, (y) the Business Combination Agreement is materially amended in a manner materially adverse to the Investor.
The foregoing description is only a summary of the Forward Purchase Agreements and is qualified in its entirety by reference to the full text of the Forward Purchase Agreements, a form of which is filed as Exhibit 10.2 hereto and is incorporated by reference herein. The form of Forward Purchase Agreement is included as an exhibit to this Current Report on Form 8-K in order to provide investors and security holders with material information regarding its terms of the transaction. It is not intended to provide any other factual information about Globis or the Investor. The representations, warranties and covenants contained in the Forward Purchase Agreements were made only for purposes of that agreement; are solely for the benefit of the parties to such respective Forward Purchase Agreement; may have been made for the purposes of allocating contractual risk between the parties to such Forward Purchase Agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the parties that differ from those applicable to investors. Security holders and investors should not rely on the representations, warranties or covenants or any description thereof as characterizations of the actual state of facts or condition of Globis or the Investor.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On June 7, 2022, the Company held a special meeting of stockholders (the “Stockholders Meeting”). At the Stockholders Meeting, the holders of 10,878,579 (72.28%) shares of the Company’s common stock entitled to vote were represented in person or by proxy constituting a quorum.
The meeting was adjourned to give the Company additional time to solicit votes in favor of the proposals. The meeting will reconvene at the offices of McDermott Will & Emery LLP located at One Vanderbilt Avenue, 45th Floor, New York, New York, 10017 on Thursday, June 9, 2022 at 9:00 a.m. ET.
Additional Information
In connection with the Business Combination, Globis Nevada, a wholly-owned subsidiary of Globis, has filed with the SEC a Registration Statement on Form S-4 (the “Registration Statement”), which includes a preliminary prospectus and preliminary proxy statement. Globis has mailed a definitive proxy statement/final prospectus and other relevant documents to its stockholders. This communication is not a substitute for the Registration Statement, the definitive proxy statement/final prospectus or any other document that Globis has sent to its stockholders in connection with the Business Combination. Investors and security holders of Globis are advised to read the proxy statement/prospectus in connection with Globis’ solicitation of proxies for its special meeting of stockholders to be held to approve the Business Combination (and related matters) because the proxy statement/prospectus contains important information about the Business Combination and the parties to the Business Combination. The definitive proxy statement/final prospectus was mailed to stockholders of Globis as of May 12, 2022, the record date for voting on the Business Combination. Stockholders are also able to obtain copies of the proxy statement/prospectus, without charge at the SEC’s website at www.sec.gov or by directing a request to: 7100 W. Camino Real, Suite 302-48, Boca Raton, Florida.
Participants in the Solicitation
Globis, the Seller, FAHL and their respective directors, executive officers, other members of management, and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Globis’ stockholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of Globis’ directors and officers in Globis’ filings with the SEC, including the Registration Statement that has been filed with the SEC by Globis, which includes the proxy statement of Globis for the Business Combination, and such information and names of FAHL’s managers and executive officers are also in the Registration Statement that has been filed with the SEC by Globis, which includes the proxy statement of Globis for the Business Combination.
Forward Looking Statements
Certain statements made herein are not historical facts but are forward-looking statements for purposes of the safe harbor provisions under The Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding future events, the Business Combination between Globis, the Seller and FAHL, the estimated or anticipated future results and benefits of the combined company following the Business Combination, including the likelihood and ability of the parties to successfully consummate the Business Combination, future opportunities for the combined company, and other statements that are not historical facts.
