SHARE PURCHASE AGREEMENT
EXHIBIT 10.1
Execution Version
SHARE PURCHASE AGREEMENT
by and among
BATTERY FUTURE SPONSOR LLC
and
PALA INVESTMENTS LIMITED,
as the Sellers,
CAMEL BAY, LLC,
as Buyer
and
BATTERY FUTURE ACQUISITION CORP.,
as the Company
Dated: January 16, 2024
TABLE OF CONTENTS
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| ARTICLE I Definitions and Rules of Construction |
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| 1.1 | Definitions |
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| 1.2 | Rules of Construction |
| 9 |
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| ARTICLE II Purchase and Sale of Purchased Founder Shares |
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| 2.1 | Transfer of Purchased Founder Shares |
| 10 |
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| 2.2 | Closing |
| 10 |
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| ARTICLE III Representations and Warranties with respect to the Sellers |
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| 3.1 | Organization; Authorization and Enforceability |
| 11 |
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| 3.2 | Ownership of the Purchased Founder Shares |
| 12 |
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| 3.3 | Consents and Approvals |
| 12 |
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| ARTICLE IV Representations and Warranties with respect to the SPAC |
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| 4.1 | Organization and Power |
| 12 |
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| 4.2 | Capitalization |
| 12 |
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| 4.3 | SEC Filings |
| 13 |
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| 4.4 | Trust Account |
| 13 |
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| 4.5 | Transactions with Affiliates |
| 14 |
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| 4.6 | Litigation |
| 14 |
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| 4.7 | Compliance with Applicable Law |
| 14 |
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| 4.8 | Business Activities |
| 14 |
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| 4.9 | Internal Controls; Listing; Financial Statements |
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| 4.10 | No Undisclosed Liabilities |
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| 4.11 | Tax Matters |
| 16 |
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| 4.12 | Material Contracts; No Defaults |
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| 4.13 | Absence of Changes |
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| ARTICLE V Representations and Warranties with respect to Buyer |
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| 5.1 | Organization and Power |
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| 5.2 | Authorization and Enforceability |
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| 5.3 | No Violation |
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| 5.4 | Anti-Money Laundering |
| 19 |
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| 5.5 | Governmental Authorizations and Consents |
| 19 |
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| 5.6 | Accredited Investor; Investment Purpose |
| 19 |
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| 5.7 | Information |
| 19 |
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| 5.8 | Acknowledgement of Risks |
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| 5.9 | No Inducement or Reliance; Independent Assessment |
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| ARTICLE VI Covenants |
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| 6.1 | Operating Expenses |
| 20 |
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| 6.2 | Sponsor and SPAC Transition Reporting |
| 21 |
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| 6.3 | Public Announcements |
| 21 |
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| 6.4 | D&O Indemnification and Insurance |
| 21 |
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| 6.5 | Non-Redemption Transfers |
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| 6.6 | Right of First Refusal |
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| ARTICLE VII Miscellaneous |
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| 7.1 | Expenses |
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| 7.2 | Notices |
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| 7.3 | Governing Law |
| 24 |
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| 7.4 | Entire Agreement; No Other Representations |
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| 7.5 | Severability |
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| 7.6 | Amendment |
| 24 |
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| 7.7 | Effect of Waiver or Consent |
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| 7.8 | Parties in Interest; Limitation on Rights of Others |
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| 7.9 | Assignability |
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| 7.10 | Jurisdiction; Court Proceedings; Waiver of Jury Trial |
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| 7.11 | No Other Duties |
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| 7.12 | Reliance on Counsel and Other Advisors |
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| 7.13 | Specific Performance |
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| 7.14 | Release |
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| 7.15 | Counterparts |
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| 7.16 | Further Assurance |
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Exhibits
SCHEDULES
| Schedule I |
| List of Resigning Officers and Directors |
| Schedule II |
| Buyer Expenses |
| Schedule 1.1(a) |
| Non-Redemption Agreements |
| Schedule 1.1(b) |
| Service Providers |
| Schedule 1.1(c) |
| Sponsor Promissory Notes |
| Schedule 4.5 |
| Transactions with Affiliates |
| Schedule 4.10 |
| No Undisclosed Liabilities |
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THIS SHARE PURCHASE AGREEMENT (this “Agreement”), dated as of January 16, 2024, is made by and between BATTERY FUTURE ACQUISITION CORP. (the “SPAC” or the “Company”), BATTERY FUTURE SPONSOR LLC (“BFAC Sponsor”), PALA INVESTMENTS LIMITED (“Pala”, together with BFAC Sponsor, the “Sellers” or “Sponsors”), and CAMEL BAY, LLC (the “Buyer”). Each of Buyer, SPAC and the Sellers are referred to herein as a “Party” and together as the “Parties.”
RECITALS
WHEREAS, (i) BFAC Sponsor owns 5,748,889 Class B Ordinary Shares of the SPAC, par value $0.0001 per share (“Founder Shares”), and 9,445,000 warrants to acquire Class A Ordinary Shares of the SPAC, par value $0.0001 per share (the “Class A Shares”), purchased in a private placement contemporaneously with the SPAC’s initial public offering (the “Placement Warrants”), (ii) Pala owns 2,751,111 Founder Shares and 3,095,000 Placement Warrants, (iii) Xxxxxx Xxxxxxxxxx & Co. (“Cantor”) owns 2,760,000 Placement Warrants, and (iv) Xxxx Capital Partners, LLC (“Xxxx”) owns 125,000 Founder Shares and 1,000,000 Placement Warrants;
WHEREAS, Buyer desires to acquire from the Sellers, and the Sellers desire to sell to Buyer, an aggregate amount of 4,193,695 Founder Shares in the amounts set forth on Annex I attached hereto (the “Purchased Founder Shares”), on the following terms and conditions;
WHEREAS, as an inducement to enter into this Share Purchase Agreement, (i) each Seller and each other holder of Placement Warrants shall each enter into an agreement with SPAC that terminates all of the Placement Warrants held by such holder (the “Warrant Termination Agreements”), (iii) each Seller shall enter into a loan cancellation agreement to forgive, cancel and terminate the Sponsor Promissory Notes (as defined below) (the “Loan Cancellation Agreements”), and (iii) the Sellers shall collectively transfer an aggregate amount of 350,000 Founder Shares to the Service Providers, in the amounts for each Service Provider as set forth on Annex I, pursuant to fee reduction or waiver agreements (the “Service Provider Letter Agreements”), in each case, entered into as of even date herewith.
NOW THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties hereto agree as follows:
ARTICLE I
Definitions and Rules of Construction
1.1 Definitions.
As used in this Agreement, the following terms shall have the meanings set forth below:
“Affiliate” means (a) as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person or (b) as to any Person that is a natural Person, any such Person’s spouse, parents, children and siblings, whether by blood, adoption or marriage, residing in such Person’s home or any trust or similar entity for the benefit of any of the foregoing Persons. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
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“Agreement” means this Share Purchase Agreement, as it may be amended from time to time.
“Ancillary Documents” means the documents, agreements, statements or certificates being executed and delivered in connection with this Agreement and the transactions contemplated hereby.
“Business Combination” means the SPAC’s acquisition of a target business via merger, capital share exchange, asset acquisition, share purchase, reorganization or other similar business combination.
