UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 13, 2023
KINGSWOOD ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware |
001-39700 |
85-2432410 |
(State or other jurisdiction
of incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
17 Battery Place, Room 625
New York, New York 10004
(Address of principal executive offices, including
zip code)
Registrant’s telephone number, including
area code: (212) 404-7002
Not Applicable
(Former name or former address, if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
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Trading
Symbol(s) |
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Name
of each exchange
on which registered |
| None |
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Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
| x |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is
an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth
company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01. Entry into a Material Definitive Agreement
Amendment to Merger Agreement
As previously announced, Kingswood Acquisition
Corp., a Delaware corporation (“Kingswood”), Binah Capital Group, Inc., a Delaware corporation (“Holdings”),
Kingswood Merger Sub, Inc., a Delaware corporation (“Kingswood Merger Sub”), Wentworth Merger Sub, LLC, a Delaware
limited liability company (“Wentworth Merger Sub”), and Wentworth Management Services LLC, a Delaware limited liability
company (“Wentworth”), entered into that certain Agreement and Plan of Merger, dated July 7, 2022 (“Merger
Agreement”), which was subsequently amended, modified and supplemented by that certain Letter Agreement, dated as of December
30, 2022 and that certain First Amendment to Merger Agreement, dated March 20, 2023 (the Merger Agreement, as so amended, modified and
supplemented the “Existing Merger Agreement”). Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Existing Merger Agreement, as further amended, modified, supplemented and/or restated by the Second Amendment
(as defined below).
On September 13, 2023, Kingswood, Holdings, Kingswood Merger Sub, Wentworth
Merger Sub and Wentworth entered into the Second Amendment to Agreement and Plan of Merger (the “Second Amendment”)
which further amends, modifies, and supplements the Existing Merger Agreement to, among other things:
| · | To add definitions for (x) “Additional Sponsor Loans” to mean an additional $250,000 to be loaned to Kingswood by Sponsor
or an Affiliate of Sponsor between the date of the Second Amendment and the Closing Date; and (y) “Additional Shares of Holdings
Common Stock” to mean 1,100,000 shares of Holdings Common Stock to be issued to those certain holders of Continuing Company Units
in the amounts determined by the Company and provided to Kingswood and Holdings in writing prior to the filing of the final amendment
to the Form S-4; |
| · | To amend the definition of “Company Merger Consideration” to mean (i) 12,000,000 shares of Holdings Common Stock at the
Per Share Price (excluding any amount of Holdings Warrants issued or issuable to Continuing Company Unit Holders), plus (ii) the Additional
Shares of Holdings Common Stock; |
| · | To delete the definitions of “Converted Company Debt Amount” and “Minimum Company Share Amount” and references
to such terms in the Existing Merger Agreement; |
| · | To amend and restate Section 2.09(d)(i) to provide for the forfeiture by Kingswood Global Sponsor, LLC (“Sponsor”)
of 3,084,450 SPAC Private Placement Warrants immediately prior to the Effective Time; |
| · | To amend Section 2.09(b) to provide for the escrow (or at Sponsor’s option, forfeiture) of 1,100,000 shares of Holdings Common
Stock that would otherwise be issued to Sponsor in respect of its SPAC Common Stock at Closing and the release of such shares (or in the
case of forfeiture, reissuance of an equal number of shares) to Sponsor if the VWAP of Holdings Common Stock exceeds $12.00 for 20 trading
days within any 30-day trading period during the four-year period following Closing; |
| · | To amend Section 2.11(d) to provide that (i) the Additional Shares of Holdings Common Stock will not be subject to the Lock-Up Agreement
(as defined in the Merger Agreement), and (ii) Craig Gould has the ability to release PPD Group, LCC and/or Wentworth Funding, LLC (or
any of their ultimate beneficial owners who receive Holdings Common Stock) and the Holdings Common Stock owned by such holders from the
obligations under the Lock-Up Agreement to the extent necessary to cause Holdings to satisfy the initial listing requirements of the National
