SPONSOR SUPPORT AGREEMENT
Exhibit 10.1
Execution Version
This Sponsor Support Agreement (this “Agreement”) is entered into on October 24, 2022 by VO Sponsor, LLC, a Delaware limited liability company (the “Sponsor”), Sizzle Acquisition Corp., a Delaware corporation (“SPAC”) and European Lithium AT (Investments) Limited, a BVI business company incorporated in the British Virgin Islands (the “Company”). The Sponsor, SPAC and the Company are sometimes collectively referred to herein as the “Parties”, and each of them is sometimes individually referred to herein as a “Party”. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement referenced below.
RECITALS
WHEREAS, as of the date hereof, the Sponsor is the holder of record and the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 6,147,750 SPAC Shares in the aggregate as set forth on Schedule I attached hereto (collectively, the “Subject Securities”).
WHEREAS, concurrently with the Parties’ execution and delivery of this Agreement, SPAC, the Company, European Lithium Limited, an Australian Public Company limited by shares, and the holder of all of the issued Company Ordinary Shares (“EUR”), Xxxxxxxx Xxxxxx Corp., a BVI business company incorporated in the British Virgin Islands (“PubCo”) and Project Wolf Merger Sub Inc., a Delaware corporation and a direct, wholly-owned subsidiary of PubCo (“Merger Sub”), have entered into an Agreement and Plan of Merger, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), pursuant to which, among other transactions, Merger Sub will merge with and into SPAC, with SPAC continuing on as the surviving company, as a result of which SPAC will become a direct, wholly-owned subsidiary of PubCo.
WHEREAS, as an inducement to SPAC and the Company to enter into the Merger Agreement and to consummate the transactions contemplated therein, the Parties desire to agree to certain matters as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein, the Parties, intending to be legally bound, hereby agree as follows:
Article
I
COVENANTS AND AGREEMENTS
Section 1.1 No Transfer. During the period commencing on the date hereof and ending on the earliest of (a) the Effective Time, (b) such date and time as the Merger Agreement shall be validly terminated in accordance with Section 11.1 thereof and (c) the liquidation of SPAC (the earliest of (a), (b) and (c), the “Expiration Time”), the Sponsor (and any other Person to which any Subject Securities are transferred) shall not, without the prior written consent of the Company, (i) issue, sell, offer to sell, exchange, contract or agree to sell or exchange, hypothecate, pledge, encumber, assign, convert, grant of any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, by operation of law or otherwise and whether voluntarily or involuntarily (collectively, “Transfer”), or establish or increase a put equivalent position or liquidate with respect to or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder with respect to any Subject Securities (unless the transferee agrees in advance or concurrently with the Transfer, in writing, to be bound by this Agreement), (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of any Subject Securities, or (iii) file, confidentially submit or cause to become effective a registration statement under the Securities Act relating to the offer and sale of any Subject Securities.
Section 1.2 New Shares. In the event that (a) any SPAC Shares, SPAC Public Warrants or other equity securities of SPAC are issued to the Sponsor after the date of this Agreement pursuant to any stock dividend, stock split, distribution, recapitalization, reclassification, combination, conversion or exchange of SPAC Shares or SPAC Public Warrants of, on or affecting the SPAC Shares or SPAC Public Warrants owned by the Sponsor or otherwise, (b) the Sponsor purchases or otherwise acquires beneficial ownership of any SPAC Shares, SPAC Public Warrants or other equity securities of SPAC after the date of this Agreement, or (c) the Sponsor acquires the right to vote or share in the voting of any SPAC Shares or other equity securities of SPAC after the date of this Agreement (such SPAC Shares, SPAC Public Warrants or other equity securities of SPAC, collectively the “New Securities”), then, to the extent of the Sponsor’s control of such New Securities, such New Securities shall be subject to the terms of this Agreement to the same extent as if they constituted the Subject Securities owned by the Sponsor as of the date hereof.
Section 1.3 Closing Date Deliverables. On the Closing Date, the Sponsor shall deliver to PubCo and EUR a duly executed copy of that certain Lock-Up Agreement, by and between the Sponsor and PubCo, in substantially the form attached as Exhibit A hereto.