“Business Day” means any day other than a Saturday, Sunday or day on which banks are closed in New York, New York. If any period expires on a day which is not a Business Day or any event or condition is required by the terms of this Agreement to occur or be fulfilled on a day which is not a Business Day, such period shall expire or such event or condition shall occur or be fulfilled, as the case may be, on the next succeeding Business Day.
“Buyer” has the meaning set forth in the Preamble.
“Chosen Courts” has the meaning set forth in Section 7.10.
“Closing” has the meaning set forth in Section 2.2(a).
“Closing Date” means the date on which the Closing occurs.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Material Adverse Effect” means any event, change, development, effect, condition, circumstance, matter, occurrence, or state of fact that has had or is reasonably expected to have a material adverse effect on (a) the business, operations or financial condition of SPAC, taken as a whole, or (b) the ability of any Seller or the SPAC to perform its obligations under this Agreement or to consummate the Contemplated Transactions; provided, that none of the following events, changes, developments, effects, conditions, circumstances, matters, occurrences or states of facts, whether alone or in combination, shall be taken into account in determining whether there has been or may be a Company Material Adverse Effect: any adverse event, change, development, effect, condition, circumstance, matter, occurrence or state of facts attributable to (i) any general, regional, global or national economic, monetary or financial condition, including changes or developments in prevailing interest rates, credit markets, securities markets, general economic or business conditions or currency exchange rates, or political or regulatory conditions, (ii) operating, business, regulatory or other conditions generally affecting similarly structured blank check companies as the SPAC, (iii) any change in Laws or GAAP, or (iv) the negotiation, execution, delivery, performance or announcement of this Agreement or the Contemplated Transactions (it being understood that the facts and circumstances giving rise or contributing to any such event, change, development, effect, condition, circumstance, matter, occurrence or state of fact may, unless otherwise excluded by another clause in this definition of “Company Material Adverse Effect,” be taken into account in determining whether a “Company Material Adverse Effect” has occurred or could reasonably be expected to occur, so long as in the case of clauses (i) and (ii), such events, changes, developments, effects, conditions, circumstances, matters, occurrences or state of facts do not materially and adversely affect the SPAC, taken as a whole, in a materially disproportionate manner relative to other special purpose acquisition companies).
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“Company Parties” has the meaning set forth in Section 5.9.
“Contemplated Transactions” means the transactions contemplated by this Agreement and the Ancillary Documents.
“Founder Shares” has the meaning set forth in the Recitals.
“Fraud” means with respect to any Person, the making of a statement of fact with intent to deceive another Person and requires (a) a false representation of material fact; (b) with knowledge that such representation is false; (c) with an intention to induce the party to whom such representation is made to act or refrain from acting in reliance upon it; (d) causing that party, in justifiable reliance upon such false representation, to take or refrain from taking action; and (e) causing such party to suffer damage by reason of such reliance.
“GAAP” means United States generally accepted accounting principles and practices in effect from time to time consistently applied.
“Governmental Authority” means any nation or government, any supranational, foreign or domestic federal, state, county, municipal or other political instrumentality or subdivision thereof and any supranational, foreign or domestic entity or body exercising executive, legislative, judicial, regulatory, administrative functions of or pertaining to government, including any court.
“Insiders” means the holders of Founder Shares.
“IRS” means the Internal Revenue Service.
“Joinder Agreement” means the agreement to be executed at Closing whereby Buyer shall become a party to the Letter Agreement and the Registration Rights Agreement.
“Laws” means all laws, Orders, statutes, codes, regulations, ordinances, judgments, decrees, rules, or other requirements or pronouncement with similar effect of any Governmental Authority.
“Letter Agreement” means the Letter Agreement, dated as of December 14, 2021 among the SPAC and the Insiders in connection with the SPAC’s initial public offering.
“Lien” means any lien, mortgage, deed of trust, security interest, pledge, charge, encumbrance, hypothecation, claim, contractual restriction, easement, right-of-way, option, right of first refusal or first offer, preemptive right, limitation, defects in title, restrictive covenants or other similar restriction or encumbrance.
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“Loan Cancellation Agreements” has the meaning set forth in the Recitals.
“Loss” means any direct or indirect liability, claim, loss, damage, suit, obligation, judgment, fine, cost, expense or penalty (including reasonable attorneys’ fees and expenses).
“Non-Redemption Agreements” means the Non-Redemption Agreement and Assignment of Economic Interest Agreements set forth on Schedule 1.1(a).
“NYSE” means the New York Stock Exchange.
“Orders” means all judgments, orders, rulings, determinations, writs, injunctions, decisions, rulings, decrees, settlement agreements, stipulations, and awards of any Governmental Authority.
“Organizational Documents” means, with respect to any Person (other than an individual), (i) the certificate of formation or incorporation or articles of incorporation, organization or association and any joint venture, limited liability company, operating or partnership agreement and other similar documents adopted or filed in connection with the creation, formation or organization of such Person and (ii) all bylaws, memoranda of association, regulations, voting agreements and similar documents, instruments or agreements relating to the organization or governance of such Person, in each case, as amended or supplemented.
“Party” or “Parties” have the meanings set forth in the Preamble.
“Permitted Lien” means any (a) Lien in respect of Taxes not yet due and payable or which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, as reflected in the financial statements, (b) any other Liens that, individually or in the aggregate, do not materially impair the value or the continued or proposed use and operation of the assets or properties to which they relate, (c) Liens imposed by applicable Law (including but not limited to zoning, entitlement, building and or other land use regulations) and (d) Liens pursuant to applicable securities Laws, which, individually or in the aggregate, do not materially impair the value or the continued or proposed use and operation of the assets or properties to which they relate.
“Person” means any individual, person, entity, general partnership, limited partnership, limited liability partnership, limited liability company, private limited company, corporation, joint venture, trust, business trust, cooperative, association, foreign trust or foreign business organization.
“Placement Warrants” has the meaning set forth in the Recitals.
“POA” or “Power of Attorney” means the irrevocable power of attorney to be executed at Closing by the holders of Class B Ordinary Shares of the SPAC.
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“Pro Rata Percentage” means, with respect to each Seller, the percentage interest set opposite to such Seller’s name on Xxxxx X.
“Purchased Founder Shares” has the meaning set forth in the Recitals.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of December 14, 2021, among the SPAC, the Sponsor and other equityholders named therein.
“Representatives” means, with respect to any Person, its officers, directors, management board members, employees, accountants, consultants, investment bankers, legal counsel, agents, proxies and other advisors and representatives.
“SEC” has the meaning set forth in Section 6.2(b).
“SEC Reports” has the meaning set forth in Section 4.3.
“Securities Act” means the Securities Act of 1933, as amended.
“Service Providers” means the service providers of SPAC and the Sponsors set forth on Schedule 1.1(b).
“Service Provider Letter Agreements” has the meaning set forth in the Recitals.
“SPAC” has the meaning set forth in the Recitals.
“SPAC Related Party Transaction” has the meaning set forth in Section 4.5.
“Sponsor Promissory Notes” means the promissory notes set forth on Schedule 1.1(c).