Exchange upon which the Holdings Common Stock has applied to be listed; |
| · | To amend Section 2.16 to provide that if the Closing does not occur then SPAC shall promptly reimburse the Company the amount of such
SPAC Extension Costs and if Closing does not occur due to the SPAC’s failure to satisfy any of the conditions precedent to Closing
that are reasonably with the control of SPAC, SPAC shall reimburse and pay to the Company up to $150,000 of costs and other expenses actually
reimbursed by Wentworth to the prospective purchaser of the Series A PIPE; |
| · | To further amend Section 2.16 to provide Wentworth with the option to cause the outstanding Sponsor Loans and Additional Sponsor Loans
to be repaid by Holdings at the Closing either (A) through the issuance of shares of Holdings Common Stock of equal value, or (B) in immediately
available funds, provided, however, that in case of clause (B) Sponsor will be required to surrender a number of shares of Holdings Common
Stock of equal value otherwise issuable to it in connection with the Closing; |
| · | To further amend Section 2.16 to require the Outstanding SPAC Expenses incurred by Kingswood in connection with any prior business
combination not consummated by Kinsgswood (“Prior Expenses”) to be allocated to the holders of shares of SPAC Class
B Common Stock (“Founders”) on a pro-rata basis, and be repaid by (A) such Founder in exchange for the issuance to
such Founder a number of shares of Holdings Common Stock of equal value, or (B) Holdings in exchange for such Founder’s surrender
of a number of shares of Holdings Common Stock of equal value; |
| · | To further amend Section 2.16 to provide Wentworth the option (subject to the prior written consent of Kingswood) to pay any Outstanding
Company Expenses owed to unrelated third parties prior to the Closing, in exchange for the issuance of number of additional shares of
Holdings Common Stock of equal value; |
| · | To amend and restate the covenants and agreements in Section 7.10 to (A) require each of Wentworth, Kingswood and Holdings to use
their commercially reasonable best efforts to enter into and consummate subscription agreements with investors relating to a private placement
of shares in Wentworth, Kingswood and/or Holdings, and/or the entry into backstop arrangements with potential investors, and (B) acknowledge
and agree that the proposed issuance and sale by Holdings at Closing of up to 1,500,000 Series A Convertible Preferred Stock of Holdings
on the terms set forth on the term sheet dated August 9, 2023 has been agreed upon by each of Wentworth, Kingswood and Holdings; |
| · | To amend and restate the closing condition in Section 8.03(h) to require the Sponsor Loans and Additional Sponsor Loans be paid in
full prior to or substantially concurrently with the Closing; |
| · | To amend and restate the closing condition in Section 8.03(k) to
require the Available Closing Date Cash not be less than $14,000,000; |
| · | To amend and restate the closing condition in Section 8.03(l) to
require the Company Merger Consideration to be issued prior to or substantially concurrently with the Closing; |
| · | To amend the definition of “Termination Date” by replacing “June 30, 2023” with “November 24, 2023;
and |
| · | To amend and restate the termination rights in Section 9.01(c) to allow for the termination of the Merger Agreement if the conditions
specified in Section 8.03(k) and 8.03(l) are not capable of being satisfied at the Closing. |
Other than as expressly modified by the Second Amendment, the Existing
Merger Agreement remains in full force and effect.
The foregoing descriptions of the Second Amendment and the Existing
Merger Agreement do not purport to be complete and are qualified in their entirety by reference to (i) the full text of the Second Amendment,
which is filed as Exhibit 10.1 hereto and is incorporated herein by reference, (ii) the full text of Agreement and Plan of Merger, dated
July 7, 2022, which was filed as Exhibit 2.1 to the Current Report on Form 8-K and filed by Kingswood with the Securities and Exchange
Commission on July 7, 2022, (iii) the full text of that certain Letter Agreement, dated as of December 30, 2022, which was filed as Exhibit
10.1 to the Current Report on Form 8-K filed by Kingswood with the Securities and Exchange Commission on January 4, 2023, and (iv) the
full text of that certain First Amendment to Merger Agreement, dated as of March 20, 2023, which was filed as Exhibit 10.1 to the Current
Report on Form 8-K filed by Kingswood with the Securities and Exchange Commission on March 20, 2023.
About Kingswood Acquisition Corp.