These statements are based on the current expectations of Globis’ management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on, by any investor as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Globis and Seller. These statements are subject to a number of risks and uncertainties regarding Globis’ businesses and the Business Combination, and actual results may differ materially. These risks and uncertainties include, but are not limited to, general economic, political and business conditions; the inability of the parties to consummate the Business Combination or the occurrence of any event, change or other circumstances that could give rise to the termination of the Business Combination Agreement; the outcome of any legal proceedings that may be instituted against the parties following the announcement of the Business Combination; the receipt of an unsolicited offer from another party for an alternative business transaction that could interfere with the Business Combination; the risk that the approval of the stockholders of Globis or FAHL for the potential transaction is not obtained; failure to realize the anticipated benefits of the Business Combination, including as a result of a delay in consummating the potential transaction or difficulty in integrating the businesses of Globis and FAHL; the risk that the Business Combination disrupts current plans and operations as a result of the announcement and consummation of the Business Combination; the ability of the combined company to grow and manage growth profitably and retain its key employees; the amount of redemption requests made by Globis’ stockholders; the inability to obtain or maintain the listing of the post-acquisition company’s securities on The Nasdaq Stock Market LLC following the Business Combination; costs related to the Business Combination; and those factors discussed in Globis’ final prospectus relating to its initial public offering, dated December 10, 2020, and other filings with the SEC. There may be additional risks that Globis presently does not know or that Globis 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 provide Globis’ expectations, plans or forecasts of future events and views as of the date of this communication. Globis anticipates that subsequent events and developments will cause Globis’ assessments to change. However, while Globis may elect to update these forward-looking statements at some point in the future, Globis specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing Globis’ assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Disclaimer
This Current Report is for informational purposes only and is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities or the solicitation of any vote in any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer or securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number | Description | |
| 10.1 | Amendment No. 2 to Purchase Agreement, dated June 8, 2022 | |
| 10.2 | Form of Forward Share Purchase Agreement | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: June 9, 2022 | GLOBIS ACQUISITION CORP. | |
| By: | /s/ Paul Packer | |
| Name: | Paul Packer | |
| Title: | Chief Executive Officer and Chief Financial Officer | |
Exhibit 10.1
AMENDMENT NO. 2 TO PURCHASE AGREEMENT
This Amendment No. 2 (this “Amendment”), dated June 8, 2022 (the “Effective Date”), is made and entered into by and among: (i) Globis Acquisition Corp., a Delaware corporation (“Globis”); (ii) Lighthouse Capital Limited, a Gibraltar private company limited by shares (“Seller”); (iii) Forafric Agro Holdings Limited, a Gibraltar private company limited by shares (the “Company”); and (iv) Forafric Global PLC (f/k/a Globis NV Merger Corp.), a Gibraltar public company limited by shares (“New Parent”). Globis, Seller, the Company, and New Parent are collectively referred to herein as the “Parties.” Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Securities Purchase Agreement, dated December 19, 2021, as amended by Amendment No. 1, dated as of April 20, 2022 (as further amended, restated, supplemented, or otherwise modified from time to time, the “Purchase Agreement”), by and among Globis, Seller, the Company, and New Parent.
RECITALS
A. Globis, Seller, the Company, and New Parent are parties to the Purchase Agreement.
B. Globis, Seller, the Company, and New Parent now desire to amend the Purchase Agreement in accordance with Section 12.05 of the Purchase Agreement as set forth in this Amendment.
AGREEMENT
Intending to be legally bound hereby, the Parties agree as follows:
1. Amendments.
a. Subclause (i) of Section 1.02(a) of the Purchase Agreement is hereby amended to replace the reference to “$20,000,000” with “$0”.
b. Section 1.02(a) of the Purchase Agreement is hereby amended to add a new subclause (vi) as follows:
“(vi) plus, the deferred payment paid pursuant to Section 1.13.”
c. A new Section 1.13 shall be added to the Purchase Agreement as follows:
“Deferred Payment. On the first anniversary of the Closing Date New Parent shall pay to the Seller the principal sum of $20,000,000 together with interest on the outstanding amount from the Closing Date up to the date of payment (computed on the basis of a 360-day year consisting of twelve (12) months of thirty (30) days) accrued but unpaid thereon at the fixed per annum rate of 8%. If any amount of principal of the said deferred payment and/or interest thereon is unpaid on the said first anniversary of the Closing Date, New Parent shall pay the Seller additional interest on the outstanding amount at the per annum rate of 12% (or at such lower rate as shall be the highest rate permitted under applicable usury laws). The said additional interest shall be calculated and compounded daily by reference to a 360-day year. Notwithstanding anything contained in this Agreement (i) New Parent submits to the exclusive jurisdiction of the Supreme Court of Gibraltar for all purposes associated with the said deferred payment and interest thereon, and (ii) agrees that New Parent’s obligation to pay the same shall be governed and construed in accordance with Gibraltar law.
