FORWARD PURCHASE AGREEMENT
Exhibit 10.1
This Forward Purchase Agreement (this “Agreement”) is entered into as of [·], 2021, by and among Anzu Strategic Acquisition Corp I., a Delaware corporation (the “Company”), Anzu SPAC GP I LLC, a Delaware limited liability company (the “Sponsor”), and ________________, a ________________ (the “Purchaser”).
WHEREAS, the Company is seeking to identify and consummate a Business Combination; and
(a) Forward Purchase Securities.
(i) The Company agrees to issue and sell to the Purchaser, and the Purchaser agrees to purchase from the Company, on and subject to the terms and conditions set forth herein, [·] Forward Purchase Securities (the “Purchaser Units”) at a purchase price of $10.00 per Forward Purchase Security, for an aggregate purchase price of $[·] (the “FPS Purchase Price”).
(ii) Each Forward Purchase Warrant will be subject to the same terms as the Private Placement Warrants, and be subject to the terms and conditions of the Warrant Agreement, dated March 1, 2021, entered into between the Company and American Stock Transfer & Trust Company, as Warrant Agent, in connection with the IPO (the “Warrant Agreement”) which is attached hereto as Exhibit A, and in the form of the warrant certificate attached as Exhibit A to the Warrant Agreement and contains the legend set forth on Exhibit B to the Warrant Agreement.
(iii) The process by which the Purchaser Units are to be issued and sold by the Company and purchased by the Purchaser hereunder shall be as follows:
(1) As soon as reasonably practicable, but in no event less than ten (10) Business Days prior to the Company’s entry into a definitive agreement for the Business Combination (the “Business Combination Agreement”), the Company shall provide the Purchaser with notice (the “Initial Company Notice”) that it desires the Purchaser to purchase the Purchaser Units pursuant to this Agreement in connection with the Business Combination Closing. Following delivery of the Initial Company Notice, the Company shall provide the Purchaser with such other information as the Purchaser (or any applicable Transferee pursuant to Section 8(g) hereof) may reasonably request so that the Purchaser (or such Transferee) may seek the approval of its investment committee (and/or, if applicable, the investment committee of its investment manager) (the “Investment Committee”) to consummate the purchase of the Forward Purchase Securities hereunder, which approval shall be made or not made in the sole and absolute discretion of the Investment Committee.
(2) Within five (5) Business Days after receipt of the Initial Company Notice, the Purchaser shall provide the Company with notice (the “Purchaser Notice”) of the decision of its Investment Committee to accept or decline to purchase the Purchaser Units pursuant to this Agreement, which notice of an affirmative decision by the Investment Committee shall constitute the binding obligation of the Purchaser to purchase the Purchaser Units, subject to the terms and conditions of this Agreement. In the event the Investment Committee declines to purchase the Purchaser Units or the Purchaser fails to deliver the Purchaser Notice, this Agreement shall be void and be of no force or effect, and neither party shall have any liability for any actions or representations made prior to such time.
(3) At least two (2) Business Days before the Business Combination Closing, the Company shall provide the Purchaser with an updated notice (the “Final Company Notice”) including:
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a. the anticipated date of the Business Combination Closing; and
b. instructions for wiring the FPS Purchase Price.
(iv) In the event that any Business Combination Agreement is terminated or the transaction contemplated thereby is abandoned, the procedures completed pursuant to clause (iii) above in connection with such Business Combination Agreement shall be disregarded and the provisions of clause (iii) above must be separately completed for each Business Combination Agreement entered into by the Company, unless this Agreement is otherwise terminated pursuant to Section 8(c).