“Tax” or “Taxes” means any foreign, federal, state or local income, gross receipts, occupation, environmental, customs, duties, registration, alternative or add-on minimum, estimated, withholding, payroll, employment, unemployment insurance, social security (or similar), excise, sales, use, value-added, franchise, real property, personal property, business and occupation, capital stock, stamp or documentary, transfer, xxxxxxx’x compensation or other tax, governmental fee or imposition of any kind whatsoever, including any interest, penalties, additions, assessments or deferred liability with respect thereto, whether disputed or not.
“Tax Return” means any report, return, form, estimate, declaration, information return or statement filed or required to be filed in connection with any Taxes, including any schedule or attachment thereto, and including any amendment or supplement thereof.
“Tax Sharing Agreement” means any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar contract or arrangement, whether written or unwritten (including, without limitation, any such agreement, contract or arrangement included in any purchase or sale agreement, merger agreement, joint venture agreement or other document).
“Treasury” has the meaning set forth in Section 5.4.
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“Treasury Regulations” means the Treasury regulations promulgated under the Code, as such Treasury Regulations may be amended from time to time. Any reference herein to a particular provision of the Treasury Regulations means, where appropriate, the corresponding successor provision.
“Warrant Termination Agreements” has the meaning set forth in the Recitals.
1.2 Rules of Construction.
Unless the context otherwise requires:
(a) a capitalized term has the meaning assigned to it in this Agreement;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) references in the singular or to “him,” “her,” “it,” “itself,” or other like references, and references in the plural or the feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the masculine or feminine reference, as the case may be;
(d) references to Articles, Sections, Schedules and Exhibits shall refer to articles, sections, schedules and exhibits of this Agreement, unless otherwise specified;
(e) the headings in this Agreement are for convenience and identification only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision thereof;
(f) this Agreement shall be construed without regard to any presumption or other rule requiring construction against the party that drafted and caused this Agreement to be drafted;
(g) all monetary figures shall be in U.S. dollars unless otherwise specified;
(h) references to “including” in this Agreement shall mean “including, without limitation,” whether or not so specified;
(i) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other theory extends and such phrase shall not mean “if;” and
(j) the word “or” is not exclusive and the words “will” and “will not” are expressions of command and not merely expressions of future intent or expectation.
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ARTICLE II
Purchase and Sale of Purchased Founder Shares
2.1 Transfer of Purchased Founder Shares.
Upon the terms and subject to the conditions of this Agreement, the Sellers hereby sell, assign, transfer, and convey to Buyer, and Buyer hereby purchases, acquires, and accepts from the Sellers, all right, title, and interest in and of the Purchased Founder Shares, free and clear of all Liens, other than Permitted Liens, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged.
2.2 Closing.
(a) Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place remotely via the electronic exchange of documents and signatures, on the date hereof. The Parties intend that the Closing shall be effected, to the extent practicable, by conference call, the electronic delivery of documents and the prior physical exchange of certificates and certain other documents and instruments to be held in escrow by outside counsel to the recipient Party pending authorization by the delivering Party (or their outside counsel) of their release at the Closing.
(b) Closing Deliverables of Sellers and the SPAC.
The Sellers and the SPAC shall deliver or cause to be delivered to Buyer at the Closing:
(i) book entry interests evidencing the Sellers’ ownership of the Purchased Founder Shares, free and clear of all Liens, other than Permitted Liens, in a form and substance satisfactory to Buyer and an instruction from the Sellers to the SPAC to cause the book entry interests evidencing the Purchased Founder Shares being sold under this Agreement to be transferred to Buyer;
(ii) written resignations of the officers and directors of the SPAC as identified on Schedule I attached hereto;
(iii) executed POAs from the Sellers;
(iv) the Warrant Termination Agreements, duly executed by the Sellers and each other holder of Private Warrants;
(v) the Service Provider Letter Agreements, duly executed by BFAC Sponsor, Pala and the Service Providers;
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(vi) the Loan Cancellation Agreements, duly executed by BFAC Sponsor, Pala and the applicable lenders set forth on Schedule 1.1(c); and
(vii) waivers from the underwriters of the SPAC’s initial public offering, providing for, among other things, the forfeiture of their right to receive the deferred underwriting fee in its entirety pursuant to the Underwriting Agreement dated December 14, 2021.
(c) Closing Deliverables of Buyer. The Buyer shall deliver or cause to be delivered to the Sellers at the Closing:
(i) an executed Joinder Agreement to become a party to the Letter Agreement and the Registration Rights Agreement.
ARTICLE III
Representations and Warranties with respect to the Sellers
Each Seller hereby represents and warrants to Buyer that the following statements are true and correct as of the date hereof (except for such representations and warranties made only as of a specific date):
3.1 Organization; Authorization and Enforceability.
Such Seller is duly organized, validly existing and in good standing in its jurisdiction of organization. Such Seller is not in violation of any of the provisions of its Organizational Documents.
Such Seller and the SPAC has the requisite power and authority to execute and deliver this Agreement and the Ancillary Documents to which such Seller or SPAC is (or will be) a party and to perform such Seller’s or SPAC’s obligations thereunder. The execution and delivery of this Agreement and the Ancillary Documents to which such Seller or SPAC is a party and the performance by such Seller or SPAC of the Contemplated Transactions that are required to be performed by such Seller or SPAC has been duly authorized by such Seller or SPAC, and no other corporate proceedings on the part of such Seller or SPAC are necessary to authorize the execution, delivery and performance of this Agreement and the Ancillary Documents to which such Seller or SPAC is a party or the consummation of the Contemplated Transactions that are required to be performed by such Seller or SPAC. This Agreement and each of the Ancillary Documents to be executed and delivered at the Closing by such Seller or SPAC will be, at the Closing, duly authorized, executed and delivered by such Seller or SPAC and assuming that this Agreement is a valid and legally binding obligation of the other parties hereto or thereto, constitutes, or as of such Closing Date will constitute, a valid and legally binding agreement of such Seller or SPAC, enforceable against such Seller or SPAC, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights.
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3.2 Ownership of the Purchased Founder Shares.
Such Seller is the legal, record and beneficial owner and holder of the Purchased Founder Shares opposite such Seller’s name on Annex I attached hereto and has good and marketable title to such amount of Purchased Founder Shares, free and clear of any and all Liens, other than Permitted Liens. Such Seller is not a party to any option, warrant, equity right, purchase right or other contract or commitment that would require such Seller to offer, sell, transfer or otherwise offer or dispose of such Seller’s Purchased Founder Shares, other than this Agreement. Upon the consummation of the Contemplated Transactions and in accordance with the terms hereof, at the Closing, Buyer will acquire good and valid title to such Seller’s Purchased Founder Shares, free and clear of all Liens, other than Liens created by Xxxxx and Permitted Liens.
