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THIS AMENDMENT NO. 3 TO INVESTMENT AND SECURITIES PURCHASE AGREEMENT, dated September30, 2017 (this Third Amendment), is between General Moly,Inc., a Delaware corporation, (the Company), and Amer International Group Co.,Ltd., a limited liability company organized under the laws of the Peoples Republic of China (Purchaser). Capitalized terms used, but not defined herein, shall have the meanings assigned to them in the Agreement, as defined below. |
(b) Tranche 2 Closing. Subject to the satisfaction or waiver of the conditions set forth in Section7.2, the completion of the purchase and sale of the Tranche 2 Securities (the Tranche 2 Closing) shall occur at 10:00 a.m.local time at the offices of Bryan Cave LLP, Denver, Colorado, on October16, 2017, or at such other location, date and time as may be mutually agreed upon by the Company and Purchaser. The date of the Tranche 2 Closing is referred to herein as the Tranche 2 Closing Date. |
(i) the Tranche 1 Closing shall not have occurred on or before December31, 2015, the Tranche 2 Closing shall not have occurred on or before October16, 2017, or the Tranche 3 Closing shall not have occurred on or before the later of March31, 2018 or 90 days after the occurrence of the earlier of the events described in 7.3(c)(vii); |
This Forward Purchase Agreement (this Agreement) is entered into as of [], between One Madison Corporation, a Cayman Islands exempted company (the Company), the party listed as the purchaser on the signature page hereof (the Purchaser) and, solely for the purposes of Section 7 hereof, One Madison Group LLC (the Sponsor). |
WHEREAS, the parties wish to enter into this Agreement, pursuant to which (i) immediately prior to the closing of the Companys initial Business Combination (the Business Combination Closing), the Company shall issue and sell, and the Purchaser shall purchase, on a private placement basis, the number of Class A ordinary shares, par value $0.0001 per share (the Class A Shares) determined pursuant to Section 1(a)(ii) hereof (together, the Forward Purchase Shares) and the applicable number of warrants (the Warrants) set forth on the signature page to this Agreement, with one Warrant being issuable to the Purchaser per each increment of three Forward Purchase Shares actually issued and sold to the Purchaser hereunder (the Forward Purchase Warrant(s) and together with the Forward Purchase Shares, the Forward Purchase Securities) and (ii) concurrently herewith, the Company will issue and sell, and the Purchaser will purchase, on a private placement basis, Class B ordinary shares of the Company, par value $0.0001 per share (the Class B Share(s)), in an amount equal to the Class B Shares Purchase Amount (as defined in Exhibit B), in each case on the terms and conditions set forth herein; |
WHEREAS, the Company has entered into or intends to concurrently with this Agreement enter into agreements (collectively, the Forward Contracts) in the form of this Agreement with other parties (together with the Purchaser, the Forward Contract Parties and each, a Forward Contract Party) for the purchase of Class A Shares and/or Class C ordinary shares of the Company, par value $0.0001 per share (the Class C Share(s)) and Warrants upon the Business Combination Closing (all Class A Shares and Class C Shares subject to be purchased pursuant to such Forward Contracts, together with the Forward Purchase Shares, collectively, the Total Forward Purchase Shares), and for the purchase of Class B Shares upon execution of such Forward Contracts; |
(i) The Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, the number of Forward Purchase Shares set forth on the signature page to this Agreement next to the line item Number of Forward Purchase Shares, plus the number of Forward Purchase Warrants set forth on the signature page to this Agreement next to the line item Number of Forward Purchase Warrants, for an aggregate purchase price of $10.00 multiplied by the number of Forward Purchase Shares issued and sold hereunder (the FPS Purchase Price). No fractional Forward Purchase Warrants will be issued. |
(iii) The Company shall require the Purchaser to purchase the number of Forward Purchase Shares and the corresponding number of Forward Purchase Warrants provided pursuant to Section 1(a)(i) hereof by delivering notice to the Purchaser, at least ten (10) Business Days before the funding of the FPS Purchase Price to the escrow account, specifying the number of Forward Purchase Shares and Forward Purchase Warrants the Purchaser is required to purchase, the anticipated date of the Business Combination Closing, the aggregate FPS Purchase Price and instructions for wiring the FPS Purchase Price to an account of a third-party escrow agent which shall be the Companys transfer agent (the Escrow Agent) pursuant to an escrow agreement between the Company and the Escrow Agent (the Escrow Agreement). At least two (2) Business Days before the anticipated date of the Business Combination Closing specified in such notice, the Purchaser shall deliver the FPS Purchase Price in cash via wire transfer to the account specified in such notice, to be held in escrow pending the Business Combination Closing. If the Business Combination Closing does not occur within thirty (30) days after the Purchaser delivers the FPS Purchase Price to the Escrow Agent, the Escrow Agreement will provide that the Escrow Agent automatically return to the Purchaser the FPS Purchase Price, provided that the return of the funds placed in escrow shall not terminate the Agreement or otherwise relieve either party of any of its obligations hereunder. For the purposes of this Agreement, Business Day means any day, other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions are generally authorized or required by law or regulation to close in the City of New York, New York. |
(b) Class B Shares. The Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, the number of Class B Shares set forth on the signature page to this Agreement next to the line item Class B Shares Purchase Amount which shall be calculated in accordance with the definition of Class B Shares Purchase Amount set forth in Exhibit B, for a purchase price of $0.01 per whole Class B Share. Certain of the Class B Shares acquired by the Purchaser hereunder are subject to forfeiture in accordance with Section 6(b) hereof. The closing of the sale of the Class B |
Shares (the Class B Share Closing) shall take place concurrently with the execution of this Agreement. At the Class B Share Closing, the Company will issue to the Purchaser the Class B Shares to be sold hereunder, each registered in the name of the Purchaser, against (and concurrently with) delivery of the Class B Purchase Price in cash via wire transfer to an account specified in writing by the Company no later than two (2) Business Days prior to the date hereof. |
(i) The Company shall register the Purchaser as the owner of the Forward Purchase Securities and Class B Shares purchased by the Purchaser hereunder (individually or collectively, the Securities) in the register of members of the Company and with the Companys transfer agent by book entry on or promptly after (but in no event more than two (2) Business Days after) the date of the FPS Closing and the Class B Share Closing, respectively. |
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (c) to the extent the indemnification provisions contained in the Registration Rights may be limited by applicable federal or state securities laws. |
(d) Compliance with Other Instruments. The execution, delivery and performance by the Purchaser of this Agreement and the consummation by the Purchaser of the transactions contemplated by this Agreement will not result in any violation or default (i) of any provisions of its organizational documents, if applicable, (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 the Purchaser, in each case (other than clause (i)), which would have a material adverse effect on the Purchaser or its ability to consummate the transactions contemplated by this Agreement. |