Kingswood is a blank check company incorporated
under the laws of the State of Delaware on July 27, 2020, for the purpose of effecting a merger, share exchange, asset acquisition, stock
purchase, recapitalization, reorganization, or similar business combination with one or more businesses, which we refer to as our initial
business combination. While we may pursue our initial business combination target in any stage of its corporate evolution or in any industry
or sector, we are focusing our search on companies with favorable growth prospects and attractive returns on invested capital.
Additional Information and Where to Find It
This Current Report on Form 8-K relates to a proposed
transaction between Kingswood, Holdings, Kingswood Merger Sub, Wentworth Merger Sub and Wentworth. In connection with the transaction
described herein, Kingswood and Wentworth intend to cause Holdings, to file relevant materials with the SEC, including a proxy statement/prospectus.
The proxy statement/prospectus will be sent to all Kingswood stockholders. Kingswood and Holdings will also file other documents regarding
the proposed transaction with the SEC. Before making any voting or investment decision, investors and security holders of Kingswood are
urged to read the S-4 Registration Statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed
with the SEC in connection with the proposed transaction as they become available because they will contain important information about
the proposed transaction.
Investors and security holders will be able to
obtain free copies of the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by the
Company through the website maintained by the SEC at www.sec.gov or by directing a request to the Company at Michael Nessim, Chief Executive
Officer, Kingswood Acquisition Corp., Email: mnessim@kingswoodus.com, (212) 404-7002.
Participants in the Solicitation
Kingswood, Holdings, Kingswood Merger Sub, Wentworth
Merger Sub, Wentworth and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies
from the Kingswood’s stockholders in connection with the proposed transaction. Information about the Kingswood’s directors
and executive officers and their ownership of the Company’s securities is set forth in the Kingswood’s filings with the SEC.
Additional information regarding the interests of those persons and other persons who may be deemed participants in the proposed transaction
may be obtained by reading the proxy statement/prospectus regarding the proposed transaction when it becomes available. You may obtain
free copies of these documents as described in the preceding paragraph.
Non-Solicitation
This Current Report on Form 8-K is not a proxy
statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the potential transaction
and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of the Kingswood, Holdings, Kingswood Merger
Sub, Wentworth Merger Sub or Wentworth, nor shall there be any sale of any such securities in any state or jurisdiction in which such
offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction.
No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended.
Item 9.01. Financial Statements and Exhibits.
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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KINGSWOOD ACQUISITION CORP. |
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By: |
/s/ Michael Nessim |
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Name: Michael Nessim |
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Title: Chief Executive Officer |
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| Dated: September 18, 2023 |
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Exhibit 10.1
Execution Version
SECOND AMENDMENT TO AGREEMENT
AND PLAN OF MERGER
This Second Amendment to Agreement
and Plan of Merger (this “Amendment”), dated as of September 13, 2023, is made and entered into by and among Kingswood
Acquisition Corp., a Delaware corporation (“SPAC”), Binah Capital Group, Inc., a Delaware corporation (“Holdings”),
Kingswood Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Holdings (“KWAC Merger Sub”), Wentworth
Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Holdings (“WW Merger Sub”),
and Wentworth Management Services LLC, a Delaware limited liability company (the “Company”). Each of SPAC, Holdings,
KWAC Merger Sub, WW Merger Sub, and the Company is sometimes referred to herein, individually, as a “Party” and collectively
as the “Parties”.
WHEREAS, SPAC, Holdings,
KWAC Merger Sub, WW Merger Sub, and the Company, entered into that certain Agreement and Plan of Merger, dated as of July 7, 2022 (the
“Original Agreement”);
WHEREAS, the Original
Agreement was amended and modified by that (i) certain Consent and Acknowledgement of Merger Agreement Letter Agreement, dated as of December
30, 2022, by and between the Parties, and (ii) certain First Amendment to Agreement and Plan of Merger, dated March 20, 2023, by and between
the Parties (the Original Agreement, as so amended and modified, the “Existing Agreement”);
WHEREAS, capitalized
terms used herein but not defined herein shall have the meanings ascribed thereto in the Existing Agreement; and
WHEREAS, Section 10.10
of the Existing Agreement provides that the Existing Agreement may not be amended or modified except by an instrument in writing signed
in the same manner as the Existing Agreement; and
WHEREAS, the Parties
wish to further amend the Existing Agreement as set forth herein.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged,
the Parties, intending to be legally bound, agree as follows:
1.
