VOTING AND NON-REDEMPTION AGREEMENT
Exhibit 10.1
VOTING AND NON-REDEMPTION AGREEMENT
This Voting and Non-Redemption Agreement (“Agreement”) dated June [_], 2023, by and among the entities listed on the signature pages hereto and Exhibit A (collectively, the “Shareholder”), Swiftmerge Acquisition Corp., a Cayman Islands exempted company (the “Company”), and Swiftmerge Holdings, LP (the “Sponsor” and, together with the Shareholder and the Company, the “Parties” and each, a “Party”).
RECITALS:
WHEREAS, the Shareholder owns certain Class A ordinary shares, par value $0.0001 per share, of the Company (“Class A Ordinary Shares”) and certain Class B ordinary shares, par value $0.0001 per share (“Class B Ordinary Shares”), of the Company (the Class A Ordinary Shares owned by the Shareholder and the Class B Ordinary Shares owned by the Shareholder are collectively referred to herein as the “Securities”);
WHEREAS, the Class A Ordinary Shares owned by the Shareholder were issued and sold by the Company as part of the units offered in the Company’s initial public offering (the “IPO”), and thereafter separated from such units;
WHEREAS, the Class B ordinary shares owned by the Shareholder were issued and sold by the Company to the Shareholder pursuant to that certain Investment Agreement dated [________], 2021, by and among the Company, the Sponsor, and the Shareholder (as amended, the “Investment Agreement”), in a private placement;
WHEREAS, the Company has scheduled for June 12, 2023 an extraordinary general meeting of its shareholders (the “Meeting”) to consider and act upon, among other things, a proposal (the “Extension Proposal”) to extend the Company’s deadline for consummating an initial business combination (a “Business Combination”) from June 17, 2023 to March 15, 2024 (the “Extension”);
WHEREAS, the amended and restated memorandum and articles of association of the Company (the “Charter”) provides the holders of Class A Ordinary Shares with certain rights to redeem their Class A Ordinary Shares in connection with the Extension (the “Redemption Rights”);
WHEREAS, subject to the terms and conditions of this Agreement, the Shareholder is willing to refrain from exercising its Redemption Rights (or to reverse any previously submitted redemption demand) in connection with the Extension, with respect to the number of Class A Ordinary Shares owned by the Shareholder as is set forth on Exhibit A hereto (the “Non-Redeemed Shares”); and
WHEREAS, in order to support the Extension, the Parties have agreed to enter into this Agreement subject to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises, covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Agreement Not to Redeem. The Shareholder hereby agrees either (i) not to exercise its Redemption Rights in connection with the Extension or (ii) to reverse any previously submitted redemption demand in connection with the Extension, in each case with respect to the Non-Redeemed Shares. The Non-Redeemed Shares shall not be subject to any transfer or other restrictions other than with respect to this Section 1, and the Shareholder shall have no obligation to hold any Class A Ordinary Shares following the date of the Meeting (for the avoidance of doubt, the Shareholder shall have no obligation following the date of the Meeting to refrain from redeeming or otherwise disposing of any Class A Ordinary Shares, including the Non-Redeemed Shares, whether in connection with the closing of a Business Combination or otherwise). Nothing in this Agreement is intended to restrict or prohibit the Shareholder’s ability to redeem any Class A Ordinary Shares other than the Non-Redeemed Shares. The Company undertakes to publicly file a Redemption Notice (as defined below) no later than 9:00 AM Eastern Time on the date of the Meeting (or such earlier time as necessary to allow the Shareholder the reasonable opportunity to elect to reverse any previously submitted redemption demand in connection with the Extension). In the case that the number of Class A Ordinary Shares (including any held by affiliates of the Company) that will remain outstanding after
giving effect to the submission and non-reversal of redemption requests in connection with the Extension is a number such that the Shareholder’s beneficial ownership of Class A Ordinary Shares will exceed 9.99%, then the Company and the Sponsor (i) hereby consent to the reversal of any submitted non-redemption requests to the extent required to bring the Shareholder’s beneficial ownership to 9.9% (a “Post-Redemption Deadline Reversal”) and (ii) covenant to take any and all reasonable actions in furtherance thereof. In the case of any such Post-Redemption Deadline Reversal, this Agreement shall be deemed automatically amended to give effect to such revised number of Non-Redeemed Shares.