(e) Purchase Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchasers representation to the Company, which by the Purchasers execution of this Agreement, the Purchaser hereby confirms, that the Securities to be acquired by the Purchaser will be acquired for investment for the Purchasers own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of law. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Securities. If the Purchaser was formed for the specific purpose of acquiring the Securities, each of its equity owners is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. For purposes of this Agreement, Person means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or any government or any department or agency thereof. |
(k) Foreign Investors. If the Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Code), the Purchaser hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Securities or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Securities. The Purchasers subscription and payment for and continued beneficial ownership of the Securities will not violate any applicable securities or other laws of the Purchasers jurisdiction. |
(l) No General Solicitation. Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including, through a broker or finder (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the offer and sale of the Securities. |
(m) Residence. If the Purchaser is an individual, then the Purchaser resides in the state or province identified in the address of the Purchaser set forth on the signature page hereof; if the Purchaser is a partnership, corporation, limited liability company or other entity, then its principal place of business is the office or offices located at the address or addresses of the Purchaser set forth on the signature page hereof. |
(a) Organization and Corporate Power. The Company is an exempted company duly incorporated and validly existing and in good standing as an exempted company under the laws of the Cayman Islands and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. The Company has no subsidiaries. |
(c) Authorization. All corporate action required to be taken by the Companys Board of Directors and shareholders in order to authorize the Company to enter into this Agreement, and to issue the Securities at the Class B Share Closing and the FPS Closing, and the securities issuable upon conversion or exercise of the Securities, has been taken or will be taken prior to the Class B Share Closing and the FPS Closing, as applicable. All action on the part of the shareholders, directors and officers of the Company necessary for the execution and delivery of this Agreement, the performance of all obligations of the Company under this Agreement to be performed as of the Class B Share Closing and the FPS Closing, and the issuance and delivery of the Securities and the securities issuable upon conversion or exercise of the Securities has been taken or will be taken prior to the Class B Share Closing and the FPS Closing, as applicable. This Agreement, when executed and delivered by the Company, shall constitute the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (iii) to the extent the indemnification provisions contained in the Registration Rights may be limited by applicable federal or state securities laws. |
(ii) No bad actor disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a Disqualification Event) is applicable to the Company or, to the Companys knowledge, any Company Covered Person (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(iiiv) or (d)(3), is applicable. Company Covered Person means, with respect to the Company as an issuer for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1). |
(h) Foreign Corrupt Practices. Neither the Company, nor any director, officer, agent, employee or other Person acting on behalf of the Company has, in the course of its actions for, or on behalf of, the Company (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee. |
(i) Compliance with Anti-Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, but not limited to, those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the USA Patriot Act of 2001 and the applicable money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Anti-Money Laundering Laws), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened. |
(j) Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self- regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company or any of the Companys officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such. |
(l) Issuance Totals. Prior to or concurrently with the execution and delivery of this Agreement the Company has or is entering into forward purchase agreements providing for the sale of an aggregate of 3,750,000 Class B Shares, and the purchase of up to an aggregate of 15,000,000 Forward Purchase Shares and 5,000,000 Forward Purchase Warrants (in each case including the Class B Shares, Forward Purchase Shares and Forward Purchase Warrants purchased and sold under this Agreement). |
4\. Right of First Refusal. Subject to the terms and conditions of this Section 4, if, in connection with or prior to the Business Combination Closing, the Company proposes to issue any equity securities, or securities convertible into, exchangeable or exercisable for equity securities (including working capital loans to the Company to finance transaction costs in connection with an intended initial Business Combination to the extent they may be convertible at the option of the lender into warrants of the post- Business Combination entity (Working Capital Loans)), other than the Public Units (and their component Class A Shares (the Public Shares) and Public Warrants) and Excluded Securities (as defined below) (New Equity Securities), or offer or seek commitments for any New Equity Securities to backstop any such capital raise, the Company shall first make an offer of the New Equity Securities to the Purchaser in accordance with the following provisions of this Section 4: |
(i) The Company shall give written notice (the Offering Notice) to the Purchaser and the other Forward Contract Parties stating its bona fide intention to offer the New Equity Securities and specifying the number of New Equity Securities and the material terms and conditions, including the price, pursuant to which the Company proposes to offer the New Equity Securities and the applicable pro rata share of such New Equity Securities offered to the Purchaser pursuant to such Offering Notice. |
(i) Upon receipt of the Offering Notice, the Purchaser shall have until the end of the ROFR Notice Period to accept the Companys offer to purchase all (but not less than all) of its pro rata share of the New Equity Securities, based on the number of Forward Purchase Shares the Purchaser has agreed to purchase hereunder out of the total number of Class A Shares that the Purchaser and other Forward Contract Parties have agreed to purchase at the FPS Closing, by delivering a written notice (a |
(ii) If the Purchaser does not deliver a ROFR Notice during the ROFR Notice Period, the Purchaser shall be deemed to have waived all of the Purchasers rights to purchase the New Equity Securities offered pursuant to the Offering Notice under this Section 4. Thereafter, the Company shall, within five (5) Business Days after the expiration of the ROFR Notice Period, give an Offering Notice to all other Forward Contract Parties who have delivered a ROFR Notice to the Company during the ROFR Notice Period accepting the Companys initial offer to purchase the New Equity Securities, informing them that they have the right to increase the number of New Equity Securities that they have accepted pursuant to the initial ROFR Notice. Each such Forward Contract Party shall then have two (2) Business Days (the Subsequent Offering Period) in which to accept such second offer, by giving notice of acceptance (the Subsequent ROFR Notice) to the Company prior to the expiration of the Subsequent Offering Period, as to such Forward Contract Partys pro rata share of the Purchasers portion of the New Equity Securities not accepted pursuant to the initial Offering Notice to the Purchaser. |