Section 1.4 Sponsor Support Agreements. Prior to the Expiration Time, at any meeting of the stockholders of SPAC, however called, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the stockholders of SPAC is sought, the Sponsor shall, solely in its capacity as a record owner of common stock of SPAC, (a) appear at each such meeting or otherwise cause all of its SPAC Shares to be counted as present thereat for purposes of calculating a quorum and (b) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) covering, all of its SPAC Shares:
(i) in favor of each of the SPAC Transaction Proposals;
(ii) against any proposal relating to a SPAC Competing Proposal (other than the SPAC Transaction Proposals);
(iii) against any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by SPAC;
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(iv) against any material change in the business of SPAC or any change in the management or board of directors of SPAC (other than, in each case, pursuant to the Merger Agreement or the other Transaction Agreements and the Transactions); and
(v) against any proposal, action or agreement that would or would reasonably be expected to (a) in any material respect, impede, frustrate, hinder, interfere with, prevent or nullify the timely consummation of, or otherwise adversely affect, any of the Transactions, (b) result in a breach in any material respect of any covenant, representation, warranty or any other obligation or agreement of SPAC under the Merger Agreement (without giving effect to any limitation as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation contain therein), (c) result in any of the conditions set forth in Article VIII of the Merger Agreement not being fulfilled or (d) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, SPAC.
The Sponsor hereby agrees that it shall not commit or agree to take any action inconsistent with the foregoing. In furtherance of, and without limiting the generality of, the foregoing, the Sponsor hereby further agrees not to exercise any right to redeem any SPAC Shares for a pro rata portion of the Trust Account. The obligations of the Sponsor hereunder shall apply whether or not the SPAC board of directors or other governing body or any committee, subcommittee or subgroup thereof recommends any of the SPAC Transaction Proposals and whether or not the SPAC board of directors or other governing body or any committee, subcommittee or subgroup thereof changes, withdraws, withholds, qualifies or modifies, or publicly proposes to change, withdraw, withhold, qualify or modify, the SPAC board of directors’ recommendation to its stockholders.
Section 1.5 No Inconsistent Agreement. The Sponsor hereby represents and covenants that the Sponsor has not entered into, and will not enter into, any Contract that would, and will not modify or amend any Contract in a manner that would, in any material respect, restrict, limit or interfere with the performance of the Sponsor’s obligations hereunder.
Section 1.6 No Further Amendment of Insider Letter. Without the prior written consent of the Company, neither the Sponsor nor SPAC shall amend, terminate or otherwise modify that certain letter agreement, dated as of November 3, 2021, by and among the Sponsor, certain members of the Sponsor’s board of directors and/or management team party thereto and SPAC (the “Insider Letter Agreement”), without the Company’s prior written consent.
Section 1.7 Non-Solicitation. From the date hereof until the earlier of (i) the Closing and (ii) the valid termination of this Agreement pursuant to Section 3.1, the Sponsor will not, and the Sponsor will direct its Representatives not to, directly or indirectly, (a) solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person with respect to an EUR Competing Transaction (other than to inform such Person of the Sponsor’s obligations pursuant to this Section 1.7 with respect to SPAC), (b) enter into any acquisition agreement, business combination agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to an EUR Competing Transaction, or (c) commence, continue or renew any due diligence investigation regarding an EUR Competing Transaction.
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Section 1.8 Sponsor Forfeiture. Sponsor hereby agrees that, immediately prior to the Closing, Sponsor shall irrevocably forfeit and surrender 2,049,250 SPAC Shares to SPAC (the “Sponsor Inducement Shares”) for no consideration as a contribution to the capital of SPAC and shall take any other action requested by PubCo or the Company to evidence such forfeiture and surrender. For clarity, aside from the Sponsor Inducement Shares, no SPAC Shares are otherwise subject to vesting or forfeiture in favor of SPAC for any reason or by any agreement or document, other than specifically agreed in this Article I.
Article
II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Sponsor. The Sponsor represents and warrants as of the date hereof to SPAC and the Company as follows:
(a) Organization; Due Authorization. The Sponsor is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the Sponsor’s limited liability company powers and have been duly authorized by all necessary corporate or other organizational actions on the part of the Sponsor. This Agreement has been duly executed and delivered by the Sponsor and, assuming due authorization, execution and delivery by the other Parties, this Agreement constitutes a legally valid and binding obligation of the Sponsor, enforceable against the Sponsor in accordance with the terms hereof (except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies).