The “Redemption Notice” is a Current Report on Form 8-K under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that discloses: (i) the number of Class A Ordinary Shares (including any held by affiliates of the Company) that will remain outstanding after giving effect to the submission and non-reversal of redemption requests in connection with the Extension; (ii) the number of unaffiliated holders of Class A Ordinary Shares with whom the Company has entered into voting and non-redemption agreements in connection with the Extension; and (iii) the aggregate number of Class A Ordinary Shares with respect to which such unaffiliated holders have agreed, in connection with the Extension, either to (A) refrain from exercising Redemption Rights or (B) reverse previously submitted redemption demands prior to such redemption demand being given effect by the Company.
2. Consideration. In consideration of the Shareholder agreeing to the terms set forth in Section 1, immediately prior to, and substantially concurrently with, the closing of a Business Combination (the “Closing”):
1. As provided for in the Charter, the Class B Ordinary Shares owned by the Shareholder will automatically convert into Class A Ordinary Shares. The Company agrees to immediately ensure that such Class A Ordinary Shares shall be issued directly to the Shareholder in book-entry form on the books and records of the Company’s transfer agent electronically via the Direct Registration System of the Depository Trust Company or in such other manner as the Shareholder and the Company shall agree upon at the Closing.
2. To the extent not already a party, the Shareholder shall be entitled to the registration rights set forth in that certain Registration and Shareholder Rights Agreement, dated as of December 17, 2021 (the “Registration Rights Agreement”), among the Sponsor, the Company and the other parties thereto in respect of all shares held by the Shareholder; and the Parties shall execute a joinder thereto whereby the Shareholder shall become a “Shareholder” (as defined therein) and the Shareholder’s Class A Ordinary Shares issued upon conversion of the Class B Ordinary Shares shall be “Registrable Securities” (as defined therein). The Company will file a registration statement on Form S-1 with the Securities and Exchange Commission (“SEC”) to permit the resale of the Shareholder’s Class A Ordinary Shares issued upon conversion of the Class B Ordinary Shares within 30 days following the closing of the Business Combination, and will use its commercially reasonable best efforts to cause the registration statement to be declared effective by the SEC within 90 days after the closing of the Business Combination. To the extent the Shareholder is already a party to the Registration Rights Agreement, this Agreement shall constitute its consent to any amendment to the Registration Rights Agreement that may be required to give effect to the foregoing.
3. The Shareholder shall not be required to enter into any lock-up agreement with respect to the Securities in connection with the Business Combination or under the Registration Rights Agreement. In furtherance thereof, the Sponsor, the Shareholder and the Company hereby amend the Investment Agreement to delete any provisions that would impose any restriction on Transfer (as defined therein) of the Class B Ordinary Shares that are the subject thereof, with such amendment to be effective immediately upon the closing of the Business Combination. The Shareholder shall not be required to subject the Class B Ordinary Shares or the Class A Ordinary Shares into which they are converted to any forfeitures, surrenders, claw-backs, disposals, or similar arrangements in connection with the Business Combination or otherwise.
4. If at any time the number of outstanding Class A Ordinary Shares of the Company is increased or decreased by a consolidation, combination, split or reclassification of the Class A Ordinary Shares or other similar event (other than the conversion of Class B Ordinary Shares to shares of Class A Ordinary Shares in accordance with the Charter), then, as of the effective date of such consolidation, combination, split, reclassification or similar event, all share numbers referenced in this Agreement shall be adjusted in proportion to such increase or decrease in outstanding Class A Ordinary Shares.
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3. Agreement to Vote. From and after the date hereof until the Termination Date (as defined below), the Shareholder (in such capacity and not in any other capacity) hereby agrees subject to Section 1 that, at any meeting (whether general or extraordinary and each adjourned or postponed meeting) of the Company’s shareholders to seek approval of the Extension, however called, or in connection with any other written consent of the Company’s shareholders to seek approval of the Extension, the Shareholder will (x) appear at such meeting or otherwise cause all of the Securities held by the Shareholder as of the date hereof to be counted as present thereat for purposes of calculating a quorum and (y) vote or cause to be voted (including by proxy or written consent, if applicable) all of the Securities held by the Shareholder as of the date hereof:
(a) in favor of the Extension (and, in the event that the Extension is presented as more than one proposal, in favor of each proposal that is part of the Extension so long as such other proposals have no effect other than approving a portion of the Extension);
(b) for any proposal to adjourn or postpone the Meeting to a later date proposed by the Company for purposes of obtaining the Extension approval; provided, that the Shareholder shall not be required to vote in favor of any adjournment or postponement which would allow the Meeting to take place on a date later than the Outside Date;
(c) against any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Shareholder contained in this Agreement.
