AMENDMENT NO. 2 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit 10.1
AMENDMENT NO. 2 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT
THIS AMENDMENT NO. 2 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment”) is made as of December 7, 2023, by and between Qomolangma Acquisition Corp., a Delaware corporation (the “Company”), and American Stock Transfer & Trust Company, LLC a New York limited liability company (the “Trustee”). Capitalized terms contained in this Amendment, but not specifically defined in this Amendment, shall have the meanings ascribed to such terms in that certain Investment Management Trust Agreement, dated September 29, 2022, as amended on June 30, 2023, by and between the parties hereto (the “Trust Agreement”).
WHEREAS, $53,520,950 of the gross proceeds from the IPO and sale of the Private Placement Units was deposited into the Trust Account;
WHEREAS, Section 1(i) of the Trust Agreement provides that the Trustee is to liquidate the Trust Account and distribute the Property in the Trust Account only after and promptly after (x) receipt of, and only in accordance with, the terms of a Termination Letter; or (y) the date which is 9 months after the closing of the IPO, or, in the event that the Company extended the time to complete the Business Combination for up to 22 months from the Closing but has not completed the Business Combination within such 22 month period, as applicable, the 22 month anniversary, as applicable, of the Closing, provided a Termination Letter has not been received by the Trustee prior to such date;
WHEREAS, Section 7(c) of the Trust Agreement provides that Section 1(i) of the Trust Agreement may not be modified, amended or deleted without the affirmative vote of at least a sixty-five percent (65%) or more of the then outstanding shares of Common Stock, par value $0.0001 per share, of the Company, voting together as a single class;
WHEREAS, the Company obtained the requisite vote of the stockholders of the Company to approve this Amendment; and
WHEREAS, each of the Company and Trustee desire to amend the Trust Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
| 1. | Amendment to Section 1(i). Section 1(i) of the Trust Agreement is hereby amended and restated in its entirety as follows: |
“(i) Commence liquidation of the Trust Account only after and promptly after receipt of, and only in accordance with, the terms of a letter (“Termination Letter”), in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, signed on behalf of the Company by its President, Chief Executive Officer or Chairman of the Board and Secretary or Assistant Secretary and, in the case of a Termination Letter in a form substantially similar to that attached hereto as Exhibit A, acknowledged and agreed to by Ladenburg, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account only as directed in the Termination Letter and the other documents referred to therein; or provided, however, that in the event that a Termination Letter has not been received by the Trustee by the 9-month anniversary of the closing of the IPO (“Closing”) or, in the event that the Company extended the time to complete the Business Combination up to the 22-month anniversary from the closing of the IPO by depositing the lesser of $0.033 per outstanding share and $20,000 for each 1-month extension, but has not completed the Business Combination within such additional period, as applicable, the 9-month anniversary of the Closing plus such extensions (as applicable, the “Last Date”), the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B hereto and distributed to the Public Stockholders as of the Last Date.”
| 2. | Amendments to Definitions. |
(i) Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement. The following defined term in the Trust Agreement shall be amended and restated in their entirety:
“Trust Agreement” shall mean that certain Investment Management Trust Agreement, dated September 29, 2022, by and between Qomolangma Acquisition Corp. and American Stock Transfer & Trust Company, as amended by the Amendment No. 1 to Investment Management Trust Agreement dated June 30, 2023 and the Amendment No. 2 to Investment Management Trust Agreement dated December 7, 2023.”; and
(ii) The term “Property” shall be deemed to include any Contribution paid to the Trust Account in accordance with the terms of the Amended and Restated Certificate of Incorporation and the Trust Agreement.
| 3. | Miscellaneous. |
| 3.1. | Successors. All the covenants and provisions of this Amendment by or for the benefit of the Company or the Trustee shall bind and inure to the benefit of their permitted respective successors and assigns. |
| 3.2. | Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. |
| 3.3. | Applicable Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York. |
| 3.4. | Counterparts. This Amendment may be executed in several original or facsimile counterparts, each of which shall constitute an original, and together shall constitute but one instrument. |
| 3.5. | Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof. |
| 3.6. | Entire Agreement. The Trust Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated. |
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first written above.
| By: | ||
| Name: | ||
| Title: |
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Trustee
| By: | ||
| Name: | ||
| Title: |
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