(v) The closing of the sale of Forward Purchase Securities (the “Forward Closing”) shall be held on the same date and concurrently with the Business Combination Closing (such date being referred to as the “Forward Closing Date”). At least one (1) Business Day prior to the Forward Closing Date, the Purchaser shall deliver to the Company the FPS Purchase Price for the Purchaser Units by wire transfer of U.S. dollars in immediately available funds to the account specified by the Company in the Final Company Notice to be held in escrow until the Forward Closing. Immediately prior to the Forward Closing on the Forward Closing Date, (i) the FPS Purchase Price shall be released from escrow automatically and without further action by the Company or the Purchaser, (ii) upon such release, the Company shall issue the Forward Purchase Securities to the Purchaser in book-entry form, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws), registered in the name of the Purchaser (or its nominee in accordance with its delivery instructions), and (iii) concurrently with such issuance by the Company, the Sponsor shall, subject to the terms and conditions of the Warrant Agreement, transfer to the Purchaser, for no consideration, an amount of the Private Placement Warrants then held by the Sponsor equal to the number of Forward Purchase Warrants issued to the Purchaser (the “Transferred Warrants”). In the event the Business Combination Closing does not occur within five (5) Business Days of the date scheduled for closing, the Forward Closing shall not occur and the Company shall promptly (but not later than one (1) Business Day thereafter) return the FPS Purchase Price to the Purchaser by wire transfer of U.S. dollars in immediately available funds. For 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) Delivery of Forward Purchase Securities and Forward Purchase Warrants.
(i) The Company shall register the Purchaser as the owner of the Forward Purchase Securities purchased by the Purchaser hereunder in the register of stockholders of the Company and with the Company’s transfer agent by book entry on or promptly after (but in no event more than two (2) Business Days after) the date of the Forward Closing.
(ii) The Company shall register the Purchaser as the owner of the Forward Purchase Warrants validly transferred by the Sponsor to the Purchaser hereunder in the Warrant Agent’s books and records promptly after (but in no event more than two (2) Business Days after) the date of the Forward Closing.
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(iii) Each register and book entry for the Forward Purchase Securities purchased by the Purchaser hereunder shall contain a notation, and each certificate (if any) evidencing the Forward Purchase Securities shall be stamped or otherwise imprinted with a legend, in substantially the following form:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT AND LAWS.”
2. Representations and Warranties of the Purchaser. The Purchaser represents and warrants to the Company as follows, as of the date hereof:
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3. Representations and Warranties of the Company. The Company represents and warrants to the Purchaser as follows:
(b) Capitalization. The authorized share capital of the Company consists, as of the date hereof, of:
(i) 400,000,000 shares of Class A common stock, par value $0.0001 per share, 4,325,517 of which are issued and outstanding;
(ii) 40,000,000 shares of Class B common stock, par value $0.0001 per share, 12,075,000 of which are issued and outstanding; and all of the outstanding Class B ordinary shares of the Company have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable laws; and
(iii) 1,000,000 shares of preferred stock, par value $0.0001 per share, none of which are issued and outstanding.
(d) Valid Issuance of Forward Purchase Securities.
(i) The Forward Purchase Securities, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, and the securities issuable upon conversion or exercise of the Forward Purchase Securities, when issued in accordance with the terms of the Forward Purchase Securities and this Agreement, will be validly issued, fully paid and nonassessable and free of all preemptive or similar rights, liens, encumbrances and charges with respect to the issue thereof and restrictions on transfer other than restrictions on transfer specified under this Agreement, applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser. Assuming the accuracy of the representations of the Purchaser in this Agreement and subject to the filings described in Section 3(e) below, the Forward Purchase Securities will be issued in compliance with all applicable federal and state securities laws.
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(ii) No Disqualification Event is applicable to the Company or, to the Company’s knowledge, any Company Covered Person (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)—(iv) 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).
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4. Representations and Warranties of the Sponsor. The Sponsor represents and warrants to the Company and the Purchaser as follows:
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5. Right of First Offer. Subject to the terms and conditions of this Section 5, if, in connection with or prior to the Business Combination Closing, the Company proposes to raise additional capital by issuing any equity securities, or securities convertible into, exchangeable or exercisable for equity securities, other than Excluded Securities (as defined below) (“New Equity Securities”), the Company shall first make an offer to the Purchaser to purchase up to $[·]1 of the New Equity Securities in accordance with the following provisions of this Section 5:
(i) The Company shall give written notice (the “Offering Notice”) to the Purchaser 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.