(iii) If any Forward Contract Party does not deliver the Subsequent Offer Notice to the Company prior to the expiration of the Subsequent Offering Period, such Forward Contract Party shall be deemed to have waived all of such partys rights to purchase New Equity Securities in such second offer by the Company. The Company shall thereafter be free to sell or enter into an agreement to sell the Purchasers pro rata portion of such New Equity Securities to any third party (including any other Forward Contract Parties who accepted such second offer) without any further obligation to the Purchaser pursuant to this Section 4 within the ninety (90) day period thereafter (and with respect to an agreement to sell, consummate such sale at any time thereafter) on terms and conditions not more favorable to the third party than those set forth in any Offering Notice. If the Company does not sell or enter into an agreement to sell the Purchasers pro rata portion of the New Equity Securities within such period, the rights provided hereunder shall be deemed to be revived and the New Equity Securities shall not be offered to any third party unless first re-offered to the Purchaser in accordance with this Section 4. |
(c) Excluded Securities. For purposes hereof, the term Excluded Securities means Class B Shares (and Class A Shares and/or Class C Shares for which such Class B Shares are convertible) issued to the Sponsor prior to the IPO, private placement warrants issued by the Company to the Forward Contract Parties in connection with the IPO for $1.00 per warrant for an aggregate of $7,000,000 (or $7,750,000 if the underwriters over-allotment option is exercised in full) and which have the same exercise price as the Warrants (Private Placement Warrants) issued pursuant to a private placement agreement between the Forward Contract Parties and the Company (the Private Placement Warrant Agreement), warrants issued upon the conversion of Working Capital Loans, any securities issued by the Company as consideration to any seller in the Business Combination, any Class A Shares, Class B Shares (and Class A Shares and/or Class C Shares for which such Class B Shares are convertible), Class C Shares (and Class A Shares for which such Class C Shares are convertible) and Forward Purchase Warrants issued pursuant to this Agreement or the Forward Contracts. |
(d) Additional Private Placements. Notwithstanding anything to the contrary contained herein, prior to the IPO, the Company will not issue or agree to issue any securities (other than Forward Purchase Securities in the amounts set forth in Section 3(l), Private Placement Warrants and the Public Units) without the Purchasers prior written consent. |
(a) Prior to entering into any definitive agreement setting forth the terms and conditions of, and binding the Company (subject to any conditions and qualifications set forth in such agreement) to effect, a Business Combination, any agreement relating to the forfeiture of founder shares or any other material agreement to be executed in connection with such definitive agreement (collectively, a Business Combination Agreement), the Company shall give written notice (the BC Notice) to the Purchaser and the other Forward Contract Parties stating its bona fide intention to enter into a Business Combination |
(b) Upon receipt of the BC Notice, the Purchaser shall have ten (10) Business Days (the Initial BC Notice Period) to deliver to the Company a written notice (the Response Notice), which shall specify whether the Purchaser consents to the Business Combination. Any Response Notice so delivered shall be binding upon delivery and irrevocable by the Purchaser. If the Purchaser does not deliver a Response Notice before the expiration of the Initial BC Notice Period, the Purchaser shall be deemed to have not consented to the Business Combination. If the terms of the proposed Business Combination Agreement, or, to the knowledge of the Company after due inquiry, the condition of the target in the subject transaction, change materially following the Purchasers consent to the Business Combination and before the Company enters into a definitive agreement with respect thereto, the Company will provide a subsequent BC Notice to Purchaser which shall describe such material changes. Upon receipt of the subsequent BC Notice, Purchaser shall have ten (10) Business Days (the Second BC Notice Period) to deliver a written notice (the Second Response Notice), which shall specify whether the Purchaser still consents to the Business Combination to the Company. Any Second Response Notice so delivered shall be binding upon delivery and irrevocable by the Purchaser. If the Purchaser does not deliver the Second Response Notice before the expiration of the Second BC Notice Period, the Purchaser shall be deemed to have not consented to the Business Combination notwithstanding any prior consent delivered by the Purchaser prior to the expiration of the Initial BC Notice Period. |
Parties in the event that any material amendment to such Business Combination Agreement is proposed, describing in detail such material amendment. Upon receipt of the Amendment Notice, the Purchaser shall have ten (10) Business Days (the Amendment Notice Period) to deliver to the Company a written notice (the Amendment Response), which shall specify whether the Purchaser consents to the amendment to the Business Combination Agreement. Any Amendment Response so delivered shall be binding upon delivery and irrevocable by the Purchaser. If Purchaser does not deliver an Amendment Response before the expiration of the Amendment Notice Period, the Purchaser shall be deemed to have not consented to the amendment to the Business Combination Agreement. Prior to entering into any such material amendment to a Business Combination Agreement, the Company shall have received the consent of Forward Contract Parties that have committed to purchase more than 50% of the Total Forward Purchase Shares. |
(ii) The Purchaser hereby agrees that it shall have no right of set-off or any right, title, interest or claim of any kind (Claim) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future, except for redemption and liquidation rights, if any, the Purchaser may have in respect of any Public Shares held by it. In the event the Purchaser has any Claim against the Company under this Agreement, the Purchaser shall pursue such Claim solely against the Company and its assets outside the Trust Account and not against the property or any monies in the Trust Account, except for redemption and liquidation rights, if any, the Purchaser may have in respect of any Public Shares held by it. |
(d) Redemption and Liquidation. The Purchaser hereby waives, with respect to any Class B Shares (including the Class A Shares into which such Class B Shares are convertible) held by it, any redemption rights it may have in connection with (i) the consummation of a Business Combination, including any such rights available in the context of a shareholder vote to approve such Business Combination and (ii) any shareholder vote to approve an amendment to the Charter that would affect the substance or timing of the Companys obligation to redeem 100% of the Class A Shares sold in the IPO if |
the Company has not consummated an initial Business Combination within the time period set forth in the Charter or in the context of a tender offer made by the Company to purchase Class A Shares, it being understood that the. Purchaser shall be entitled to redemption and liquidation rights with respect to any Public Shares held by it. |
