PURCHASE AND CONTRIBUTION AGREEMENT
Exhibit 10.1
PURCHASE AND CONTRIBUTION AGREEMENT
This PURCHASE AND CONTRIBUTION AGREEMENT (this “Agreement”) is made and entered into effectively as of June 2, 2023 (the “Effective Date”), by and among X. Xxxxxxxxx Holdings, LLC, (the “Acquirer”), Trajectory Alpha Acquisition Corp., a Delaware company (“SPAC”), and Trajectory Alpha Sponsor LLC (“Sponsor”) (each a “Party” and, collectively, the “Parties”).
WHEREAS, SPAC is a Special Purpose Acquisition Company that closed on its initial public offering on December 14, 2021, with 18 months (or up to 24 months as permitted under the Certificate of Amendment to the SPAC’s Amended and Restated Certificate of Incorporation) to complete an initial business combination;
WHEREAS, as of the date of this Agreement, SPAC has not completed or announced a business combination;
WHEREAS Sponsor owns 2,475,464 shares of Class B common stock of SPAC (the “Class B Shares”) and 5,725,000 Private Placement Warrants (the “Warrants”) to acquire one share of Class A common stock of SPAC (the “Class A Shares”) and Guggenheim Securities, Inc. owns 662,434 Class B Shares; and
WHEREAS, in accordance with the terms and conditions of this Agreement, Acquirer, or an entity designated by Acquirer, will contribute $250,000 (two hundred fifty thousand dollars) payable at the Effective Date to the SPAC to pay all outstanding debt of SPAC as of the Effective Date to third parties (the “Contribution”) and will pay $1.00 (one dollar) to the Sponsor (the “Sponsor Consideration” and together with the Contribution, the “Purchase Price”). In return, the Sponsor will sell and assign 2,170,464 Class B Shares and 4,525,000 Warrants held by Sponsor (collectively, the “SPAC Securities”) to Acquirer.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreement contained in this Agreement, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Purchase and Contribution. At the Effective Date:
(a) Acquiror shall advance the Contribution to the SPAC and deliver the Sponsor Consideration to the Sponsor and the Sponsor shall sell and assign to the Acquirer all right, title and interest in and to the SPAC Securities to the Acquiror.
(b) The SPAC shall use the Contribution to pay all outstanding debt of SPAC as of the Effective Date to third parties, as set forth on Exhibit C to this agreement. Any other debt of SPAC to Sponsor shall be cancelled, including any fees owed under the administrative services agreement.
(c) Sponsor (a) consents to the contribution effected under this Agreement and the transfer of such SPAC Securities to the Acquirer; and (b) waives and releases any rights, notices, claims, objections, or processes applicable to any transfers of SPAC Securities under the Operating Agreement of the Sponsor dated December 9, 2021 (as amended) (the “Sponsor Operating Agreement”).
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2. Assumption of Obligations. In addition to the payment of the Purchase Price, Acquirer shall (i) cause SPAC to make all of its public company reporting requirements, (ii) and assume all other obligations of Sponsor related to the SPAC. To the extent the SPAC’s duration is extended for more than two years from the date of the Prospectus, Acquirer shall cause SPAC to purchase an extension of directors’ and officers’ insurance substantially equivalent to the existing directors’ and officers’ insurance for the duration of the SPAC, which insurance coverage terms and insurance provider shall be substantially comparable to the directors’ and officers’ insurance policy currently in effect and shall continue to cover the existing directors and officers for actions taken during their service as a director officer of the SPAC.
3. Management; Name Change. XXXX acknowledges and agrees that Acquirer shall have the right to replace SPAC’s current directors with any such directors as Acquirer may select in accordance with the certificate of incorporation of the SPAC. Concurrently with the execution of this Agreement, SPAC’s officers shall submit resignation letters, which letters shall take effect with the execution of this Agreement. Accordingly, at the request of Xxxxxxxx, SPAC shall take such actions as necessary to effectuate the removal and replacement of SPAC’s existing directors and officers and the existing directors and officers of SPAC shall resign from their respective positions. Sponsor shall cause one of its nominees to appoint the nominees to the SPAC board of directors chosen by Acquirer prior to such nominee resigning. Additionally, Acquirer shall file a formal public vehicle name change on behalf of SPAC within 10 days of the Effective Date, or such longer time as may be required under NYSE rules or regulations, and SPAC and Sponsor shall reasonably cooperate with Acquirer in connection therewith. Sponsor shall retain all rights to own and use the “Trajectory” and Trajectory Alpha” names and internet and email domain names.
