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
January 24, 2022
Date of Report (Date of earliest event reported)
Venus Acquisition Corporation.
(Exact Name of Registrant as Specified in its Charter)
Cayman Islands | 001-40024 | Not Applicable 00-0000000 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
477 Madison Avenue, 6th Floor
New York, NY 10022
(917) 267-4568
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
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 |
||
Ordinary Shares | VENA | The Nasdaq Stock Market LLC | ||
Units, each consisting of one ordinary share, par value $0.001, one redeemable warrant to purchase one-half ordinary share and one right to acquire 1/10 of an ordinary share |
VENAU | The Nasdaq Stock Market LLC | ||
Rights, each to receive one-tenth (1/10) of one ordinary share | VENAR | The Nasdaq Stock Market LLC | ||
Redeemable warrants, each warrant exercisable for one-half ordinary share | VENAW | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (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. ☐
Participants in Solicitation
Venus Acquisition Corporation, a Cayman Islands exempted company (the “Purchaser” or “Venus”) and VIYI Algorithm Inc., a Cayman Islands exempted company (the “Company”), and their respective directors and officers may be deemed to be participants in the solicitation of proxies from Venus’ stockholders in connection with the proposed transaction described is this Report on Form 8-K. Information about Venus’ directors and executive officers and their ownership of Venus’ securities is set forth in Venus’ filings with the U.S. Securities and Exchange Commission (the “SEC”). To the extent that holdings of Venus’ securities have changed since the amounts printed in Venus’ Prospectus dated February 10, 2021, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Additional information regarding the interests of those persons and other persons who may be deemed participants in the proposed transaction may be obtained by reading the proxy statement regarding the proposed transaction when it becomes available. You may obtain free copies of these documents as described in the below paragraph.
Venus is a blank check company incorporated in the Cayman Islands and incorporated for the purpose of acquiring, engaging in a share exchange, share reconstruction and amalgamation with, purchasing all or substantially all of the assets of, entering into contractual arrangements with, or engaging in any other similar merger with one or more businesses or entities. Venus completed its initial public offering on February 11, 2021 with an offering of 4,600,000 units, at $10.00 per unit, generating gross proceeds of $46,000,000. Each unit consisted of one ordinary share, par value $0.001, one redeemable warrant to purchase one-half of one ordinary share, and one right to receive one-tenth (1/10) of an ordinary share upon consummation of a business combination. The Units, Ordinary Shares, Rights and Warrants of Venus are currently listed on the Nasdaq Capital Market under the symbols “VENAU,” “VENA,” “VENAR” and “VENAW,” respectively. Venus has until February 11, 2022 to consummate a Business Combination. However, Venus may extend the period of time to consummate a Business Combination up to nine times, each by an additional month (for a total of 21 months to complete a Business Combination.
VIYI Algorithm Inc. is a privately-held company dedicated to the development and application of bespoke central processing algorithms. Central processing algorithms refer to a range of computing algorithms, including analytical algorithms, recommendation algorithms, and acceleration algorithms. VIYI Algorithm Inc. provides comprehensive solutions to customers by integrating central processing algorithms with software or hardware, or both, thereby helping them to increase the number of customers, improve end-user satisfaction, achieve direct cost savings, reduce power consumption, and achieve technical goals.
Additional Information and Where to Find It
This document relates to a proposed transaction between Venus and VIYI. This document does not constitute an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. Venus has filed a combined preliminary registration statement/proxy statement, which has not been declared effective by the SEC, but which upon effectiveness will be sent to all Venus stockholders. Venus also will file other documents regarding the proposed transaction with the SEC.
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BEFORE MAKING ANY VOTING DECISION, INVESTORS AND SECURITY HOLDERS OF VENUS ARE URGED TO READ THE PROXY STATEMENT, AS MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, 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 TRANSACTION AND THE PARTIES THERETO.
Investors and security holders will be able to obtain free copies of the proxy statement and all other relevant documents filed or that will be filed with the SEC by Venus through the website maintained by the SEC at www.sec.gov. In addition, the documents filed by Venus may be obtained free of charge by written request to Venus at Venus Acquisition Corporation, 477 Madison Avenue, 6th Floor, New York, NY 10022.