d. Section 10.07(a)(i) of the Purchase Agreement is hereby deleted in its entirety and replaced as follows:
“(i) At the Seller’s discretion, such amount will be satisfied by (1) release and transfer of Indemnity Shares (valued at $10.50 per share) to Buyer, (2) set-off against any amounts owed by New Parent pursuant to Section 1.13 or set-off against any Earnout Shares (valued at $10.50 per share) that are then-earned and issuable to the Seller pursuant to Section 1.07, (3) the return and cancellation, for no consideration, of any other Buyer Ordinary Shares then held of record and beneficially by the Seller (valued at $10.50 per share), or (4) the payment of immediately available funds to Buyer (in United States Dollars, unless otherwise agreed in writing by the Buyer Indemnitee).”
2. Remaining Provisions of the Purchase Agreement. Except as amended hereby, the terms of the Purchase Agreement remain in full force and effect. On and after the Effective Date, each reference in the Purchase Agreement to “this Agreement” or words of similar import shall mean and be deemed to be a reference to the Purchase Agreement as amended by this Amendment.
3. Miscellaneous. This Amendment may only be amended or modified by a written instrument executed by the Parties and which makes reference to this Amendment. The provisions of Sections 12.01 (Notices), 12.03 (Severability), 12.04 (Expenses), 12.05 (Amendment; Waiver), 12.06 (Beneficiaries; Assignment), 12.07 (Counterparts), 12.09 (Governing Law), 12.10 (Arbitration), 12.16 (Waiver of Jury Trial), and 12.17 (Trust Account Waiver) of the Purchase Agreement are hereby incorporated by reference into this Amendment, mutatis mutandis.
[Signature Pages Follow]
The Parties have caused this Amendment to be duly executed and delivered as of the Effective Date.
| GLOBIS: | ||
| GLOBIS ACQUISITION CORP. | ||
| By: | /s/ Paul Packer | |
| Name: | Paul Packer | |
| Title: | Chief Executive Officer | |
| NEW PARENT: | ||
| Forafric Global PLC | ||
| By: | /s/ Paul Packer | |
| Name: | Paul Packer | |
| Title: | Director | |
| SIGNATURE PAGE TO PURCHASE AGREEMENT AMENDMENT NO. 2 |
| SELLER: | ||
| LIGHTHOUSE CAPITAL LIMITED | ||
| By: | /s/ Michael Elbaz | |
| Name: | Michael Elbaz | |
| Title: | Director | |
| COMPANY: | ||
| FORAFRIC AGRO HOLDINGS LIMITED | ||
| By: | /s/ Michael Elbaz | |
| Name: | Michael Elbaz | |
| Title: | Director | |
| SIGNATURE PAGE TO PURCHASE AGREEMENT AMENDMENT NO. 2 |
Exhibit 10.2
FORWARD SHARE PURCHASE AGREEMENT
This Forward Share Purchase Agreement (this “Agreement”) is entered into as of June 8, 2022, by and between Globis Acquisition Corp., a Delaware corporation (“SPAC”), and (“Investor”). Each of SPAC and the Investor is individually referred to herein as a “Party” and collectively as the “Parties”.
Recitals
WHEREAS, SPAC is a special purpose acquisition company, also known as a blank check company, formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses;
WHEREAS, SPAC has entered into a Business Combination Agreement, dated as of December 19, 2021, as amended on April 20, 2022 (as it may be further amended or supplemented from time to time, the “Business Combination Agreement”) by and among (i) SPAC, (ii) Lighthouse Capital Limited, Forafric Agro Holdings Limited (“Company”) and Globis Nevada (the transactions contemplated by such Business Combination Agreement, the “Business Combination”), and SPAC has filed a definitive proxy statement with the U.S. Securities and Exchange Commission (the “Commission”) that seeks, among other things, stockholder approval of the Business Combination at a special meeting of stockholders (the “Business Combination Meeting”); and
WHEREAS, the Parties wish to enter into this Agreement, pursuant to which SPAC shall purchase from the Investor, and the Investor may sell and transfer to SPAC, in each case, subject to the conditions set forth herein, certain shares of Common Stock, par value $0.0001 per share, of SPAC held by the Investor (the “Shares”), on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises, representations, warranties and the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties agree as follows:
Agreement
1. Sale of Shares; Shares Purchase and Sale; Closing.
(a) Forward Share Purchase. Subject to the conditions set forth in Section 4, on the three (3) month anniversary of the date of the closing of the Business Combination (the “Business Combination Closing Date”), the Investor may elect to sell and transfer to SPAC, and SPAC shall purchase from the Investor, up to that number of Shares (including any Additional Shares) that are then held by the Investor, and have not been sold and repurchased by the Investor since the Business Combination Closing Date, but not to exceed Shares (including any Additional Shares) in the aggregate unless otherwise agreed in writing by all Parties, at a price per Share equal to the Redemption Price (as defined below) plus $0.50 per Share (the “Shares Purchase Price”). In the event that the Investor does not own the Shares as of the date of this Agreement, the Shares may not be purchased at prices greater than $10.30 (the “Redemption Price”).
(b) Investor shall notify SPAC and the Escrow Agent in writing no later than five (5) Business Days (as defined below) prior to the three (3) month anniversary of the Business Combination Closing Date whether or not such Investor is exercising such Investor’s right to sell any of the Shares (including any Additional Shares) held by such Investor to SPAC pursuant to this Agreement (each, a “Shares Sale Notice”). If Investor fails to timely deliver a Shares Sales Notice in accordance with the immediately preceding sentence shall be deemed to have forfeited its right to sell any Shares (including any Additional Shares) to SPAC pursuant to this Agreement.
(c) Shares Closing. If a Shares Sale Notice is timely delivered by Investor to SPAC and Escrow Agent, the closing of the sale of the Shares contemplated in each such timely delivered Share Sales Notice (the “Shares Closing”) shall occur no later than the three (3) month anniversary of the Business Combination Closing Date (the “Shares Closing Date”). On or before the Shares Closing Date, the selling Investor shall deliver, or cause to be delivered, the Shares (including any Additional Shares) subject to the applicable Shares Sale Notice free and clear of all liens and encumbrances to Escrow Agent and, in exchange therefor, the Escrow Agent shall deliver to the selling Investor an amount equal to (i) the Shares Purchase Price multiplied by (ii) the number of Shares being sold by such selling Investor (the “Investor Shares Purchase Price”), which shall be paid by wire transfer of immediately available funds from the Escrow Account. The Escrow Agent shall, without delay, (i) release from the Escrow Account to the selling Investor on the Shares Closing Date, for such selling Investor’s use, without restriction, an amount equal to such Investor’s Investor Shares Purchase Price, and (ii) deliver such sold Shares to SPAC.
2. Representations and Warranties of the Investor. Investor represents and warrants to SPAC and the Company, severally and not jointly, as of the date hereof:
(a) Organization and Power. Such Investor is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to carry on its business as presently conducted and as proposed to be conducted.
(b) Authorization. Such Investor has full power and authority to enter into this Agreement. This Agreement, when executed and delivered by Investor will constitute the valid and legally binding obligation of Investor enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies ((i) and (ii) collectively, the “Enforceability Exceptions”).
(c) Governmental Consents and Filings. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of Investor in connection with the consummation of the transactions contemplated by this Agreement (collectively, the “Transactions”) other than disclosure reports regarding such transactions that such Investor is required to file in accordance with the terms of the Exchange Act (as defined below).
(d) Compliance with Other Instruments. The execution, delivery and performance by such Investor of this Agreement and the consummation by such Investor will not result in any violation or default (i) of any provisions of its organizational documents, (ii) of any instrument, judgment, order, writ or decree to which it is a party or by which it is bound, (iii) under any note, indenture or mortgage to which it is a party or by which it is bound, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound, or (v) of any provision of federal or state statute, rule or regulation applicable to it, in each case (other than clause (i)), which would have a material adverse effect on such Investor or its ability to consummate the Transactions.
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(e) Disclosure. The Investor acknowledges that the Company will disclose the information required pursuant to the SEC’s Compliance and Disclosure Interpretation 166.01 under Tender Offers and Schedules in connection with the transactions contemplated by this Agreement.
(f) Share-Holdings. As of the date of this Agreement, the Investor holds the Shares, and Investor has completed and delivered a Letter of Representation to the Escrow Agent evidencing such Shares.