3.3 Consents and Approvals.
The execution and delivery by such Seller and SPAC of this Agreement and the Ancillary Documents to which such Seller or SPAC is a party, the consummation of the Contemplated Transactions by such Seller and SPAC and compliance with the terms of this Agreement and the Ancillary Documents to which such Seller or SPAC is a party do not (i) conflict with or violate any provision of the Organizational Documents of such Seller or the SPAC, (ii) conflict with, violate, result in any breach of, constitute a default under (or an event that with notice or passage of time or both would constitute a breach or default), give rise to a right of acceleration, termination or cancellation of, or result in the creation of any obligation under or loss of any benefit of, or require any notice to or consent, approval or other action by any Governmental Authority or other third party under any Law, Order, contract or other agreement applicable to such Seller or the SPAC, or (iii) result in the creation of any Lien on any of the Purchased Founder Shares other than Permitted Liens, except in the case of any of clause (ii) or (iii) above, as would not have a Company Material Adverse Effect or materially delay or materially impair the consummation of the Contemplated Transactions.
ARTICLE IV
Representations and Warranties with respect to the SPAC
BFAC Sponsor hereby represents and warrants to Buyer that the following statements are true and correct as of the date hereof (except for such representations and warranties made only as of a specific date):
4.1 Organization and Power.
The SPAC is duly organized, validly existing and in good standing in its jurisdiction of organization. The SPAC is not in violation of any of the provisions of its Organizational Documents.
4.2 Capitalization.
All outstanding Founder Shares are duly authorized, fully paid, validly issued, non-assessable, have not been or were not issued in violation of any preemptive or similar rights and were issued in compliance with applicable securities Laws or exemptions therefrom.
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Other than as disclosed in the SEC Reports, there are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to any equity interests in the SPAC.
4.3 SEC Filings.
The SPAC has filed or furnished all statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC since its IPO (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the “SEC Reports”). Each of the SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, complied in all material respects with the applicable requirements of Law (including, as applicable, the Xxxxxxxx-Xxxxx Act and any rules and regulations promulgated thereunder) applicable to the SEC Reports. As of their respective dates of filing, the SEC Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made or will be made, as applicable, not misleading. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the SEC Reports.
4.4 Trust Account.
As of the date of this Agreement, SPAC has an amount in cash in the Trust Account established at the time of the SPAC’s initial public offering for the benefit of the holders of the Class A Shares (the “Trust Account”) of at least $56,766,699.36. The funds held in the Trust Account are (i) held in an interest-bearing demand deposit accounts and (ii) held in trust pursuant to that certain Investment Management Trust Agreement, dated as of December 14, 2021, and as amended on June 12, 2023 and November 13, 2023 (the “Trust Agreement”), by and between SPAC and Continental Stock Transfer and Trust, as trustee (the “Trustee”). There are no separate agreements, side letters or other agreements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the SEC Reports to be inaccurate in any material respect or that would entitle any Person to any portion of the funds in the Trust Account (other than (x) in respect of deferred underwriting commissions and/or marketing fees under the Marketing Agreement (which will be waived), (y) the SPAC stockholders who shall have elected to redeem their shares pursuant to the Governing Documents of SPAC or (z) with respect to interest earned on the proceeds in the Trust Account (i) to pay income taxes and (ii) up to $100,000 to pay dissolution expenses if SPAC fails to complete a Business Combination within the allotted time period set forth in the Governing Documents of SPAC and liquidates the Trust Account). Prior to the closing of a Business Combination, none of the funds held in the Trust Account are permitted to be released, except in the circumstances described in the Governing Documents of SPAC and the Trust Agreement. SPAC has performed all material obligations required to be performed by it to date under, and is not in material default, breach or delinquent in performance or any other respect (claimed or actual) in connection with the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. There are no claims or Proceedings pending with respect to the Trust Account. Since December 14, 2021, SPAC has not released any money from the Trust Account (other than interest income earned on the funds held in the Trust Account as permitted by the Trust Agreement and to pay redeeming shareholders in connection with the shareholder votes on June 12, 2023 and November 14, 2023).
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4.5 Transactions with Affiliates. The SEC Reports disclose all contracts between (a) SPAC, on the one hand, and (b) any officer, director, employee, partner, member, manager, direct or indirect equityholder (including the Sponsors), warrant holder or Affiliate of either SPAC or any member of the Sponsors, on the other hand (each Person identified in this clause (b), a “SPAC Related Party”). Except as set forth on Schedule 4.5 hereto, no SPAC Related Party owes any amount to, or is owed any amount by, SPAC. All contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 4.5 are referred to herein as “SPAC Related Party Transactions”.
4.6 Litigation. There is (and since its incorporation, there has been) no proceeding pending or, to the knowledge of SPAC, threatened, against or affecting SPAC or its assets, including any condemnation or similar Proceedings that, if adversely decided or resolved, would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither SPAC nor any of its properties or assets is subject to any order from any Governmental Authority. As of the date of this Agreement, there are no material proceedings by SPAC pending against any other Person. There is no unsatisfied judgment or any open injunction binding upon SPAC that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
4.7 Compliance with Applicable Law. SPAC is (and since its incorporation, has been) in compliance with all applicable Laws, except as would not have a Company Material Adverse Effect. SPAC has not received any written notice from any Governmental Authority of a violation of any applicable Law by SPAC at any time since its formation, which violation would reasonably be expected to have a material adverse effect on the ability of SPAC to enter into, perform its obligations under any Business Combination.
4.8 Business Activities.
(a) Except as set forth in SPAC’s Governing Documents, there is no contract binding upon SPAC or to which SPAC is a party that has or would reasonably be expected to have a material adverse effect on SPAC’s ability to complete a Business Combination.
(b) SPAC does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. SPAC has no interests, rights, obligations or liabilities with respect to, or is party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any contract or transaction that is, or could reasonably be interpreted as constituting, a Business Combination.
(c) As of immediately prior to the Closing, SPAC shall have paid all outstanding invoices and monetary obligations of the SPAC incurred prior to the Closing Date, or such invoices and monetary obligations have otherwise been waived.
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4.9 Internal Controls; Listing; Financial Statements.
(a) Except as is not required in reliance on exemptions from various reporting requirements by virtue of SPAC’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act, or “smaller reporting company” within the meaning of the Exchange Act, since its IPO, and except as has been disclosed in the SEC Reports (i) SPAC has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of SPAC’s financial reporting and the preparation of the SPAC financial statements for external purposes in accordance with GAAP and (ii) SPAC has established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to ensure that material information relating to SPAC is made known to SPAC’s principal executive officer and principal financial officer by others within SPAC. Except as disclosed in the SEC Reports, such disclosure controls and procedures are effective in timely alerting SPAC’s principal executive officer and principal financial officer to material information required to be included in the SPAC financial statements included in SPAC’s periodic reports required under the Exchange Act.
(b) SPAC has not taken any action prohibited by Section 402 of the Xxxxxxxx-Xxxxx Act. There are no outstanding loans or other extensions of credit made by SPAC to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of SPAC.
(c) Since its IPO, SPAC has complied in all material respects with all applicable listing and corporate governance rules and regulations of the NYSE. The issued and outstanding SPAC Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE. The issued and outstanding SPAC Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE. The issued and outstanding SPAC Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE. As of the date of this Agreement, there is no Proceeding pending or, to the knowledge of SPAC, threatened against SPAC by the NYSE or the SEC with respect to any intention by such entity to deregister the SPAC Units, SPAC Shares or SPAC Warrants or prohibit or terminate the listing of the SPAC Units, SPAC Shares or SPAC Warrants on the NYSE. Neither SPAC nor any of its Affiliates has taken any action that is designed to terminate the registration of the SPAC Units, SPAC Shares or SPAC Warrants under the Exchange Act.