Forward-Looking Statements Legend
This document contains certain forward-looking statements within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995, as amended, with respect to the proposed merger transaction between VIYI and Venus, including statements regarding the benefits of the transaction, the anticipated timing of the transaction, VIYI’s products under development and the markets in which it intends to operate, and VIYI’s projected future results. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this document, including but not limited to: (i) the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect the price of Venus’s securities, (ii) the risk that the transaction may not be completed by Venus’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by Venus, (iii) the failure to satisfy the conditions to the consummation of the transaction, including the adoption of the agreement and plan of merger by the stockholders of Venus and VIYI, the satisfaction of the minimum trust account amount following redemptions by Venus’s public stockholders and the receipt of certain governmental and regulatory approvals, (iv) the lack of a third party valuation in determining whether or not to pursue the proposed transaction, (v) the occurrence of any event, change or other circumstance that could give rise to the termination of the agreement and plan of merger, (vi) the effect of the announcement or pendency of the transaction on VIYI’s business relationships, performance, and business generally, (vii) risks that the proposed transaction disrupts current plans of VIYI and potential difficulties in VIYI employee retention as a result of the proposed transaction, (viii) the outcome of any legal proceedings that may be instituted against VIYI or against Venus related to the agreement and plan of merger or the proposed transaction, (ix) the ability to maintain the listing of Venus’s securities on the Nasdaq Stock Market Capital Market, (x) the price of Venus’s securities may be volatile due to a variety of factors, including changes in the competitive and highly regulated industries in which VIYI plans to operate, variations in performance across competitors, changes in laws and regulations affecting VIYI’s business and changes in the combined capital structure, (xi) the ability to implement business plans, forecasts, and other expectations after the completion of the proposed transaction, and identify and realize additional opportunities, (xii) the risk of downturns in the economy across the world as a world of COVID 19, and (xiii) the impact of legislative, regulatory, competitive and technological changes to VIYI’s business or product candidates, including those in China where VIYI operates. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of Venus’s Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Form S-4 combined registration statement/proxy statement discussed above and other documents filed by Venus 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 VIYI and Venus assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither VIYI nor Venus gives any assurance that either VIYI or Venus will achieve its expectations.
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Item 1.01. Entry into a Material Definitive Agreement.
On June 10, 2021, Venus Acquisition Corporation, a Cayman Islands exempted company (the “Purchaser” or “Venus”), VIYI Algorithm Inc., a Cayman Islands exempted company (“VIYI” or the “Company”), Venus Merger Sub Corp., a Cayman Islands exempted company and wholly-owned subsidiary of the Purchaser (the “Merger Sub”) and WiMi Hologram Cloud Inc., a Cayman Islands company and the legal and beneficial owner of a majority of the issued and outstanding voting securities of the Company (“Majority Shareholder”), entered into a Merger Agreement (the “Merger Agreement”). A copy of the Merger Agreement without exhibits or disclosure schedule is included in this Form 8-K as Exhibit 2.1. WiMi Hologram Cloud, Inc. (NASDAQ: WIMI) holds approximately 73% of the share capital of VIYI.
Pursuant to the Merger Agreement, upon the terms and subject to the conditions of the Merger Agreement and in accordance with the Cayman Islands Companies Act (as revised) (the “Cayman Companies Act”), the parties intend to effect a business combination transaction whereby the Merger Sub will merge with and into the Company, with the Company being the surviving entity (the Company is hereinafter referred to for the periods from and after the Merger Effective Time as the “Surviving Corporation”) and becoming a wholly owned Subsidiary of Venus (the “Merger”) on the terms and subject to the conditions set forth in this Agreement and simultaneously with the Closing Purchaser will change its name to “MicroAlgo Inc.”
Merger Agreement Amendment
On January 24, 2022, Venus, VIYI and WiMi entered into an amendment to the Merger Agreement. The purposes of the amendment were to:
1. extend the outside termination date of the proposed merger to June 30, 2022;
2. provide for the termination of the existing backstop agreement and the new backstop agreement with the majority shareholder of VIYI as described below in this Form 8-K; and
3. acknowledge the existence of new potential governmental approvals under recent changes in China law.
Backstop Agreement
As contemplated by and as a condition of the Merger Agreement, Venus entered into an agreement with a third party, for the backstop provider to purchase (i) ordinary shares in open market transactions and (ii) from Venus ordinary shares in a private placement transaction exempt from registration under the Securities Act of 1933, as amended. Any purchases, either from Venus shareholders seeking to redeem ordinary shares, or from Venus were limited to up to $10 million in gross amount. The backstop provider was Ever Abundant Investments Limited.
In light of the termination of the agreement with Ever Abundant Investments Limited (see Item 1.02 below) Venus has entered into a new backstop agreement with WiMi Hologram Cloud, Inc., the majority shareholder of VIYI. Under the new agreement, WIMI will purchase (i) ordinary shares in open market transactions in connection with any tendered or proposed redemptions, and (ii) from Venus ordinary shares in a private placement transaction exempt from registration under the Securities Act of 1933, as amended. Any purchases, either from Venus shareholders seeking to redeem ordinary shares, or from Venus are limited to up to $15 million in gross amount Wimi has agreed that any ordinary shares acquired by it will not be subject to redemption under Venus corporate organizational documents and also waived any claims against Venus’ Trust Account.
A copy of the Backstop Agreement with WiMi included as part of this Form 8-K as Exhibit.
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Item 1.02 Termination of a Material Definitive Agreement
Venus and the prior backstop agreement third party, Ever Abundant Investments Limited, have mutually agreed to terminate the Backstop agreement dated as of June 10, 2021. Ever Abundant Investments Limited requested that it be released from its obligations as a result of its financial condition. Ever Abundant Investments Limited is a privately held third party and has no affiliation to Venus or its officers or directors.