(g) Disclosure of Information. Investor has had an opportunity to discuss SPAC’s and the Company’s business, management and financial affairs, and the terms and conditions of this Agreement, as well as the terms of the Business Combination, with SPAC’s management.
(h) No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 2 and in any certificate or written agreement delivered pursuant hereto, neither Investor or any person acting on behalf of such Investor nor any of such Investor’s affiliates (collectively, the “Investor Parties”) has made, makes or shall be deemed to make any other express or implied representation or warranty with respect to such Investor or the other Investors, and the Investor Parties disclaim any such representation or warranty. Except for the specific representations and warranties expressly made by SPAC in Section 3 of this Agreement, in any certificate or written agreement delivered pursuant hereto and in any public filings, the Investor Parties specifically disclaim that they are relying upon any other representations or warranties that may have been made by the SPAC Parties (as defined below).
3. Representations and Warranties of SPAC. SPAC represents and warrants to each Investor as follows:
(a) Organization and Corporate Power. SPAC has been duly incorporated and is validly existing as a corporation in good standing under the Delaware General Corporation Law (the “DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted.
(b) Authorization. All corporate action required to be taken by SPAC’s Board of Directors to authorize SPAC to enter into this Agreement has been taken. This Agreement, when executed and delivered by SPAC, shall constitute the valid and legally binding obligation of SPAC, enforceable against SPAC in accordance with its terms, subject to the effect of the Enforceability Exceptions.
(c) Disclosure. SPAC has not disclosed to any Investor material non-public information with respect to SPAC or the Business Combination, other than the terms of and transactions contemplated by this Agreement, which shall be publicly disclosed by SPAC, either by the issuance of a press release or the filing with the Commission of a Current Report on Form 8-K, in each case, by 9:00 a.m., Eastern Time no later than the third Business Day immediately following the date that the Parties enter into this Agreement. Such public disclosure shall disclose the name of the Investors as having entered into the Agreement.
(d) Governmental Consents and Filings. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of SPAC in connection with the consummation of the Transactions, other than disclosure reports regarding such transactions SPAC is required to file in accordance with the terms of the Exchange Act.
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(e) Compliance with Other Instruments. The execution, delivery and performance by SPAC of this Agreement and the consummation by SPAC of the Transactions will not result in any violation or default (i) of any provisions of its organizational documents, (ii) of any instrument, judgment, order, writ or decree to which it is a party or by which it is bound, (iii) under any note, indenture or mortgage to which it is a party or by which it is bound, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound, or (v) of any provision of federal or state statute, rule or regulation applicable to it, in each case (other than clause (i)), which would have a material adverse effect on SPAC or its ability to consummate the Transactions.
(f) Adequacy of Financing. SPAC will have available to it sufficient funds to satisfy its obligations under this Agreement.
(g) SEC Filings. SPAC has filed all documents required to be filed by SPAC under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof (the “SEC Filings”). As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act as applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder. None of the SEC Documents, contained, when filed or, if amended prior to the date of this Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents. The financial statements contained in the SEC Filings have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of SPAC and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(h) No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 3 and in any certificate or written agreement delivered pursuant hereto or in any public filings, neither SPAC or any person on behalf of SPAC nor any of SPAC’s affiliates (collectively, the “SPAC Parties”) has made, makes or shall be deemed to make any other express or implied representation or warranty with respect to SPAC, the Company, the Transactions or the Business Combination, and the SPAC Parties disclaim any such representation or warranty. Except for the specific representations and warranties expressly made by the Investors in Section 2 of this Agreement and in any certificate or agreement delivered pursuant hereto, the SPAC Parties specifically disclaim that they are relying upon any other representations or warranties that may have been made by the Investor Parties.
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4. Additional Agreements.
(a) No Redemptions; No Tenders. Investor shall not request redemption of any of the Shares (including any Additional Shares) in conjunction with SPAC’s stockholders’ approval of the Business Combination, or tender the Shares (including any Additional Shares) to SPAC in response to any redemption or tender offer that SPAC may commence for its common stock; except that, in a case where Investor has already requested redemption of any of the Shares, Investor shall withdraw such redemption request by promptly contacting their broker to facilitate the withdrawal.