(ii) The Offering Notice shall constitute the Company’s offer to sell up to $[·] of the New Equity Securities to the Purchaser on the terms set forth in the Offering Notice, which offer shall be irrevocable for a period of five (5) Business Days (the “ROFO Notice Period”).
(b) Exercise of Right of First Offer.
(i) Upon receipt of the Offering Notice, the Purchaser shall have, until the end of the ROFO Notice Period, the right (but not obligation) to offer to purchase all or a portion of the $[·] of the New Equity Securities by delivering a written notice (a “ROFO Offer Notice”) to the Company stating that it offers to purchase such New Equity Securities on the terms specified in the Offering Notice. Any ROFO Offer Notice so delivered shall be binding upon delivery and irrevocable by the Purchaser.
(ii) If the Purchaser does not deliver a ROFO Offer Notice during the ROFO Notice Period, the Purchaser shall be deemed to have waived all of the Purchaser’s rights to purchase the New Equity Securities offered pursuant to the Offering Notice under this Section 5, and the Company shall thereafter be free to sell or enter into an agreement to sell the Purchaser’s $[·] portion of such New Equity Securities to any third party without any further obligation to the Purchaser pursuant to this Section 5 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 the Offering Notice. If the Company does not sell or enter into an agreement to sell the Purchaser’s $[·] 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 5.
(c) Excluded Securities. For purposes hereof, the term “Excluded Securities” means the warrants issued upon the conversion of working capital loans to the Company to be made by the Sponsor or an affiliate thereof to finance transaction costs in connection with an intended initial Business Combination (up to $1,500,000 of which may be convertible at the option of the lender into warrants having the same terms as the Private Placement Warrants at a price of $1.00 per warrant), any securities issued by the Company as consideration to any seller in the Business Combination, any securities issued by the Company pursuant to forward purchase agreements entered into on or after the date of this Agreement, other than forward purchase agreements entered into in connection with a specific Business Combination and any securities issued in connection with commercial agreements.
1 ROFO entitlement will not exceed the amount of the Forward Purchase price.
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6. Additional Agreements, Acknowledgements and Waivers.
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(i) During the period commencing on the date of this Agreement until thirty (30) days after the completion of a Business Combination, the Purchaser (or any applicable Transferee pursuant to Section 9(g) hereof) shall not, without the prior written consent of the Company in accordance with this Agreement, Transfer (as defined below) the Forward Purchase Securities.
(ii) During the period commencing from the date of the decision of the Investment Committee to purchase the Purchaser Units as stipulated in the Purchaser Notice, if applicable, and ending thirty (30) days after the later of (i) the completion of a Business Combination, or (ii) such date that the Business Combination Agreement is terminated or the transaction contemplated thereby is abandoned, the Purchaser (or any applicable Transferee pursuant to Section 9(g) hereof) shall not, without the prior written consent of the Company in accordance with this Agreement, Transfer (as defined below), any Units, shares of stock, warrants or any securities convertible into, or exercisable, or exchangeable for, Class A Shares now owned or hereafter acquired; provided, however, that so as long as, to the extent any Section 16 (“Section 16”) of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, reporting obligation is triggered as a result of such permitted transfer, any related Section 16 filing includes a practical explanation as to the nature of the transfer). The provisions of this paragraph will not apply if the release or waiver is effected solely to permit a transfer not for consideration and the transferee has agreed in writing to be bound by the same terms described in this Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
(iii) For the purposes of this Agreement, “Transfer” shall mean the (a) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 with respect to any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).
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7. Forward Closing Conditions.