Amendments.
(a)
Section 1.01 of the Existing Agreement is hereby amended by adding the following definitions in alphabetic order:
“Additional
Sponsor Loans” means an additional $250,000 to be loaned to SPAC by Sponsor or an Affiliate of Sponsor between the date hereof
and the Closing Date, plus all accrued and unpaid interest and other charges thereon through the Closing Date. The aggregate amount of
Additional Sponsor Loans outstanding on the Closing Date (including all accrued and unpaid interest) will be set forth on a certificate
to be delivered to the Company by Sponsor and SPAC at least five (5) days prior to the Closing Date.”
“Additional
Shares of Holdings Common Stock” means 1,100,000 shares of Holdings Common Stock to be issued to certain holders of the Continuing
Company Units in the amounts determined by the Company and provided to SPAC and Holdings in writing prior to the filing of the final amendment
to the Form S-4 (the “Additional Shares Allocation Schedule”).
(b)
The definition of “Company Merger Consideration” in Section 1.01 of the Existing Agreement is hereby amended and restated
in its entirety as follows:
““Company
Merger Consideration” means (i) 12,000,000 shares of Holdings Common Stock at the Per Share Price (excluding any amount of Holdings
Warrants issued or issuable to Continuing Company Unit Holders), plus (ii) the Additional Shares of Holdings Common Stock.”
(c)
The definition of “Converted Company Debt Amount” in Section 1.01 of the Existing Agreement is hereby deleted in its
entirety.
(d)
The definition of “Indebtedness” in Section 1.01 of the Existing Agreement is hereby amended by adding the phrase “or
Additional Sponsor Loans” immediately before the period in the last sentence thereof.
(e)
The definition of “Minimum Company Share Amount” in Section 1.01 of the Existing Agreement is hereby deleted in its
entirety.
(f)
Section 2.14 of the Existing Agreement is hereby amended by deleting the phrase “(including the calculation of the Company
Converted Debt and the Minimum Company Share Amount)” therein.
(g)
The definition of “Sponsor Loans” in Section 1.01 of the Existing Agreement is hereby amended by adding the following
sentence immediately following the period in the last sentence thereof:
“For the avoidance
of doubt, “Sponsor Loans” shall not include any Additional Sponsor Loan.”
(h)
Section 6.03(a)(vii) of the Existing Agreement is hereby amended by inserting the phrase “except for Additional Sponsor Loans,”
immediately before the word “incur”.
(i)
Section 2.08 of the Existing Agreement is hereby amended by adding the words “;provided, however, that notwithstanding
anything to the contrary contained in this Section 2.08 or in this Agreement, the Additional Shares of Holdings Common Stock shall
be issued to the applicable holders of the Continuing Company Units in the amounts set forth on the Additional Shares Allocation Schedule”
immediately before the period in the last sentence thereof.
(j)
Section 2.09(d)(i) of the Existing Agreement is hereby amended and restated in its entirety as follows:
“(i) Forfeiture
of Certain SPAC Private Placement Warrants. Immediately prior to the Effective Time, 3,084,450 SPAC Private Placement Warrants held
by Sponsor shall be forfeited.”
(k)
Section 2.09(d)(ii) of the Existing Agreement is hereby amended by deleting the words “Support Holders” therein.
(l)
Section 2.09(d)(iii) of the Existing Agreement is hereby amended by deleting the words “fifty percent (50%)” and replacing
with the words “one hundred percent (100%)”.