4. No Transfer of Non-Redeemed Shares. The Shareholder agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with it, will, from the execution of this Agreement until the earlier to occur of the Termination Date (as defined herein) and the business day after the occurrence of the Meeting, (a) engage in any hedging transactions or Short Sales (as defined below) with respect to any or all of the Non-Redeemed Shares, (b) offer for sale, sell (including Short Sales), transfer (including by operation of law), place a lien on, pledge, convert, assign or otherwise dispose of (including by gift, merger, tendering into any tender offer or exchange offer or otherwise) or encumber (collectively, a “Transfer”), or enter into any contract, option, derivative, hedging or other agreement, arrangement, undertaking or understanding (including any profit-sharing arrangement) with respect to, or consent to, a direct or indirect Transfer of, any or all of the Non-Redeemed Shares, or (c) take any action that would have the effect of preventing or materially delaying the performance of its obligations hereunder. For purposes of this Agreement, “Short Sales” shall include, without limitation, (i) all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, (ii) all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage or other similar financing arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and (iii) sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
5. Representations of the Shareholder. The Shareholder hereby represents and warrants to the Sponsor and the Company that:
(a) This Agreement has been validly authorized, executed and delivered by the Shareholder and, assuming the due authorization, execution and delivery thereof by the other Parties, is a valid and binding agreement enforceable against the Shareholder in accordance with its terms, subject to the general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally. The execution, delivery and performance of this Agreement by the Shareholder does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which the Shareholder is a party which would prevent the Shareholder from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which the Shareholder is subject.
(b) The Shareholder acknowledges that it has had the opportunity to review this Agreement and the transactions contemplated by this Agreement with the Shareholder’s own legal counsel.
(d) The Shareholder 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”).
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(e) The Shareholder is the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good title to, all of the Securities, and there exist no liens or any other limitation or restriction that would affect Shareholder’s right to vote, sell or otherwise dispose of such Securities (other than transfer restrictions under the Securities Act and the Investment Agreement prior to the amendment thereof contemplated hereby) affecting any such Securities, other than pursuant to ordinary course brokerage arrangements.
6. Company Representations. The Company and the Sponsor each hereby represent and warrant to the Shareholder that:
(a) This Agreement has been validly authorized, executed and delivered by it and, assuming the due authorization, execution and delivery thereof by the Shareholder, is a valid and binding agreement enforceable against the Company and the Sponsor in accordance with its terms, subject to the general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally. The execution, delivery and performance of this Agreement by the Company and the Sponsor does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which the Company or the Sponsor is a party which would prevent the Company or the Sponsor from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which the Company or the Sponsor is subject.
(b) There is no action pending against the Company or the Sponsor, to the Company’s or the Sponsor’s knowledge, threatened against the Company or the Sponsor, before any court, arbitrator, or governmental authority, which in any manner challenges or seeks to prevent, or enjoin or materially delay the performance by the Company or the Sponsor of its obligations under this Agreement.
7. Further Assurances. From time to time, at the Company’s or the Shareholder’s reasonable request and without further consideration, each Party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or reasonably requested to effect the actions and consummate the transactions contemplated by this Agreement.
8. Disclosure; Exchange Act Filings. As soon as practicable but in no event later than one business day after the Shareholder’s execution of this Agreement, the Company will file a Current Report on Form 8-K under the Exchange Act (the “Form 8-K”), reporting the material terms of this Agreement and any other material non-public information that the Sponsor or the Company (or any person acting on behalf of either) has provided to the Shareholder at any time prior to the filing of the Form 8-K. The Parties shall cooperate with one another to ensure that such disclosure is accurate and complete. The Company and the Sponsor acknowledge and represent that upon the filing of the Form 8-K, the Shareholder shall not be in possession of any material non-public information received from the Company, the Sponsor, or any person acting on behalf of either. The Sponsor and the Company agree that the name of the Shareholder shall not be included in any public disclosures related to this Agreement unless required by applicable law, regulation or stock exchange rule.
9. Trust Account. Until the earlier of (a) the consummation of a Business Combination and (b) the liquidation of the trust account established for the benefit of the Company’s public shareholders in connection with the IPO (the “Trust Account”): the Company will maintain the investment of funds held in the Trust Account in interest-bearing United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended, which invest only in direct U.S. government treasury obligations, or maintain such funds in cash in an interest-bearing demand deposit account at a bank.