(b) Option to Purchase Additional Shares and Certain Derivatives. SPAC hereby acknowledges that nothing in this Agreement shall prohibit the Investor from purchasing from third parties prior to the Business Combination Closing Date additional shares of common stock of SPAC, including shares that have previously been tendered by third parties for redemption at their original redemption value in conjunction with SPAC’s stockholders’ approval of the Business Combination, to the extent such third parties unwind such tenders for redemption (the “Subsequent Purchase Shares”), or any warrants, convertible notes or options (including puts or calls) of SPAC; provided, the aggregate number of Shares and Additional Shares owned by the Investor and, subject to Sections 1, Section 4(a), and Section 4(b) (such Subsequent Purchase Shares subject to Sections 1, Section 4(a) and Section 4(b), collectively the “Additional Shares”) shall not exceed shares of common stock of SPAC, unless otherwise agreed in writing by all Parties. For the avoidance of doubt, all Additional Shares shall be deemed Shares for all purposes hereunder and may be sold to SPAC pursuant to the terms of Section 1 hereof. In no event will the Investor purchase Additional Shares at prices greater than the Redemption Price.
(c) Open Market Sale. Notwithstanding anything to the contrary herein, the Parties agree that the Investor shall, commencing on the Business Combination Closing Date, have the right, but not the obligation, to sell any or all of the Shares (including any Additional Shares) in the open market. The Investor shall give written notice to SPAC and the Escrow Agent of any sale of the Shares (including any Additional Shares) pursuant to this Section 4(c) within three (3) Business Days following the date of such sale (the “Open Market Sale Notice”), and the Open Market Sale Notice shall include the date of the sale, the number of Shares sold, and confirmation that the sale price per Share was greater than $10.80 per Share prior to the payment of any commissions due by the Investor for the sale, accompanied by the broker’s confirmation of the transaction. If the Investor sells any Shares (including any Additional Shares) in the open market after the Business Combination Closing Date and prior to the three (3) month anniversary of the Business Combination Closing Date at a sales price per Share that is greater than $10.80 (such sale, the “Early Sale” and such shares, the “Early Sale Shares”), then, within five (5) Business Days after SPAC’s and the Escrow Agent’s receipt of such Open Market Sale Notice and broker’s confirmation, the Escrow Agent shall release from the Escrow Account to SPAC an amount equal to $10.80 per Early Sale Share sold in such Early Sale. For the avoidance of doubt, unless otherwise provided herein, any Shares not sold in the open market pursuant to this Section 4(c) may be sold to SPAC pursuant to the terms of Section 1 hereof.
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(d) Escrow.
(i) Simultaneously with the closing of the Business Combination, SPAC shall deposit, for good and valuable consideration, the receipt, sufficiency and adequacy of which SPAC hereby acknowledges, into an escrow account (the “Escrow Account”) with Wilmington Trust, National Association (the “Escrow Agent”), subject to the terms of a written escrow agreement (the “Escrow Agreement”) substantially in the form attached as Exhibit A hereto and to be entered into simultaneously with this Agreement, an amount equal to the lesser of (x) $5,400,000 and (y) the Shares Purchase Price multiplied by the number of Shares and Additional Shares held by the Investor as of the closing of the Business Combination (the “Escrowed Funds”). The Escrow Agreement shall irrevocably cause the Escrow Agent to release from the Escrow Account the aggregate Shares Purchase Price in accordance with Section 1. The payments to be made by the Escrow Agent to the Investor in accordance with Section 1 or to the Investor and SPAC in accordance with Section 4(c), if applicable, will be made solely with the Escrowed Funds.
(ii) Upon receipt by the Escrow Agent and Company of written notice that any Investor has sold Shares at or above $10.80 (including any Additional Shares) as provided in Section 4(c), the Escrow Agent shall release to SPAC for SPAC’s use without restriction an amount equal to the number of Early Sale Shares sold in the Early Sale multiplied by $10.80.