(m)
Section 2.09(b) of the Existing Agreement is hereby amended by inserting the following immediately following the period in the
last sentence thereof:
“Notwithstanding
anything to the contrary in this Section 2.09, at the Effective Time:
(i)
1,100,000 shares of Holdings Common Stock issued to Sponsor in respect of its SPAC Common Stock shall be, at the election of Sponsor,
either (A) forfeited by Sponsor, or (B) placed by Holdings into an escrow account maintained by an escrow agent pursuant to an escrow
agreement, in each case, mutually agreeable to Sponsor and Holdings (such shares, the “Escrowed Shares”). If the VWAP
of Holdings Common Stock exceeds $12.00 for 20 trading days within any 30-day trading period during the four-year period following Closing
(the “VWAP Condition”), then (x) in the case of clause (A) above, Holdings promptly shall issue to Sponsor or
its designees or successors 1,100,000 shares of Holdings Common Stock for no additional consideration, or (y) in the case of clause
(B) above, Holdings and Sponsor promptly shall cause the Escrowed Shares to be released to Sponsor or its designees or successors
from the escrow account. As used herein, “VWAP” means, for any security as of any date(s), the dollar volume-weighted
average price for such security on the principal securities exchange or securities market on which such security is then traded during
the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP”
function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the
over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time,
and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such
security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market
makers for such security as reported by OTC Markets Group Inc. If the VWAP Condition is not satisfied at any time during the four-year
period following Closing, the Escrowed Shares shall be forfeited automatically by Sponsor (or its designees or successors) on the fourth
anniversary of the Closing.
(ii) The
number of shares of Holdings Common Stock to be issued to Sponsor (and/or certain Founders (as defined below)) in connection with
the consummation of the Transaction shall be further adjusted in accordance with Section 2.16(b), as applicable.”
(n)
Section 2.11(d) of the Existing Agreement is hereby amended by adding the following sentence immediately following the period in
the last sentence thereof:
“Notwithstanding
anything to the contrary contained herein, each of the Parties agrees and acknowledges that (i) none of the Additional Shares of Holdings
Common Stock shall be subject to the Lock-Up Agreement, and (ii) Craig Gould, in his capacity as an executive officer of Holdings following
the Closing, shall, in his reasonable discretion, have the ability to release PPD Group, LCC and/or Wentworth Funding, LLC (or any of
their ultimate beneficial owners who receive Holdings Common Stock) and the Holdings Common Stock owned by such holders from the obligations
under the Lock-Up Agreement, including without limitation, the lock-up period contained therein to the extent necessary to cause Holdings
to satisfy the initial listing requirements of the National Exchange upon which the Holdings Common Stock has applied to be listed.”
(o)
Section 2.12 of the Existing Agreement is hereby amended by deleting the last sentence thereof.
(p)
Section 2.16 of the Existing Agreement is hereby amended and restated in its entity as follows:
“2.16 Payment
of Expenses.
(a) Except
as otherwise set forth in this Agreement, each Party shall be responsible for and pay its own expenses incurred in connection with this
Agreement and the transactions contemplated hereby, including all fees of its advisors, legal counsel, accountants, consultants, experts
and financial advisers. Except as otherwise set forth in this Agreement, if the Closing shall occur, Holdings shall use the Available
Closing Date Cash to (x) pay or cause to be paid or reimbursed, all current and pre-existing transaction expenses of the Company, including
the fees and expenses of legal counsel, financial advisers and accountants employed by the Company in connection with the Transaction
(collectively, the “Outstanding Company Expenses”), and (y) pay or cause to be paid, all current and pre-existing transaction
expenses of the Sponsor, including the fees and expenses of advisors, legal counsel, accountants, consultants, experts and financial advisers
employed by the Sponsor in connection with the Transaction or any other potential transactions considered by the Sponsor and all current
and pre-existing transaction expenses of the SPAC, including the fees and expenses of any advisors, legal counsel, accountants, consultants,
experts and financial advisers employed by the SPAC in connection with the Transaction or any other potential transactions considered
by the SPAC and all premium costs for directors’ and officers’ liability insurance (including for any “tail” policy
required under Section 6.02(b)) (“Outstanding SPAC Expenses” and, collectively with Outstanding Company Expenses, the
“Outstanding Transaction Expenses”); provided, that any and all payments described in this Section 2.16 shall first
be satisfied from the Available Closing Date Cash; provided, further that if the condition to Closing in Section 8.03(k)
is not met, but validly waived by the Company and the Closing occurs, Holdings shall assume or otherwise be responsible for any Transaction
Expenses Shortfall. Without limiting the generality of the foregoing, the Parties acknowledge and agree that if the Closing does not occur
on or prior to November 23, 2022, (i) the Company shall pay or cause to be paid any SPAC Extension Costs from such date until the Closing,
and (ii) at the Closing, Holdings shall assume and pay all SPAC Extension Costs; provided, however, that if the Closing
does not occur for any reason, then SPAC shall promptly reimburse and pay to the Company the amount of such any SPAC Extension Costs paid
by the Company during such period. Additionally, if the Closing does not occur, as a result of SPAC’s failure to satisfy any of
the conditions precedent to Closing set forth in Article VIII that are reasonably with the control of SPAC, SPAC shall reimburse
and pay to the Company up to $150,000 of costs and other expenses actually reimbursed and paid by the Company to the prospective purchaser
of the Series A PIPE.