(d) SPAC has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for SPAC’s assets. SPAC maintains and, for all periods covered by the SPAC financial statements, has maintained books and records of SPAC in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of SPAC in all material respects.
(e) Since its incorporation, SPAC has not received any written complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of SPAC, (ii) a “material weakness” in the internal controls over financial reporting of SPAC or (iii) fraud, whether or not material, that involves management or other employees of SPAC who have a significant role in the internal controls over financial reporting of SPAC.
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(f) To the knowledge of SPAC, none of the SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.
4.10 No Undisclosed Liabilities. Except for the liabilities (a) that are incurred in connection with or incident or related to SPAC’s incorporation or continuing corporate existence, which are immaterial in nature, (b) that are incurred in connection with activities that are administrative or ministerial, in each case, which are immaterial in nature or (c) set forth or disclosed on Schedule 4.10 or Schedule II, SPAC has no liabilities of any kind.
4.11 Tax Matters.
(a) SPAC has timely filed, or caused to be timely filed, all income and other Tax Returns required to be filed by it (taking into account all available extensions) and such Tax Returns true, accurate, correct and complete in all respects. SPAC has timely paid, or caused to be paid, all Taxes required to be paid, other than such Taxes for which adequate reserves have been established as reflected on the financial statements.
(b) SPAC has complied in all material respects with all applicable Tax Laws relating to withholding and remittance of all Taxes and all Taxes required by applicable Tax Laws to be withheld by SPAC have been withheld and timely paid over to the appropriate governmental entity.
(c) To the knowledge of SPAC, there are no claims, assessments, audits, examinations, investigations or other similar actions pending or in progress against SPAC, in respect of any Tax, and SPAC has not been notified in writing of any proposed Tax claims or assessments against SPAC (other than, in each case, claims or assessments for which adequate reserves have been established and as reflected in the financial statements).
(d) There are no material Liens with respect to any Taxes upon any of SPAC’s assets, other than Permitted Liens. SPAC has no outstanding waivers or extensions of any applicable statute of limitations to assess any Taxes. There are no outstanding requests by SPAC for any extension of time within which to file any Tax Return or to pay any Taxes.
(e) SPAC has no liability for the Taxes of another Person pursuant to Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Tax Law) or as a transferee or successor or by contract, indemnity or otherwise. SPAC is not a party to or bound by any Tax indemnity agreement, Tax Sharing Agreement, Tax allocation agreement or similar agreement, arrangement or practice with respect to Taxes (including any closing agreement or other agreement relating to Taxes with any governmental entity) (other than any customary commercial contract entered into in the ordinary course of business and the principal purpose of which does not relate to Taxes).
(f) SPAC is not and has never been a member of any consolidated, combined, unitary or affiliated group of corporations for any Tax purposes.
(g) SPAC has not participated in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any similar provision of state, local or non-U.S. Tax Law.
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(h) During the two (2)-year period ending on the date of this Agreement, SPAC was not a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(i) SPAC is Tax resident only in its jurisdiction of incorporation.
(j) SPAC is not and has not been during the last five (5) years a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
4.12 Material Contracts; No Defaults.
(a) SPAC has filed as an exhibit to the SEC Reports all “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than confidentiality and non-disclosure agreements, this Agreement and the Ancillary Documents) to which, as of the date of this Agreement, SPAC is a party or by which any of its respective assets are bound.
(b) The SEC Reports contain true, correct and complete copies of the applicable SPAC’s financial statements for the periods covered therein. The SPAC financial statements (i) fairly present in all material respects the financial position of SPAC as at the respective dates thereof, and the results of its operations, shareholders’ equity and cash flows for the respective periods then ended (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of footnotes), (ii) were prepared in conformity with GAAP applied on a consistent basis (except, in the case of any audited financial statements, as may be indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of footnotes), (iii) in the case of the audited SPAC financial statements, were audited in accordance with the standards of the PCAOB and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Each contract of a type required to be filed as an exhibit to the SEC Reports, whether or not filed, was entered into at arm’s length. Such contracts are in full force and effect and represent the legal, valid and binding obligations of SPAC, and the other parties thereto, and are enforceable by SPAC to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a Proceeding in equity or at law). SPAC and the counterparties thereto, are not in material breach of or material default (or would be in material breach, violation or default but for the existence of a cure period) under any such contract. SPAC has not received any written or oral claim or notice of material breach of or material default under any such contract. No event has occurred which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such contract by SPAC or any other party thereto (in each case, with or without notice or lapse of time or both). SPAC has not received written notice from any other party to any such contract that such party intends to terminate or not renew any such contract.
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4.13 Absence of Changes. Since the date of SPAC’s incorporation, (a) no Company Material Adverse Effect has occurred and (b) except for actions expressly contemplated by this Agreement or any Ancillary Document or taken in connection with the Transactions, (i) SPAC has conducted its business in the ordinary course in all material respects and (ii) SPAC has not taken any action that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
ARTICLE V
Representations and Warranties with respect to Xxxxx
Buyer hereby represents and warrants to the Sellers as follows on the date hereof (except for such representations and warranties made only as of a specific date):
5.1 Organization and Power.
Buyer is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware and has full power and authority to execute and deliver this Agreement and the Ancillary Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Contemplated Transactions.
5.2 Authorization and Enforceability.
The execution and delivery of this Agreement and the Ancillary Documents to which Xxxxx is a party and the performance by Xxxxx of the Contemplated Transactions have been duly authorized by Xxxxx, and no other proceedings on the part of Buyer (including, without limitation, any stockholder vote or approval) are necessary to authorize the execution, delivery and performance of this Agreement and the Ancillary Documents to which Buyer is a party or the consummation of the Contemplated Transactions. This Agreement is, and each of the Ancillary Documents to be executed and delivered at each Closing by Buyer will be at each Closing, duly authorized, executed and delivered by Buyer, and constitute, or as of the Closing Date will constitute, valid and legally binding agreements of Buyer, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
5.3 No Violation.
The execution and delivery by Buyer of this Agreement and the Ancillary Documents to which Buyer is a party, consummation of the Contemplated Transactions and compliance with the terms of this Agreement and the Ancillary Documents to which Buyer is a party will not (a) conflict with or violate any provision of the Organizational Documents of Buyer, or (b) conflict with or violate in any material respect any Law applicable to Buyer or by which Xxxxx’s properties are bound.
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5.4 Anti-Money Laundering.
Buyer is in compliance with the regulations administered by the U.S. Department of the Treasury (“Treasury”) Office of Foreign Assets Control; (ii) such Buyer, its parents, subsidiaries, affiliated companies, officers, directors and partners, its stockholders, owners, employees, and agents, are not on the List of Specially Designated Nationals and Blocked Persons maintained by Treasury and have not been designated by Treasury as a financial institution of primary money laundering concern subject to special measures under Section 311 of the USA PATRIOT Act, Pub. L. 107-56; (iii) the funds to be used to acquire the Purchased Founder Shares are not derived from activities that contravene applicable anti-money laundering laws and regulations; (iv) such Buyer is in compliance in all material respects with applicable anti money laundering laws and regulations and has implemented anti money laundering procedures that are designed to comply with applicable anti-money laundering laws and regulations, including, as applicable, the requirements of the Bank Secrecy Act, as amended by the USA PATRIOT Act, Pub. L. 107 56; and (v) none of the funds to be provided by such Buyer are being tendered on behalf of a person or entity who has not been identified to such Buyer.
