Exhibit 10.5
AXIOS Sustainable Growth Acquisition Corporation
Hidden Pines Farm 0000, Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
| AXIOS Sponsor LP |
December 12,
2021 |
Hidden Pines Farm 0000, Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
RE: Securities
Subscription Agreement
Ladies and Gentlemen:
AXIOS Sustainable Growth Acquisition Corporation,
a Cayman Islands exempted company (the “Company”), is pleased to accept the offer AXIOS Sponsor LP, a Delaware limited
partnership (the “Subscriber” or “you”), has made to subscribe for 3,593,750 of the Company’s
Class B ordinary shares (the “Shares”), of US$0.0001 par value per share (the “Class B Shares”),
up to 468,750 of which are subject to forfeiture by you if the underwriters of the Company’s initial public offering of its securities
(“IPO”), if any, do not fully exercise their over-allotment option (the “Over-allotment Option”).
For the purposes of this agreement (this “Agreement”), references to “Ordinary Shares” are to,
collectively, the Class B Shares and the Company’s Class A ordinary shares, of US$0.0001 par value per share (the “Class A
Shares”). Upon certain terms and conditions, the Class B Shares will automatically convert into Class A Shares on
a one-for-one basis, subject to adjustment. Unless the context otherwise requires, as used herein “Shares” shall be
deemed to include any Class A Shares issued upon conversion of the Class B Shares comprising the Shares. The terms on which
the Company is willing to issue the Shares to the Subscriber, and the Company and the Subscriber’s agreements regarding such Shares,
are as follows:
1. Subscription
of Shares.
For the sum of US$25,000, which the Company acknowledges
has been remitted at the Company’s direction for offering costs, the Company hereby issues the Shares to the Subscriber, and the
Subscriber hereby subscribes for the Shares from the Company, 468,750 of which are subject to forfeiture, on the terms and subject to
the conditions set forth in this Agreement. Concurrently with the Subscriber’s execution of this Agreement, the Company shall register
the Shares in the name of the Subscriber on the register of members of the Company. All references in this Agreement to Shares being
forfeited shall take effect as surrenders for no consideration of such shares as a matter of Cayman Islands law.
2. Representations,
Warranties and Agreements.
2.1 Subscriber’s
Representations, Warranties and Agreements. To induce the Company to issue the Shares to the Subscriber, the Subscriber hereby represents
and warrants to the Company and agrees with the Company as follows:
2.1.1 No
Government Recommendation or Approval. The Subscriber understands that no federal or state agency has passed upon or made any recommendation
or endorsement of the offering of the Shares.
2.1.2 No
Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Subscriber of the transactions contemplated
hereby do not violate, conflict with or constitute a default under (i) the formation and governing documents of the Subscriber,
(ii) any agreement, indenture or instrument to which the Subscriber is a party or (iii) any law, statute, rule or regulation
to which the Subscriber is subject, or any agreement, order, judgment or decree to which the Subscriber is subject.
2.1.3 Registration
and Authority. The Subscriber is a Delaware limited partnership, validly formed, registered and in good standing under the laws of
the State of Delaware and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement.
Upon execution and delivery by you, this Agreement is a legal, valid and binding agreement of the Subscriber, enforceable against the
Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in equity).
2.1.4 Experience,
Financial Capability and Suitability. The Subscriber is: (i) sophisticated in financial matters and is able to evaluate the
risks and benefits of the investment in the Shares and (ii) able to bear the economic risk of its investment in the Shares for an
indefinite period of time because the Shares have not been registered under the Securities Act (as defined below) and therefore cannot
be sold unless such transaction is registered under the Securities Act or an exemption from such registration is available. The Subscriber
is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. The
Subscriber must bear the economic risk of this investment until the Shares are sold pursuant to: (i) an effective registration statement
under the Securities Act or (ii) an exemption from registration available with respect to such sale.