(iii) In the event that Investor elects not to sell to SPAC any Shares (including any Additional Shares) held by such Investor by either (A) an Investor’s delivering a written notice to SPAC stating such Investor’s intention not to sell any Shares (or any Additional Shares) to SPAC, or (B) such Investor’s failing to timely deliver a Shares Sale Notice to SPAC pursuant to Section 1(a) for all of its Shares, SPAC may issue instructions to the Escrow Agent to release from the Escrow Account to SPAC for SPAC’s use without restriction an amount equal to (x) the Shares Purchase Price multiplied by (y) the number of Shares held by such Investor.
(iv) In the event that Investor sells Shares (including any Additional Shares) at a price of less than $10.80 per Share at any time, SPAC may issue instructions to the Escrow Agent to release from the Escrow Account to SPAC for SPAC’s use without restriction an amount equal to (x) the Shares Purchase Price multiplied by (y) the number of Shares sold by Investor at a price of less than $10.80 per Share.
(e) Notification. SPAC shall promptly notify the Investor of the occurrence of any event that would make any of the representations and warranties of SPAC set forth in Section 3 untrue or incorrect at any time between the date of this Agreement and the Shares Closing Date, except where the failure of a representation and warranty to be true and correct would not have a material adverse effect on SPAC’s or the Company’s ability to consummate the Transactions.
(f) Indemnification. SPAC (referred to as the “Indemnitor”) agrees to indemnify the Investor and its officers, directors, employees, agents and shareholders (collectively referred to as the “Indemnitees”) against, and hold them harmless of and from, any and all loss, liability, cost, damage and expense, including without limitation, reasonable and documented out-of-pocket outside counsel fees, which the Indemnitees may suffer or incur by reason of any action, claim or proceeding, in each case, brought by a third party creditor of SPAC, the Company or any of their respective subsidiaries asserting that the Investor is not entitled to receive the aggregate Share Purchase Price or such portion thereof as they are entitled to receive pursuant to Section 1(a) and Section 4(c) of this Agreement, in each case unless such action, claim or proceeding is the result of the fraud, bad faith, willful misconduct or gross negligence of any Indemnitee.
(g) Most Favored Nation. Shortly before the execution of this Agreement, SPAC may have entered into, or concurrently with, or shortly after, the execution of this Agreement, SPAC may enter into, separate agreements with other investors (the “Additional Investors”) for the purchase and sale of shares of Common Stock, par value $0.0001 per share, of SPAC imposing restrictions on dispositions of such shares of Common Stock by the Additional Investors similar to those herein (the “Additional Investor Agreements”). SPAC represents that the material terms of the Additional Investor Agreements are no more favorable to such Additional Investors than the terms of this Agreement are to the Investor. In the event that an Additional Investor is afforded any such more favorable terms than the Investor, either now or in the future, SPAC shall immediately so inform the Investor of such more favorable terms, and the Investor shall have the right to elect to have such more favorable terms, in which case the parties hereto shall promptly amend this Agreement to effect the same.
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5. Closing Conditions. The obligation of SPAC to purchase the Shares (other than any Shares sold as permitted by or pursuant to Section 4(c)) at the Shares Closing under this Agreement shall be subject in all respects to the consummation of the Business Combination, such Shares being free and clear of all liens and other encumbrances as of the Shares Closing and such Shares having not been sold and repurchased by the Investor from the closing of the Business Combination through the three (3) month anniversary of the Business Combination Closing Date.
6. Termination. This Agreement may be terminated as follows:
| (a) | at any time by mutual written consent of all Parties; | |
| (b) | automatically if the stockholders of SPAC fail to approve the Business Combination before June 15, 2022, subject to extension by mutual agreement; | |
| (c) | prior to the closing of the Business Combination by the Investor if there occurs a Material Adverse Effect (as defined in the Business Combination Agreement); | |
| (d) | By the Investor, if prior to the Business Combination Meeting, all Parties, and Wilmington Trust, National Association, have not executed the Escrow Agreement; | |
| (e) | By the Investor, if the Business Combination Agreement is materially amended in a manner materially adverse to the Investor. |
In the event of termination in accordance with Section 6(a), 6(b), 6(c), 6(d), or 6(e), this Agreement shall forthwith become null and void and have no effect, without any liability on the part of the Investor, SPAC, or the Company and their respective directors, officers, employees, partners, managers, members, or stockholders, and, except as otherwise provided in this Agreement, all rights and obligations of each Party shall immediately cease; provided, however, that nothing contained in this Section 6 shall relieve any Party from liabilities or damages arising out of any actual fraud or willful breach by such party of any of its representations, warranties, covenants or agreements contained in this Agreement prior to termination of this Agreement.