(a) The obligation of the Purchaser to purchase the Forward Purchase Securities at the Forward Closing under this Agreement shall be subject to the fulfillment, at or prior to the Forward Closing of each of the following conditions, any of which, to the extent permitted by applicable laws, may be waived by the Purchaser:
(i) The Business Combination shall be consummated substantially concurrently with the purchase of the Forward Purchase Securities;
(ii) The terms of the Business Combination Agreement provided to Purchaser and the conditions to the closing of the Business Combination shall not have been amended or waived in any manner that would reasonably be expected to materially and adversely affect the economic benefits that Purchaser would reasonably expect to receive;
(iii) The Purchaser and any applicable Transferee shall have delivered notice of the approval of its respective Investment Committee to consummate the purchase of the Forward Purchase Securities to the Company (which approval shall be given or not given in such Investment Committee’s sole and absolute discretion);
(iv) The Company shall have delivered to such Purchaser a certificate evidencing the Company’s good standing as a Delaware corporation, as of a date within ten (10) Business Days of the Business Combination Closing;
(v) 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 Forward 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; The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Forward Closing;
(vi) The representations and warranties of the Sponsor set forth in Section 4 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the Forward 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;
(vii) The Sponsor shall transfer the Transferred Warrants concurrently with the Forward Closing; and
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(viii) 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 Forward Purchase Securities or preventing the consummation of the Business Combination.
(b) The obligation of the Company to sell the Forward Purchase Securities at the Forward Closing under this Agreement shall be subject to the fulfillment, at or prior to the Forward Closing of each of the following conditions, any of which, to the extent permitted by applicable laws, may be waived by the Company:
(i) The Business Combination shall be consummated substantially concurrently with the purchase of the Forward Purchase Securities;
(ii) The Company shall have obtained stockholder approval, if required by the rules of the Nasdaq stock exchange, to consummate the sale of the Forward Purchase Securities;
(iii) The representations and warranties of the Purchaser set forth in Section 2 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the Forward 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 Purchaser or its ability to consummate the transactions contemplated by this Agreement;
(iv) the representations and warranties of the Sponsor set forth in Section 4 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the Forward 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;
(v) The Purchaser shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchaser at or prior to the Forward Closing;
(vi) The Sponsor shall transfer the Transferred Warrants concurrently with the Forward Closing; and
(vii) 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 Forward Purchase Securities.
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(c) The obligation of the Sponsor to transfer the Transferred Warrants at the Forward Closing under this Agreement shall be subject to the fulfillment, at or prior to the Forward Closing of each of the following conditions, any of which, to the extent permitted by applicable laws, may be waived by the Sponsor:
(i) The Business Combination shall be consummated substantially concurrently with the purchase of the Forward Purchase Securities;
(ii) The Purchaser shall have paid the FPS Purchase Price to the Company;
(iii) The Company shall have obtained stockholder approval, if required by the rules of the Nasdaq stock exchange, to consummate the sale of the Forward Purchase Securities;
(iv) The Purchaser and any applicable Transferee shall have obtained the approval of its respective Investment Committee to consummate the purchase of the Forward Purchase Securities;
(v) The representations and warranties of the Purchaser set forth in Section 2 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the Forward 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 Purchaser or its ability to consummate the transactions contemplated by this Agreement;
(vi) 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 Forward 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; The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Forward Closing; and
(vii) 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 Forward Purchase Securities.
8. Termination. This Agreement may be terminated at any time prior to the Forward Closing:
(a) by mutual written consent of the Company and the Purchaser;
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(b) automatically, if a Business Combination is not consummated within twenty four (24) months from the IPO Closing, or such later date as may be approved by the Company’s shareholders in accordance with the Articles; or
(c) by either party with written notice to the other party, following a decision of the Purchaser’s Investment Committee not to purchase the Purchaser Units in the Purchaser Notice, regardless of whether a Business Combination or the definitive agreement contemplated thereby is consummated or abandoned.