Item 9.01 Financial Statements and Exhibits
(a) Financial statements of businesses or funds acquired.
Not Applicable
(b) Pro forma financial information
Not Applicable
(c) Shell company transactions.
Not Applicable
(d) Exhibits
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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: January 24, 2022 | ||
VENUS ACQUISITION CORPORATION |
||
By: | /s/ Yanming Liu | |
Name: | Yanming Liu | |
Title: | Chief Executive Officer |
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Exhibit 2.1
AMENDMENT NO. 1 TO MERGER AGREEMENT
Dated as of
January 24, 2022
by and among
VIYI Algorithm Inc.,
Venus Acquisition Corporation,
Venus Merger Sub Corp., and
WiMi Hologram Cloud Inc.
AMENDMENT NO. 1 TO MERGER AGREEMENT
This AMENDMENT NO. 1 TO MERGER AGREEMENT (the “Agreement”), dated as of January 24, 2022 (the “Signing Date”), by and among VIYI Algorithm Inc., a Cayman Islands exempted company (the “Company”), Venus Acquisition Corporation, a Cayman Islands exempted company (the “Purchaser”), Venus Merger Sub Corp., a Cayman Islands exempted company and wholly-owned subsidiary of the Purchaser (the “Merger Sub”) and WiMi Hologram Cloud Inc., a Cayman Islands company and the legal and beneficial owner of a majority of the issued and outstanding voting securities of the Company (“Majority Shareholder”). The Company, Purchaser, Merger Sub and Majority Shareholder are sometimes collectively referred to as the “Parties” and individually as a “Party”.
RECITALS
WHEREAS, the Parties have previously entered into that certain Merger Agreement dated as of June 10, 2021 (“Original Agreement”) whereby, among other things, VIYI will merge with Venus Merger Sub and VIYI will survive the merger as a wholly-owned subsidiary of Venus and continue its business operations (the “Merger”); and
WHEREAS, Venus has filed a combination Registration Statement and Proxy Statement on Form S-4 (SEC File No.: 333-257518) (“Registration Statement”) with the Securities and Exchange Commission (“SEC”) for the purpose of obtaining shareholder approval of the Merger and the other matters described therein;
WHEREAS, the Parties desire to amend certain terms, conditions and provisions of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties accordingly agree as follows.
1. Defined Terms. Terms not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Original Agreement.
2. Section 4.3 of the Original Agreement is hereby amended and restated to read as follows:
Section 4.3 Governmental Authorization. Other than as set forth on Schedule 4.3 annexed hereto, no consent, approval or authorization of, or designation, declaration to or filing with, notice to, or any other action by or in respect of, any governmental Authority or other Person is required on the part of the Company with respect to the Company’s execution, delivery and performance of this Agreement and each Transaction Document to which it is a party or the consummation of the transactions contemplated hereby and thereby, except for (a) the filing of the Plan of Merger in accordance with the Cayman Companies Act, (b) the SEC declaration of effectiveness of the Proxy/Registration Statement, and (c) any consents, approvals, authorizations, designations, declarations, filings, notices or actions, the absence of which would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.
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3. Section 4.24 of the Original Agreement is hereby amended and restated to read as follows:
Section 4.24 Affiliate Transactions. Other than as described on Schedule 4.24 annexed hereto or as described in the Registration Statement, no (a) Company Shareholder, (b) former or current director, officer, manager, indirect or direct equity holder, option holder or member of the Company or any of its Subsidiaries or (c) any Affiliate or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Securities Exchange Act of 1934), of any Person described in the foregoing clauses (a) or (b), in each case, other than the Company or any of its Subsidiaries (each a “Related Party”), is (i) a party to any Contract or business arrangement with the Company or any of its Subsidiaries, (ii) provides any services to, or is owed any money by or owes any money to, or has any claim or right against, the Company or any of its Subsidiaries (other than, in each case, compensation for services performed by a Person as director, officer, service provider or employee of the Company or any of its Subsidiaries and amounts reimbursable for routine travel and other business expenses in the Ordinary Course of Business), or (iii) directly or indirectly owns, or otherwise has any right, title or interest in, to or under, any tangible or intangible property, asset, or right that is, has been, or is currently planned to be used by the Company or any of its Subsidiaries (the Contracts, relationships, or transactions described in clauses (i) through (iii), the “Affiliate Transactions”).