2.1.5 Access
to Information; Independent Investigation. Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask
questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances,
operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all
information so obtained. In determining whether to make this investment, the Subscriber has relied solely on the Subscriber’s own
knowledge and understanding of the Company and its business based upon the Subscriber’s own due diligence investigation and the
information furnished pursuant to this paragraph. The Subscriber understands that no person has been authorized to give any information
or to make any representations which were not furnished pursuant to this Section 2 and the Subscriber has not relied on any other
representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or
its prospects.
2.1.6 Private
Placement. The Subscriber represents that it is an “accredited investor” as such term is defined in Rule 501(a) of
Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), and acknowledges the sale contemplated
hereby is being made in reliance on a private placement exemption applicable to “accredited investors” within the meaning
of Section 501(a) of Regulation D under the Securities Act or similar exemptions under state law.
2.1.7 Investment
Purposes. The Subscriber is purchasing the Shares solely for investment purposes, for the Subscriber’s own account and not
for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof. The Subscriber
did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502
of Regulation D under the Securities Act.
2.1.8 Restrictions
on Transfer; Shell Company. The Subscriber understands the Shares are being offered in a transaction not involving a public offering
within the meaning of the Securities Act. The Subscriber understands the Shares will be “restricted securities” within the
meaning of Rule 144(a)(3) under the Securities Act and the Subscriber understands that any certificates or book-entries representing
the Shares will contain a legend in respect of such restrictions. If in the future the Subscriber decides to offer, resell, pledge or
otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred only pursuant to: (i) registration
under the Securities Act, or (ii) an available exemption from registration. The Subscriber agrees that if any transfer of its Shares
or any interest therein is proposed to be made, as a condition precedent to any such transfer, the Subscriber may, at the Company’s
option, be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption,
the Subscriber agrees not to resell the Shares. The Subscriber further acknowledges that because the Company is a shell company, Rule 144
may not be available to the Subscriber for the resale of the Shares until at least one year following consummation of the initial business
combination of the Company (which may not occur), despite technical compliance with the requirements of Rule 144 and the release
or waiver of any contractual transfer restrictions.
2.1.9 No
Governmental Consents. No governmental, administrative or other third party consents or approvals are required, necessary or appropriate
on the part of the Subscriber in connection with the transactions contemplated by this Agreement.
2.2 Company’s
Representations, Warranties and Agreements. To induce the Subscriber to subscribe for the Shares, the Company hereby represents and
warrants to the Subscriber and agrees with the Subscriber as follows:
2.2.1 Incorporation
and Corporate Power. The Company is a Cayman Islands exempted company and is qualified to do business in every jurisdiction in which
the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results
or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated
by this Agreement.
2.2.2 No
Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated
hereby do not violate, conflict with or constitute a default under (i) the Company’s Memorandum and Articles of Association,
as amended to the date hereof (the "Memorandum and Articles"), (ii) any agreement, indenture or instrument to which
the Company is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or any agreement, order,
judgment or decree to which the Company is subject.
2.2.3 Title
to Shares. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the Memorandum and Articles, and registration
in the register of members of the Company, the Shares will be duly and validly issued as fully paid and nonassessable. Upon issuance
in accordance with, and payment pursuant to, the terms hereof and the Memorandum and Articles, the Subscriber will have or receive good
title to the Shares, free and clear of all liens, claims and encumbrances of any kind, other than (a) transfer restrictions hereunder
and under the other agreements to which the Shares may be subject, (b) transfer restrictions under federal and state securities
laws, and (c) liens, claims or encumbrances imposed due to the actions of the Subscriber.
2.2.4 No
Adverse Actions. There are no actions, suits, investigations or proceedings pending, threatened against or affecting the Company
which: (i) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by this Agreement
or (ii) question the validity or legality of any transactions or seeks to recover damages or to obtain other relief in connection
with any transactions.
2.2.5 Authorization.
The Class A Shares issuable upon conversion of the Class B Shares have been duly authorized and reserved for issuance upon
such conversion.
3. Forfeiture
of Shares.