In the event of any termination of this Agreement pursuant to this Section 8, the FPS Purchase Price (and interest thereon, if any), if previously paid, and all Purchaser’s funds paid in connection herewith shall be returned to the Purchaser as promptly as practicable and in any event within two (2) days following such termination in accordance with written instructions provided by the Purchaser to the Company, 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 8 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. Section 6(a) shall survive termination of this Agreement for any reason.
(i) All communications sent to the Company shall be sent to:
Anzu Special Acquisition Corp I
00000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx,
XX 00000
Attention: Xx. Xxxxxxx Xxxxxx-Xxxxx, Chief Executive Officer
Email: xxx@xxxxxxxxxxxx.xxx
With a copy, which shall not constitute notice, to
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxx; Xxxxx Xxxxxxx
Email: xxxxxxxx@xxxx.xxx; XXxxxxxx@xxxx.xxx
or to such e-mail address, facsimile number (if any) or address as subsequently modified by written notice given in accordance with this
Section 9(a).
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(ii) All communications to the Purchaser shall be sent to shall be sent to:
[Purchaser]
[Address]
[Address]
Attention:
Email:
or to such e-mail address, facsimile number (if any) or address as subsequently modified by written notice given in accordance with this Section 9(a).
(iii) All communications sent to the Sponsor shall be sent to:
ANZU SPAC GP I LLC
00000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx,
XX 00000
Attention: Xx. Xxxxxxx Xxxxxx-Xxxxx, Managing Member
Email: xxx@xxxxxxxxxxxx.xxx
With a copy, which shall not constitute notice, to
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxx; Xxxxx Xxxxxxx
Email: xxxxxxxx@xxxx.xxx; XXxxxxxx@xxxx.xxx
or to such e-mail address, facsimile number (if any) or address as subsequently modified by written notice given in accordance with this Section 9(a).
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(j) Governing Law. This Agreement, the entire relationship of the parties hereto, and any dispute 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 New York, without giving effect to its choice of laws principles.
(k) Jurisdiction. The parties (i) hereby irrevocably and unconditionally submit to the jurisdiction of the United States District Court for the Southern District of New York for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the United States District Court for the Southern District of New York, and (iii) 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.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as of the date first set forth above.
PURCHASER:
[Purchaser]
By: |
Name:
Title:
COMPANY:
Anzu Special Acquisition Corp I
By: |
Name: | Xxxxxxx Xxxxxx-Xxxxx | |
Title: | Chief Executive Officer |
Sponsor:
Anzu SPAC GP I LLC
By: |
Name: | Xxxxxxx Xxxxxx-Xxxxx | |
Title: | Managing Member |
[Signature Page to Forward Purchase Agreement]
Exhibit A
Warrant Agreement
A-1
Exhibit B
Registration Rights
1. The Company agrees that, within thirty (30) calendar days after the consummation of the Business Combination (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Forward Purchase Securities (the “Registration Statement”), and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the SEC notifies the Company that it will “review” the Registration Statement) following the Filing Date and (ii) the 10th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided, however, that the Company’s obligation to include the Forward Purchase Securities in the Registration Statement are contingent upon the Purchaser furnishing in writing to the Company such information regarding the Purchaser, the securities of the Company held by the Purchaser and the intended method of disposition of the Forward Purchase Securities as shall be reasonably requested by the Company to effect the registration of the Forward Purchase Securities, and the Purchaser shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder, provided that the Purchaser shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Forward Purchase Securities. For purposes of clarification, any failure by the Company to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effectiveness Date shall not otherwise relieve the Company of its obligations to file or effect the Registration Statement as set forth above in this Section 1. The Company will provide a draft of the Registration Statement to the Purchaser for review at least two (2) business days in advance of filing the Registration Statement and will consider in good faith all reasonable comments provided by the Purchaser for inclusion therein. In no event shall the Purchaser be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Purchaser be identified as a statutory underwriter in the Registration Statement, the Purchaser will have the opportunity to withdraw from the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the Class A Shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Class A Shares by the Purchaser and the other selling stockholders named therein or otherwise, such Registration Statement shall register for resale such number of Class A Shares which is equal to the maximum number of Class A Shares as is permitted by the SEC. In such event, the number of Class A Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. In the event the SEC informs the Company that all of such Class A Shares cannot, as a result of the application of Rule 415 of the Securities Act, be registered for resale on the Registration Statement, the Company agrees to promptly inform the Purchaser thereof and use its commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC, covering the maximum number of Class A Shares permitted to be registered by the SEC, on Form S-1 or such other form available to register for resale such shares as a secondary offering.