(e) Voting. Subject to the conditions set forth in Section 5 hereof, the Purchaser hereby agrees that if the Company seeks shareholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the Purchaser shall vote any Class B Shares and Class A Shares owned by it in favor of any proposed Business Combination. If the Purchaser fails to vote any Class B Shares or Class A Shares it is required to vote hereunder in favor of a Proposed Business Combination, the Purchaser hereby grants hereunder to the Company and any representative designated by the Company without further action by the Purchaser a limited irrevocable power of attorney to effect such vote on behalf of the Purchaser, which power of attorney shall be deemed to be coupled with an interest. |
(b) Sponsor Class B Share Lock-up. The Sponsor agrees that, without the prior written consent of Forward Contract Parties that have committed to purchase more than 50% of the Total Forward Purchase Shares, the Sponsor shall not, and shall cause its controlled affiliates or any Sponsor-Affiliate (as defined below) and their permitted transferees not to, Transfer any Class B Shares or Class A Shares into which such Class B Shares are convertible (or, following a Business Combination, any shares of common stock or other equity security into which the Class A Shares are convertible or reclassified) (the Sponsor Shares) until the third anniversary of the Business Combination Closing. Notwithstanding the foregoing, the Sponsor, its affiliates, any Sponsor- Affiliate and their permitted transferees will be permitted to Transfer the Sponsor Shares in accordance with the exceptions set forth in Section 6(a) of this Agreement (subject to the proviso thereof that in the case of clauses (i) through (vi) and clauses (viii) through (xi) of Section 6(a), the permitted transferees must enter into a written agreement agreeing to be bound by the transfer restrictions specified therein). Solely for purposes of the second sentence of this Section 7(b), references in Section 6(a) to the Purchaser shall be deemed to refer to the Sponsor, its affiliates, any Sponsor-Affiliate and their permitted transferees, mutatis mutandis. In addition, the foregoing restrictions in this Section 7(b) shall not apply to: |
(ii) Transfers by the Sponsor, any of its controlled affiliates, any Sponsor- Affiliate or any of their permitted transferees of (A) up to 50.0% of their Sponsor Shares, in one or more Transfers, following any thirty (30) consecutive trading day period after the Business Combination Closing during which the MOI Ratio (as defined below) is equal to or exceeds 1.5 to 1.0 for each trading day during such |
(iii) Transfers by the Sponsor, any of its controlled affiliates, any Sponsor- Affiliate or any of their permitted transferees on or after the date that the Forward Contract Parties collectively beneficially own (on an as-converted basis) less than 50% of the total number of Class A Shares collectively beneficially owned by the Forward Contract Parties immediately following the Business Combination Closing. |
(i) The Sponsor shall use commercially reasonable efforts to determine whether, in any year, the Company (or any subsidiary of the Company) is deemed to be a passive foreign investment company (a PFIC) or a controlled foreign corporation (a CFC) within the meaning of U.S. Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (collectively, the Code), and shall notify the Purchaser if the Company (or any subsidiary of the Company) is deemed to be a PFIC or CFC. If the Sponsor determines that the Company (or any subsidiary of the Company) is a PFIC in any year, for the year of determination and for each year thereafter during which the Purchaser holds an equity interest in the Company, including Warrants, the Company shall use commercially reasonable efforts to (i) make available to the Purchaser the information that may be required to make or maintain a qualified electing fund election under the Code with respect to the Company (or any subsidiary of the Company, as applicable) and (ii) furnish the information required to be reported under Section 1298(f) of the Code or under any other applicable tax law. |
(d) Founder Shares and Forward Purchase Securities of Future SPACs. The Sponsor agrees that if, within the ten (10) year period following the consummation of a Business Combination by the Company, Omar M. Asali is the primary sponsor of a special purpose acquisition company (New SPAC), through the Sponsor or otherwise, then: |
(ii) should such New SPAC execute a private placement of equity securities substantially similar to the Forward Purchase Securities to be consummated on or about the date of a future business combination for such New SPAC (New SPAC Forward Purchase Securities), the Purchaser shall be granted the right to participate in such private placement up to an aggregate dollar investment of $53,000,000 in New SPAC Forward Purchase Securities, at the same price per security paid, directly or indirectly, by, and otherwise on the same terms and conditions as, each other investor in such private placement (the New Anchors); provided, that in no event shall any New Anchor have the right to participate in such private placement on terms more favorable than those applicable to the Purchasers participation. |
(f) Use of Purchasers Name. Neither the Company nor the Sponsor will, without the written consent of the Purchaser in each instance use in advertising, publicity or otherwise the name of the Purchaser or any of its affiliates, or any director, officer or employee of the Purchaser, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by the Purchaser or its affiliates or any information relating to the business or operations of the Purchaser or its affiliates (including, for the avoidance of doubt, any investment vehicles, funds or accounts managed thereby). Notwithstanding the foregoing, the Company may disclose (i) Purchasers name and information concerning the Purchaser (A) to the extent required by law, regulation or regulatory request, including pursuant to a request for such disclosure from the Staff of the SEC or FINRA or (B) to the Companys lawyers, independent accountants and to other advisors and service providers who reasonably require Purchasers information in connection with the provision of services to the Company, are advised of the confidential nature of such information and are obligated to keep such information confidential, and (ii) Purchasers name and the terms of this Agreement to the other Forward Contract Parties. The Company and the Sponsor agree to provide to the Purchaser for Purchasers review any disclosure in any registration statement or other document in advance of the submission, filing or disclosure of such document in connection with the transactions contemplated by this Agreement with respect to the Purchaser or any of its affiliates. |
(j) Board Representation. (A) Effective upon the IPO Closing and prior to the Business Combination Closing, the Purchaser shall have the right to designate, upon written notice to the Company and the Sponsor, one individual to be a nonvoting observer (a Board Observer) of the Board and to receive all information provided to the members of the Board during the period in which such person is a Board Observer, and (B) following the Business Combination Closing, the Purchaser shall have the right to request, upon written notice to the Company and the Sponsor, the designation of one Board Observer, and upon the exercise of such right, the Company and the Sponsor shall use commercially reasonable efforts to cause, subject to applicable law, such Board Observer to be appointed to the Board as a nonvoting observer to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that, in each such case, the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (1) in the opinion of the Company, acting reasonably and in good faith having received the advice of counsel, such exclusion is reasonably necessary to (A) comply with applicable laws, rules or regulations and the Companys contractual obligations or (B) preserve any legal privilege of the Company and its subsidiaries; or (2) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Companys securities are then traded. |