(b) Notwithstanding
anything to the contrary in Section 2.16(a):
(i) the
outstanding Sponsor Loans and Additional Sponsor Loans shall be repaid by Holdings at the Closing at the option of the Company either
by (A) issuing to Sponsor a number of fully paid and non-assessable shares of Holdings Common Stock equal to the aggregate amount of principal
and interests outstanding under such Sponsor Loans and Additional Sponsor Loans, divided by the Per Share Price, or (B) delivering to
Sponsor immediately available funds equal to the aggregate amount of principal and interests outstanding under such Sponsor Loans and
Additional Sponsor Loans; provided, that in the case of clause (B), Sponsor shall be required to surrender a number of shares of
Holdings Common Stock otherwise issuable to it equal to the aggregate amount of principal and interests outstanding under such Sponsor
Loans and Additional Sponsor Loans, divided by the Per Share Price;
(ii) the
Outstanding SPAC Expenses incurred by SPAC in connection with any business combination (other than the Transaction) not consummated by
the SPAC (the “Prior Expenses”) shall be allocated to the holders of shares of SPAC Class B Common Stock (and/or shares
of SPAC Class A Common Stock issued in exchange for such shares of SPAC Class B Common Stock) (each such holder, a “Founder”
and collectively, the “Founders”) on a pro-rata basis. Each Founder’s pro rata share of Prior Expenses outstanding
as of the Closing shall be paid (at the election of such Founder) by (A) such Founder in exchange for the issuance to such Founder of
a number of fully paid and non-assessable shares of Holdings Common Stock equal to the aggregate amount of such Prior Expenses paid by
such Founder, divided by the Per Share Price, or (B) Holdings in exchange for such Founder’s surrender of a number of shares of
Holdings Common Stock otherwise issuable to it equal to the aggregate amount of such Prior Expenses paid by the Holdings, divided by the
Per Share Price.
(iii) Subject
to the prior written consent of SPAC, to the extent the Company elects to pay any Outstanding Company Expenses owed to unrelated third
parties prior to the Closing, the holders of the Continuing Company Units shall be entitled to receive (in the aggregate) number of fully
paid and non-assessable shares of Holdings Common Stock equal to the aggregate amount of such Outstanding Company Expenses paid by the
Company prior to the Closing, divided by the Per Share Price; it being understood that such additional shares of Holdings Common Stock
will be distributed amongst the holders of Continuing Company Units pro rata.”
(q)
Section 7.10 of the Existing Agreement is hereby amended and restated in its entirety as follows:
“7.10 PIPE
Investment. Each of the Company, the SPAC and Holdings agree that each shall use their commercially reasonable best efforts to enter
into and consummate subscription agreements with investors relating to a private placement of shares (including, for the avoidance of
doubt, preferred equity) in the Company, the SPAC and/or Holdings, and/or the entry into backstop arrangements with potential investors, provided
always that the terms of any such private placement or backstop arrangement must be mutually agreeable to, and approved in advance
in writing by, each of the Company, the SPAC and Holdings (a “PIPE Investment”). Each of the Company, SPAC and Holdings
shall use, and shall cause their respective representatives to use, their respective commercially reasonable best efforts to cause such
PIPE Investment to occur, including having the senior management of the Company, the SPAC and/or Holdings participate in any investor
meetings and roadshows with respect to a PIPE Investment as reasonably requested; provided, that, any such PIPE
Investment must not adversely impact the Intended Tax Treatment. Each of the Company, the SPAC and Holdings agree that the SPAC or Holdings
may pursue a PIPE Investment on terms that are aligned with those attached as Schedule 7.10(a); provided, however,
that, notwithstanding Schedule 7.10(a) or anything to the contrary in this Agreement, the terms and conditions of any
PIPE Investment must still be agreed upon, in writing, by the Company, SPAC and Holdings prior to the offering of such PIPE Investment.