4. The Parties consent and agree that the prior Backstop Agreement as contemplated in the Original Agreement and as described in the Registration Statement, between Ever Abundant Investments Limited and Venus Acquisition Corporation dated as of June 10, 2021, shall be terminated and of no force and effect. The Parties further agree that a new Backstop Agreement shall be provided, simultaneously with execution of this Agreement, by WiMi Hologram Cloud Inc. which shall provide for a capital commitment or purchase of Venus securities in the amount of up to $15,000,000. Section 5.21 of the Original Agreement is hereby amended and restated to read as follows:
Section 5.21 Backstop Investment. Annexed hereto is a true, correct and complete duly executed Backstop Agreement(s) providing for the acquisition or purchase by WiMi Hologram Cloud Inc. as the backstop provider for up to an aggregate amount of US$15,000,000 upon the terms and conditions therein, and such Backstop 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 or termination, amendment or modification in any material respect is contemplated by Purchaser. Such Backstop Agreement is a legal, valid and binding obligation of Purchaser and the backstop investor(s) thereunder, and neither the execution or delivery by any party thereto nor the performance of any party’s obligations thereunder violates any Laws. There is no other agreement, side letter, or arrangement between any of the Purchaser Parties and any investor relating to the Backstop Agreement that could affect in any material respect the obligation of the backstop investors thereunder. No Purchaser Party knows, as of the date of this Agreement, any facts or circumstances that may reasonably be expected to result in any of the conditions set forth in any Backstop Agreement not being satisfied. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of any of the Purchaser Parties under any material term or condition of the Backstop Agreement.
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5. Section 11.1 is hereby amended and restated to read as follows:
11.1 Termination without Default. In the event that the Closing of the transactions contemplated hereunder has not occurred by June 30, 2022 (the “Outside Closing Date”) and no material breach of this Agreement by the party seeking to terminate this Agreement shall have occurred or have been made (as provided in Section 11.2 hereof), the Purchaser Parties or the Company, as the case may be, shall have the right, at its sole option, to terminate this Agreement without liability to the other side. Such right may be exercised by Purchaser Parties or the Company, as the case may be, by giving written notice to the other at any time after the Outside Closing Date.
7. The Parties shall cooperate in good faith to expeditiously amend the Registration Statement as soon as possible to reflect the agreements and amendments to the Original Agreement described and provided herein and to seek effectiveness from the SEC.
8. This Agreement shall be construed in accordance with and governed by the laws of the State of New York, without giving effect to the conflict of laws principles thereof.
9. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement. This Agreement shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of original, photocopied, or electronically transmitted signature pages that together (but need not individually) bear the signatures of all other parties. A determination by a court or other legal authority that any provision that is not of the essence of this Agreement is legally invalid shall not affect the validity or enforceability of any other provision hereof. The parties shall cooperate in good faith to substitute (or cause such court or other legal authority to substitute) for any provision so held to be invalid a valid provision, as alike in substance to such invalid provision as is lawful.
[The remainder of this page intentionally left blank; signature page to follow]
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IN WITNESS WHEREOF, each of the parties have hereunto caused this Agreement to be duly executed as of the date first above written.
Signature Page
Exhibit 10.1
BACKSTOP AGREEMENT
This BACKSTOP AGREEMENT (this “Agreement”) is made as of this 24th day of January, 2022 by and between (i) Venus Acquisition Corporation (“SPAC” or “Issuer”), a Cayman Islands exempted company, and (ii) WiMi Hologram Cloud Inc., a company incorporated in the Cayman Islands (“Buyer”).
WHEREAS, Issuer was organized for the purpose of acquiring, through a merger, capital stock exchange, asset acquisition or other similar business combination, an operating business;
WHEREAS, this Agreement is being entered into in connection with that certain business combination agreement (the “Acquisition Agreement”), dated as of June 10, 2021 as amended, pursuant to which Issuer will consummate an acquisition of VIYI Algorithm Inc., a Cayman Islands company (“Target”) in a reverse merger (“Merger”) in accordance with the terms and conditions thereof; capitalized terms not otherwise defined herein shall have the same meaning ascribed to such terms in the Acquisition Agreement;
WHEREAS, a condition to closing of the Merger is that a third party undertake and agree to purchase securities of Issuer, either in open market transactions, private securities transactions or from shareholders of Issuer desiring to otherwise redeem their securities at the time of the Merger;
WHEREAS, Buyer is the beneficial owner of approximately 73% of the outstanding securities of Target and as a shareholder of Target desires to complete the transactions contemplated by the Acquisition Agreement; and
WHEREAS, in connection with the transactions contemplated under the Acquisition Agreement (“Business Combination”) and subject to the terms and conditions set forth in this Agreement, Buyer has agreed to backstop SPAC Share Redemptions (as defined in the Acquisition Agreement), together with any Purchase Amount (as defined below), for an amount up to US$15,000,000 (“Backstop Amount”), and to the extent such backstop is required, desires to subscribe for and purchase that number of ordinary shares1, par value US$0.001 per share (the “Issuer Shares”) to be determined in accordance with the terms hereof, and in such event, the Issuer desires to issue and sell to Buyer such number of Issuer Shares in consideration of the Subscription Amount (as defined below), all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
Article I
Purchase and Closing
Section 1.01 Purchase from Third Parties. The Buyer agrees that after SPAC files a proxy statement and/or registration statement relating to the transactions contemplated by the Acquisition Agreement (collectively, the “Registration Statement”), the Buyer will have the right but not the obligation to acquire up to US$15,000,000 aggregate amount of shares of SPAC in open market or private transactions at prices of no greater than the redemption price per Share disclosed in the most recently filed Registration Statement plus $0.05 (the “Price Per Share”). In order to effectuate the foregoing, to the extent legally permitted to do so, the Buyer shall enter bids at the Price Per Share (or at a lower price not less than $0.01 below the posted market offer price if and only if the posted market offer price is below the Price Per Share) on the business day after SPAC files the Registration Statement until the business day prior to the shareholder’s meeting relating to the Business Combination. The aggregate purchase amount of the Buyer hereof shall be referred to as “Purchase Amount.” The Buyer hereby agrees and undertakes that it will not exercise any right of redemption with respect to any shares of the SPAC it may acquire under this Section 1.01 (Purchase from Third Parties) hereof.