(k) Transaction, Monitoring and Similar Fees: Hiring or Appointment of Affiliates. In connection with or following a Business Combination, unless the consent of Forward Contract Parties that have committed to purchase more than 50% of the Total Forward Purchase Shares has been obtained (including through any shareholder vote in connection with approval of a Business Combination), (A) no transaction, monitoring or similar fee shall be owed or payable by the Company or its subsidiaries to the Sponsor or the Sponsors employees, directors or controlled affiliates and (B) neither the Company nor any of its subsidiaries shall hire or employ, or appoint or cause to be appointed as a member of the Board, any employee, officer or director of the Sponsor. For the avoidance of doubt, in the case of clause (B) above, following receipt of consent of Forward Contract Parties that have committed to purchase more than 50% of the Total Forward Purchase Shares, neither the Company nor the Sponsor shall be required to obtain any additional consents from the Forward Contract Parties in respect of such employee, officer or director of the Sponsor (including with respect to compensation arrangements). Notwithstanding the foregoing, the requirements set forth in this Section 7(j) shall no longer apply following the expiration of the Lock-up Period. |
As used in this Section 7(k), Material Change shall mean any change to the terms of the Public Units, the Class A Shares and/or the Warrants set forth in the Charter or Warrant Agreement, as applicable, that the Company would be required to include in the Registration Statement before the Registration Statement is declared effective by the SEC. |
(iv) The representations and warranties of the Company set forth in Section 3 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the FPS Closing, as applicable, with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date), except where the failure to be so true and correct would not have a material adverse effect on the Company or its ability to consummate the transactions contemplated by this Agreement; |
(b) The obligation of the Company to sell the Forward Purchase Securities at the FPS Closing under this Agreement shall be subject to the fulfillment, at or prior to the FPS Closing of each of the following conditions, any of which, to the extent permitted by applicable laws, may be waived by the Company: |
(iv) No order, writ, judgment, injunction, decree, determination, or award shall have been entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral body, and no other legal restraint or prohibition shall be in effect, preventing the purchase by the Purchaser of the Securities. |
(v) if Omar M. Asali, the Sponsor or the Company becomes subject to any voluntary or involuntary petition under the United States federal bankruptcy laws or any state insolvency law, in each case which is not withdrawn within sixty (60) days after being filed, or a receiver, fiscal agent or similar officer is appointed by a court for business or property of Omar M. Asali, the Sponsor or the Company, in each case which is not removed, withdrawn or terminated within sixty (60) days after such appointment; or |
In the event of any termination of this Agreement pursuant to this Section 9, the FPS Purchase Price (and interest thereon, if any), if previously paid, and all Purchasers funds paid in connection herewith shall be promptly returned to the Purchaser, and thereafter this Agreement shall forthwith become null and void and have no effect, without any liability on the part of the Purchaser or the Company and their respective directors, officers, employees, partners, managers, members, or shareholders and all rights and obligations of each party shall cease; provided, however, that nothing contained in this Section 9 shall relieve either party from liabilities or damages arising out of any fraud or willful breach by such party of any of its representations, warranties, covenants or agreements contained in this Agreement. |
(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 (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile (if any) during normal business hours of the recipient, and if not sent during normal business hours, then on the recipients next Business Day, (c) five (5) Business Days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) 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 communications sent to the Company shall be sent to: One Madison Corporation, 3 East 28th Street, 8th Floor, New York, New York 10016, Attn: Omar M. Asali, Chief Executive Officer, email: oasali@onemadisongroup.com, with a copy to the Companys counsel at: Davis Polk & Wardwell LLP, |
All communications to the Purchaser shall be sent to the Purchasers address as set forth on the signature page hereof, or to such e-mail address, facsimile number (if any) or address as subsequently modified by written notice given in accordance with this Section 10(a), with a copy to the Purchasers counsel at: Winston & Strawn LLP, 200 Madison Avenue, New York, NY 10166, Attn: Joel L. Rubinstein, Esq., email: jrubinstein@winston.com, fax: (212) 294-4700. |
(d) Entire Agreement. This Agreement, together with any documents, instruments and writings that are delivered pursuant hereto or referenced herein, constitutes the entire agreement and understanding of the parties hereto in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. |
(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 hereto and their respective successors. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto 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. |
(i) Governing Law. This Agreement, the entire relationship of the parties hereto, and any litigation between 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 principles. |
the Southern District of New York for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in state courts of New York or the United States District Court for the Southern District of New York, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. |
(o) Construction. The parties hereto 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 hereto and no presumption or burden of proof will arise favoring or disfavoring any party hereto because of the authorship of any provision of this Agreement. 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 hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto 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 hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant. |
(p) Waiver. No waiver by any party hereto 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. |
(q) Confidentiality. Except as may be required by law, regulation or applicable stock exchange listing requirements, unless and until the transactions contemplated hereby and the terms hereof are publicly announced or otherwise publicly disclosed by the Company, the parties hereto shall keep confidential and shall not publicly disclose the existence or terms of this Agreement. |
(s) Most Favored Nations. The Company hereby represents and warrants that as of the date hereof, and covenants and agrees that after the date hereof, none of the agreements with any other person for the purchase of Forward Purchase Shares includes or will include terms, rights or other benefits that are more favorable, in any material respect, to such other person than the terms, rights and benefits in favor of the Purchaser under this Agreement, and the Company will not waive any material obligation under the agreements with such other person unless, in any such case, the Purchaser has been offered in writing the opportunity to concurrently receive the benefits of all such terms, rights and benefits or waiver. The Purchaser shall notify the Company in writing, within ten (10) days after the date it has been offered the opportunity to receive the benefit of such terms, rights, benefits or waiver, of its election to receive any such term, right, benefit or waiver so offered. |