(b) Ownership. As of the date hereof, the Sponsor is the sole holder of record and beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of, and has good title to, and sole voting power with respect to, the number of Subject Securities listed in Schedule I hereto (such SPAC Shares and such SPAC Public Warrants, collectively, the Sponsor’s “Owned Securities”), and there exists no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such SPAC Class Shares or SPAC Public Warrants), other than pursuant to (i) this Agreement, (ii) the Insider Letter Agreement, (iii) the Organizational Documents of SPAC, (iv) the Merger Agreement or (v) applicable securities laws. The Sponsor’s Owned Securities are the only equity securities in SPAC owned of record or beneficially by the Sponsor as of the date of this Agreement, and none of the Sponsor’s Subject Securities are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Securities.
(c) No Conflicts. The execution and delivery of this Agreement by the Sponsor does not, and the performance by the Sponsor of its obligations hereunder will not, (i) conflict with or result in a violation of the Organizational Documents of the Sponsor or (ii) require any consent, waiver, filing, notification, registration or approval that has not been given or other action that has not been taken by any Person (including under any Contract binding upon the Sponsor or the Subject Securities).
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(d) Litigation. There is no Legal Proceeding pending against the Sponsor before any arbitrator or any Governmental Entity, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by the Sponsor of its obligations under this Agreement.
(e) Brokerage Fees. Except as disclosed in Section 5.22 of the Merger Agreement, no financial advisor, investment banker, broker or finder is entitled to any fee or commission in connection with the Merger Agreement or the Closing, in each case, based upon any agreement or arrangement made by, or, to the knowledge of the Sponsor, on behalf of, the Sponsor for which SPAC, EUR, the Company or any of the Company’s Subsidiaries would have any obligation.
(f) Affiliate Arrangements. Except as disclosed in the prospectus, dated November 3, 2021, filed in connection with SPAC’s initial public offering or any subsequent SEC filings, neither the Sponsor nor any of its Affiliates is party to, or has any rights with respect to or arising from, any material Contract with SPAC or any of its Subsidiaries.
(g) Acknowledgment. The Sponsor understands and acknowledges that each of SPAC and the Company is entering into the Merger Agreement in reliance upon the Sponsor’s execution and delivery of this Agreement.
Article
III
MISCELLANEOUS
Section 3.1 Termination. This Agreement and all of its provisions shall terminate and be of no further force or effect upon the earlier of (a) the Expiration Time and (b) the execution and delivery of a written agreement providing for the termination of this Agreement executed by the Sponsor, SPAC and the Company. Upon such termination of this Agreement, all obligations of the Parties under this Agreement will terminate, without any liability or other obligation on the part of any Party to any Person in respect hereof or the transactions contemplated hereby, and no Party shall have any claim against another (and no person shall have any rights against such Party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement shall not relieve or release a Party from any obligations or liabilities arising out of such Party’s willful breach of this Agreement prior to such termination or intentional fraud in the making of the representations and warranties in this Agreement. Notwithstanding the foregoing, this Article III shall survive the termination of this Agreement.
Section 3.2 Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of law) without the prior written consent of the Parties. Any purported assignment or delegation not permitted under this Section 3.2 shall be null and void.
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Section 3.3 Specific Performance. The Parties agree that irreparable damage, for which monetary damages (even if available) may not be an adequate remedy, may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Chancery Court or any other state or federal court within the State of Delaware, this being in addition to any other remedy to which such Party is entitled at law or in equity. Without limiting the foregoing, each Party agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that (a) there is adequate remedy at law or (b) an award of specific performance is not an appropriate remedy for any reason at law or in equity. Any Party seeking an order or injunction to prevent breaches and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.
Section 3.4 Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement providing therefor executed by the Sponsor, SPAC and the Company.
Section 3.5 Waiver. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies otherwise available to the Parties. No waiver of any right, power or privilege hereunder shall be valid unless it is set forth in a written instrument executed and delivered by the Party to be charged with such waiver.
Section 3.6 No Third-Party Beneficiaries. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the Parties and their respective heirs, successors and permitted assigns, any right or remedy under or by reason of this Agreement.
Section 3.7 Notices. All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service or (d) when e-mailed during normal business hours (and otherwise as of the immediately following Business Day), addressed as follows:
If to SPAC prior to the Effective Time, to:
Sizzle Acquisition Corpo.
0000 Xxxxxxx Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxx
Email: xxxxxx@xxxxxxxxxxxxx.xxx
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with copies to (which shall not constitute notice) to:
Xxxxxxxx Xxxxxxxx & Schole LLP
0000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx and
Xxxxxx Xxxxxxxxx
Email: xxxxx@xxxxxx.xxx and xxxxxxxxxx@xxxxxx.xxx
If to SPAC following the Effective Time or to the Company, to:
c/o European Lithium Ltd.