Section 1.02 Subscription from Issuer. Subject to the terms and conditions hereof, in the event that any holder of ordinary shares of SPAC, contemporaneously with or prior to the SPAC Shareholders’ Approval (as defined in the Acquisition Agreement), elects to have such holder’s ordinary shares redeemed by SPAC, Buyer hereby irrevocably subscribes for and agrees to purchase, and the Issuer hereby agrees to issue and sell to Buyer at the closing of the transactions contemplated by the Acquisition Agreement (the “Acquisition Closing”), upon the payment of the Subscription Amount (as defined below), the number of Issuer Shares (the “Subscribed Shares”) equal to the quotient obtained by dividing the Subscription Amount by the Price Per Share (the “Subscription”). The “Subscription Amount” shall mean an amount equal to the lesser of (i) any excess of Backstop Amount over the Purchase Amount, and (ii) the aggregate amount payable by SPAC in respect of any SPAC Share Redemptions (as defined in the Acquisition Agreement).
Section 1.03 Subscription Closing. The closing of the Subscription contemplated hereby (the “Subscription Closing”, together with the Acquisition Closing, the “Closings” and “Closing” shall mean either of them) shall occur on the same day, and substantially concurrent with, consummation of the Acquisition Closing (the date of the Closings, “Closing Date”) subject to the terms and conditions set forth herein. Not less than ten (10) business days prior to the anticipated Closing Date, the Issuer shall provide written notice to Buyer of such anticipated Closing Date (the “Closing Notice”) of such anticipated Closing Date. Not less than five (5) business days prior to the anticipated Closing Date (as specified in the Closing Notice), SPAC shall provide written notice to Buyer of the aggregate amount payable in respect of the SPAC Share Redemptions (as defined in the Acquisition Agreement), together with a certificate duly executed by an officer or director of SPAC certifying such aggregate amount (the “Redemption Notice”). Buyer shall deliver to the Issuer on or before two (2) business days prior to the anticipated Closing Date the Subscription for the Subscribed Shares by wire transfer of U.S. dollars in immediately available funds to the escrow account specified by the Issuer in the Closing Notice, to be held by the escrow agent until the Acquisition Closing. As soon as reasonably practicable following the Closing Date, but not later than [one (1)] business day after the Closing Date, the Issuer shall deliver to Buyer (1) the Subscribed Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under applicable securities laws), in the name of Buyer (or its nominee in accordance with its delivery instructions) or to a custodian designated by Buyer, as applicable; and (2) a copy of the records of the Issuer’s transfer agent (the “Transfer Agent”) or other evidence showing Buyer as the owner of the Subscribed Shares on and as of the Closing Date. In the event the Closing Date does not occur within two (2) business days after the anticipated Closing Date identified in the Closing Notice, the Issuer shall cause the escrow agent to promptly (but not later than five (5) business days thereafter) return the Subscription Amount to Buyer by wire transfer of U.S. dollars in immediately available funds to the account specified by Buyer, and any book entries shall be deemed cancelled; provided that unless this Backstop Agreement has been terminated pursuant to Section 5.01 (Termination), such return of funds shall not terminate this Backstop Agreement or relieve Buyer of its obligation to purchase the Subscribed Shares at the Subscription Closing upon delivery of a new Closing Notice in accordance with the terms of this Agreement.
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Section 1.04 Conditions Precedent to Subscription.
