ROTH CAPITAL PARTNERS, LLC Newport Beach CA, 92660 CRAIG-HALLUM CAPITAL GROUP LLC Minneapolis, MN 55402
Exhibit 10.5
XXXX CAPITAL PARTNERS, LLC
000 Xxx Xxxxxxxx Xx.
Newport Beach CA, 92660
XXXXX-XXXXXX CAPITAL GROUP LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Minneapolis, MN 55402
January 2, 2024
Xxxx XX Acquisition V Co.
000 Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Newport Beach, CA 92660
New Era Helium Corp.
0000 Xxxxx Xxxx Xxxxx
Midland, Texas 79707
To whom it may concern:
Reference is made to the business combination marketing agreement dated as of November 30, 2021 (the “Agreement”), by and among Xxxx XX Acquisition V Co., a Delaware corporation (“Company”) and Xxxx Capital Partners, LLC (“Xxxx”) and Xxxxx-Xxxxxx Capital Group LLC (each an “Advisor” and together the “Advisors”).
WHEREAS, the Company has entered into a business combination and plan of reorganization (the “Merger Agreement”) with New Era Helium Corp. (“NEH”) and certain other parties thereto, pursuant to which the parties thereto have agreed to consummate a business combination and related transactions (the “Business Combination”).
NOW, THEREFORE, the parties hereto, for good and valuable consideration which each party acknowledges the receipt of, hereby agree as follows:
| 1. | By signing below (i) the Company and the Advisors hereby mutually agree that the Agreement is hereby terminated and is no longer of any force or effect, (ii) each Advisor acknowledges that no amounts, fees or expenses are due to it by the Company pursuant to the terms of the Agreement, and (iii) the Company acknowledges that it has no claim against Advisors in connection with the termination of the Agreement. Notwithstanding the termination of the Agreement, the parties acknowledge that Article 5 and Annex I of the Agreement shall survive. |
| 2. | In addition, the Company and NEH mutually agree, jointly and severally, on the date of closing of the Business Combination, (y) to issue to the Advisors a total of 575,000 shares of common stock of the post-Business Combination company in amounts as shall be mutually designated by the Advisors (the “Advisor Shares”), with such shares to be duly authorized and, when issued and delivered to the Advisors, validly issued, fully paid and non-assessable, and shall not have been issued in violation of or subject to any preemptive or similar rights created under the post-Business Combination company’s organizational documents or applicable law or any other agreement or contract, and (z) to include the Advisor Shares issued pursuant to the foregoing clause (y) as a “Registrable Security” in that certain amended and restated registration rights agreement to be entered into upon the closing of the Business Combination. |
| 3. | For the avoidance of doubt, none of the Advisor Shares issued pursuant to paragraph 2 shall be subject to any lockup agreement or other restrictions on transfer. |
| 4. | This termination agreement shall terminate and be of no force or effect if the Merger Agreement is terminated in accordance with its terms. |
[Signature Page Follows]
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Very truly yours,
XXXX XX ACQUISITION V CO.
| By: | /s/ Xxxxx Xxxx | |
| Name: | Xxxxx Xxxx | |
| Title: | Co-Chief Executive Officer |
NEW ERA HELIUM CORP.
| By: | /s/ X. Xxxx Xxxx XX | |
| Name: | X. Xxxx Xxxx XX | |
| Title: | Chief Executive Officer |
By signing below, each of the parties below acknowledge and agree with the foregoing.
XXXX CAPITAL PARTNERS, LLC
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxx Xxxx | |
| Title: | Executive Chairman |
XXXXX-XXXXXX CAPITAL GROUP LLC
| By: | /s/ Xxxxx Xxxx | |
| Name: | Xxxxx Xxxx | |
| Title: | Chief Executive Officer |
[Signature Page to Termination Agreement]
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