1\. Within thirty (30) days after the Business Combination Closing, the Company shall use reasonable best efforts (i) to file a registration statement on Form S-3 for a secondary offering (including any successor registration statement covering the resale of the Registrable Securities a Resale Shelf) of (x) the Class A Shares and Warrants (and underlying Class A Shares) comprising the Forward Purchase Securities and the Class A Shares into which the Class B Shares are convertible, (y) any other Class A Shares and Warrants that may be acquired by the Purchaser after the date of this Agreement, including any time after the Business Combination Closing and (z) any other equity security of the Company issued or issuable with respect to the securities referred to in clauses (x) and (y) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization (collectively, the Registrable Securities) pursuant to Rule 415 under the Securities Act; provided, that if Form S-3 is unavailable for such a registration, the Company shall register the resale of the Registrable Securities on another appropriate form and undertake to register the Registrable Securities on Form S-3 as soon as such form is available, (ii) to cause the Resale Shelf to be declared effective under the Securities Act promptly thereafter, but in no event later than sixty (60) days thereafter, and (iii) to maintain the effectiveness of such Resale Shelf with respect to the Purchasers Registrable Securities until the earliest of (A) the date on which the Purchaser ceases to hold Registrable Securities covered by such Resale Shelf, (B) the date all of the Purchasers Registrable Securities covered by the Resale Shelf can be sold publicly without restriction or limitation under Rule 144 under the Securities Act and without the requirement to be in compliance with Rule 144(c)(1) under the Securities Act; and provided, further, with respect to Registrable Securities acquired after the Business Combination Closing, the Company shall only be obligated to amend the Resale Shelf or file a new registration statement that will constitute a Resale Shelf to include such Registrable Securities on two (2) occasions, each upon the written request of Purchaser with respect to at least 100,000 Registrable Securities. |
2\. In the event the Company is prohibited by applicable rule, regulation or interpretation by the staff (Staff) of the Securities and Exchange Commission (SEC) from registering all of the Registrable Securities on the Resale Shelf or the Staff requires that the Purchaser be specifically identified as an underwriter in order to permit such registration statement to become effective, and such Purchaser does not consent in writing to being so named as an underwriter in such registration statement, the number of Registrable Securities to be registered on the Resale Shelf will be reduced on a pro rata basis among all the holders of Registrable Securities to be so included, unless otherwise required by the Staff, so that the number of Registrable Securities to be registered is permitted by Staff and such Purchaser is not required to be named as an underwriter; provided, that any Registrable Securities not registered due to this paragraph 2 shall thereafter as soon as allowed by the SEC guidance be registered to the extent the prohibition no longer is applicable. |
3\. If at any time the Company proposes to file a registration statement (a Registration Statement) on its own behalf, or on behalf of any other Persons who have registration rights (Other Holders), relating to an underwritten offering of ordinary shares, or engage in an Underwritten Shelf Takedown off an existing registration statement (a Company Offering), then the Company will provide the Purchaser and each other Forward Contract Party who purchased at least 1,000,000 Forward Purchase Shares (collectively, the Piggyback Holders) with notice in writing (an Offer Notice) at least five (5) Business Days prior to such filing, which Offer Notice will offer to include in the Registration Statement Purchasers Registrable Securities and a minimum of 500,000 of the securities of each other Forward Contract Party which is a Piggyback Holder that constitute Registrable Securities under such parties forward purchase agreements (collectively Piggyback Securities). Within five (5) Business Days (or, in the case of an Offer Notice delivered to the Purchaser or the other Forward Contract Parties in connection with an Underwritten Shelf Takedown, within three (3) Business Days) after receiving the Offer Notice, the Purchaser may make a written request (a Piggyback Request) to the Company to include some or all of Purchasers Registrable Securities in the Registration Statement. If the underwriter(s) for any Company Offering advise the Company that marketing factors require a limitation on the number of securities that may be included in the Company Offering, the number of securities to be so included shall be allocated as follows: (i) first, to |
4\. At any time during which the Company has an effective Resale Shelf with respect to the Purchasers Registrable Securities, the Purchaser may make a written request (which request shall specify the intended method of disposition thereof) (a Shelf Takedown Request) to the Company to effect a sale, of all or a portion of the Purchasers Registrable Securities that are covered by the Resale Shelf, and the Company shall use commercially reasonable efforts to file a prospectus supplement (a Shelf Takedown Prospectus Supplement) for such purpose as soon as reasonably practicable following receipt of a Shelf Takedown Request. The Purchaser may request that any such sale be conducted as an underwritten public offering (an Underwritten Shelf Takedown). The Company shall not be obligated to effect more than two Underwritten Shelf Takedowns. Purchaser acknowledges that, pursuant to the terms and conditions of forward purchase agreements among the Company, the Sponsor and other Forward Contract Parties (such agreements, as they relate to the rights of the Sponsor and other Forward Contract Parties set forth in paragraphs 3, 4 and 5 of this Exhibit A, not to be amended without the Purchasers prior written consent), each Other Forward Contract Party who purchased at least 1,000,000 Forward Purchase Shares and proposes to sell at least 500,000 Registrable Securities in the Underwritten Shelf Takedown (a Requesting Holder) shall have the right, pursuant to a timely Piggyback Request, to include securities that are covered by the Resale Shelf (Requesting Holder Securities) in the prospectus supplement relating to any Underwritten Shelf Takedown and Purchaser agrees to cooperate with the Company and such other Forward Contract Parties in furtherance thereof. If the underwriter(s) for any Underwritten Shelf Takedown advise the Company that marketing factors require a limitation on the number of securities that may be included in the Underwritten Shelf Takedown, the number of securities to be so included shall be allocated as follows: (i) first, to the Purchaser; and (ii) second, to the Requesting Holders based on the pro rata percentage of Requesting Holder Securities held by the Requesting Holders and requested to be included in the Underwritten Offering. It is understood that any other Forward Contract Party electing to include securities on an Underwritten Shelf Takedown proposed by Purchaser shall not have the ability to withdraw such securities from such offering without the consent of the Purchaser, it being understood that the terms of the offering may not be known at the time of such offering and that Purchaser shall have the sole discretion to approve such terms (and such other Forward Contract Party shall not have the right to make any determinations other than whether they wish to include their Requesting Holder Securities in the prospectus supplement). In this regard, by electing to include securities on such offering, such other Forward Contract Party agrees to cooperate with the Company and the Purchaser in furtherance of such offering, including entering into such customary agreements and take all such actions (including supplying all reasonably requested information) within 48 hours of a reasonable request by the Company, underwriters or Purchaser. |