3.1 Partial
or No Exercise of the Over-allotment Option. In the event the Over-allotment Option granted to the underwriters of the IPO is not
exercised in full, the Subscriber acknowledges and agrees that it (or, if applicable, it and any transferees of Shares) shall forfeit
at the time such Over-allotment Option expires (or earlier if the underwriters of the IPO waive their ability to exercise such Over-allotment
Option) any and all rights to such number of Shares (up to an aggregate of 468,750 Shares and pro rata based upon the percentage of the
Over-allotment Option exercised) such that immediately following such forfeiture, the number of Shares will equal 20% of the issued and
outstanding Ordinary Shares immediately following the IPO (in each case, not including Class A Shares issuable upon exercise of
any warrants).
3.2 Termination
of Rights as Shareholder. If any of the Shares are forfeited in accordance with this Section 3, then after such time the Subscriber
(or successor in interest), shall no longer have any rights as a holder of such forfeited Shares, and the Company shall take such action
as is appropriate to cancel such forfeited Shares.
4. Waiver
of Liquidation Distributions; Redemption Rights. In connection with the Shares purchased pursuant to this Agreement, the Subscriber
hereby waives any and all right, title, interest or claim of any kind in or to any distributions by the Company from the trust account
which will be established for the benefit of the Company’s public shareholders and into which substantially all of the proceeds
of the IPO will be deposited (the “Trust Account”), in the event of a liquidation of the Company upon the Company’s
failure to timely complete an initial business combination. For purposes of clarity, in the event the Subscriber purchases securities
in the IPO or in the aftermarket, any Class A Shares so purchased shall be eligible to receive any liquidating distributions by
the Company. However, in no event will the Subscriber have the right to redeem any shares of Ordinary Shares held by it into funds held
in the Trust Account upon the successful completion of an initial business combination.
5. Restrictions
on Transfer.
5.1 Securities
Law Restrictions. In addition to any restrictions to be contained in that certain letter agreement (commonly known as an “Insider
Letter”) to be dated on or prior to the closing of the IPO by and among the Subscriber, the Company and the other parties thereto,
the Subscriber agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior
thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with
respect to the Shares proposed to be transferred shall then be effective or (b) the Company has received, if requested by the Company,
an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction is exempt
from registration under the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with
all applicable state securities laws.
5.2 Lock-up.
The Subscriber acknowledges that the Shares will be subject to lock-up provisions (the “Lock-up”) contained in the
Insider Letter. Pursuant to the Insider Letter, the Subscriber will agree (subject to certain customary exceptions) not to sell, transfer,
pledge, hypothecate or otherwise dispose of all or any part of the Shares until the earlier to occur of: (a) one year after the
completion of the Company’s initial business combination; and (b) subsequent to the Company’s initial business combination,
(x) if the last reported sale price of the Class A Shares equals or exceeds US$12.00 per share (as adjusted for share sub-divisions,
share dividends, rights issuances, consolidations, reorganizations, recapitalizations and other similar transactions) for any 20 trading
days within any 30-trading day period commencing at least 150 days after the Company’s initial business combination or (y) the
date on which the Company consummates a liquidation, merger, amalgamation, share exchange, reorganization or other similar transaction
that results in all of the holders of the Class A Shares having the right to exchange their Class A Shares for cash, securities
or other property.
5.3 Restrictive
Legends. Any certificates representing the Shares shall have endorsed thereon legends substantially as follows:
“THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES
NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL
(IF THE COMPANY SO REQUESTS), IS AVAILABLE.”
“THE SECURITIES REPRESENTED HEREBY ARE
SUBJECT TO A LOCKUP AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP.”
5.4 Additional
Shares or Substituted Securities. In the event of the declaration of a share capitalization, the declaration of an extraordinary
dividend payable in a form other than Ordinary Shares, a spin-off, a share sub-division, an adjustment in conversion ratio, a recapitalization
or a similar transaction affecting the Company’s outstanding Ordinary Shares without receipt of consideration, any new, substituted
or additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject to
this Section 5 or into which such Shares thereby become convertible shall immediately be subject to this Section 5 and Section 3.
Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class of Ordinary
Shares subject to this Section 5 and Section 3.
5.5 Registration
Rights. The Subscriber acknowledges that the Shares are being purchased pursuant to an exemption from the registration requirements
of the Securities Act and will become freely tradable only after certain conditions are met or they are registered pursuant to a registration
rights agreement to be entered into with the Company prior to the closing of the IPO (the “Registration Rights Agreement”).
6. Other
Agreements.
6.1 Further
Assurances. The Subscriber agrees to execute such further instruments and to take such further action as may reasonably be necessary
to carry out the intent of this Agreement.
6.2 Notices.
All notices, statements or other documents which are required or contemplated by this Agreement shall be in writing and delivered (i) personally
or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address
designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number
as may be designated in writing by such party, or (iii) by electronic mail, to the electronic mail address most recently provided
to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication
so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt
of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier
service or five (5) days after mailing if sent by mail.
6.3 Entire
Agreement. This Agreement, together with that certain Insider Letter to be entered into between the Subscriber and the Company and
the Registration Rights Agreement, each substantially in the form to be filed as an exhibit to the Registration Statement on Form S-1
associated with the IPO, embodies the entire agreement and understanding between the Subscriber and the Company with respect to the subject
matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret,
change or restrict, the express terms and provisions of this Agreement.
6.4 Modifications
and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties
hereto.
6.5 Waivers
and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be
or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each
such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute
a continuing waiver or consent.
6.6 Assignment.
The rights and obligations under this Agreement may not be assigned by either party hereto without the prior written consent of the other
party.
6.7 Benefit.
All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall
inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed
to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary
of this Agreement.
6.8 Governing
Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by
the laws of New York applicable to contracts wholly performed within the borders of such state.
6.9 Severability.
In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement
shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems
it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such
provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force
and effect.
6.10 No
Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such
party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance
of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right
of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall
entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute
a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice
or demand.
6.11 Survival
of Representations and Warranties. All representations and warranties made by the parties hereto in this Agreement or in any other
agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations
made by or on behalf of the parties.
6.12 No
Broker or Finder. Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant
has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability
on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other
compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party
and to bear the cost of legal expenses incurred in defending against any such claim.
6.13 Headings
and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
6.14 Counterparts.
This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that
both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other
form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such signature page were an original thereof.
6.15 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. 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.
6.16 Mutual
Drafting. This Agreement is the joint product of the Subscriber and the Company and each provision hereof has been subject to the
mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.
6.17 Surrender
of Class B Ordinary Share. The Subscriber hereby surrenders to the Company for cancellation and for nil consideration one Class B
ordinary share of a par value US$0.0001 standing in its name in the register of members of the Company.
7. Voting
and Tender of Shares. The Subscriber agrees to vote the Shares in favor of an initial business combination that the Company negotiates
and submits for approval to the Company’s shareholders and shall not seek redemption or repurchase with respect to any of the Shares
in connection with an initial business combination or any amendment to the Company’s Memorandum and Articles of Association, as
amended, prior to an initial business combination. Additionally, the Subscriber agrees not to tender any Shares in connection with a
tender offer presented to the Company’s shareholders in connection with an initial business combination negotiated by the Company.
8. Indemnification.
Each party shall indemnify the other against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred
as a result of such party’s breach of any representation, warranty, covenant or agreement in this Agreement.
[Signature Page Follows]
If the foregoing accurately sets forth our understanding
and agreement, please sign the enclosed copy of this Agreement and return it to us.
| AXIOS Sponsor LP |
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| By: |
/s/ Benedikt Fortig |
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Name: |
Benedikt Förtig |
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Title: |
Authorized Signatory |
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[Signature Page to Securities Subscription
Agreement]