5.5 Governmental Authorizations and Consents.
No Governmental consents are required to be obtained or made by Buyer in connection with the execution, delivery and performance, validity and enforceability of this Agreement or any Ancillary Documents to which it is, or is to be, a party, or the consummation by Buyer of the Contemplated Transactions.
5.6 Accredited Investor; Investment Purpose; No General Solicitation or Advertising.
Buyer is an “accredited investor” as such term is defined in Rule 501(a) under the Securities Act. Buyer is acquiring the Purchased Founder Shares solely for the purpose of investment, for Xxxxx’s own account and not with a view to, or for offer or resale in connection with, any distribution thereof other than in compliance with all applicable Laws, including United States federal securities Laws. Xxxxx agrees that the Purchased Founder Shares may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any applicable state securities Laws, except pursuant to an exemption from such registration under the Securities Act and such Laws. Xxxxx did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act. Buyer is able to bear the economic risk of holding its investment in the Purchased Founder Shares for an indefinite period (including total loss of its investment), and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment.
5.7 Information.
Buyer acknowledges that it has had the opportunity to review the SEC Reports and Buyer and its advisors, if any, have been furnished with materials relating to the business, finances and operations of the Sponsor and the SPAC and materials relating to Purchased Founder Shares sufficient in its view to enable it to evaluate its investment. Buyer and its advisors, if any, have been afforded the opportunity to ask questions as it has deemed necessary of, and to receive answers from, representatives of the Sellers concerning the terms and conditions of the Contemplated Transactions and the merits and risks of investing in the Purchased Founder Shares.
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5.8 Acknowledgement of Risks.
Buyer acknowledges and understands that its investment in the Purchased Founder Shares involve a significant degree of risk, including, without limitation: (i) the SPAC may not successfully complete a business combination transaction prior to the deadline disclosed in the SEC Reports; (ii) an investment in the SPAC is speculative, and only Persons who can afford the loss of their entire investment should consider investing in the SPAC; (iii) the Buyer may not be able to liquidate its investment; (iv) transferability of the Purchased Founder Shares is extremely limited; (v) the Buyer could sustain the loss of its entire investment; (vi) the SPAC has no paid any distributions or dividends on the Purchased Founder Shares since inception and does not anticipate the payment of dividends in the foreseeable future; and (vii) that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Purchased Founder Shares or the fairness or suitability of the investment in the Purchased Founder Shares nor have such authorities passed upon or endorsed the merits of the Contemplated Transactions.
5.9 No Inducement or Reliance; Independent Assessment.
Buyer has not been induced by and has not relied upon any representations, warranties or statements, whether express or implied, made by each Seller, the SPAC or any of their respective Affiliates, officers, managers, directors, employees, agents or Representatives (collectively, the “Company Parties”), except for the representations and warranties expressly set forth in Article III and Article IV, whether or not any such representations, warranties or statements were made in writing or orally. Buyer represents and warrants that Company has not made, and that Buyer has not relied or is not relying upon, any representation or warranty, express or implied, oral or written, as to the accuracy or completeness of any information regarding the Company or the Contemplated Transactions except for the representations and warranties of the Sellers and the SPAC expressly set forth in Article III and Article IV, and, absent Fraud, the Company will not have or be subject to any liability to Buyer or any other Person resulting from the distribution to Buyer or its Representatives, or the use by Buyer or its Representatives, of any information, including publications, any confidential information memorandum or data room information provided to Buyer or its Representatives, or any other document or information in any form provided to Buyer or its Representatives in connection with the Contemplated Transactions. Buyer acknowledges that it has inspected and conducted, to its satisfaction, its own independent investigation of the Company and, in entering into this Agreement, Xxxxx has relied on the results of its own independent investigation and analysis. Buyer further represents that it has no need for liquidity in its investment in the Purchased Founder Shares for the foreseeable future and is able to bear the risks attendant to the transactions contemplated hereby for an indefinite period.
ARTICLE VI
Covenants
6.1 Operating Expenses.
Except as set forth on Schedule II, the Buyer shall be responsible for all (i) costs, fees and expenses of the SPAC from and after the Closing Date, including, but not limited to those costs, fees and expenses set forth on Schedule II and (ii) those costs, fees and expenses incurred by the Buyer in connection with this transaction. For the avoidance of doubt, no Seller nor any of its Affiliates shall be responsible in any way for costs, fees and expenses of the SPAC after the Closing Date except as set forth on Schedule II.
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6.2 Sponsor and SPAC Transition Reporting.
(a) As of the Closing, the Buyer shall take, or shall cause the Sponsor and the SPAC to take, all commercially reasonable steps to change the address of the SPAC to that of Buyer. In connection therewith, the Administrative Services Agreement, dated December 14, 2021, between the SPAC and the BFAC Sponsor shall be terminated effective as of the Closing and no further payments or accruals of payments shall be made pursuant to that agreement.
(b) Within four (4) Business Days after the Closing, the Buyer shall cause SPAC to file with the Securities and Exchange Commission (“SEC”) a Current Report on Form 8-K disclosing the following in the manner required by rules promulgated by the SEC:
(i) the completion of the Contemplated Transactions;
(ii) the resignation and appointment of new officers and directors of the SPAC which have resigned or been appointed prior to such date; and
(iii) such other material information required to be publicly disclosed pursuant to the rules and regulations of the SEC and the NYSE.
6.3 Public Announcements.
The initial press release regarding this Agreement and the Contemplated Transactions shall be made at such time and in such form as Buyer and the Sellers agree. None of the Buyer, any Seller or the SPAC (nor any of their respective Affiliates) will issue or make any prior or subsequent press release or public statement with respect to this Agreement or the Contemplated Transactions without the prior consent of the other Parties, which consent shall not be unreasonably withheld, except as may be required by Law or stock exchange listing requirements.
6.4 D&O Indemnification and Insurance.
The Buyer and SPAC agree that before entering into any business combination agreement, such agreement will include an obligation on the part of the surviving public company to honor all pre-closing indemnification agreements of the SPAC, including those in effect with the resigning officers and directors listed on Schedule I hereto. Each resigning officer and director listed on Schedule I hereto is a third party beneficiary of this section. Additionally, the Buyer shall cause any business combination agreement the SPAC enters into to contain an obligation on the part of the parties thereto to obtain a customary “tail” directors’ and officers’ liability insurance policy covering, among other individuals as determined by such parties, the resigning officers and directors listed on Schedule I hereto, and providing for coverage in amount and scope at least as favorable as directors’ and officers’ liability insurance policy coverage for officers and directors of the SPAC that are appointed on or after the Closing Date. The Buyer shall cause any agreement for a Business Combination to contain an obligation on the part of the target business and other applicable parties thereto to provide for directors’ and officers’ liability insurance policy coverage that complies with this Section 6.4.
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6.5 Non-Redemption Transfers.