(A) | Issuer’s obligations to sell and issue the Subscribed Shares at the Subscription Closing are subject to the fulfillment or (to the extent permitted by applicable law) written waiver, on or prior to the Closing Date, of each of the following conditions: |
(i) | Buyer Representations and Warranties. The representations and warranties made by Buyer in Article III shall be true and correct as of the Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date). |
(ii) | Acquisition Closing. All conditions precedent to the Acquisition Closing as set forth in the Acquisition Agreement shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Acquisition Closing but subject to satisfaction or waiver thereof), and the Subscription Closing will be consummated on the same day, and substantially concurrent with, the Acquisition Closing. |
(iii) | No Injunction. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or regulation enjoining or prohibiting the consummation of the Subscription. |
(iv) | Performance. Buyer shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Subscription Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the ability of the Buyer to consummate the Subscription Closing. |
(B) | Buyer’s obligations to sell and issue the Subscribed Shares at the Subscription Closing are subject to the fulfillment or (to the extent permitted by applicable law) written waiver, on or prior to the Closing Date, of each of the following conditions: |
(i) | Issuer Representations and Warranties. The representations and warranties made by Issuer in Article II shall be true and correct as of the Closing Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date). |
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(ii) | Acquisition Closing. All conditions precedent to the Acquisition Closing as set forth in the Acquisition Agreement shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Acquisition Closing but subject to satisfaction or waiver thereof), and the Subscription Closing will be consummated on the same day, and substantially concurrent with, the Acquisition Closing. |
(iii) | No Injunction. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, law, statute, rule or regulation enjoining or prohibiting the consummation of the Subscription. |
(iv) | Performance. Issuer shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Subscription Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the ability of the Issuer to consummate the Subscription Closing. |
(v) | Redemptions by Issuer IPO Shareholders. Stockholders of Issuer entitled to redeem their ordinary shares in accordance with the Issuer’s organizational documents have duly and properly elected to redeem ordinary shares. |
Section 1.05 No Short Sales. Buyer hereby agrees that neither it, its affiliates, nor any person or entity acting on its behalf or pursuant to any understanding with the Buyer, shall, directly or indirectly, engage in any hedging activities or execute any Short Sales (as defined below) with respect to the securities of SPAC prior to the Closing or the earlier termination of this Backstop Agreement in accordance with its terms. “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers. Notwithstanding the foregoing, in the case of a Buyer that is a multi-managed investment bank or vehicle whereby separate portfolio managers manage separate portions of such Buyer’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Buyer’s assets, this Section 1.05 (No Short Sales) shall apply only with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the relevant securities covered by this Backstop Agreement..
Article II
Representations and Warranties of Issuer
Issuer hereby represents and warrants to Buyer on the date hereof and as of the Subscription Closing that:
Section 2.01 Organization. Issuer is duly formed in the jurisdiction of its organization and has the requisite corporate power and authority to execute, deliver and carry out the terms of this Agreement and to consummate the transactions contemplated hereby.
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Section 2.02 Authority; Non-Contravention. This Agreement has been validly authorized, executed and delivered by Issuer and assuming the due authorization, execution and delivery thereof by the other parties hereto, is a valid and binding agreement enforceable in accordance with its terms, subject to the general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally. The execution, delivery and performance of this Agreement by Issuer does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which Issuer is a party which would prevent Issuer from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which Issuer is subject.
Section 2.03 Governmental Approvals. All consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings with any governmental or other authority on the part of Issuer required in connection with the consummation of the transactions contemplated in the Agreement have been or shall have been obtained prior to and be effective as of the Subscription Closing.
Section 2.04 No Brokers. No broker, investment banker, financial advisor, finder or other person has been retained by or is authorized to act on behalf of Issuer that will be entitled to any fee or commission for which Buyer will be liable in connection with the execution of this Agreement or the consummation of the transactions contemplated hereby.
Section 2.05 No Litigation. There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or threatened against or affecting the Issuer or any of the Issuer’s properties or rights that affects or would reasonably be expected to affect the Issuer’s ability to consummate the transactions contemplated by this Agreement, nor is there any decree, injunction, rule or order of any governmental authority or arbitrator outstanding against the Issuer or any of the Issuer’s properties or rights that affects or would reasonably be expected to affect the Issuer’s ability to consummate the transactions contemplated by this Agreement.
Section 2.06 Securities Law Compliance. In connection with the offer, sale and delivery of the Subscribed Shares in the manner contemplated by this Agreement, no registration under the Securities Act is required for the offer and sale of the Subscribed Shares by the Issuer to Buyer. The Subscribed Shares (i) were not offered to Buyer by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
Article III
Representations and Warranties of the Buyer
Buyer hereby represents and warrants to Issuer on the date hereof and as of the Subscription Closing that:
Section 3.01 Organization. Buyer is duly incorporated, validly existing and in good standing in the jurisdiction of its incorporation. Buyer has the requisite corporate power and authority to execute, deliver and carry out the terms of this Agreement and to consummate the transactions contemplated hereby.
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Section 3.02 Authority; Non-Contravention. This Agreement has been validly authorized, executed and delivered by Buyer and assuming the due authorization, execution and delivery thereof by the other parties hereto, is a valid and binding agreement enforceable in accordance with its terms, subject to the general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally. The execution, delivery and performance of this Agreement by Buyer does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which Buyer is a party which would prevent Buyer from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which Buyer is subject.