2. In the case of the registration, qualification, exemption or compliance effected by the Company pursuant to this Agreement, the Company shall, upon reasonable request, inform the Purchaser as to the status of such registration, qualification, exemption and compliance. At its expense the Company shall:
a. | except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Company determines to obtain, continuously effective with respect to the Purchaser, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of the following: (i) the Purchaser ceases to hold any Forward Purchase Securities or (ii) the date all Forward Purchase Securities held by the Purchaser are sold without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to Affiliates under Rule 144 and without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or Rule 144(i)(2), as applicable, and (iii) three (3) years from the effective date of the Registration Statement. |
B-1
b. | advise the Purchaser within five (5) business days: |
i. | when a Registration Statement or any amendment thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective; |
ii. | after it shall receive notice or obtain knowledge thereof, of any request by the SEC for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information with respect to the Purchaser; |
iii. | of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose; |
iv. | of the receipt by the Company of any notification with respect to the suspension of the qualification of the Forward Purchase Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and |
v. | subject to the provisions in this Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading. |
Notwithstanding anything to the contrary set forth herein, the Company shall not, when so advising the Purchaser of such events described in this Section 2(b), provide the Purchaser with any material, nonpublic information regarding the Company other than to the extent that providing notice to the Purchaser of the occurrence of the events listed in (1) through (5) above may constitute material, nonpublic information regarding the Company;
c. | use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable; |
d. | upon the occurrence of any event contemplated in Section 2(b)(v), except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Company shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Forward Purchase Securities included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
e. | use its commercially reasonable efforts to cause all Forward Purchase Securities to be listed on each securities exchange or market, if any, on which the Class A Shares issued by the Company have been listed; |
f. | use its commercially reasonable efforts (i) to take all other steps necessary to effect the registration of the Forward Purchase Securities contemplated hereby and (ii) to file all reports and other materials required to be filed by the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144 to enable the Purchaser to sell the Forward Purchase Securities under Rule 144 for so long as the Purchaser holds Forward Purchase Securities; and |
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g. | upon the Purchaser’s request, deliver all the necessary documentation to cause the Company’s transfer agent to remove the legend set forth in Section 1(b)(ii) of the Agreement, as promptly as practicable and no later than two (2) business days after such request, when the Forward Purchase Securities are sold pursuant to Rule 144 under the Securities Act or the Registration Statement or may be sold without restriction under Rule 144. In connection therewith, if required by the Company’s transfer agent, the Company will promptly cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent that authorize and direct the transfer agent to issue such Forward Purchase Securities without any such legend. If restrictive legends are no longer required for the Forward Purchase Securities pursuant to the foregoing, the Company shall, reasonably promptly following any request therefor from the Purchaser accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the transfer agent irrevocable instructions that the transfer agent shall make a new, unlegended entry for the Forward Purchase Securities. |
3. Notwithstanding anything to the contrary in this Agreement, the Company shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require the Purchaser not to sell under the Registration Statement or to suspend the effectiveness thereof, if the Company determines that in order for the Registration Statement to not contain a material misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act, or if such filing or use could materially affect a bona fide business or financing transaction of the Company or its subsidiaries or would require additional disclosure by the Company in the Registration Statement of material information that the Company has a bona fide business purpose for keeping confidential (each such circumstance, a “Suspension Event”); provided, however, that the Company may not delay or suspend the Registration Statement on more than two occasions or for more than sixty (60) consecutive calendar days, or more than one hundred and twenty (120) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the Company of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, the Purchaser agrees that it will immediately discontinue offers and sales of the Forward Purchase Securities under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the Purchaser receives copies of a supplemental or amended prospectus (which the Company agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Company that it may resume such offers and sales; provided, for the avoidance of doubt, that the Company shall not include any material non-public information in any such written notice. If so directed by the Company, the Purchaser will deliver to the Company or, in the Purchaser’s sole discretion destroy, all copies of the prospectus covering the Forward Purchase Securities in the Purchaser’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Forward Purchase Securities shall not apply (i) to the extent the Purchaser is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.