7. General Provisions.
(a) Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (i) personal delivery to the Party to be notified, (ii) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next Business Day, (iii) five (5) Business Days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next Business Day delivery, with written verification of receipt. All notices and other communications sent to a Party shall be sent to the e-mail address or address as set forth on the signature page of such Party hereto, or to such e-mail address or address as subsequently modified by written notice given by such Party in accordance with this Section 7(a).
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(b) No Finder’s Fees. Each Party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with the Transactions. Investor agrees to indemnify and to hold harmless SPAC from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of the Transactions (and the costs and expenses of defending against such liability or asserted liability) for which the Investor, or any of its officers, employees or representatives is responsible or arising out of any agreement entered into by any such person or entity. SPAC agrees to indemnify and hold harmless the Investor from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of the Transactions (and the costs and expenses of defending against such liability or asserted liability) for which SPAC or any of its officers, employees or representatives is responsible or arising out of any agreement entered into by any such person or entity.
(c) Survival of Representations and Warranties. All of the representations and warranties contained herein shall survive the Shares Closing.
(d) Entire Agreement. This Agreement, together with any documents, instruments and writings that are delivered pursuant hereto or referenced herein, constitute the entire agreement and understanding of the Parties in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof or to the Transactions.
(e) Successors. All of the terms, agreements, covenants, representations, warranties, and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the Parties and their respective successors. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
(f) Assignments. Except as otherwise specifically provided herein, no Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the each of the other Parties.
(g) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Signatures sent by facsimile transmission or in PDF format shall be deemed to be originals for all purposes of this Agreement.
(h) Headings. The section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.
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(i) Governing Law; Jurisdiction. This Agreement, the entire relationship of the Parties, and any litigation among the Parties (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of Delaware, without giving effect to its choice of laws or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Any dispute arising from or relating to the relative rights of the parties hereto and all other questions concerning the construction, validity and interpretation of this Agreement, shall be brought exclusively in the Court of Chancery of the State of Delaware (the “Court of Chancery”) or, to the extent the Court of Chancery does not have subject matter jurisdiction, the United States District Court for the District of Delaware and the appellate courts having jurisdiction of appeals in such courts (the “Delaware Federal Court”) or, to the extent neither the Court of Chancery nor the Delaware Federal Court has subject matter jurisdiction, the Superior Court of the State of Delaware (the “Chosen Courts”), and, solely with respect to any such action (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action in the Chosen Courts, and (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto.
(j) MUTUAL WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) Amendments. This Agreement may not be amended, modified or waived as to any particular provision, except with the prior written consent of all Parties.
(l) Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any Party or to any circumstance, is adjudged by a governmental authority, arbitrator, or mediator not to be enforceable in accordance with its terms, the Parties agree that the governmental authority, arbitrator, or mediator making such determination will have the power to modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced.
(m) Expenses. At the Business Combination Closing Date, SPAC shall pay the reasonable and documented out-of-pocket fees and expenses of legal counsel to the Investor, in an amount not to exceed $1,000. SPAC is responsible for all fees associated with the Escrow Account.
(n) Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If 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 because of the authorship of any provision of this Agreement. For purposes of this Agreement, “Business Day” means any day other than Saturday, Sunday, or a day on which commercial banks in New York are obligated by any applicable law to close. Any reference to any federal, state, local, or foreign law will be deemed also to refer to law as amended and all rules and regulations promulgated thereunder, unless the context requires otherwise. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The Parties intend that each representation, warranty, and covenant contained herein will have independent significance. If a Party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party has not breached will not detract from or mitigate the fact that such party is in breach of the first representation, warranty, or covenant.
(o) Waiver. No waiver by a Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising because of any prior or subsequent occurrence.
(p) Specific Performance. Each Party agrees that irreparable damage may occur in the event any provision of this Agreement was not performed by any other Party in accordance with the terms hereof and that the other Parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy at law or equity.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as of the date first set forth above.
Exhibit A
Escrow Agreement
(attached hereto)