Section 3.03 Governmental Approvals. All consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings with any governmental or other authority on the part of Buyer required in connection with the consummation of the transactions contemplated in the Agreement have been or shall have been obtained prior to and be effective as of the Subscription Closing.
Section 3.04 Sophisticated Buyer. Buyer is sophisticated in financial matters and is able to evaluate the risks and benefits attendant to the purchase of Issuer Shares.
Section 3.05 No Brokers. No broker, investment banker, financial advisor, finder or other person has been retained by or is authorized to act on behalf of Buyer that will be entitled to any fee or commission for which Issuer will be liable in connection with the execution of this Agreement or the consummation of the transactions contemplated hereby.
Section 3.06 Securities Law Compliance. The Buyer has been advised that the offer and sale of the Shares by Venus has not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any other securities laws and, therefore, none of the Shares purchased at the Closing can be resold unless they are registered under the Securities Act and applicable securities laws or unless an exemption from such registration requirements is available. The Buyer understands that the Subscribed Shares will be considered to be “restricted securities” under the Securities Act, and that, therefore, the Buyer will not be eligible to use Rule 144 promulgated under the Securities Act for at least one year after “Form 10” information relating to the Business Combination has been filed with the SEC. The Buyer is acquiring the Shares for Buyer’s own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof. The Buyer represents that it is an “accredited investor” as such term is defined in Rule 501 of Regulation D, promulgated under the Securities Act, and that the Buyer is not subject to the “Bad Actor” disqualification, as such terms is defined in Rule 506 of Regulation D, promulgated under the Securities Act.
Article IV
Acknowledgement; CLEANSING STATEMENT
Section 4.01 Acknowledgement. Buyer acknowledges that may possess or have access to material non-public information which has not been and will not be communicated to Buyer.
Section 4.02 Cleaning Statement. SPAC shall, by no later than 9:00 a.m., New York City time, no later than the third (3rd) business day immediately following the date of this Agreement, issue one (1) or more press releases or file with the Securities and Exchange Commission a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and the Business Combination and any other material, nonpublic information that the Issuer or its representatives has provided to the Buyer at any time prior to the filing of the Disclosure Document. From and after the issuance of the Disclosure Document, to the Issuer’s knowledge, Buyer shall not be in possession of any material, non-public information received from the Issuer or the Target or any of their respective officers, directors, employees or agents relating to the transactions contemplated by this Backstop Agreement, and the Buyer shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral with Issuer, the Target or any of their affiliates, relating to the transactions contemplated by this Agreement.
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Article V
Miscellaneous
Section 5.01 Termination. This Agreement shall terminate on the earlier of (i) the mutual written agreement of each parties hereto, (ii) the date the Acquisition Agreement is terminated pursuant to the terms and conditions thereof, and (iii) June 30, 2022 if the Acquisition Closing has not occurred on or prior to such date; provided that nothing herein will relieve any party from liability for any willful and material breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach..
Section 5.02 Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. This Agreement or any counterpart may be executed via facsimile transmission, and any such executed facsimile copy shall be treated as an original.
Section 5.03 Governing Law. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of New York. Each of the parties hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall, to the fullest extent applicable, be brought and enforced first in the Southern District of New York, then to such other court in the State of New York as appropriate and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
Section 5.04 Remedies Cumulative. Each of the parties hereto acknowledges and agrees that, in the event of any breach of any covenant or agreement contained in this Agreement by the other party, money damages may be inadequate with respect to any such breach and the non-breaching party may have no adequate remedy at law. It is accordingly agreed that each of the parties hereto shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to seek injunctive relief and/or to compel specific performance to prevent breaches by the other party hereto of any covenant or agreement of such other party contained in this Agreement. Accordingly, each of the parties hereto hereby agrees to waive (i) any requirement for the posting of any bond in connection with such request for an injunction, (ii) its right to assert any counterclaims and (iii) its right to assert set-off as a defense. The prevailing party agrees to pay all costs and expenses, including reasonable attorneys’ and experts’ fees that such prevailing party may incur in connection with the enforcement of this Agreement.
Section 5.05 Severability. If any term, provision or covenant of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions and covenants of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
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Section 5.06 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns.
Section 5.07 Headings. The descriptive headings of the Sections hereof are inserted for convenience only and do not constitute a part of this Agreement.
Section 5.08 Entire Agreement; Changes in Writing. This Agreement constitutes the entire agreement among the parties hereto and supersedes and cancels any prior agreements, representations and warranties, whether oral or written, among the parties hereto relating to the transaction contemplated hereby. Neither this Agreement nor any provision hereof may be changed or amended orally, but only by an agreement in writing signed by the other party hereto.
Section 5.09 Further Assurances. If at any time any of the parties hereto shall consider or be advised that any further documents or actions are necessary or desirable to vest, perfect or confirm of record or otherwise the rights, title or interest in or to the Subscribed Shares or under or otherwise pursuant to this Agreement, the parties hereto shall execute and deliver such further documents or take such actions and provide all assurances and to take and do all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in or to the Subscribed Shares or under or otherwise pursuant to this Agreement.