At the closing of the SPAC’s Business Combination, the Sponsors shall transfer, or cause to be transferred, an aggregate amount of 1,000,100 Class B ordinary shares of the SPAC pursuant to the terms and conditions of the Non-Redemption Agreements, duly executed by the Sponsors, SPAC and the third parties party thereto.
6.6 Right of First Refusal.
In the event that Buyer proposes to cause the dissolution and liquidation of the SPAC prior to the consummation of a business combination, the Buyer shall first offer the Sellers the right to acquire their Pro Rata Percentage of ninety (90%) the Purchased Founder Shares (the “Offered Founder Shares”) for no additional consideration, by delivering written notice to the Sellers stating, (a) Buyer’s bona fide intention to dissolve and liquidate the SPAC prior to the consummation of a business combination, and (ii) the number of Founder Shares to be transferred (the “Liquidation Notice”). Upon receipt of the Liquidation Notice, each Seller will have a period of fifteen (15) days within which to exercise its right to purchase the Offered Founder Shares. Any such transfer shall be completed within thirty (30) days after the Buyer’s delivery of the Liquidation Notice to the Sellers. In connection with any such transfer of the Offered Founder Shares, any promissory note issued by the SPAC to the Buyer or any of its affiliates shall also be required to be forfeited, cancelled and terminated for no consideration. Following such transfer, neither Buyer nor any of its Affiliates shall be responsible in any way for any costs, fees or expenses of the SPAC.
ARTICLE VII
Miscellaneous
7.1 Expenses.
Other than as set forth in Section 6.1, all fees and expenses incurred in connection with the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Contemplated Transactions are consummated.
7.2 Notices.
All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and made (a) as of the date delivered, if delivered personally, (b) upon being transmitted by way of email to the email address shown in this Section 7.2; provided, that a copy must also be deposited in accordance with the procedures set forth in clauses (c) or (d) of this Section 7.2 on the same day as such transmission by email, (c) one (1) Business Day after being sent by overnight courier or delivery service, or (d) five (5) Business Days after having been deposited in the mail, certified or registered (with receipt requested) and postage prepaid, addressed at the address shown in this Section 7.2 for, or such other address as may be designated in writing hereafter by, such Party:
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If to the Sellers:
Battery Future Sponsor LLC
00 XX 00xx Xxxxxx, Xxxxx 000
Miami, Florida 33127
Attn: Xxxx Xxxxx
Email:
Pala Investments Limited
Xxxxxxxxxxxxxxx 00
6300 Zug, Switzerland
Attn: Xxxxx Xxxxxxxxx
Email:
With a copy (which shall not constitute notice) to:
Winston & Xxxxxx LLP
00 Xxxx Xxxxxx Xxxxx
Chicago, IL 60601
Phone: (000) 000-0000
Attention: Xxxx X. Xxxx
Email:
If to Buyer:
Camel Bay, LLC
8 The Green
STE 15614
Dover, DE 19901
Attn: Xxxx Xxx
Email:
With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Floor
New York, NY 10174
Attn: Xxxxx Xxxx Xxxxxx; Xxxxxxx X. Xxxxxxx
Email:
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7.3 Governing Law.
All matters relating to the interpretation, construction, validity and enforcement of this Agreement, including all claims (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement or the transactions contemplated hereby (including any claim or cause of action based upon, arising out of, or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by and construed in accordance with the domestic Laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than the State of New York.
7.4 Entire Agreement; No Other Representations.
This Agreement, together with the exhibits and schedules hereto, and the Ancillary Documents, constitute the entire agreement of the Parties relating to the subject matter hereof and supersede all prior contracts or agreements, whether oral or written.
7.5 Severability.
Should any provision of this Agreement or the application thereof to any Person or circumstance be held invalid or unenforceable to any extent: (a) such provision shall be ineffective to the extent, and only to the extent, of such unenforceability or prohibition and shall be enforced to the greatest extent permitted by Law, (b) such unenforceability or prohibition in any jurisdiction shall not invalidate or render unenforceable such provision as applied (i) to other Persons or circumstances or (ii) in any other jurisdiction, and (c) such unenforceability or prohibition shall not affect or invalidate any other provision of this Agreement.
7.6 Amendment.
This Agreement may be amended at any time, but subject to the limitations of applicable Law, only by an instrument signed by Xxxxx, SPAC and the Sellers. Any provision hereof may be waived only by an instrument signed by each Party benefited by such provision.
7.7 Effect of Waiver or Consent.
No waiver or consent, express or implied, by any Party to or of any breach or default by any Party in the performance by such party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such party of the same or any other obligations of such Party hereunder. No single or partial exercise of any right or power, or any abandonment or discontinuance of steps to enforce any right or power, shall preclude any other or further exercise thereof or the exercise of any other right or power. Failure on the part of a Party to complain of any act of any Party or to declare any Party in default, irrespective of how long such failure continues, shall not constitute a waiver by such Party of its rights hereunder until the applicable statute of limitation period has run.
7.8 Parties in Interest; Limitation on Rights of Others.
The terms of this Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective legal Representatives, successors and permitted assigns. Nothing in this Agreement, whether express or implied, shall be construed to give any Person (other than the Parties and their respective legal Representatives, successors and permitted assigns and as expressly provided herein) any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenants, conditions or provisions contained herein, as a third party beneficiary or otherwise.
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7.9 Assignability.
No assignment of this Agreement or of any rights or obligations hereunder may be made by any Party, directly or indirectly (by operation of Law or otherwise), without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void; provided, however, that Buyer shall be entitled to assign its rights and obligations hereunder to an Affiliate or Affiliate(s) of Buyer.
7.10 Jurisdiction; Court Proceedings; Waiver of Jury Trial.
Any Litigation involving any Party to this Agreement arising out of or in any way relating to this Agreement shall be brought exclusively in any state or federal court located in the State of New York (together with the appellate courts thereof, the “Chosen Courts”) and each of the Parties hereby submits to the exclusive jurisdiction of the Chosen Courts for the purpose of any such Litigation. Each Party irrevocably and unconditionally agrees not to assert (a) any objection which it may ever have to the laying of venue of any such Litigation in any Chosen Court, (b) any claim that any such Litigation brought in any Chosen Court has been brought in an inconvenient forum and (c) any claim that any Chosen Court does not have jurisdiction with respect to such Litigation. To the extent that service of process by mail is permitted by applicable Law, each Party irrevocably consents to the service of process in any such proceeding in such courts by the mailing of such process by registered or certified mail, postage prepaid, at its address for notices provided for herein.
Each Party irrevocably and unconditionally waives any right to a trial by jury in any Litigation arising out of or relating to this Agreement or the Contemplated Transactions, whether now existing or hereafter arising, and whether sounding in contract, tort or otherwise, and agrees that any of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained-for agreement among the Parties irrevocably to waive its right to trial by jury in any Litigation and that any Litigation relating to this Agreement or the Contemplated Transactions shall instead be tried in a court of competent jurisdiction by a judge sitting without a jury.
7.11 No Other Duties.
The only duties and obligations of the Parties under this Agreement are as specifically set forth in this Agreement, and no other duties or obligations shall be implied in fact, law or equity, or under any principle of fiduciary obligation.