5\. The determination of whether any offering of Registrable Securities pursuant to the Resale Shelf or a Shelf Takedown Prospectus Supplement will be an underwritten offering shall be made in the sole discretion of the Purchaser, after consultation with the Company, and the Purchaser shall have the right, after consultation with the Company, to determine the plan of distribution, including the price at which the Registrable Securities are to be sold and the underwriting commissions, discounts and fees (and the Requesting Holders shall not have the right to make any determinations other than whether they wish to include their Requesting Holder Securities in the prospectus supplement). The Purchaser shall select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter (provided that such investment banker or bankers and managers shall be reasonably satisfactory to the Company). |
7\. The Company shall pay all fees and expenses incident to the performance of or compliance with its obligation to prepare, file and maintain the Resale Shelf (including the fees of its counsel and accountants). The Company shall also pay all Registration Expenses. For purposes of this paragraph 6, Registration Expenses shall mean the out-of-pocket expenses of a Company Offering or an Underwritten Shelf Takedown, including, without limitation, the following: (i) all registration and filing fees (including fees with respect to filings required to be made with FINRA) and any securities exchange on which the Registrable Securities are then listed; (ii) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of one counsel to the underwriters in connection with blue sky qualifications of the Registrable Securities); (iii) printing, messenger, telephone and delivery expenses; (iv) reasonable fees and disbursements of counsel for the Company; (v) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Underwritten Shelf Takedown; and (vi) reasonable fees and expenses of one legal counsel selected by the Purchaser; provided, that it is understood and agreed that the Company shall to be responsible for any underwriting fees, discounts, selling commissions, underwriter expenses and stock transfer taxes relating to the registration and sale of the Purchasers Registrable Securities. |
10\. The Company shall indemnify and hold harmless the Purchaser, its directors and officers, partners, members, managers, employees, agents, and representatives of such Purchaser and each person, if any, who controls the Purchaser within the meaning of the Securities Act and the Securities Exchange Act of 1934, as amended, and any agent thereof (collectively, Indemnified Persons), to the fullest extent permitted by applicable law, from and against any losses, claims, damages, liabilities, joint or several, costs (including reasonable costs of preparation and reasonable attorneys fees) and expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (collectively, Losses), promptly as incurred, arising out of, based upon or resulting from any untrue statement or alleged untrue statement of any material fact contained in the Resale Shelf (or any amendment or supplement thereto), the related prospectus, or any amendment or supplement thereto, or arise out of, are based upon or resulting from the omission or alleged omission to state therein a material fact required to be |
11\. The Companys obligation under paragraph (1) of this Exhibit A is subject to the Purchasers furnishing to the Company in writing such information as the Company reasonably requests for use in connection with the Resale Shelf, the related prospectus, or any amendment or supplement thereto. The Purchaser shall indemnify the Company, its officers, directors, managers, employees, agents and representatives, and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses resulting from any untrue statement or alleged untrue statement of material fact contained in the Resale Shelf, the related prospectus, or any amendment or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information so furnished in writing by such Purchaser expressly for inclusion in such document; provided that the obligation to indemnify shall be individual, not joint and several, for each Purchaser and shall be limited to the net amount of proceeds received by such Purchaser from the sale of Registrable Securities pursuant to the Resale Shelf. |
12\. The Company shall cooperate with the Purchaser, to the extent the Registrable Securities become freely tradable, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Resale Shelf and enable such certificates to be in such denominations or amounts, as the case may be, as the Purchaser may reasonably request and registered in such names as the Purchaser may request. |
14\. As long as the Purchaser shall own Registrable Securities, the Company, at all times while it shall be reporting under the Securities Exchange Act of 1934, as amended, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and to promptly furnish the Purchaser with true and complete copies of all such filings, unless filed through the SECs EDGAR system. The Company further covenants that it shall take such further action as the Purchaser may reasonably request, all to the extent required from time to time, to enable the Purchaser to sell the Class A Shares and Warrants held by the Purchaser without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act, including providing any legal opinions. Upon the request of the Purchaser, the Company shall deliver to the Purchaser a written certification of a duly authorized officer as to whether it has complied with such requirements. |
| (h)| the term "and/or" is used herein to mean both "and" as well as "or." The use of "and/or" in certain contexts in no respects qualifies or modifies the use of the terms "and" or "or" in others. The term "or" shall not be interpreted to be exclusive and the term "and" shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires); ---|---|--- |
| 3.1| Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in general meeting) and, where applicable, the rules of the Designated Stock Exchange and/or any competent regulatory authority, and without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares with or without preferred, deferred or other rights or restrictions, whether in regard to Dividend or other distribution, voting, return of capital or otherwise and to such persons, at such times and on such other terms as they think proper, and may also (subject to the Statute and the Articles) vary such rights, save that the Directors shall not allot, issue, grant options over or otherwise dispose of Shares to the extent that it may affect the ability of the Company to carry out a Class B Share Conversion described at Article 4. ---|---|--- |
| 3.2| The Company may issue rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company on such terms as the Directors may from time to time determine. ---|---|--- |
| 3.3| The Company may issue units of securities in the Company, which may be comprised of whole or fractional Shares, rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, upon such terms as the Directors may from time to time determine. ---|---|--- |
| 4.2| Conversion Rights of Class B Shares. On the first business day following the consummation of the Company's initial Business Combination, the issued Class B Shares shall automatically be converted into such number of Class A Shares (or Class C Shares, following a Class C Election as described below) (the Class B Conversion) as is equal to 25% of the sum of: ---|---|--- |