Section 5.10 Waiver of Claims Against Trust. Reference is made to the final prospectus of SPAC, filed with the Securities Exchange Commission on February 3, 2021 (the “Prospectus”). Buyer warrants and represents that it has read the Prospectus and understands that SPAC has established a trust account containing the proceeds of its initial public offering (“IPO”) and from certain private placements occurring simultaneously with the IPO (collectively, with interest accrued from time to time thereon, the “Trust Fund”) for the benefit of SPAC’s public shareholders (“Public Shareholders”) and certain parties (including the underwriters of the IPO) and that, except for a portion of the interest earned on the amounts held in the Trust Fund, SPAC may disburse monies from the Trust Fund only under limited circumstances as set forth in the Prospectus.
For and in consideration of Issuer’s execution of this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer hereby agrees that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Fund or distributions therefrom, or make any claim against, the Trust Fund, regardless of whether such claim arises as a result of, in connection with or relating in any way to, any proposed or actual business relationship between SPAC and Buyer, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Claims”). Buyer hereby irrevocably waives any Claims it may have against the Trust Fund (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, contracts or agreements with SPAC and will not seek recourse against the Trust Fund (including any distributions therefrom) for any reason whatsoever (including, without limitation, for an alleged breach of this Agreement). Buyer agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by SPAC to induce it to enter in this Agreement, and Buyer further intends and understands such waiver to be valid, binding and enforceable under applicable law. This Section 5.10 (Waiver of Claims against Trust) shall survive the termination of this Agreement for any reason.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth on the first page of this Agreement.
Venus Acquisition Corporation | ||
By: | ||
Name: | Yanming Liu | |
Title: | CEO | |
WiMi Hologram Cloud Inc. | ||
By: | ||
Name: | Shuo Shi | |
Title: | CEO |
Signature Page to Backstop Agreement
Exhibit 10.2
BACKSTOP TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this “Agreement”) is made as of January 24, 2022, by and between Venus Acquisition Corporation (the “Company”) and Ever Abundant Investments Limited (the “Subscriber”). The Company and the Subscriber are hereinafter collectively referred to as the “Parties” for the purpose of this Agreement.
WHEREAS, each of the Company and the Subscriber is party to that certain Backstop Agreement dated as of June 10, 2021 (the “Subscription Agreement”), pursuant to which the Subscriber irrevocably committed to purchase, upon the terms and conditions contained therein, up to US$10,000,000 of ordinary shares, simultaneously with or immediately prior to the closing of the Company’s initial business combination, which ordinary shares would be purchased in one or more open market purchases or in privately negotiated transactions with third parties or directly with the Company; and
WHEREAS, the Parties desire to cause the Backstop Agreement to be terminated.
NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Subscription Agreement.
2. Termination. The Backstop Agreement is hereby terminated effective immediately. The Subscription Agreement shall be of no further force or effect, and neither the Company nor the Subscriber, nor any of their respective affiliates or successors in interest, shall have any further rights or obligations thereunder or any continuing liability to any party thereto (or any affiliate of any party thereto) arising out of, under or in respect of the Backstop Agreement.
3. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement shall be prohibited by or invalid under such law, it shall be deemed modified to conform to the minimum requirements of such law and the parties will attempt to modify this Agreement by insertion, deletion or revision so as to accomplish the original intent in a fashion that is not so prohibited or invalid.
4. Successors. This Agreement shall inure to the benefit of and bind (i) any and all heirs, successors in interest, assigns, officers, members or employees of the Parties, as applicable and (ii) any persons or entities that acquire assignee or all or substantially all of the assets or a portion of the assets of assignee, whether by asset sale, equity transfer, merger, combination or otherwise.
5. Venue. The Parties irrevocably submit exclusively to the jurisdiction of the State of New York and the venue of New York County in any action brought by the Parties concerning this Agreement or the performance thereof.
6. Choice of Law. This Agreement shall be governed by, construed and entered in accordance with the laws of the State of New York applicable to contracts deemed to be made within such state, without regard to choice of law or conflict of law provisions thereof.
7. Interpretation. No provision of this Agreement shall be interpreted or construed against any Party because that Party or its legal representative drafted it.
8. Counterparts. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered to the other party shall be deemed an original. The executed page(s) from each original may be joined together and attached to one such original and shall thereupon constitute one and the same instrument. Such counterparts may be delivered by facsimile or other electronic transmission, which shall not impair the validity thereof.
[Signature Page to Follow]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first written above.
Venus Acquisition Corporation | Ever Abundant Investments Limited | |||
By: | ||||
Name: | Yanming Liu | Name: | Baoju Dong | |
Title: | Chief Executive Officer | Title: | Chief Executive Officer |
[Signature Page to Termination Agreement]