7.12 Reliance on Counsel and Other Advisors.
Each Party has consulted such legal, financial, technical or other expert as it deems necessary or desirable before entering into this Agreement. Each Party represents and warrants that it has read, knows, understands and agrees with the terms and conditions of this Agreement.
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7.13 Specific Performance.
The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Parties agree that, in addition to any other remedies, each Party shall be entitled to enforce the terms of this Agreement by a decree of specific performance.
7.14 Release.
(a) Release of Seller. Each of SPAC and Buyer, for itself and each of its direct and indirect affiliates, parent corporations, subsidiaries, subdivisions, successors, predecessors, members, shareholders and assigns (collectively the “SPAC and Buyer Releasors”), hereby (i) releases, acquits and forever discharges the resigning directors and officer listed on Schedule I and each Seller and each of its direct and indirect affiliates, parents, subsidiaries, subdivisions, successors, predecessors, members, shareholders, and assigns, and their present and former officers, directors, legal representatives, employees, agents and attorneys, and their heirs, executors, administrators, trustees, successors and assigns (the parties so released, herein each a “Seller Releasee” and collectively, the “Seller Releasees”) of and from any and all causes of actions, claims, suits, liens, losses, damages, judgments, demands, liabilities, rights, obligations, costs, expenses, and attorneys’ fees of every nature, kind and description whatsoever, at law or in equity, whether individual, class or derivative in nature, whether based on federal, state or foreign law or right of action, mature or unmatured, accrued or not accrued, known or unknown, fixed or contingent, which the SPAC and Buyer Releasors ever had, now have or hereafter can, shall or may have against any Seller Releasees relating to the SPAC that accrued or may have accrued prior to the date hereof (collectively, the “Seller Released Claims”) and (ii) covenants not to institute, maintain or prosecute any action, claim, suit, complaint, proceeding or cause of action or any kind to enforce any of the Seller Released Claims; provided that nothing contained in this Section 7.14(a) shall release, waive, discharge, relinquish or otherwise affect the rights or obligations of any Person with respect to claims involving (x) Fraud, and (y) the breach of any representation or warranty or the breach of any covenant of a Seller Releasee under this Agreement or the Ancillary Documents or any other continuing agreements between such Seller Releasee and the SPAC; provided, further, that none of the SPAC and Buyer Releasors shall be entitled to recovery for any Losses sustained as a result of, in connection with or relating to such breaches of this Agreement (or any Ancillary Documents) unless and until the amount of all such Losses exceeds $100,000. In any litigation arising from or related to an alleged breach of this Section, this Agreement may be pleaded as a defense, counterclaim or crossclaim, and shall be admissible into evidence. Each SPAC and Buyer Releasor expressly covenants and agrees that the release granted by it in this Section shall be binding in all respects upon the SPAC and Buyer Releasors and shall inure to the benefit of the successors and assigns of the Seller Releasees, and agrees that the Seller Releasees shall have no further liabilities or obligations to the SPAC and Buyer Releasors, except as provided in this Agreement. Excluded from the foregoing releases are any claims relating to or arising from the enforcement of this Agreement.
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(b) Release of Buyer and SPAC. Each Seller, for itself and each of its direct and indirect affiliates, parent corporations, subsidiaries, subdivisions, successors, predecessors, members, shareholders and assigns (collectively the “Seller Releasors”), hereby (i) releases, acquits and forever discharges Buyer and SPAC and each of its respective direct and indirect affiliates, parents, subsidiaries, subdivisions, successors, predecessors, members, shareholders, and assigns, and their present and former officers, directors, legal representatives, employees, agents and attorneys, and their heirs, executors, administrators, trustees, successors and assigns (the parties so released, herein each a “Buyer Releasee” and collectively, the “Buyer Releasees”) of and from any and all causes of actions, claims, suits, liens, losses, damages, judgments, demands, liabilities, rights, obligations, costs, expenses, and attorneys’ fees of every nature, kind and description whatsoever, at law or in equity, whether individual, class or derivative in nature, whether based on federal, state or foreign law or right of action, mature or unmatured, accrued or not accrued, known or unknown, fixed or contingent, which the Seller Releasors ever had, now have or hereafter can, shall or may have against any Buyer Releasees by reason of any matter, cause or thing whatsoever relating to the SPAC (collectively, the “Buyer Released Claims”) and (ii) covenants not to institute, maintain or prosecute any action, claim, suit, complaint, proceeding or cause of action or any kind to enforce any of the Buyer Released Claims; provided that nothing contained in this Section 7.14(b) shall release, waive, discharge, relinquish or otherwise affect the rights or obligations of any Person with respect to claims involving (x) Fraud, and (y) the breach of any representation or warranty or the breach of any covenant of a Buyer Releasee under this Agreement, the Ancillary Documents or claims against the SPAC for indemnification as directors or officers of the SPAC; provided, further, that, except in the case of any indemnification claims in the capacity as a director or officer of the SPAC or pursuant to a breach of Section 6.4 of this Agreement, none of the Seller Releasors shall be entitled to recovery for any Losses sustained as a result of, in connection with or relating to such breaches of this Agreement (or any Ancillary Documents) unless and until the amount of all such Losses exceeds $100,000. In any litigation arising from or related to an alleged breach of this Section, this Agreement may be pleaded as a defense, counterclaim or crossclaim, and shall be admissible into evidence. Each Seller Releasor expressly covenants and agrees that the release granted by it in this Section shall be binding in all respects upon the Seller Releasors and shall inure to the benefit of the successors and assigns of the Buyer Releasees, and agrees that the Buyer Releasees shall have no further liabilities or obligations to the Seller Releasors, except as provided in this Agreement. Excluded from the foregoing releases are any claims relating to or arising from the enforcement of this Agreement.
7.15 Counterparts.
This Agreement may be executed in any number of counterparts (including counterparts transmitted via facsimile or in .pdf, DocuSign or similar format) with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.
7.16 Further Assurance.
If at any time after the Closing any further action is necessary or desirable to fully effect the Contemplated Transactions, the Parties shall take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be duly executed and delivered in its name and on its behalf, all as of the day and year first above written.
| BUYER:
CAMEL BAY, LLC | ||||
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| By: | /s/ Xxxx Xxx | |||
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| Name: | Xxxx Xxx | ||
| Title: | Managing Member | |||
[Signature Page to Share Purchase Agreement]
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be duly executed and delivered in its name and on its behalf, all as of the day and year first above written.
| SELLERS:
BATTERY FUTURE SPONSOR LLC | |||
| By: | /s/ Xxxx Xxxxx | ||
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| Name: | Xxxx Xxxxx | |
| Title: | Managing Member | ||
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|
|
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| PALA INVESTMENTS LIMITED | |||
| By: | /s/ Xxxxxxx Xxxx | ||
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| Name: | Xxxxxxx Xxxx | |
| Title: | Director | ||
[Signature Page to Share Purchase Agreement]
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be duly executed and delivered in its name and on its behalf, all as of the day and year first above written.
| SPAC:
| |||
| By: | /s/ Xxxx Xxxxxx | ||
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| Name: | Xxxx Xxxxxx | |
| Title: | CEO | ||
[Signature Page to Share Purchase Agreement]