4. the Purchaser may deliver written notice (an “Opt-Out Notice”) to the Company requesting that the Purchaser not receive notices from the Company otherwise required herein; provided, however, that the Purchaser may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from the Purchaser (unless subsequently revoked), (i) the Company shall not deliver any such notices to the Purchaser and the Purchaser shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to the Purchaser’s intended use of an effective Registration Statement, the Purchaser will notify the Company in writing at least two (2) business days in advance of such intended use, and if a notice of a Suspension Event was previously delivered (or would have been delivered but for the provisions of this Section 4 and the related suspension period remains in effect, the Company will so notify the Purchaser, within one (1) business day of the Purchaser’s notification to the Company, by delivering to the Purchaser a copy of such previous notice of Suspension Event, and thereafter will provide the Purchaser with the related notice of the conclusion of such Suspension Event immediately upon its availability.
5. For purposes of this Exhibit B, “Forward Purchase Securities” shall mean, as of any date of determination, the Forward Purchase Securities purchased by the Purchaser pursuant to this Agreement and any other equity security issued or issuable with respect to such Forward Purchase Securities by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event, and the “Purchaser” shall include any person to whom the rights under this Exhibit B shall have been duly assigned.
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6. Company shall indemnify the Purchaser (to the extent a seller under the Registration Statement), notwithstanding any termination of this Agreement, its officers, directors, partners, members, managers, employees, stockholders, advisers and agents, and each person who controls the Purchaser (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and officers, directors, partners, members, managers, employees, stockholders, advisers and agents of each such controlling person to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, to the extent such Losses arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement (or incorporated by reference therein), any prospectus included in the Registration Statement or any form of prospectus or in any amendment thereof or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent, that such untrue statements or alleged untrue statements or omissions or alleged omissions, are based upon information regarding the Purchaser furnished in writing to Company by the Purchaser expressly for use therein or (ii) any violation or alleged violation by the Company of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Exhibit B; provided, that the indemnification contained in this Exhibit B shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed).
7. the Purchaser shall, severally and not jointly with any Other the Purchaser, indemnify and hold harmless the Company, its directors, officers, agents and employees, and each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, to the extent such Losses arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or alleged untrue statements, or omissions, or alleged omissions, are based upon information regarding the Purchaser furnished in writing to the Company by the Purchaser expressly for use therein; provided that (i) the liability of the Purchaser shall be several and not joint with any other investor and (ii) in no event shall the liability of the Purchaser exceed the net proceeds received by the Purchaser upon the sale of the Forward Purchase Securities giving rise to such indemnification obligation. The Purchaser shall notify the Company promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Exhibit B of which the Purchaser is aware.
8. If the indemnification provided under this Exhibit B from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be subject to the limitations set forth in this Exhibit B and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Exhibit B from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s obligation to make a contribution pursuant to this Section 8 shall be individual, not joint and several, and in no event shall the liability of the Purchaser hereunder exceed the net proceeds received by the Purchaser upon the sale of the Forward Purchase Securities giving rise to such indemnification obligation.
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Schedule A
Purchaser | FPS Purchase Price |
Forward Purchase Securities |
Forward Purchase Warrants |
Class A Shares to be Purchased |
[Purchaser] | $[·] | [·] Units | Warrants to purchase [·] Class A Shares | [·] |