Notwithstanding the foregoing, the Company, the SPAC and Holdings acknowledges and agrees that the proposed issuance and sale by Holdings
at Closing of up to 1,500,000 Series A Convertible Preferred Stock of Holdings on the terms set forth in the term sheet dated August 9,
2023 (the “Series A PIPE”) has been agreed upon by each of Company, the SPAC and Holdings.
(r)
Section 8.03(h) of the Existing Agreement is hereby amended and restated in its entirety as follows:
“(h) Sponsor
Loans. The Sponsor Loans and Additional Sponsor Loans shall be paid in full prior to or substantially concurrently with the Closing
in accordance with Section 2.16(b)(i).”
(s)
Section 8.03(k) of the Existing Agreement is hereby amended and restated in its entirety as follows:
“(k) Available
Closing Date Cash. The Available Closing Date Cash shall not be less than $14,000,000.”
(t)
Section 8.03(l) of the Existing Agreement is hereby amended and restated in its entirety as follows:
“(l) Company
Merger Consideration. The Company Merger Consideration shall have been issued prior to or substantially concurrently with the Closing.”
(u)
The definition of “Termination Date” in Section 9.01 of the Existing Agreement is hereby amended by replacing “June
30, 2023” with “November 24, 2023”.
(v)
Section 9.01(c)(B) is hereby amended and restated in its entirety as follows:
“the condition
specified in Section 8.03(k) is not capable of being satisfied at the Closing, or”.
(w)
Section 9.01(c)(C) is hereby amended and restated in its entirety as follows:
“the condition
specified in Section 8.03(l) is not capable of being satisfied at the Closing, or”.
2.
Effect on the Existing Agreement. Other than as specifically set forth herein,
all other terms and provisions of the Existing Agreement shall remain unaffected by the terms of this Amendment and shall continue in
full force and effect in accordance with their respective terms. Each reference in the Existing Agreement to “this Agreement”
shall mean the Existing Agreement as amended by this Amendment, and as hereinafter amended or restated.
3.
Counterparts. This Amendment may be executed and delivered in one or more counterparts,
any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one
and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying
with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and effective for all purposes.
4.
Successors and Assigns. This Amendment shall be binding upon and inure solely to the benefit of the parties hereto and
their respective successors and permitted assigns.
5.
Amendment. This Amendment may not be amended or modified except by an instrument
in writing signed by, or on behalf of, all of the parties hereto.
6.
Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State.
7.
Entire Agreement. This Amendment, the Existing Agreement and the ancillary agreements
to the Existing Agreement (each as amended, modified and supplemented by this Amendment) constitute the entire agreement among the parties
hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous understandings and agreements, both written
and oral, with respect to such subject matter.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
the parties hereto have duly executed and delivered this Amendment as of the date first written above.
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KINGSWOOD ACQUISITION CORP. |
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By: |
/s/ Michael Nessim |
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Name: |
Michael Nessim |
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Title: |
Chief Executive Officer |
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BINAH CAPITAL GROUP, INC. |
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By: |
/s/ Michael Nessim |
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Name: |
Michael Nessim |
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Title: |
Chief Executive Officer |
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KINGSWOOD MERGER SUB, INC. |
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By: |
/s/ Michael Nessim |
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Name: |
Michael Nessim |
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Title: |
Chief Executive Officer |
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WENTWORTH MERGER SUB, LLC |
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By: |
/s/ Michael Nessim |
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Name: |
Michael Nessim |
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Title: |
President |
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WENTWORTH MANAGEMENT SERVICES LLC |
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By: |
/s/ Craig Gould |
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Name: |
Craig Gould |
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Title: |
President |
Kingswood Acquisition (PK) (USOTC:KWACU)
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Kingswood Acquisition (PK) (USOTC:KWACU)
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