| (b)| the sum of (i) the total number of Class A Shares and Class C Shares issued or deemed issued, or issuable upon the conversion or exercise of any equity-linked securities or rights issued or deemed issued, by the Company in connection with or in relation to the consummation of the initial Business Combination (including Forward Purchase Shares, but not Forward Purchase Warrants), excluding any Class A Shares and/or Class C Shares or equity-linked securities exercisable for or convertible into Class A Shares issued, or to be issued, to any seller in the initial Business Combination and any Private ---|---|--- |
References in this Article 4.2 to "converted", "conversion" or "exchange" shall mean the compulsory redemption without notice of Class B Shares of any Member and, on behalf of such Members, automatic application of such redemption proceeds in paying for such new Class A Shares (or Class C Shares, following a Class C Election as described below) into which the Class B Shares have been converted or exchanged at a price per Class B Share necessary to give effect to a conversion or exchange calculated on the basis that the Class A Shares (or Class C Shares, following a Class C Election as described below) to be issued as part of the conversion or exchange will be issued at par. The Class A Shares (or Class C Shares, following a Class C Election as described below) to be issued on an exchange or conversion shall be registered in the name of such Member or in such name as the Member may direct. |
Each Class B Share shall convert into its pro rata number of Class A Shares and Class C Shares, if any, as set forth in this Article 4.2. The pro rata share for each holder of Class B Shares will be determined as follows: Each Class B Share shall convert into such number of Class A Shares (or Class C Shares, following a Class C Election as described below) as is equal to the product of 1 multiplied by a fraction, the numerator of which shall be the total number of Class A Shares (and Class C Shares, following a Class C Election as described below) into which all of the issued Class B Shares shall be converted pursuant to this Article and the denominator of which shall be the total number of issued Class B Shares at the time of conversion. |
As used in this Article 4.2, the term Class C Election means the election by any beneficial owner or holder of Class B Shares to have its Class B Shares automatically converted into Class C Shares in the Class B Conversion in accordance with this Article 4.2, provided that such holder or beneficial owner shall have provided written notice to the Company of such election any time prior to the vote of holders of Class A Shares and Class B Shares to approve a Business Combination and in any event no later than promptly following such vote. |
| 4.3| Conversion Rights of Class C Shares. Following the consummation of the Company's initial Business Combination, each issued Class C Share shall be converted into one Class A Share, subject to any necessary adjustments for any share splits, capitalisations, consolidations or similar transactions occurring in respect of the Class A Shares or the Class C Shares (a, "Class C Share Conversion"): ---|---|--- |
| (a)| on the 65th calendar day (or such other period as the Company and the registered holder may otherwise agree) following receipt by the Company of notice in writing from the registered holder of such Class C Share to convert such Class C Share (an Elective Class C Conversion); or ---|---|--- |
| 4.4| Reservation of Shares. The Directors shall not allot or issue Class A Shares such that the number of authorised but unissued Class A Shares would at any time be insufficient to permit the conversion of all Class B Shares and Class C Shares from time to time issued into Class A Shares. ---|---|--- |
| 6.2| In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrears a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose. ---|---|--- |
| 6.3| If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a Dividend or other distribution, the date on which notice of the meeting is sent or the date on which the resolution of the Directors resolving to pay such Dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof. ---|---|--- |
| 7.1| A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and subject to the Articles no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled. ---|---|--- |
| 7.3| If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate. ---|---|--- |
| 8.1| Subject to the terms of the Articles, any Member may transfer all or any of his Shares by an instrument of transfer provided that such transfer complies with applicable rules of the SEC and federal and state securities laws of the United States. If the Shares in question were issued in conjunction with rights, options or warrants issued pursuant to Article 3 on terms that one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such option or warrant. ---|---|--- |
| 8.2| The instrument of transfer of any Share shall be in writing in the usual or common form or in a form prescribed by the Designated Stock Exchange or in any other form approved by the Directors and shall be executed by or on behalf of the transferor (and if the Directors so require, signed by or on behalf of the transferee) and may be under hand or, if the transferor or transferee is a clearing house or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as the Directors may approve from time to time. The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members. ---|---|--- |
| 9.1| Subject to the provisions of the Statute, and, where applicable, the rules of the Designated Stock Exchange and/or any competent regulatory authority, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company. The redemption of such Shares, except Public Shares, shall be effected in such manner and upon such other terms as the Company may, by Special Resolution, determine before the issue of such Shares. With respect to repurchasing or redeeming shares of the Company: ---|---|--- |
| (b)| Class B Shares held by the Sponsor shall be surrendered by the Sponsor for no consideration to the extent that the Over-Allotment Option is not exercised in full so that the Sponsor will own 20% of the sum of the number of issued Public Shares after the IPO and the number of Class B Shares held by the Sponsor following such surrender; and ---|---|--- |
| 11.1| If at any time the share capital of the Company is divided into different classes of Shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two thirds of the issued Shares of that class, or with the sanction of a resolution passed by a majority of not less than two thirds of the votes cast at a separate meeting of the holders of the Shares of that class. For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be one person holding or representing by proxy at least fifty per cent of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a poll. ---|---|--- |
| 11.2| For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate classes of Shares. ---|---|--- |
| 11.3| The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith. ---|---|--- |
The Company may, in so far as the Statute permits, pay a commission to any person in consideration of his subscribing or agreeing to subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful. |
The Company shall not be bound by or compelled to recognise in any way (even when notified) any equitable, contingent, future or partial interest in any Share, or (except only as is otherwise provided by the Articles or the Statute) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder. |
| 14.1| The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether presently payable or not) by such Member or his estate, either alone or jointly with any other person, whether a Member or not, but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The ---|---|--- |
| 14.2| The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen clear days after notice has been received or deemed to have been received by the holder of the Shares, or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the Shares may be sold. ---|---|--- |