4. Liabilities. SPAC confirms to Acquirer that a true and correct (a) copy of its balance sheet as of March 31, 2023, is set forth on Exhibit A to this Agreement, (b) list of invoices received by SPAC up to March 31, 2023 is set forth on Exhibit B to this Agreement, (c) exhibit setting forth bank account balances for SPAC and all transactions in such bank accounts since the formation of the SPAC are set forth on Exhibit C to this Agreement together with additional transactions to be completed on or about the Effective Date, which additional transactions are hereby agreed and authorized, and (d) capitalization table of SPAC is set forth on Exhibit D. SPAC confirms that it has no liabilities as of the Effective Date except those identified on Exhibits A, B, C and D to this Agreement. To the extent the there are liabilities of SPAC as of the Effective Date in addition to those included in Exhibits A, B, C and D, Acquirer shall be entitled to cause Sponsor to transfer additional Class B Shares to Acquirer on a value of $1.00 per share.
5. Limitation on Transfer. Acquirer acknowledges and agrees that the SPAC Securities are subject to the limitations on transfer set forth in Section 8 of this Agreement.
6. Title. Sponsor represents and warrants to Acquirer that Sponsor has good and marketable title to the SPAC Securities free and clear of all liens and encumbrances and that, upon updating the records of ownership, Acquirer will have good and marketable title to the SPAC Securities.
7. Representations and Warranties. Each Party hereby represents and warrants to each other Party as of the Effective Date and as of the Closing that:
(a) such Party has the power and authority to execute and deliver this Agreement and to carry out its obligations hereunder;
(b) the execution, delivery and performance by the Party of this Agreement and the consummation of the transfer have been duly authorized by all necessary action on the part of the relevant Party, and no further approval or authorization is required on the part of such Party;
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(c) this Agreement will be valid and binding on each Party and enforceable against such Party in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance, moratorium or similar laws affecting the enforcement of creditors rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity; and
(d) SPAC and Sponsor have received all third-party consents to the transfer of the SPAC Securities and such consents have been shared with Acquirer.
(e) No material events have occurred between March 31, 2023 and the execution of Agreement other than those events disclosed by the SPAC in public filings made with the Securities and Exchange Commission.
8. Acknowledgements. Each Party acknowledges and agrees that the transfer has not been registered under the Securities Act or under any state securities laws and Acquirer represents that it:
(a) is acquiring the SPAC Securities pursuant to an exemption from registration under the Securities Act with no present intention to distribute them to any person in violation of the Securities Act or any applicable U.S. state securities laws;
(b) will not sell or otherwise dispose of any of the SPAC Securities, except in compliance with the registration requirements or exemption provisions of the Securities Act and any applicable U.S. state securities laws and in accordance with any limitations set forth in any agreements described in the Prospectus dated December 9, 2021 relating to the initial public offering of the SPAC;
(c) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of the SPAC Securities and of making an informed investment decision, and has conducted a review of the business and affairs of SPAC that it considers sufficient and reasonable for purposes of making the transfer; and
(d) is an “accredited investor” (as defined by Rule 501 of the Securities Act).
9. Injunctive Relief. It is hereby understood and agreed that damages shall be an inadequate remedy in the event of a breach by any Party of any covenants or obligations herein, and that any such breach by a Party will cause the other Parties great and irreparable injury and damage. Accordingly, the breaching Party agrees that the other Parties shall be entitled, without waiving any additional rights or remedies otherwise available to such other Parties at law or in equity or by statute, to injunctive and other equitable relief in the event of a breach or intended or threatened breach by the breaching Party of any of said covenants or obligations.