10. Trust Account Waiver. To the extent such right, title, interest, or claim currently exists, the Shareholder hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of or from the Trust Account solely with respect to the Class A Ordinary Shares to be issued upon the conversion of the Class B Ordinary Shares as provided for in the Charter and pursuant to Section 2 of this Agreement.
11. Entire Agreement: Amendment. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and may be amended or modified only by written instrument signed by all of the Parties. The headings in this Agreement are for convenience of reference only and shall not alter or otherwise affect the meaning hereof. Notwithstanding the foregoing, except as expressly modified herein, the Investment Agreement shall remain in full force and effect, and such Investment Agreement may be amended only by a written instrument agreed among the parties thereto.
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12. Governing Law. This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation, inducement to enter and/or performance of this Agreement (whether related to breach of contract, tortious conduct or otherwise and whether now existing or hereafter arising) shall be governed by, and construed in accordance with the law of the State of New York, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other jurisdiction. Any dispute relating hereto shall be heard in the state or federal courts of the State of New York located in New York County, New York, and the Parties agree to jurisdiction and venue therein. EACH OF THE COMPANY, THE SPONSOR, AND THE SHAREHOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LAWSUIT, CLAIM, OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
13. Counterparts. This Agreement may be executed in one or more counterparts, and by the respective Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed signature page by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Agreement.
14. Termination. This Agreement shall become null and void and of no force and effect upon the earliest to occur of (the “Termination Date”): (a) the mutual written consent of the Parties; (b) the Meeting (including as previously adjourned or postponed) not having taken place by June 17, 2023 (the “Outside Date”); and (c) the failure of the Company’s shareholders to approve the Extension at the Meeting. Notwithstanding any termination of this Agreement pursuant to the foregoing (b) or (c), the amendments to the Investment Agreement made pursuant to Section 2.3 hereof shall remain effective.
15. Remedies. Each of the Parties acknowledges and agrees that, in the event of any breach of any covenant or agreement contained in this Agreement by another Party, money damages may be inadequate with respect to any such breach and the non-breaching Party may have no adequate remedy at law. It is accordingly agreed that each of the Parties shall be entitled, in addition to any other remedy to which it may be entitled at law or in equity, to seek injunctive relief and/or to compel specific performance to prevent breaches by any other Party of any covenant or agreement of such other Party contained in this Agreement.
16. Acknowledgement. The Shareholder is aware that the Company is relying on the truth of the representations set forth in Section 5 of this Agreement in connection with the transactions contemplated by this Agreement.
17. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and permitted assigns. This Agreement shall not be assigned by any Party without the prior written consent of the other Parties; provided, that no such consent shall be required for any such assignment by the Shareholder to one or more affiliates thereof.
18. Most Favored Nation. In the event that (whether before or after the execution of this Agreement) the Company and/or the Sponsor have entered into or amended, or enter into or amend, one or more other voting and non-redemption agreements or similar agreements with one or more other shareholders of the Company (each, an “Other Shareholder”) in connection with the Extension (each, an “Other Agreement”), the Company and the Sponsor represent that no such Other Agreement contains or will contain terms and conditions that are materially more favorable to the relevant Other Shareholder thereunder than the terms and conditions of this Agreement are to the Shareholder hereunder (“More Favorable Terms”). In the event that any such Other Shareholder is so afforded any such More Favorable Terms, the Company shall promptly inform the Shareholder of such More Favorable Terms in writing, and the Shareholder shall have the right to elect to have any or all such More Favorable Terms included in this Agreement, in which case the Parties shall promptly amend this Agreement to effect the same.
[Signature Page Follows]
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| SWIFTMERGE ACQUISITION CORP. | ||
| By: | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Chief Executive Officer | ||
| SWIFTMERGE HOLDINGS, LP | ||
| By: Swiftmerge Holdings GP, LLC | ||
| Its: General Partner | ||
| By: | ||
| Name: Aston Loch | ||
| Title: Manager | ||
| SHAREHOLDER: | ||
| By: | ||
| By: | ||
| Name: | ||
| Title: Authorized Signatory | ||
Signature Page to Non-Redemption Agreement
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EXHIBIT A
| Account Name |
Address |
Number of Class A |
Number of Non- |
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| Total |
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Class B Shares Owned by Shareholder:
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