00 Xxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxxx, Xxxxxxx Xxxxxxxxx, 0000
Attention: Xxxx Xxxx
Email: XxxxX@xxxxxxxxxxxxx.xxx
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xx, Xxxxxx Xxxxxx
E-mail: xxxxx.xx@xxxxxxxxx.xxx, xxxxxx.xxxxxx@xxxxxxxxx.xxx
If to the Sponsor, to:
Attention: Xxxxx Xxxxx
0000 Xxxxxxx Xxx XX
Xxxxxxxxxx XX 00000
with a copy to:
Xxxxxxxx Xxxxxxxx & Schole LLP
0000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx and Xxxxxx Xxxxxxxxx
Email: xxxxx@xxxxxx.xxx and xxxxxxxxxx@xxxxxx.xxx
Section 3.8 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 3.9 Other Provisions. The provisions set forth in each of Sections 12.3 (Counterparts; Electronic Delivery), 12.6 (Severability), 12.8 (Governing Law), 12.9 (Consent to Jurisdiction; Waiver of Jury Trial) and 12.10 (Rules of Construction) of the Merger Agreement are incorporated herein by reference as if set forth herein, mutatis mutandis.
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Section 3.10 Publicity. Except to the extent required by the rules and regulations of the SEC, the Exchange Act or the Securities Act, neither SPAC nor the Company may disclose the identities of any direct or indirect members or investors of the Sponsor or their direct or indirect interests in the Sponsor without the Sponsor’s prior written consent.
Section 3.11 Capacity as a Stockholder. Notwithstanding anything herein to the contrary, the Sponsor signs this Agreement solely in its capacity as a record owner of, or owner of interests representing the economic benefits of, common stock and warrants of SPAC, and not in any other capacity and this Agreement shall not limit, prevent or otherwise affect the actions of the Sponsor or any Affiliate, employee or designee of the Sponsor, or any of the Sponsor’s respective Affiliates in his or her capacity, if applicable, as an officer or director of SPAC or any other Person, including in the exercise of his or her fiduciary duties as a director or officer of SPAC.
Section 3.12 No Challenges. During the period commencing on the date hereof and ending at the Expiration Time, the Sponsor agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions within its power necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against SPAC, Merger Sub, PubCo, EUR, the Company or any of their respective successors or directors (except in any case arising out of the fraud of such parties) (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the Merger Agreement. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit the Sponsor from enforcing the Sponsor’s rights under this Agreement and the other agreements entered into by the Sponsor in connection herewith, or otherwise in connection with the Merger or the other transactions contemplated by the Merger Agreement.
Section 3.13 Further Assurances. The Sponsor hereby agrees that it shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments, and will use reasonable best efforts to take, or cause to be taken, such actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing such things, in each case, as another Party may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement and the Merger Agreement; provided that Sponsor will not be obligated to: (a) pay any funds or incur any Liability or (b) forfeit any SPAC Shares or any other economic benefits.
Section 3.14 Entire Agreement. This Agreement and the Merger Agreement constitute the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior understandings, agreements and representations by or among the Parties to the extent they relate in any way to the subject matter hereof.
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IN WITNESS WHEREOF, the Sponsor, SPAC and the Company have each caused this Agreement to be duly executed as of the date first written above.
| SPONSOR: | ||
| VO SPONSOR, LLC | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Managing Member | |
| SPAC: | ||
| SIZZLE ACQUISTION CORP. | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Chief Executive Officer | |
| COMPANY: | ||
| EUROPEAN LITHIUM AT (INVESTMENTS) LTD. | ||
| By: | /s/ Xxxxxxx Xxxxxxx Xxx | |
| Name: | Xxxxxxx Xxxxxxx Xxx | |
| Title: | Director | |
| By: | /s/ Xxxxxxx Xxxxxxx Xxxx Xxxx | |
| Name: | Xxxxxxx Xxxxxxx Xxxx Xxxx | |
| Title: | Director | |
Exhibit A
Form of Investors Agreement
Schedule I
SPAC Common Stock
| Holder | SPAC SHARES | |||
| VO Sponsor, LLC | 6,147,750 | |||
| Total: | 6,147,750 | |||