10. Severability. In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited or eliminated only to the extent necessary to remove the invalidity, illegality or unenforceability in the jurisdiction where such provisions have been held to be invalid, illegal, or unenforceable.
11. Titles and Headings. The titles and section headings in this Agreement are included strictly for convenience purposes.
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12. No Waiver. It is understood and agreed that no failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
13. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of laws rules. Each Party (a) irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the United States District Court for the District of Delaware (collectively, the “Courts”), for purposes of any action, suit or other proceeding arising out of this Agreement; and (b) agrees not to raise any objection at any time to the laying or maintaining of the venue of any such action, suit or proceeding in any of the Courts, irrevocably waives any claim that such action, suit or other proceeding has been brought in an inconvenient forum and further irrevocably waives the right to object, with respect to such action, suit or other proceeding, that such Court does not have any jurisdiction over such Party. Any Party may serve any process required by such Courts by way of notice.
14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
15. Entire Agreement. This Agreement contains the entire agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written, with respect to the subject matter hereof. No modification of this Agreement or waiver of the terms and conditions hereof shall be binding upon either Party, unless mutually approved in writing.
16. Counterparts. This Agreement may be executed in counterparts (delivered by email or other means of electronic transmission), each of which shall be deemed an original and which, when taken together, shall constitute one and the same document.
17. Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by email or other electronic means, with affirmative confirmation of receipt, (iii) one business day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) business days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice.
| If to Acquirer: | X. Xxxxxxxxx Holdings, LLC | |
| 31 Xxxxxx Yards | ||
| 11th Floor | ||
| New York, New York 10005 | ||
| Attn: Xxxxxx Xxxxx | ||
| Email: x.xxxxx@xxxxxxxxxx.xx |
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| With a copy to: | Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP | |
| 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000 | ||
| Washington, DC 20001 | ||
| Attn: Xxxxxx X. Xxxxxx | ||
| Email: xxxx.xxxxxx@xxxxxxxxxxxxx.xxx | ||
| If to SPAC: | Trajectory Alpha Acquisition Corp. | |
| Attn: Xxxxx Xxxxxx | ||
| Email: xxxxx@xxxxxxxxxxxxxxxxx.xxx | ||
| With a copy to: | Xxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP | |
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| New York, New York 10019 | ||
| Attn: Xxxxxxx X. Xxxxx | ||
| Email: xxxxxx@xxxxxxxxx.xxx | ||
| If to Sponsor: | Trajectory Alpha Sponsor LLC | |
| Email: xxxxx@xxxxxxxxxxxxxxxxx.xxx | ||
| With a copy to: | Xxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP | |
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| New York, New York 10019 | ||
| Attn: Xxxxxxx X. Xxxxx | ||
| Email: xxxxxx@xxxxxxxxx.xxx | ||
18. Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other Parties, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning Party of its obligations hereunder.
19. Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in or be deemed to have been executed for the benefit of, any person or entity that is not a Party hereto or thereto or a successor or permitted assign of such a Party.
20. Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and the non-breaching Parties may have not adequate remedy at law, and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
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21. Cooperation. Sponsor agrees to provide information as may be reasonably necessary to enable Acquirer to permit SPAC to make any filings with the Securities and Exchange Commission.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered, all as of the Effective Date.
| ACQUIRER: | ||
| X. Xxxxxxxxx Holdings, LLC | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Manager | |
| X. Xxxxxxxxx Holdings, LLC | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Manager | |
| SPAC: | ||
| Trajectory Alpha Acquisition Corp. | ||
| By: | /s/ Xxxxxxx X.X. Xxxxxxx | |
| Name: | Xxxxxxx X.X. Xxxxxxx | |
| Title: | President and Chief Financial Officer | |
| SPONSOR: | ||
| Trajectory Alpha Sponsor LLC | ||
| By: | /s/ Xxxxxxx X.X. Xxxxxxx | |
| Name: | Xxxxxxx X.X. Xxxxxxx | |
| Title: | Managing Member | |
[Signature Page to Purchase and Contribution Agreement]
